Gandhi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 372
•21 April 2023
FEDERAL COURT OF AUSTRALIA
Gandhi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 372
Appeal from: Gandhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 270 File number(s): VID 287 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 21 April 2023 Catchwords: MIGRATION – appeal from Federal Circuit and Family Court of Australia – where proposed grounds of appeal were not raised before primary judge – where no meaningful case of appealable error identified – appeal dismissed Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) sch 2, cl 572.223
Cases cited: Gandhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 270 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 32 Date of last submission/s: 21 March 2023 Date of hearing: 21 April 2023 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr M Daly Solicitor for the First Respondent: Mills Oakley ORDERS
VID 287 of 2022 BETWEEN: PANKAJ GANDHI
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to: Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Ex tempore
(Revised from transcript)O’CALLAGHAN J:
By a notice filed on 12 May 2022, the appellant appeals from the orders and judgment of a judge of the Federal Circuit and Family Court of Australia dated 14 April 2022. See Gandhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 270.
The primary judge dismissed with costs an application made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) that sought judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 November 2017, which affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the appellant a Student (Temporary) (Class TU) (Subclass 573) visa.
The appellant is a national of India. He arrived in Australia on 2 August 2013 as the holder of a Student (Subclass 573) visa.
On 10 March 2015, he applied for the Student visa that is the subject of this proceeding.
In order to be granted the visa, the appellant was required to satisfy, among other things, cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth):
(1)That the Minister must be satisfied that the applicant was 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) the applicant meets the requirements of subclause (1A) or (2).
In support of his application, the appellant provided evidence of his enrolment in an Advanced Diploma of Management at National Training Centre of Australia between 1 December 2014 and 30 November 2015, and a Bachelor of Business between 21 March 2016 and 23 December 2018.
On 3 May 2016, the delegate refused to grant the appellant a Student visa. Based on the appellant’s “lack of academic progress”, immigration history and the lack of value of the proposed study to the appellant’s future, the delegate found the appellant was using the Student visa program to circumvent permanent migration programs and was not satisfied that he met the relevant regulation.
On 12 May 2016, the appellant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision record.
By a letter dated 28 September 2017 and sent to the appellant’s nominated email address, the appellant was invited to attend an in-person hearing before the Tribunal scheduled for 24 October 2017. The hearing invitation informed the appellant that the Tribunal would consider whether he intended genuinely to stay in Australia temporarily and requested that the appellant provide documents relating to his past studies in Australia and an explanation of any gaps in his enrolment(s).
On 19 October 2017, the appellant’s then-representative provided the following documents:
(a)a written submission to the Tribunal;
(b)a Confirmation of Enrolment (CoE) for a Bachelor of Business commencing on 19 March 2018 and concluding on 20 December 2020;
(c)a CoE for an Advanced Diploma of Leadership and Management commencing on 14 November 2016 and concluding on 7 January 2018;
(d)evidence of the appellant’s course history; and
(e)a death certificate for the appellant’s mother.
The appellant attended a hearing before the Tribunal on 24 October 2017 with the assistance of his representative.
On 28 November 2017, the Tribunal affirmed the delegate’s decision. The Tribunal was not satisfied the appellant genuinely intended to stay in Australia temporarily and found the relevant regulation was not met.
The Tribunal gave several reasons for its conclusion that the relevant regulation was not met. A summary of those reasons, adopted from the helpful submissions filed on behalf of the first respondent, are as follows:
(1)The appellant had arrived in Australia on 2 August 2013 and resided in Australia since that date, having only returned to India once;
(2)The appellant was an only child, was single, his immediate family consisted of his father and grandfather who both resided in India and, apart from the appellant's claim to want to return to India to be with his father, he gave no indication of any strong ties to his home country;
(3)There were reasonable factors contributing to the appellant's study gaps;
(4)It was not reasonably necessary for the appellant to undertake two similar Advanced Diploma courses to prepare for the Bachelor degree, particularly as the appellant had already obtained a Bachelor of Commerce in India;
(5)The appellant had not been able to name any multinational companies that he was interested in working for and had no experience in the hospitality industry;
(6)The appellant’s claim that he was interested in seeking a management position in a multinational company was no more than a “superficial and generalised statement” without substance as it was the appellant’s own evidence he had conducted no research into career options with companies in India;
(7)The extent of the appellant’s personal ties with his home country would not serve as a significant incentive to return to India; and
(8)The appellant had a close family connection and employment opportunities in Australia and this provided him with good reasons to remain in Australia.
On 20 December 2017, the appellant filed in the Federal Circuit Court of Australia an application seeking judicial review of the Tribunal’s decision.
In his application for judicial review, the appellant advanced the following grounds (errors in original):
(1)Want to continue my further studies commencing in March 2018.
(2)Unsatisfactory outcome for the visa.
(3)Juridiatial error [the first respondent accepted that that was intended to be a reference to “jurisdictional error”].
(4)Diploma finishing in Jan 2018 so want to finish that so I can pursue my further studies.
On 8 April 2022, the parties appeared before the primary judge at a final hearing. The appellant was assisted by his brother at the hearing and made oral submissions to the effect that he felt he was disadvantaged because he was not a lawyer and could not present his case adequately.
On 14 April 2022, the primary judge pronounced orders and delivered judgment dismissing the application for judicial review with costs. It is not necessary to set out the grounds upon which the primary judge dismissed the application for judicial review because the grounds sought to be agitated before me are different. The primary judge concluded that the appellant was given a real and meaningful opportunity to present arguments before the Tribunal, had failed to identify any jurisdictional error, and the court had otherwise been unable to identify any jurisdictional error in the Tribunal’s decision. Accordingly, the primary judge dismissed the application with costs.
On 12 May 2022, the appellant filed a notice of appeal from the judgment and orders of the primary judge. The notice of appeal before me contains two grounds and is in the following form:
The Appellant appeals from all of the orders of the Federal Circuit and Family Court of Australia given on 14 April 2022 at Perth.
Grounds of appeal
1.The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to identify the incorrect consideration of relevant evidence by the Administrative Appeals Tribunal (‘the Tribunal’);
Particulars
a.By failing to properly and/or adequately investigate and assess the claims of the Applicant which underlined an intention to stay in Australia temporarily;
b.By summarily dismissing and discounting the broader evidence presented by the Applicant;
c.By placing too much weight on the Applicant’s lack of reliance on her family in India; and
d. By failing to consider the evidence in totality and cumulatively.
2.The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to identify the incorrect application of the appropriate criteria/test to the Applicant’s circumstances by the Tribunal, as prescribed by Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth);
Particulars
a.By failing to properly and/or adequately apply the Applicant’s circumstances to parameters described by Ministerial Direction 69 [the first respondent accepted that the correct applicable Ministerial Direction was Ministerial Direction 53]; and;
b.By taking into account irrelevant matters, and/or information and/or evidence.
Neither ground was advanced before the primary judge. The appellant requires leave to raise them for the first time on appeal. The appellant did not advance any explanation for the failure to raise the grounds below but it is not necessary to explore this question because, for the reasons I will explain, the proposed grounds are without any possible merit.
The appellant was given the opportunity to file written submissions by orders made by Judicial Registrar McCormick on 1 June 2022 but had not done so.
The appellant appeared in person before me at the hearing of the appeal this morning. The following exchange took place:
HIS HONOUR: Do you have the grounds of appeal with you, Mr Gandhi?
MR GANDHI: Yes.
HIS HONOUR: And is there anything that you wish to say in support of them?
MR GANDHI: Sorry, sir?
HIS HONOUR: Is there anything that you want to tell me about them?
MR GANDHI: Yes. It’s, like – the only things I’m pursuing my master’s, master’s studies in Australia.
HIS HONOUR: Sorry. You will need to speak up a bit.
MR GANDHI: I said the only thing is, I’m – want to pursue my master’s in Australia. When I came to – I came for the master’s, but at the very first, I can’t, like, really, do my study properly. That’s why I come back to diploma for one year. Then I want to pursue my master’s, but Immigration didn’t grant me visa, and they give me, like, many of reasons. I don’t have grounds with my family. I only have one – one cousin in Australia, and they’re showing – they said ..... have good bond with my cousin, and I don’t have good bond with my family in India. Even I have, like, family business in India. I only want to do – like, finish my studies and go back to India and help my father in business and want to, like, grow his business as well. Like, this is the only thing I’m looking – if I get my visa and I finish my study, that’s it. And it takes too long to, like, pursue this things here.
HIS HONOUR: Sorry. What was the last bit?
MR GANDHI: I said it’s too long to pursue this thing, like, follow-up for visa and everything here. I don’t, like, think they’re telling me – I will not go back India after my studies. Even if they grant me visa, it’s the same thing. I’m staying here. If I finish my study, there’s no reason I will stay here, like.
Mr Matthew Daly appeared on behalf of the first respondent. His oral submissions rehearsed the matters set out in his helpful written submissions.
The first proposed ground of appeal contends the primary judge erred by failing to “identify the incorrect consideration” of evidence by the Tribunal. The particulars to this ground do not identify whether they are directed to the primary judge or the Tribunal.
The appellant did not identify what broader evidence was discounted. Nor did he identify what evidence was not considered in totality and cumulatively. Nor did the appellant identify any way in which the Tribunal was alleged to have failed to adequately investigate and assess his claims. But in any event, it was not for the primary judge to assess the merits of the appellant’s claims. That would have gone beyond their permissible function. I have reviewed the Tribunal’s decision and, in particular, paragraphs 7 to 34. It is quite clear in any event that the Tribunal was careful to assess each of the appellant’s claims and weigh them in the balance. In my view, those particulars of the first proposed ground are insufficient but in any event do no more than cavil with the Merits of the tribunal’s decision.
The second proposed ground of appeal alleges the primary judge failed to identify the “incorrect application of the appropriate criteria/test” by the Tribunal. The particulars to this ground refer to a failure by the primary judge or the Tribunal to properly apply the appellant’s circumstances to Ministerial Direction 53 and an error in taking into account “irrelevant matters, and/or information and/or evidence”.
As the first respondent submitted, the primary judge was under no obligation to consider the appellant’s circumstances against the relevant Ministerial Direction. The task of considering the Ministerial Direction against the appellant’s circumstances was one for the Tribunal in conducting a review of the merits of the appellant’s case. The appellant, with respect, neither identified nor explained how the Tribunal misapplied the Ministerial Direction or otherwise erred in its consideration of his circumstances.
Further, the appellant has not particularised what “irrelevant matters”, “information” or “evidence” were purportedly taken into account in error and the lack of particularity in this complaint is sufficient alone to warrant its dismissal.
There is no basis to conclude that the Tribunal erred in its consideration of the evidence and, even if it did, the onus would fall on the appellant to demonstrate that such an error was material in the sense that it could realistically have resulted in a different decision. Absent any particulars, it is that the appellant could not meet this onus.
At best, the complaints in these grounds are no more than an expression of the appellant’s disagreement with the outcome of the proceedings in the Tribunal and before the primary judge. They reveal no appealable error.
In my view, the Tribunal’s conclusion that the appellant did not meet the relevant regulation was reasonably open on the evidence before it and for the reasons it gave. The Tribunal, contrary to the grounds sought to be raised on this appeal, did engage with the appellant’s evidence and made both favourable and unfavourable findings in respect of the matters in the relevant Ministerial Direction. Further, the Tribunal did address each of the factors relevant to the appellant’s circumstances.
No meaningful case of appealable error is identified or apparent in the judgment or procedure of the primary judge. Nor has any jurisdictional error on the part of the Tribunal been demonstrated.
I will therefore make the orders sought by the first respondent.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. Associate:
Dated: 21 April 2023
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