Desai v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 211
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Desai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 211
File number(s): MLG 2306 of 2018 Judgment of: JUDGE MANSINI ` Date of judgment: 6 March 2024 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether there was a denial of procedural fairness, the decision was affected by apprehended bias or misapplication of the law – no error of jurisdiction established – application dismissed. Legislation: Migration Regulations 1994 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 30 January 2024 Date of hearing: 6 February 2024 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Mr Cunynghame ORDERS
MLG 2306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ISHAN RAJENDRABHAI DESAI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI `
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the costs of the First Respondent fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a refusal to grant his student visa application.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
On 15 July 2014, the Applicant arrived in Australia as a citizen of India and holder of a Student (Class TU) (Subclass 573) visa.
On 15 September 2016, the Applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa being the visa subject of the present application.
On 6 April 2017, a delegate of the First Respondent refused to grant the visa by reason of a finding that the Applicant did not mee the “public interest criteria 4020” proscribed at clause 500.217(1) of the Migration Regulations 1994 (Cth) (Regulations).
On review before the Tribunal, the Applicant was invited to attend a hearing (which was initially rescheduled for a later date, at his request), in advance of which he submitted: a written submission, statutory declarations from his cousin, aunt and mother; financial documents; evidence of his mother’s medical condition; the response to hearing invitation and requested that the Tribunal take evidence at the hearing from his cousin and a friend.
On 24 July 2018, the Tribunal heard the Applicant’s case and delivered an oral decision that same day. On 10 August 2018, a brief (2 page) written statement of reasons for that decision was delivered on request of the Applicant. In summary, the Tribunal found that the Applicant had provided documents that were misleading and therefore that the application did not meet public interest criteria 4020. It was determined that there were no compelling or compassionate circumstances to justify a waiver.
APPLICATION BEFORE THE COURT
On 6 August 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision. By that application, the Applicant identified 3 grounds for review in the following terms:
1.Jurisdictional error – Member of the Administrative Appeals Tribunal & Delegate of Minister misinterpreted the regulation 500.217(1) while refusing my Student visa application under the criteria in PIC 4020(1)
2.Procedural fairness- Tribunal did not consider my previously completed studies in Australia while making the decision under Regulation 500.217
3.Member of Administrative Appeals Tribunal & The Department of Immigration has exceeded its jurisdiction in that it followed the a procedure contrary to law and refused to approve my Student TU 500 visa application under regulation 500.217. The funds provided by my sponsor are genuine and supported by affidavits.
(sic.)
At the final hearing of the matter, the Applicant also claimed that the Tribunal Member had pre-judged his case because he did not even make eye contact with him and immediately made his decision.
Grounds 1 and 3
The first and third grounds of review respectively allege an error of jurisdiction but may properly be characterised as an invitation to engage in a merits review of the Applicant’s visa application.
The role of this Court is limited to the identification of jurisdictional error in the Tribunal’s decision. That assessment must proceed on the basis of information that was before the Tribunal at the time of its decision. This Court does not have the power to redetermine or consider the merits of the Applicant’s visa application.
The Applicant has not articulated the alleged error of legal interpretation or procedure.
The Tribunal’s written reasons of 10 August 2018 disclose consideration of the Applicant’s affidavit evidence and the department’s evidence of attempts to verify the Applicant’s financial documents with his nominated sponsors. The Tribunal gave clear and logical reasons for reaching the state of satisfaction that the Applicant’s documents of financial support were misleading based on the information that was before it. Having so found, the Tribunal was entitled to conclude that an essential criterion was not met. There is no suggestion of error in the Tribunal’s finding that there were no compelling or compassionate circumstance to justify a waiver.
There is no discernible jurisdictional error in respect of grounds 1 and 3.
Ground 2
The second ground alleged a denial of procedural fairness in the failure to consider evidence of the Applicant’s prior completed studies. At hearing, the Applicant also alleged apprehended bias which was understood to be raised in respect of this ground.
The Applicant was invited to and did attend a hearing before the Tribunal, having filed further material in advance that had not been before the delegate. The Tribunal was not required to refer to every aspect of the evidence before it. The fact of the Applicant’s previously completed studies would not have altered the outcome of the decision when regard is had to the Tribunal’s findings about misleading financial information supplied by the Applicant which was material to the outcome.
To the extent that, by this or any of the grounds, the Applicant sought to complain about the Tribunal Member’s oral delivery of the decision on the day of the hearing, then it is understandable that he felt the outcome was too hasty. However there was no identification of any proper basis to find that the Tribunal Member had pre-determined the outcome, or that a fair minded lay observer would reasonably apprehend that the Tribunal Member had not brought an impartial mind to the resolution of the matter.
Also at hearing, the Tribunal put information to the Applicant purportedly covered by a non-disclosure certificate and invited his response. That information did not form part of the reasons for the Tribunal’s decision and it is apparent that the Tribunal did not consider it a valid certificate and did not act on it.
There is no identifiable denial of procedural fairness and this second ground can not succeed.
CONCLUSION
For the above reasons, I discern no error in the approach of the Tribunal. Accordingly, the application should be dismissed with costs fixed in the amount of $5,000.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini `. Associate:
Dated: 6 March 2024
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