Facuri v Minister for Immigration

[2020] FCCA 1993

FEDERAL CIRCUIT COURT OF AUSTRALIA

FACURI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1993

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Subclass 600 Tourist – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal failed to take into account a substantial and articulated claim – whether the Tribunal overlooked evidence – whether the Tribunal failed to consider evidence in response to the applicant’s invitation – whether there is jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s,359, Direction No 69

Migration Regulations 1994 (Cth), cl.500.212

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232

Mouflih v Minister for Home Affairs (2019) 168 ALD 148

SZNGP v Minister for Immigration and Citizenship [2009] FCA 975

Applicant: LAURIANE ABREU FACURI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2518 of 2019

Judgment of: Judge Humphreys

Hearing date: 22 July 2020

Date of Last Submission: 22 July 2020

Delivered at: Parramatta

Delivered on: 27 July 2020

REPRESENTATION

Solicitors for the Applicant: Mr Stagliorio, Northam Lawyers

Solicitors for the Respondents: Ms Ng, Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2518 of 2019

LAURIANE ABREU FACURI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a 40-year-old native of Brazil. The applicant arrived in Australia on 21 May 2017 on a Subclass 600 Tourist visa. On 1 August 2017, the applicant made an application for a Subclass 500 (Student) visa, in order to study English. A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the application on 26 September 2017. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion.

2. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 24 July 2019, the applicant was invited to attend a hearing at the Tribunal on 12 August 2019. The hearing invitation letter advised the applicant to provide, at least seven days before the hearing, evidence to show that she was currently enrolled in an approved course, evidence as to her studies in Australia and a statement addressing the genuine temporary entrant criterion. The applicant submitted a statutory declaration and two new confirmations of enrolment.

3. The applicant attended the hearing with a representative, an interpreter and gave oral evidence. She provided further information after the hearing concerning her non-completion of English courses. On 11 September 2019, the Tribunal affirmed the delegate’s decision under review.

4. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. After setting out the relevant background, at paragraph 8 the Tribunal’s detailed the evidence provided by the applicant. On page 3 of the decision, the Tribunal records that amongst the evidence received, was an ‘offer of position from her cousin, untranslated but referred to in her statutory declaration’.

2. The offer of employment is set out in further detail on page 4 of the Tribunal’s decision to include that the offer is with her cousin and that she will be able to work in the finance area and could become the manager of the finance department. The applicant stated that as it was a family business and that her cousin is not rushing her (the applicant) home and that the applicant can wait until she finishes her course. The applicant attached a letter of offer in support of her evidence.

3. At paragraph 13 of its decision, the Tribunal noted that since arriving in Australia, the applicant had only completed a General English 1 course and had not been enrolled in any course for a period of ten months. At paragraph 14 of its decision, the Tribunal raised with the applicant, why she did not keep studying from October 2018 to August 2019. The response was that the applicant was waiting for a response from the Tribunal, so that she could continue with her study plan.

4. At paragraph 15 of its decision, the Tribunal records that the applicant confirmed she was enrolled in a Certificate IV in Business. The applicant was unable to provide the Tribunal with information as to the components of the course and its cost. The Tribunal noted that this raised concerns given the applicant’s lack of detailed evidence, as to her proposed course and questioned whether she was a genuine student.

5. At paragraph 21 of its decision, the Tribunal noted the applicant was starting at a lower level in Australia, to that she had previously attempted and referred to her studying in Brazil. The applicant said that having an international course would assist her and that is why she wants to study in Australia. The applicant said that she did not have the required level of English to complete a Bachelor level course in Australia.

6. At paragraph 26 and onwards of the Tribunal’s decision, deals with the consideration of the evidence. The Tribunal was satisfied that no evidence had been presented that the applicant’s economic circumstances would present as a significant incentive for her not to return to Brazil. The Tribunal accepted that study in Australia is highly regarded and that her family ties, in particular her son and mother in Brazil, were stronger than those in Australia.

7. At paragraphs 32 and 33 of its decision, the Tribunal details the applicant’s course history in Australia, but noted of concern that since the application for a student visa on 1 August 2017, she had only completed one General English course, following which she ceased studying any course from October 2018 to August 2019. The Tribunal was of the view that if the applicant were a genuine student, she would have taken every opportunity to study and improve her English, even in a period of uncertainty. The cost of General English 2 and 3 courses were not expensive in the Tribunal’s view, for a person claiming to be in Australia to learn English for their future career.

8. At paragraph 34 of its decision, the Tribunal formed a view that the applicant’s lack of knowledge of the Certificate IV in Business and its value to her future to be vague and lacking in detail, undermining her claim that she was a genuine student. The applicant was unable to provide details about the course orally. Furthermore, the applicant’s evidence as to why she proposed to study this course, was vague and lacking in detail.

9. At paragraph 37 of its decision, the Tribunal concluded the applicant’s immigration history is such that there is nothing which indicates she is not genuinely intending to stay in Australia temporarily. Considering all of the evidence however, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and therefore did not meet cl 500.212(a) of the Migration Regulations 1994 (Cth) (“the Regulation”).

10. Accordingly, the Tribunal affirmed the delegate’s decision.

Grounds of Judicial Review

1. In an amended application, failed on 16 January 2020, the applicant now relies on the following grounds of application:

   1. The second respondent (Tribunal) constructively failed to exercise its jurisdiction, as mandated by s348 of the Migration Act 1958 (Cth), to review the decision of the first respondent (Minister) to refuse to grant the Applicant a visa because it failed to take into account a substantial, clearly articulated claim by the Applicant, relying on evidence, which engaged with factor(s) in Direction No 69 and with cl 500.212(a)(i) and (iv) of Schedule 2 to the Migration Regulations 1994 (Cth).

   2. The Tribunal constructively failed to exercise its jurisdiction, as mandated by s 348 of the Act, to review the Minister’s decision to refuse to grant the Applicant a visa because it overlooked an item of evidence submitted to it by the Applicant which was of significance and of relevance to the Tribunal’s process of reasoning.

   3. The Tribunal constructively failed to exercise its jurisdiction as mandated by s 348 of the Act, to review the Minister’s decision to refuse to grant the applicant a visa because it failed to consider evidence the applicant provided to it in response to an invitation issued by the Tribunal pursuant to s359(1) of the Act.

   Particulars to grounds 1-3

   a) In reviewing the Minister’s decision to refuse to grant the Applicant a Class TU, subclass 500 (Student) visa, the Tribunal purported to determine whether cl 500.212(a) of Schedule 2 to the Regulations was satisfied.

   b) By letter dated 24 July 2019 (CB 68), the Tribunal invited the Applicant, relevantly, to provide information pursuant to s 359(1) of the Act.

   c) The Tribunal, having exercised its discretion to get information it considered relevant under s 359(1) of the Act, was under a duty to consider the information that the Applicant provided to it in response to its s 359(1) invitation.

   d) In response to the Tribunal’s s 359(1) invitation, the Applicant submitted documents to the Tribunal including electronic copies of a statutory declaration in the Portuguese language and its sworn translation into the English language: CB 89.

   e) The Applicant’s statutory declaration referred to a job offer letter: CB 91[12].

   f) The Applicant provided the Tribunal, annexed to her statutory declaration and in response to the Tribunal’s s 359(1) invitation , with electronic copies of the job letter offer (CB 144) and its sworn translation into the English language (the translated job offer letter): CB 142.

   g) The Tribunal overlooked the translated job offer letter: CB 189[8].

   h) The translated job offer letter contained important details not contained in the Applicant’s statutory declaration, including the salary; additional benefits such as private health insurance, meals and groceries; the name, address and other identifying details of the business; and the name of the Applicant’s cousin offering the job.

   i) Had the Tribunal not overlooked the translated job offer letter, the additional important details are contained in it could have led the Tribunal to place more weight on the job offer.

   j) By failing to consider the translated job offer letter, the Tribunal fell into jurisdictional error in the manner identified in grounds are 1-3 above.

The Applicant’s Submissions

1. It was submitted on behalf of the applicant that the Tribunal made a factual mistake at page 3 of its decision, when it only made reference to the offer of a position from her cousin, as being untranslated. It was submitted that a sworn translation into English of the job offer was in fact provided. This translated version of the job offer is set out at page 142 of the Court Book.

2. It was submitted on behalf of the applicant that the Tribunal fell into error because it overlooked an item of evidence provided by the applicant, which was of significance and relevance to the Tribunal’s process of reasoning. It was submitted that the translated job offer letter, was a “component integer” of a clearly articulated claim. This included additional details which were not contained in the statutory declaration of the applicant, which is referred to by the Tribunal, such as the salary, the existence and quantum of additional benefits such as meal and grocery allowances, private health insurance, the name, address and other identifying details of the business and the name of the applicant’s cousin offering the job.

3. The applicant conceded that in this case, the relevant question is whether or not the error was material to the decision and thus jurisdictional.

4. In relation to ground three, it was asserted that a relevant matter at paragraph 9.b of Direction No 69 of the Migration Act 1958 (Cth) (“the Act”) included:

   b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve a significant incentive to return to their home country.

5. It is submitted on behalf of the applicant that the additional details contained in the translated job offer letter, addressed a number of matters contained within Direction No 69. The additional details were information requested by the Tribunal pursuant to s 359 of the Act and once the Tribunal receive that information, it was obliged to consider it. The failure not to consider this material amounted to an error.

6. In relation to materiality, it was acknowledged that not every error made by administrative decision-makers, is jurisdictional and an error is only jurisdictional if it is material to the decision, in the sense that had it not been made, the outcome of that decision could (not necessarily would) have been different (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123). It was further submitted that materiality is “not a high threshold” (see Mouflih v Minister for Home Affairs (2019) 168 ALD 148 (“Mouflih”) at [51]).

7. It is submitted on behalf of the applicant, that at paragraph 8 of its decision, the Tribunal repeatedly referred to the job offer as a mere “claim” that the applicant had a job offer. Nowhere in the decision record, does the Tribunal state whether or not it accepted the claim. This may give rise to an inference that the Tribunal did not accept that claim or that it attributed no weight to it.

8. Even if it is assumed that the Tribunal did accept the existence and genuineness or legitimacy of the job offer and that it attributed some weight to it in favour the applicant, it may have attributed more weight to that offer, had it been aware of the entirety of the details of the offer.

9. Further, as the Tribunal referred to the job offer as being relevant and mentioned it in other parts of the decision record, this indicates that it subjectively saw the job offer as significant and relevant to the balancing exercise it was charged with.

The First Respondent’s Submissions

1. It was submitted on behalf of the Minister that the applicant’s three grounds and submissions substantially overlap. The applicant’s case has been put as a failure to consider a clearly articulated claim (ground one), a failure to consider evidence (ground two) and a failure to have regard to information provided to the Tribunal, in response to a s 359 letter (ground 3).

2. It was submitted on behalf of the first respondent that all three grounds fail at the first hurdle, as the applicant has failed to establish that the Tribunal overlooked or failed to consider the translated job offer letter, whether it is characterised as “a claim”, an item or of evidence or “information” provided to the Tribunal.

3. The applicant relies on the following evidence to support the inference that the Tribunal overlooked the translated job offer:

   a)   The Tribunal’s erroneous statement at paragraph 8 of its reasons of an untranslated job offer letter;

   b)   The Tribunal member is presumed not to be able to read Portuguese;

   c)    The details in the untranslated job offer letter were not referred to at the Tribunal hearing.

4. At paragraph 8 of its decision, the Tribunal sets out the “relevant” evidence put by the applicant before it and “summarised” a statutory declaration. The Tribunal did not state that it had “only” received an untranslated job offer. The Tribunal did not purport it to be a list of all of the evidence the Tribunal received, nor did it need to. The Tribunal is not required, in its reasons, to discuss or identify each item of evidence to which is had regard to (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [346]).

5. It was submitted that the applicant’s case appears to hinge on a complaint that the Tribunal should have expressly referred to both the untranslated and translated job offers. But this is not a case where a failure to refer to an item of evidence in a decision record should give rise to any inference that it was not considered.

6. First, it is not controversial that the Tribunal had before it, the applicant’s statutory declaration and its annexures. The Tribunal was aware that the applicant had a job offer as the Manager of the Finance Department, in her cousin’s supermarket franchise in Brazil. Its reasons referred to the job offer letter. It is pertinent to note that this was a reference to annexure 17 to the applicant’s statutory declaration, which contained both the untranslated and translated versions of the job offer.

7. Second, the translated job offer adds little of relevance to the Tribunal’s considerations of the factors, under Direction No 69. The only matter that was contained within the untranslated job offer, as compared to the applicant’s statutory declaration, is that she was being offered private health insurance. In the absence of any evidence as to how this could have added to the applicant’s remuneration, it could not assist the Tribunal in its consideration of the factors it was required to consider under Direction No 69.

8. Third, when asked at the hearing why the applicant was studying, she did not refer to her cousin’s job offer, rather referring to the “many opportunities in the job market in Brazil”. This would necessarily have informed the weight given by the Tribunal, to the evidence of a job offer. The weight that the Tribunal gives to evidence before it, is a matter for the Tribunal as part of its fact-finding function.

9. It is submitted that it added little to the material that was before the Tribunal, in considering its task of whether or not the applicant satisfied the genuine temporary entry criteria for the grant of a student visa. It was further submitted that the translated job offer letter, was not of such import as to be a separate integer or of the claim. Even if the Tribunal overlooked the translated job offer letter, as an item of evidence proffered, that would not constitute a failure to consider a claim

10. Finally, it is submitted that even if the applicant establishes the Tribunal overlooked the translated job offer letter, it could not be material in the sense of depriving the applicant of the possibility of a successful outcome. Individually, the letter added little to the applicant’s case, rather it reached a view on the basis of the factors set out in paragraphs 35 - 36 of the Tribunal’s decision.

Conclusion

1. The Court agrees with the first respondent that each of the grounds relied upon by the applicant, overlap and can be conveniently dealt with together. Each is a variation of a claim that evidence in relation to the job offer in Brazil, that should have been considered, was not.

2. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”) at [46], the Full Court of the Federal Court (French, Sackville and Healy JJ), stated as follows:

   It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons… there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ( cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[91] ) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications… it’s reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

1. Further, even if an applicant’s complaints about mistakes of fact, made by the Tribunal are accepted, jurisdictional error will not arise unless they were dispositive of the applicant’s claims or that the Tribunal did not consider the claim (see SZNGP v Minister for Immigration and Citizenship [2009] FCA 975 (“SZNGP”)).

2. The job offer from the applicant’s cousin is clearly referred to in paragraph 12 of the applicant’s statutory declaration, provided to the Tribunal [see Court Book 91]. The Court is satisfied that a translated version of the job offer was before the Tribunal. The Court is also satisfied that it was a mistake of fact in paragraph 8 of the decision record, to refer to the offer of a position from her cousin, as only being “untranslated”. There was a translated copy before the Tribunal. However, a mistake of fact will only constitute jurisdictional error if they were dispositive of the applicant’s claims and the claims were not considered (see SZNGP).

3. In this matter, the fact that the job offer existed, was clearly considered by the Tribunal, as it is referred to in a later dot point at paragraph 8 of its decision. That dot point contains significant detail about the nature of the job offer, taken from the applicant’s Statutory Declaration provided in response to the s 359(1) letter.

4. It is submitted by the legal representative for the applicant, that the detail as regards to the salary, the existence of quantum of additional benefits, such as meal and grocery allowances and private health insurance, together with the name of the business and the applicant’s cousin, contained within the translated copy of the job offer, are not referred to by the Tribunal. It is suggested that this material added to the veracity of the job offer claim. Had it been considered, “more weight” may have been attributed to that factor (see Mouflih at [51]). It is submitted that it may have tipped the balance in favour of the applicant.

5. The Court is satisfied that ground three cannot be made out. The Tribunal did consider the evidence, as detailed above in response to the s 359(1) letter. The applicant’s essential complaint is that the Tribunal did not consider the detail of the evidence.

6. The issue then becomes whether or not the mistake was material. Would it have made a difference?

7. A fair reading of the Tribunal’s reasons indicates that the Tribunal was aware of the letter of offer from the cousin that was attached to the applicant’s statutory declaration (see page 4 of the decision). While it is referred to as a claim, there is no indication that the Tribunal rejected that evidence.

8. Rather, the Court is satisfied that the Tribunal accepted the genuineness of the job offer. The Court is not satisfied that the detail of the offer constituted a ‘claim’, or even an integer of a claim. Rather, it was simply information that provided detail to the accepted claim that the applicant had a job offer in Brazil on return. Ground one must fail.

9. Just because it was not referred to explicitly by the Tribunal in its decision record, is not conclusive that the claim was not considered as stated in WAEE above. The Tribunal accepted at paragraph 31 of its decision, on a number of grounds, that the applicant had significant incentives to return home to Brazil. In this circumstance, it is difficult to see how the detail would have provided a reason for the Tribunal to give that conclusion ‘more weight’, or that it would have ‘tipped the balance’.

10. The crux of the Tribunal’s decision revolved around its concerns as to the applicant’s lack of study in Australia, which consisted of the completion of only a General English 1 course, since applying for the visa and the fact she had ceased studying any course from October 2018 to August 2019.

11. The applicant’s lack of capacity to provide any detail about or why she proposed to study a Certificate IV in Business, undermined her claim as to wishing to remain in Australia as a student temporarily. This is a matter of credit that the Tribunal is best suited to consider and determine. The Tribunal’s adverse credit findings at paragraphs 34 -35 of its decision, in relation to why the applicant wished to stay in Australia, were reasonably open to the Tribunal, on the evidence and materials before it and for the reasons it gave. The Tribunal considered all the relevant matters under cl 500.212 of the Regulations and Direction No 69. These requirements are detailed at paragraphs 27 – 28 of its decision. It was these matters that led the Tribunal to conclude, that the applicant did not satisfy ‘genuine temporary stay, as a student requirement’, under cl 500.212(a) of the Regulations.

12. Those findings were not tainted by any failure to afforded procedural fairness or legal unreasonableness (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]).

13. The Court is not satisfied that the detail contained within the translated job offer was overlooked or even if it was, would not have made any difference to the consideration by the Tribunal, of the factors under Direction No 69. It is difficult to see how each of the three components of salary, meals and groceries allowances, together with health insurance, would have made a difference. Ground two fails.

14. The Court also accepts the submission by the first respondent, that when the applicant was asked why she was studying, the applicant did not refer to her cousin’s job offer, rather referred to “many opportunities in the job market in Brazil”. This necessarily would have impacted on the weight that the Tribunal gave to her evidence.

15. The Tribunal came to a view that the applicant was not staying in Australia for the purpose of study, rather she was using study as a means of staying in Australia. The Tribunal made a careful analysis of the various criteria and Direction No 69. This included a number of findings that were favourable to the applicant. The Court is satisfied that the ultimate finding was open to the Tribunal on the evidence and no jurisdictional error is made out in each of the three grounds for judicial review.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 28 July 2020