EEG18 v Minister for Home Affairs

[2019] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2132

Catchwords:
MIGRATION – Application for student guardian visa – finding that intention to enrol children in school in Australia and to reside with them pursuant to visa rather than stay for short holiday as originally claimed – whether logical basis for a conclusion that the applicant is not a genuine temporary entrant.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: EEG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 29 of 2018

Applicant: EEI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 30 of 2018

Applicant: EEJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 31 of 2018

Judgment of: Judge Young

Hearing date: 10 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Darwin

Delivered on: 10 May 2019

REPRESENTATION

Counsel for the Applicant in DNG29/2018: Ms Nguyen

Solicitors for the Applicant in DNG29/2018: Ward Keller

Counsel for the Respondent in DNG29/2018: Ms Clarke

Solicitors for the Respondent in DNG29/2018: Clayton Utz

Counsel for the Applicant in DNG30/2018: Ms Nguyen

Solicitors for the Applicant in DNG30/2018: Ward Keller

Counsel for the Respondent in DNG30/2018: Ms Clarke

Solicitors for the Respondent in DNG30/2018: Clayton Utz

Counsel for the Applicant in DNG31/2018: Ms Nguyen

Solicitors for the Applicant in DNG31/2018: Ward Keller

Counsel for the Respondent in DNG31/2018: Ms Clarke

Solicitors for the Respondent in DNG31/2018: Clayton Utz

ORDERS

IN PROCEEDINGS DNG29 of 2018

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 17 July 2018.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.

3. There be no order as to costs.

IN PROCEEDINGS DNG30 of 2018

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 17 July 2018.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.

3. There be no order as to costs.

IN PROCEEDINGS DNG31 of 2018

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 17 July 2018.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.

3. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 29 of 2018

EEG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

DNG 30 of 2018

EEI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

DNG 31 of 2018

EEJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These three matters before me in EEI18, EEJ18 and EEG18 concern applications for judicial review in relation to three related decisions of the Administrative Appeals Tribunal on 17 July 2018 affirming a decision of the Minister’s delegate on 22 December 2018 to refuse a student guardian visa in the case of the adult applicant and two student visas to the children or the minor applicants who are now 17 and 13.

3. The background to the matter is as follows. The applicant and her two children are Nepalese citizens but were, and perhaps still are, permanent residents of Qatar. It is non-controversial that the applicant’s husband operates a business in Qatar and the family was said to be wealthy, an assertion that was evidently accepted by the Tribunal.

4. On 12 August 2016 the applicant and her children arrived in Australia on a visitor’s visa or a tourist visa which was valid for six months. On her application for a visitor’s visa, she (if I refer to “she”, that is a reference to the mother among the three applicants) stated that she intended to stay in Australia for a short holiday of 10 days. She also stated that she had no relatives in Australia. Within 17 days of arrival the children had been enrolled in Essington School which is a private school here in Darwin.

5. On 23 October 2016, the applicant and the children applied for a student guardian and student visas respectively, those being the applications currently under review. The applications were rejected by the Minister’s delegate because the delegate was not satisfied that the applicant satisfied the genuine temporary entrant criterion 590.215, which, more fully, provides that the applicant must satisfy the following criterion, that is, the applicant is a genuine applicant for entry and stay as a student guardian because

   a)the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and the applicant’s immigration history and any other relevant matter, and

   b)the applicant intends to comply with any conditions to which the visa may be subject, having regard to the applicant’s record of compliance with any condition of a visa previously held by the applicant, if any, and the applicant’s stated intention to comply with any conditions to which the visa may be subject, and

   c)any other matter.

6. That is the criterion relating to the student guardian but, in substance, it is the same for applicants for a student visa as well.

7. On application for review to the Tribunal, the issues focused on whether the applicant genuinely intended to stay in Australia temporarily (and when I refer to “applicant” I am to be taken as referring to each of the applicants). The Tribunal concluded that the applicant had not satisfied the genuine temporary entrant criterion. The Tribunal reasoned as follows. It found that the adult applicant had not declared on her visitor visa application that her niece lived in Darwin but had incorrectly or falsely declared she had no relatives in Australia.

8. The Tribunal did not accept that this was an innocent mistake. It rejected her explanation that she had believed that, because she had no relatives in Sydney, apparently a destination at some point, that she was not required to answer with a “yes”. The Tribunal took the view that, as in reality she appeared to be travelling to Darwin and the relative was in Darwin, that explanation was, at least, unsatisfactory.

9. Further, the mother enrolled the children in the local Darwin school some 17 days after arrival. Based on the fact that the applicant and her family were apparently well-off and her children had apparently attended a “top school” in Nepal the Tribunal was satisfied that it was unlikely that an impetuous decision of the nature described had been made. It rejected the applicant’s explanation that a decision about enrolling the children in school a little more than two weeks after arrival had been rapidly made after meeting a migration agent who suggested that Australia had good schools.

10. The Tribunal reasoned from these factors that the applicant mother’s subjective intention was not as she had either described on her visitor visa application form or, subsequently, said was a change of plan made after short consideration.

11. The factual finding made by the Tribunal was as follows:

    The Tribunal finds that based on the above circumstances, the applicant did not visit Australia for a short holiday but had arrived with the intention of enrolling her children to study and residing with them.

12. The uncontroverted fact is that the applicant mother did, in fact, enrol the children at a local school and did then apply to reside in Australia, and she did so by attempting to regularise that position by applying for the visas under review. The grounds of review are lengthy and I will not read them in their entirety but the particulars of the grounds in summary form.

13. Ground 1 is a claim that the Tribunal committed jurisdictional error by failing to correctly apply the relevant law in determining that the applicant did not meet clause 509.215 in Schedule 2 to the Migration Regulations 1994, that is, the genuine temporary entrant criterion.

14. I note particular (c) of Ground 1, which reads as follows:

    The Tribunal repeatedly made the finding that the applicant “had arrived with the intention of enrolling her children to study and residing with them” and decided that clause 590.215 was not met, primarily on this basis. The intention of enrolling children to study and staying with them during such studies is well in line with an intention to stay in Australia temporarily as a student guardian.

15. Ground 2 is a claim that the Tribunal committed jurisdictional error in determining that whether the applicant genuinely intended to stay in Australia temporarily by failing to give any or adequate consideration to the factors prescribed in Ministerial Direction 69.

16. In Ground 3, the Tribunal’s finding that the applicant did not have a genuine intention of staying temporarily in Australia as a student guardian, assuming the decision properly relates to the student guardian application, was unreasonable in all the circumstances.

17. Finally, Ground 4 is an allegation that the Tribunal failed to afford procedural fairness to the applicant and the particulars refer to a claim that the applicant was owed procedural fairness in relation to the Tribunal’s conclusion about the incorrect or false response to the visa question about whether or not the applicant had relatives in Australia.

18. In my view, Grounds 2, 3 and 4 must fail for the reasons I am about to give. In relation to Ground 2, the applicant alleges in her particulars that the Tribunal failed to properly consider the applicant’s immigration history, including prior travels to countries in Europe and North America and her compliance with visa conditions on an earlier visit to Australia. The second part of the Ground is that the Tribunal failed to consider the applicant’s background; in particular, her connection to Qatar and the family’s apparent business interests in Qatar.

19. In my view, the Tribunal did refer to those matters and did show that it was indicated in its reasons that it was aware of the applicant’s background. It referred to their permanent residency in Qatar. It referred to the economically comfortable position of the family and referred to the applicant’s international travel. In my view, the Tribunal did not fail to consider those matters and in the context of the case, those matters, in my view, were to be given relatively little weight and I do not accept that the Tribunal ought to have given greater consideration to those matters than it has done.

20. Ground 3 is a similar ground complaining about weight and in particular it complains that the Tribunal gave excessive weight or it was an irrelevant consideration that the information given by the applicant in her visitor visa application was false or incorrect, in particular, that she had no relatives in Australia and that she intended to come to Australia for a short holiday of 10 days. It was also said that the Tribunal failed to take into account the Procedures Advice Manual of the Department and the identically worded Ministerial Direction 69, which requires the decision-maker to take into account or have regard to, as a guide, the following matter:

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently. 

21. In my view, the fact of the false or incorrect information given on the visitor visa application was of central relevance and was a proper basis for the Tribunal to draw an inference about the applicant’s subjective intentions and, in particular, the genuine temporary entrant criterion and whether that was satisfied. In relation to the Procedures Advice Manual, I will address that issue further below.

22. Ground 4 contains an allegation that the applicant was denied procedural fairness and, in particular, it was claimed that the Tribunal in failing to invite the applicant to comment on its conclusion that the applicant’s explanation for giving the false information or incorrect information on her visitor visa application did not have an “innocent explanation.”

23. The applicant’s migration agent had made a submission to the Tribunal offering an explanation for that false or incorrect information. It is said, as I have indicated, that there was a misunderstanding of the nature of the question and it was thought that all that was being required was, in substance, a question of whether the applicant had relatives in Sydney.

24. In my view, it is hardly surprising that the Tribunal rejected that as implausible, as, for the reasons I have already given, it made little sense. The Minister said that because this was information, that is, the explanation that was unsatisfactory, or to use the phrase of the Tribunal, “was not an innocent explanation”, it was covered by section 359A(4)(b) of the Migration Act 1958. That is, it was information provided by the applicant for the purpose of the application for review and hence was not covered by the requirements in section 397A which requires an opportunity for comment. I accept that submission.

25. Turning to Ground 1 and particular (c), the core finding by the Tribunal, in my view, was as follows at paragraph 21:

    The Tribunal finds that based on the above circumstances, the applicant did not visit Australia for a short holiday but had arrived with the intention of enrolling her children to study and residing with them.

    The “above circumstances” is a reference to the family’s background, their ability to travel internationally, the children’s attendance at a top private school in Nepal and current attendance at a private school in Darwin.

26. In my view, the evidence strongly supported that conclusion. It was clearly open to the Tribunal to reach that conclusion on the basis of the matters that I have already referred to. It was not to the point that the Procedures Advice Manual or Ministerial Direction 69 stresses the importance of recognising that intentions may change. The intention that the Tribunal found existed was the intention which was manifested at the time of the application for the visitor visa and which, I infer, the Tribunal was satisfied existed all material times up to and including the time of the application for the student guardian visa.

27. In the context of the Tribunal’s findings, I am satisfied that the passage I have read reflects a finding by the Tribunal that the applicant intended to do what she did, that is, apply for a visa that would permit her to enrol her children in school in Australia and reside with them. There is nothing to suggest that that intention was, in any way, inconsistent with the terms of a student guardian visa, that is, nothing inconsistent with that visa in her intention to reside in Australia with the children while they received an education.

28. The Tribunal did not make any remark about whether that intention to reside in Australia while the children were at school was an intention to comply with the terms of any visa or not but, in context, it appears to me that the Tribunal’s core factual finding is consistent with the applicant seeking to remain in Australia lawfully pursuant to the terms of a visa condition such as a student guardian visa. Further, in my view, the finding of the Tribunal is not only consistent with that intention, it is suggestive of that intention.

29. In my view, that core factual finding is, in itself, suggestive that the applicant was a genuine temporary entrant, that is, that she and the two children satisfied criterion 509.215. The core factual finding I have made is inconsistent with the ultimate legal conclusion that the Tribunal reached, that is, that the applicant had failed to satisfy the Tribunal that she was a genuine temporary entrant in conformity with the requirements of clause 509.215. In terms of jurisdiction, the ultimately legal conclusion of the Tribunal, in my view, was illogical and there was no proper basis for the finding. Indeed, the core factual finding, in my view, was to the contrary to that conclusion.

30. I am satisfied that there has been illogicality demonstrated and that there has been jurisdictional error in relation to the decision for each of the three applicants and I propose to quash each of the decisions and remit them for re-hearing before the Tribunal.

31. Because I consider the Tribunal’s conclusions were, at least in part, brought about by the false or incorrect statements of the applicant I do not consider that there ought to be an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  7 August 2019