Gill v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1128
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gill v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1128
File number(s): SYG 1441 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 1 November 2024 Catchwords: MIGRATION – Judicial Review – Student Visa – GTE Criteria – Where the Tribunal considered that the applicant’s knowledge that relatives obtained citizenship after holding a temporary visa was not an irrelevant consideration having regard to the subject matter, scope, and purpose of cl 500.212(a) and Direction No. 69 – Application dismissed. Legislation: Migration Act 1958 ss 359(2), 499
Migration Regulations1994 Sch 2 cl 500.212
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 30 September 2024 Counsel for the Applicant: David Godwin Solicitor for the Applicant: Parish Patience Legal & Migration Services Solicitor for the First Respondent: Simon Knuckey, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1441 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANMEET SINGH GILL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to the ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 15 June 2020 is dismissed.
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 SKAROS:
By application filed 15 June 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 May 2020. The Tribunal affirmed the decision of a delegate of the First Respondent (the Minister) to refuse the applicant a Student (Subclass 500) visa (the visa).
BACKGROUND
The applicant is a 34-year-old male citizen of India who arrived in Australia on 26 May 2014 as the holder of a Student (Subclass 573) visa, valid until 17 August 2016. The applicant then applied for, and was granted, a Student (Subclass 485) visa, valid until 28 July 2018.
On 19 June 2018, the applicant applied for the visa. On 24 July 2018, the delegate refused to grant the visa on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not intend to genuinely stay in Australia temporarily.
The applicant applied to the Tribunal for a merits review of the delegate’s decision.
The applicant was invited to provide information to the Tribunal pursuant to s 359(2) of the Migration Act 1958 (the Act) and, on 10 March 2020, he did so.
On 14 May 2020, the applicant attended a hearing before the Tribunal by telephone. On the same day, the Tribunal made an oral decision affirming the decision of the delegate and provided oral reasons.
The applicant requested a written record of the oral reasons within 14 days, and on 9 June 2020, the Tribunal provided the applicant a copy of the same.
THE TRIBUNAL’S DECISION
The Tribunal identified the dispositive issue as being whether the applicant met cl 500.212 of sch 2 of the Migration Regulations1994 (the Regulations). That is, whether the applicant was a genuine applicant for entry and stay as a student because the applicant intended genuinely to stay in Australia temporarily (the GTE Criteria).
The Tribunal identified that, in determining the relevant issue, it must have regard to the Ministerial Direction No. 69 titled ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act. This Direction provided that the Tribunal must have regard to (as a guide, not a checklist):
· the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal stated that it had regard to the Departmental file, the information supplied by the applicant to the Tribunal, and the applicant’s oral evidence at the hearing before it.
Thereafter, the Tribunal summarised the applicant’s circumstances and later considered these circumstances in relation to the GTE Criteria.
The findings adverse to the applicant included that he was unable to explain how his study would help him in India or describe it in any meaningful detail. The Tribunal considered that the applicant’s time in Australia and lack of travel to India indicated no significant incentive to return. It noted that the applicant had ties in Australia including work, friends and extended family, that the applicant could stay in touch with his family in India and that the applicant knew of relatives who became Australian Citizens after being on temporary visas (this is canvassed further below).
The findings in the applicant’s favour included that he would have financial support if he returned to India and that there were no military commitments or political and civil unrest in India which would incentivise him not to return.
The Tribunal also put several concerns it had to the applicant. These included that the applicant had not returned home to India in the almost six years since his arrival in Australia and that the applicant was unable to specify the nature of his course or the particular skills and knowledge that he would gain from it.
Relevant to the ground of review, the Tribunal had regard to the following circumstance of the applicant:
[16(f)] The applicant also has relatives in Australia – a cousin who he described as an aunt lives in Melbourne. And there is also, through his married sister, a fellow that lives in Queensland who would be described as a brother-in-law. The applicant indicated he was not close to either of these persons, talking over the phone on a perhaps quarterly basis although he has visited the cousin in Melbourne.
[16(g)] The applicant told the Tribunal that he believed both of those persons were now Australian citizens and had been so for some 10 to 12 years. He also believed that they had both been students in Australia on Student visas although he was not then able to describe how that may in their particular cases have led to them becoming Australian citizens now.
When considering this, the Tribunal made the following finding:
[27(g)] The applicant has ties in Australia, namely his work and a circle of friends with whom he socialises. There is also the fact of family members who although he indicates he does not know how they became Australian citizens he does have that example of people who were once students now being Australian citizens and the Tribunal considers this is relevant to the circumstances.
Based on all its findings, the Tribunal considered that the weight of the evidence established that there was no significant incentive for the applicant to return to India and that the student visa was being used by the applicant to maintain ongoing residence in Australia. Therefore, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student, as required by cl 500.212 and affirmed the decision under review.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contained one ground of judicial review which has been considered by the Court further below.
In compliance with orders made by a Registrar of this Court, on 1 September 2020, the Minister filed the Court Book. The Court book was tendered into evidence at the hearing before the Court and marked Exhibit CB.
On 13 October 2020, the applicant filed written submissions, and, on 26 November 2020, the Minister filed written submissions.
The matter was heard on 30 September 2024 at the Parramatta Registry of the Court. The applicant was represented by Mr Godwin of Counsel. The Minister was represented by Mr Knuckey, a solicitor advocate.
CONSIDERATION
The application contained one ground of review contending that:
The Tribunal exceeded its jurisdiction as it took into account an irrelevant consideration being that two of the applicant’s distant relatives may have had student visas before they became Australian Citizens.
It was submitted on behalf of the applicant that cl 500.212 and Direction No. 69 permit the Tribunal to take into account other relevant matters, but in assessing which matters are relevant, the subject matter, scope and purpose of the legislation are determinative.
The applicant submitted that knowledge that persons can become Australian Citizens after being on a temporary visa has no intrinsic quality that reflects negatively on the genuineness of an applicant’s intention and was not a matter which the subject matter, scope, and purpose of the Regulation would point to as being of relevance. It was submitted that this factual scenario was common to thousands, if not millions, of Australians and most applicants for temporary visas would be aware of it. It was submitted that this knowledge has no intrinsic quality that reflects negatively on the genuineness of an applicant’s intentions. It was submitted that it was not a matter of relevance having regard to the subject matter, scope and purpose of the Regulations.
It was submitted that the applicant having knowledge that distant relatives obtained citizenship after being on a temporary visa could not be given any probative value because it was a common pathway to citizenship. Further, that the applicant knew this was possible cannot be considered a negative factor in assessing genuineness.
It was further submitted that cl 500.212 and Direction No. 69 are focused on the applicant’s circumstances and that distant relatives whom the applicant rarely spoke to having become Australian Citizens is not a comparable matter.
It was submitted that, in terms of materiality, the Tribunal identified this issue as being relevant and considered it in the ultimate balancing act it undertook at [28] of the reasons for its decision. It was further submitted that whilst the Court cannot know precisely the weight that was placed on the conduct of the relatives or the applicant’s knowledge of their circumstances, it was nevertheless taken into account as a matter not favouring the applicant’s case, so it is possible it could have made a difference to the outcome.
At the hearing, Counsel for the applicant drew the Court’s attention to the preamble in Direction No. 69 which provides that an intention to stay in Australia temporarily is not necessarily inconsistent with a future intention to remain permanently. It was submitted that, in this context, the Tribunal’s reasoning was irrelevant to criterion in issue.
Counsel also drew the Court’s attention to the following paragraphs of Direction No. 69:
4. Circumstances where further scrutiny may be appropriate include but are not limited to:
a. information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b. the applicant or a relative of the applicant has an immigration history of reasonable concern;
….
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
It was submitted that these were matters to which a Tribunal would have regard for an applicant who had relatives in Australia.
Counsel referred to the evidence given by the applicant (as summarised by the Tribunal at [16(f)] and [16(g)] of its decision), about his Australian citizen relatives whom he believed had been in Australia on Student visas, and to the Tribunal’s reasoning at [26] and [27].
Specifically, at [27(g)] of its decision, where the Tribunal noted the applicant’s ties in Australia, including family members, Counsel took issue with the Tribunal’s reasoning, submitting that rather than observing that this circumstance may provide a reason for why the applicant may want to remain in Australia (as indicated by the language in Direction No. 69), the Tribunal focused on a different aspect, that this was an example of people who were once students having become Australian citizens.
In specifying the nature of the error alleged to have been committed by the Tribunal, Counsel contended that relatives who were once students later becoming citizens was of no probative relevance to the applicant’s intentions because the Direction itself contemplates that, in future, intentions may change, and the applicant might take a path that his relatives had taken. It was submitted that there was nothing inherently adverse about the applicant having an example of someone who had followed that path. And, in taking this into account as being relevant, the Tribunal had taken into account an irrelevant consideration.
Did the Tribunal take into account an irrelevant consideration?
It is well established that a decision maker will fall into error if they rely on irrelevant material in a way that affects their exercise of power: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J (as he then was) stated at [15(b)]:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. (citations omitted)
In the applicant’s case, the relevant legislative provision was cl 500.212(a). Relevantly, it required the Tribunal to be satisfied that the applicant was a genuine applicant for entry and stay as a student because: (a) 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 (iv) any other relevant matter. In considering whether the requirement in cl 500.212(a) had been met, the Tribunal was required to have regard to the factors in Direction No. 69.
In addition to considering the applicant against all the factors specified in the Direction, as required by [2(a)], the Tribunal was also required to consider any other relevant information provided by the applicant: [2(b)]. The applicant takes issue with the Tribunal’s consideration of the information (at [27(g)] of the Tribunal’s decision), regarding the example the applicant had of family members who were once students becoming Australian citizens, which the Tribunal considered relevant to the circumstances.
Having regard to the subject matter, scope, and purpose of cl 500.212(a) and the broad range of matters in Direction No. 69, the Court considers that the evidence provided by the applicant about the presence (and immigration history) of family members in Australia was information to which the Tribunal was required to have regard.
As to the manner in which the Tribunal took this information into account, the Court is not persuaded that the relevant legislative provision (and the factors specified in Direction No. 69), either expressly or impliedly, restricted the Tribunal from considering (in the way that it did) that the immigration history of family members provided an example for the applicant of people who were once students becoming Australian citizens. The Court is also not persuaded that the Tribunal’s reasoning in that regard was contrary to the recognition in the preamble of Direction No. 69, that a genuine temporary entrant will have circumstances that support a genuine intention to stay temporarily in Australia, notwithstanding the potential for that intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently.
The Tribunal did not suggest, nor can it be inferred from its reasons, that the immigration history of the applicant’s relatives, who were once students and became Australian citizens, was of reasonable concern, such that this circumstance warranted further scrutiny: [4(b)] of Direction No. 69. Further, the Tribunal was not restricted to considering the information regarding the presence (and immigration history) of the applicant’s relatives as being only relevant to whether the applicant had ties in Australia which would provide a strong incentive for him to stay: [11(a)] of Direction No. 69.
Given the broad range of matters (and information) the Tribunal was required to consider, it was open for the Tribunal to consider as relevant that the applicant had, as an example through his relatives, people who were once on student visas that became Australian citizens. This consideration, however, was only one of the many factors weighed by the Tribunal when undertaking its assessment of whether the applicant genuinely intended to stay in Australia temporarily. In considering the Tribunal’s decision as a whole, the Court accepts, as submitted by the Minister, that there was no indication that this consideration weighed heavily, in the Tribunal’s balancing exercise.
The Court accepts the Minister’s submission that a fair reading of the Tribunal’s decision demonstrates that, in balancing the different factors, the Tribunal considered a wide range of information and there were other considerations which led to the Tribunal concluding that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. As set out at [27] of the decision record, these included the applicant’s inability to explain how his studies would assist him in India, the applicant’s inability to describe his studies, that the applicant’s course was at a lower level than what he had already completed, that the applicant had no genuine interest to return to India as he had not returned whilst being in Australia for almost six years, and that that the applicant was able to maintain contact with his parents from Australia.
The Minister submitted that the Tribunal’s list of findings at [27] of its decision indicates which matters formed the basis of the ultimate finding that the applicant did not meet the GTE Criteria. The Minister referred to [27(h)] where the Tribunal said:
The Tribunal considers overall the applicant’s motive is more here for work rather than study because of, as will be noted later, his inability to describe his studies with any degree which convinced the Tribunal that the applicant was genuine in his studies all lead to a situation showing, in the view of the Tribunal, that the applicant has made a life for himself here and that the student visa program is being used to circumvent the intentions of the migration program.
The Minister also submitted that it was not apparent, having regard to the weighing exercise described by the Tribunal at [28] of its decision and in the context of the decision overall, that the Tribunal had any undue reliance on the fact that the applicant was aware of relatives who became citizens after being on a temporary visa.
While the Tribunal, as part of its consideration, took into account that the applicant had, as an example, relatives who were once on student visas becoming citizens, it did not indicate what weight it attributed to this factor. Nor did it express that this was a factor about which it had concerns or that it was an important factor in its balancing exercise. It is apparent, when considering the decision overall, that there were several other factors, as identified by the Minister, about which the Tribunal expressly stated its concern, as demonstrating that the applicant was utilising the student visa program to maintain ongoing residence (and work) in Australia.
The Tribunal was not limited, either expressly or implicitly, by the subject matter, scope or purpose of cl 500.212(a) and Direction No. 69 from taking into account that the applicant had an example of relatives who were once on student visas that became citizens. Accordingly, the Court is not satisfied that the Tribunal, when balancing the different considerations, erred when it had regard to this factor in amongst the many other factors it considered when determining whether the applicant was a genuine temporary entrant.
CONCLUSION
The single ground raised by the applicant does not establish jurisdictional error on the part of the Tribunal.
Accordingly, the application must be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 1 November 2024
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