Dodani v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 364
•23 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dodani v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 364
File number(s): MLG391of 2018 Judgment of: JUDGE SYMONS Date of judgment: 23 May 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal - whether the Tribunal correctly interpreted the criterion set out in cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal ignored relevant material or considered irrelevant material – whether the Tribunal’s decision was unreasonable – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 499
Migration Regulations 1994 (Cth), sch 2, cl 572.223
Cases cited: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 30 November 2021 Date of hearing: 30 November 2021 Place: Melbourne Solicitor for the Applicant: Des Leyden Lawyers Solicitor for the Respondents: Mills Oakley ORDERS
MLG391/2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRITAN DODANI
Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application filed 15 February 2018 and amended on 20 October 2021 is dismissed.
3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.
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 SYMONS:
INTRODUCTION
By an application filed on 15 February 2018 and amended on 20 October 2021, the applicant seeks judicial review of a decision of the second respondent (“the Tribunal”) made on 18 January 2018. The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (“the visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”). The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Italy who first arrived in Australia on 20 November 2014. The applicant was previously the holder of a student visa that was granted for the purpose of the applicant completing an English course. This visa was valid until 17 May 2015. The applicant then applied for the visa (the subject of this application) to study a Diploma of Tourism and Hospitality.
Pursuant to cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) it was a criterion for grant of the visa that the applicant satisfy what are referred to colloquially as “genuine temporary entrant” requirements, a component of which required the Minister (or his delegate) to be satisfied that the applicant intended to genuinely stay in Australia temporarily. The criterion is expressed as follows:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) …
On 14 June 2016, a delegate of the Minister refused to grant the applicant the visa on the basis that she was not satisfied that the applicant met cl 572.223(1)(a).
On 28 June 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 14 November 2017, the applicant was invited to attend a hearing before the Tribunal on 6 December 2017 and was requested to provide:
(a)a current certificate of enrolment;
(b)documents that showed he was currently enrolled in a course, or had an offer of enrolment in a registered course;
(c)documents that showed past studies in Australia as well as documents evidencing any work related to past or intended studies in Australia;
(d)an explanation of any gaps in enrolment and any documentary evidence relevant to the explanation.
On 4 December 2017, the applicant's representative provided to the Tribunal what was described as “invitation letter completed and signed; previous studies; evidence of payment for previous studies; letter of offer for current studies”.
The documents, which were reproduced at court book 106-126, comprised:
(a)a letter of offer dated 29 November 2017 addressed to the applicant from the South Australian College of English for a place in that institute’s 50 week Full Time General Standard English Language Course beginning on 8 January 2018 (CB 106);
(b)a student invoice issued to the applicant for the General Standard English Course in the amount of $7,425 (CB 107);
(c)a second student invoice issued to the applicant for the General Standard English Course in the amount of $7,655 (CB 108);
(d)a letter of offer to study - conditional – dated 30 November 2017 addressed to the applicant from AHTS for a place in that institute’s courses in Certificate IV in Hospitality, Diploma of Hospitality Management, and Advanced Diploma of Hospitality Management with the first course commencing on 25 February 2019 (CB 109-116). Under the heading “Visa Requirements”, the letter of offer included the statement – “This offer is conditional upon you obtaining the required visa to study at our school. You will need to obtain the correct visa, subclass 500, to study with this school…” (“the conditional enrolment”) (CB 111);
(e)a letter of support for the applicant which contained an offer of employment in the author (Mr Ioannacci’s) restaurant (the Nautilus) upon the applicant’s graduation and return to Italy (CB 117);
(f)three certificates of “Attainment and Attendance” issued by Greenwich English College which referred to the applicant’s attendance at General English courses in 2014 and 2015 (CB 118-120);
(g)five receipts issued to the applicant by Adelaide Hospitality and Tourism School for various amounts (CB 121-122);
(h)two statements of attainment issued to the applicant by Adelaide Hospitality and Tourism School on 26 August 2015 for competencies in Certificate I and II in Hospitality (CB 123-124);
(i)certificate issued to the applicant on 4 July 2016 by the Adelaide Hospitality and Tourism School for English Student of the Year (2015-2016) and letter referring to this award (CB 126).
The applicant’s representative provided a set of written submissions to the Tribunal on 4 December 2017. The submissions addressed: (1) the economic and political situation in Italy; (2) the applicant’s potential circumstances in Australia; (3) the applicant’s immigration history; and (4) the value of the proposed course of study to the applicant.
In relation to this last point, the submission stated (CB 130):
Mr Dodani is a young man and would like to explore more in his life of learning English and hospitality. Mr Dodani has got a job offer in Italy once he graduates from Australia. When his student visa was refused, the college told him not to come to school until his visa issue had been resolved and appeal and wait until immigration or tribunal informs you about your study or visa options. Mr Dodani took immediate action as soon as AAT wrote to him, he felt that there is hope for him to commence his studies and he decided to apply to study English at the recommendation of his college of hospitality. His course commences early next month.
On 6 December 2017, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a registered migration agent and an interpreter in the English and Italian languages.
THE DECISION OF THE TRIBUNAL
On 18 January 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa. The Tribunal identified the issue on review as whether the applicant met cl 572.223(1)(a). The Tribunal addressed this criterion at [21] –[31] of its reasons for decision.
The Tribunal first identified that it was required to have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s 499 of the Act.
The Tribunal accepted that (CB 144-145 [25]-[28]):
(a)studying English in Australia would be advantageous to the applicant’s intended career of owning a restaurant/bar;
(b)the applicant has an incentive to return to Italy as his wife and two children reside there. The Tribunal found that the applicant did not have an adverse migration history;
(c)there were no military service commitments that would present as a significant incentive for the applicant not to return to Italy;
(d)the applicant had stated it was his intention to return to his home country on completion of his studies.
However, the Tribunal placed greater weight on the following considerations (CB 145 [29]):
(a)the applicant arrived in Australia in November 2014 to study English, completed two certificates and commenced studying an Advanced Diploma of Hospitality and Tourism. In November 2016, he stopped studying without completing the course due to mental health struggles arising from waiting for the visa, which were alleviated when his wife and children visited – there is no suggestion from the applicant that he received any medical treatment in this regard;
(b)the Tribunal found that the applicant had not provided any sound reasons for not studying in Italy, including because the applicant had agreed that he could study his proposed hospitality subjects in Italy. The Tribunal considered the applicant’s explanation for studying in Australia, being that his main interest was to learn to speak English, but was not satisfied that this would provide him with an advantage on return to Italy as the applicant’s evidence about his proposed future career was vague and generalised. When the applicant had been asked to identify which subjects in his intended courses would assist him to open his restaurant and bar he had responded that “it all depends”;
(c)after the applicant stopped studying in November 2016, the applicant then waited a year before enrolling in another course and did so only after the Tribunal’s correspondence asking for evidence of enrolment. The applicant’s explanation was that he was told he could not commence studying without the visa. However the Tribunal did not accept that waiting for the visa would prevent an applicant from studying as the applicant was the holder of a bridging visa and had previously commenced the Tourism and Hospitality course whilst on a bridging visa;
(d)the applicant had provided no adequate explanation for why he, as a married man with two children, would live in Australia without working or studying, living off the family savings whilst his wife worked as a domestic in Italy.
The Tribunal found on balance that the applicant had applied for the visa primarily for maintaining ongoing residence in Australia. The Tribunal found, having considered the applicant’s circumstances, immigration history, and other matters it considered relevant, that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily and did not therefore satisfy cl 572.223(1)(a) (CB 145 [30]-[31]).
PROCEEDINGS IN THIS COURT
The application for judicial review (as amended) contains the following grounds, reproduced in full:
(1)The Tribunal made a jurisdictional error in finding that the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and accordingly does not meet cl 572.223(1)(a) of the Regulations.
(2)The Tribunal did not consider intellectually all factual information and, as a consequence, this lead to an error in the application of the regulations and directions when the authority concluded that the applicant does not intend genuinely to stay in Australia temporarily and accordingly does not meet cl 572.223(1)(a) of the Regulations
(3)The Tribunal erred in taking into consideration irrelevant and incorrect or incomplete factual information and as a consequence this lead to an error in concluding that the applicant does not intend genuinely to stay in Australia temporarily and accordingly does not meet cl 572.223(1)(a) of the Regulations.
(4)The Tribunal made adverse findings about the applicants financial and emotional family relationship without intellectually engaging in proper, genuine and realistic consideration. The Authority are required to engage in an active intellectual process directed towards the Applicant’s case. Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43]. This did not occur in respect to the assessment.
On 30 November 2021, the matter came before me for final hearing.
The applicant’s legal representative, Mr Leyden, indicated at the outset that ground one was not pursued.
Grounds two and three
Given the significant degree of overlap between grounds two and three, the applicant made submissions to the Court that did not materially distinguish between them. The applicant’s arguments were primarily directed at the Tribunal’s reasoning at [29] (CB 166) (summarised above at [15]).
The applicant submitted that the Tribunal had erred in its approach to cl 572.223(1)(a) in two respects. The first was that the Tribunal had proceeded on the basis that the applicant could not satisfy the criterion in circumstances where his course enrolment was conditional. The applicant argued instead that there was no necessity for him to have commenced a course, especially in circumstances where there was a disconnect between the visa, the subject of his application, and the visa that was required by AHTS (identified as a subclass 500 visa) before the applicant’s offer became unconditional.
The second involved the contention that the Tribunal had failed to consider both the “positive and negative sides” of the applicant’s financial situation and/or that the reasoning directed at this issue in [29] of the Tribunal’s reasons was unclear and uninformed, to the extent that the Tribunal could have (but failed to) ask further questions of the applicant about his financial circumstances.
At hearing, the applicant also sought to argue (under the rubric of grounds two and three), that the Tribunal had failed to consider information to the effect that the applicant’s conditional enrolment had been cancelled. The applicant referred the Court to an affidavit of Alexandra O’Grady filed by the Minister on 16 November 2021 which annexed a screenshot of the applicant’s enrolment record from the Provider Registration and International Student Management System (“PRISM”). However, the PRISM record does not correlate with the conditional enrolment (which was projected to commence in February 2019) as it refers to the applicant’s enrolment in an Advanced Diploma of Hospitality that commenced on 4 May 2015 and which ended on 2 November 2016. The PRISM record does not provide or constitute evidence that the applicant’s conditional enrolment had been cancelled and as such, the Tribunal did not err by failing to consider it.
The applicant submitted that the decision of the Tribunal was legally unreasonable, in the sense that the Tribunal had erred in the “weighing up” exercise of the factors that were open to consideration under Direction no. 53. In other words, it was unreasonable to have given greater weight to the factors identified at [15(a)-(d)] above. Had the Tribunal holistically and intellectually engaged with the evidence, it would have sought further information and may have attributed weight differently and ultimately may have reached a different finding.
Insofar as the Tribunal had failed to seek information, the applicant submitted that such information should have been sought directly from the applicant, and error arose where the Tribunal had relied on unqualified comments (purporting to be evidence) from the applicant’s former representative and migration agent concerning the support the applicant had received from his family when they had visited him in Australia. The applicant submitted that reliance on the advisor’s submissions had diverted the Tribunal from pursuing a line of inquiry as to how the applicant’s medical condition was diagnosed and treated and what might have caused the condition.
The Minister submitted that neither of grounds two or three could succeed on the basis that in both cases they rose no higher than merits review. The Minister submitted that the Tribunal clearly had regard to the submissions provided by the applicant’s representative (refer CB 142 [9]) and the evidence given at the hearing (refer CB 142-143 [10]-[20]) and that the Tribunal’s findings were reasonably open to it on the evidence and material before it.
In relation to the first limb of the applicant’s argument, the Minister submitted that the Tribunal had considered, and rejected, the applicant’s evidence and explanation that he did not enrol in a course because he was waiting to be granted a student visa. The Tribunal reasoned that the applicant could enrol in a course while he was the holder of a bridging visa and noted that he had in fact done so previously. The Minister submitted that this finding was reasonably open to the Tribunal.
In relation to the second limb of the applicant’s argument, the Minister submitted that the Tribunal had considered the applicant’s evidence about his family in Italy and their financial situation, including that his wife was a domestic worker in Italy (CB 143 [18]), and that the applicant had not worked since he moved to Adelaide and that his parents helped support him (CB 143 [18]). The Minister submitted that the Tribunal’s decision record indicated that it did ask the applicant about his family situation and his finances (CB 142-143 [11]-12]) and that it was open on the evidence for the Tribunal to conclude that the applicant had not been truthful in his evidence that he was not working in Australia in circumstances where he had a wife and two young children in Italy and had not been studying in Australia for a period of a year. The Minister made the overriding submission that it was for the applicant to make his case before the Tribunal and the Tribunal was entitled to accept or reject or give such weight to the evidence as it thought appropriate in all the circumstances (referring to Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]).
The Minister submitted in respect of the information provided to the Tribunal by the applicant’s migration agent that it was comprehended by s 359A(4)(b) of the Act – being information given by a migration agent acting under the applicant’s instructions. That being the case, the Tribunal was not obliged to put the information to the applicant for comment and further, there was no error in the Tribunal relying on that information.
Ground four
The applicant submitted that the Tribunal made adverse findings about his financial situation and his relationship by not engaging in an active, intellectual consideration, which it was required to do. The applicant provided information about his marriage, his children, and his home in Italy and that he was financially dependent on his wife, however the Tribunal unreasonably afforded “negative weight” to these claims It was submitted that this was not “intellectually discussed” nor was further information sought, rather, the Tribunal unreasonably refused to accept the nature of the relationship (albeit unconventional) whereby the wife worked in Italy and financially supported the husband whilst he studied in Australia. It was open to the Tribunal to make a positive finding that the applicant’s marriage (and his children) were an incentive for him to return to Italy. Instead an unreasonable decision was made “because there was no real understanding of the relationship” and the decision maker was of the view that it was not a “proper” relationship.
The Minister submitted that this ground (to the extent that it could be distinguished from grounds two and three) was an argument that the Tribunal should have reached a different conclusion which involved a descent to merits review. The Minister submitted (by reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131]) that a decision is not illogical, irrational or unreasonable simply because one conclusion has been preferred to another and rational or reasonable minds might adopt different reasoning or findings on the same evidence.
The Minister submitted the Tribunal’s decision to put greater weight on a finding that the applicant had not been truthful about his circumstances in Australia was not illogical and that that assessment was open to it on the evidence before it.
CONSIDERATION
Before turning to the detail of the applicant’s grounds of review, it is necessary to make some further observations about the reasoning of the Tribunal so as to place the impugned paragraph ([29]) in its proper context.
At [22] and [23], the Tribunal recognised that the statutory question it was required to determine was whether it could be satisfied that the applicant was a genuine applicant for entry and stay as a student on the footing of whether the Tribunal could be satisfied that the applicant “intends genuinely to stay in Australia temporarily” having regard to the applicant’s circumstances; the applicant’s immigration history; and any other relevant matter. Other relevant matters to be considered included the matters addressed by Direction 53. That Direction required the Tribunal to have regard to the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course of study to the applicant’s future; the applicant’s immigration history, including previous applications for an Australian visa or visas to other countries and previous travel to Australia and other countries; and any other relevant information provided by the applicant or information otherwise available to the decision-maker.
Moreover, at [24], the Tribunal recognised that, so far as Direction 53 is concerned, the factors to be considered are not to be treated as a checklist but rather the factors are intended to guide the decision-maker in weighing up the applicant’s circumstances “as a whole” in reaching a finding about whether the Tribunal can be satisfied (or not) that the applicant intends genuinely to stay in Australia temporarily.
The Tribunal approached this task by first accepting a number of matters favourable to the applicant (refer [25]-[28]). It then sought to balance its analysis by making and giving “greater weight” to findings about matters which it either did not accept and/or which operated unfavourably to the applicant. The adoption of such a process did not involve error and to the extent that the applicant’s grounds of review involved a narrative that the Tribunal had erred by giving disproportionate weight to some matters over others, the complaint fails for the inevitable reason that it invites merits review.
Grounds two and three
Turning then to the more particular complaints made by reference to these two grounds, it is the applicant’s case that the Tribunal erred because it proceeded on the basis that the applicant could not satisfy cl 572.223(1)(a) in circumstances where his course enrolment was conditional upon his obtaining a (different) student visa. It is said that the Tribunal effectively imposed on the applicant a requirement that he had commenced a course of study in order to satisfy the criterion for the grant of the visa.
The difficulty with this argument is that it ignores the approach adopted by the Tribunal, which was to determine the statutory question having regard to a confluence of factors that emerged from the material that was before it and which were responsive to the language of the provision (cl 572.223(1)(a)) and the matters identified in Direction 53.
One of the matters that the Tribunal considered was the applicant’s efforts to obtain and maintain enrolment in a course of study. The Tribunal documented the applicant’s study history in Australia and placed particular emphasis on the fact that it was only after the Tribunal had written to the applicant (and after a break from study of 12 months) to obtain a copy of his Confirmation of Enrolment or Offer of Employment, that he had enrolled in a course of study.
The Tribunal considered the applicant’s explanation that he was waiting for a visa before approaching an educational institution, but rejected it for reasons that included that, as the holder of a bridging visa, the applicant was not precluded from enrolling in a course of study. The Tribunal had put this proposition to the applicant during the hearing and sought his response. The Tribunal had also put to the applicant the more general proposition – which lay at the heart of the Tribunal’s concern – that the applicant had prevaricated for 12 months ([15] CB 164).
The Tribunal did not place any significance on the character of the offer of enrolment as being conditional. Instead, the Tribunal treated the offer of enrolment as being responsive to the request that it had made. This is evident from the Tribunal’s recitation of the material that was before it which referred to the letter from AHTS dated 29 November 2017 as “evidence that the applicant is the subject of a current offer of enrolment in General English followed by Certificate IV in Hospitality, Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management at AHTS College in Adelaide” (CB 142 [8]). I do not consider that there is any merit in the first limb of grounds two and three.
As to the second limb identified by the applicant, which was concerned with the contention that the Tribunal had failed to consider both the “positive and negative sides” of the applicant’s financial situation, I consider that this argument also misapprehends the reasons of the Tribunal.
The Tribunal identified the evidence directed at the applicant (and his family’s) financial circumstances but recorded its concern with the veracity of the applicant’s account of the family dynamic and situation because the applicant had failed to dislodge the Tribunal’s view that it was inherently implausible that a married family man with two minor children, would live in Australia without working and without studying, with his lifestyle being funded through family savings. The Tribunal’s assessment was therefore informed by more than just the financial situation of the applicant but also the characteristics more generally of the applicant and his family. This approach was open to the Tribunal and did not involve any legal error. In particular, the Tribunal put its concerns to the applicant for comment and correctly identified the material and submissions of the applicant concerning his family and financial circumstances.
At the hearing, Mr Leyden told the Court that there were bank statements that the Tribunal had failed to refer to in its decision. However, despite being given the opportunity (both during the hearing and after it had concluded) to identify the material in the court book, Mr Leyden acknowledged that he had not been able to identify any bank statements. On this basis, and upon my own review of the court book, I am satisfied that the Tribunal correctly referred to the evidence concerning the applicant’s financial situation at [26] (CB 144) of its decision record. I do not consider that there is any merit in this second limb of grounds two and three.
As to the contention that the Tribunal acted unlawfully by taking into account submissions made on the applicant’s behalf by the applicant’s authorised representative and migration agent, I accept that absent any indication that the representative was acting without instruction, the Tribunal was entitled (arguably obligated) to take these submissions into account and that it was not incumbent on the Tribunal to put these submissions to the applicant for comment as these submissions were comprehended by s 359A(4)(b) of the Act as information that the applicant gave for the purpose of the review.
Grounds two and three are dismissed.
Ground four
The fundamental difficulty with ground four is that in its articulation (refer [30] above), the true character of the complaint is exposed. The applicant complains about the Tribunal’s assessment of his financial situation and relationship on the basis that the Tribunal afforded certain aspects of it “negative weight” and contends that it was “open to the Tribunal to make a positive finding” about certain aspects of the applicant’s family circumstances, including that they would operate as an incentive for him to return to Italy.
It may well be the case that a different decision-maker could reach a different view of the applicant’s financial and family situation, including a view that would operate favourably to the applicant. However, that is not the measure of jurisdictional error. For the reasons that I have explained in relation to grounds two and three (refer [42]-[44] above), I am unable to discern error in the approach adopted and findings recorded by the Tribunal that concern the applicant’s financial situation and relationship.
Ground four is dismissed.
DISMISSAL
For the reasons which I have given above, I order that the applicant’s application filed on 15 February 2018 and amended on 20 October 2021 be dismissed.
I will order that the applicant pay the Minister’s costs of the proceeding fixed in the sum of $7,853.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge . Associate:
Dated: 19 May 2022
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