GJONI v Minister for Immigration

[2019] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

GJONI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1722

Catchwords:
MIGRATION – Judicial review – AAT not satisfied applicant for student visa a genuine temporary entrant – whether Tribunal’s finding that it was “not satisfied the applicant had been studying as claimed” was open on the evidence.

Legislation:

Migration Act 1958 (Cth), s.359

Migration Regulations 1994 (Cth)

Cases cited:

Stead v State Government Insurance Commission (1986) 161 CLR 141

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Applicant: FRANCESK GJONI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 84 of 2018

Judgment of: Judge Young

Hearing date: 4 June 2019

Date of Last Submission: 4 June 2019

Delivered at: Darwin

Delivered on: 4 June 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Ms Milutinovic

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Ms Milutinovic

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. That the first respondent henceforth be referred to as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. That the application for review is amended by the insertion of the following ground of review:

   “2. The Tribunal’s finding that it was not satisfied that the applicant had been studying as claimed is unreasonable and the error is material.”

3. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 31 January 2018.

4. 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 31 May 2016 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 84 of 2018

FRANCESK GJONI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 31 January 2018 affirming a decision of the Minister’s delegate made on 31 May 2016 to refuse the applicant a student visa. The ground of the delegate’s refusal was that she was not satisfied that the applicant satisfied clause 572.223 in Schedule 1 of the Migration Regulations, which require the minister to be satisfied that the applicant “intends genuinely to stay in Australia temporarily”.  This is the so-called ‘genuine temporary entrant criterion’. The Tribunal affirmed the delegate’s decision on the same ground.

3. By way of background, the applicant is a 43 year old Italian citizen who came to Australia in May 2015 on a student visa.  He initially studied English. Between February 2016 and May 2017, he completed a Diploma of Leadership and Management. He subsequently commenced a Certificate IV course in Marketing and Communication in July 2017 which was due to be completed on 16 January 2018. It is to be noted that this was about two weeks before the Tribunal’s decision on 31 January 2018.

4. The applicant said that he undertook these courses with a view to returning to Italy and his former employment to take up a management position.  There was some support from his former employer that that was a potential option for him and there is a letter included in the court book to that effect.

5. The applicant was no longer represented in the hearing before me but was assisted by an interpreter.  He asserted from the bar table that he had, in fact, completed the latter course, that is, the course due to be completed on 16 January 2018, by the completion date. However, that claim was not otherwise in evidence and I disregarded it.

6. Both the delegate and the Tribunal had regard to Ministerial Directive 53 in assessing the application.  No error is asserted in the approach of the Tribunal under that heading.  Both the delegate and the Tribunal were concerned about the applicant’s circumstances more broadly.

7. He had been employed in Italy, apparently in a plant nursery or something similar.  He had no formal qualifications beyond secondary school, as far as I can see from the material. He is married and has two children. At the time of the Tribunal hearing they were 11 and seven years old. His wife and two children remain living in Italy. It appears from the material that it is a subsisting marriage and there is no suggestion that the applicant is estranged or separated from his wife.

8. It appears that in the approximate four years the applicant has been in Australia, he has returned to Italy on at least two occasions to see them.  It appears that he continues to financially support his family. The applicant says he works four hours a day in his own handyman maintenance business and is able to afford the travel and to support his family.  It also appears that the applicant has a cousin, or cousins, living in Adelaide, where he resides. These factors suggested to both the delegate and the Tribunal that the applicant was, in reality, staying in Australia intending to work, had an incentive to remain and was not a genuine temporary entrant.

9. In my view, those factors certainly suggest that the applicant may not have been a genuine temporary entrant. In its decision, the Tribunal referred to these matters. It also referred to one matter that was not considered by the delegate.

10. At paragraph 28 of its reasons, the Tribunal said this:

    The applicant, since his arrival in Australia, has completed an English language course and is studying leadership and management in Australia via an online course.  When asked about the subjects he has completed to date, his response was vague. He said that he has completed five subjects and he needed another subject.  Asked to name those subjects, he said that the subjects are how to sell products, how to become a good salesman, there are different subjects, more or less, on the same topics.  He cannot remember the names, as he is studying online.  When asked about the one subject left to study, he could not name or explain that subject, just saying he gets assigned a subject by the school.

    Further, he does not attend school face-to-face, but studies online.  The Tribunal is of the view that, had the applicant been studying subjects for his intended career path in management in an Italian company, he would have been able to provide some information about the name of the subject, or at least explain, in some detail, what the subjects were about.  The Tribunal is not satisfied that the applicant has been studying as claimed. 

11. Paragraph 29:

    The Tribunal accepts that working in Australia whilst studying does not suggest that a person is not a genuine student. But in this instance, the applicant works in Australia in his own business as a painter and handyman/gardener. And when put that he earning a substantial amount of money, being able to return to Italy a number of times, he agreed.

    At paragraph 32, the Tribunal said,

    In light of the applicant’s inability to name all the subjects he has been studying online, and coupled with his business as a handyman, earning sufficient to support his family in Italy and to travel, the Tribunal is of the view that the economic circumstances of the applicant in Australia are a significant incentive for the applicant not to return to Italy.

12. And at paragraph 33:

    On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal finds, on balance, that the applicant does not intend genuinely to stay in Australia temporarily.

13. The grounds of review in the applicant’s application, or the ground, is as follows:

    (1)The Tribunal erred in failing to hear and determine the applicant’s application in accordance with the requirements of procedural fairness.

    There are a number of particulars:

    (a)The Tribunal concluded that it was not satisfied that the applicant had been studying as claimed.

    (b)The applicant informed the Tribunal at the hearing that his course is not an “online course” and confirmed that he attended face-to-face classes. In the decision record, the Tribunal makes conflicting statements as to whether the Tribunal accepted the applicant’s evidence that the course was not an online course and that he attended face-to-face classes.

    (c)The Tribunal had been provided evidence of the applicant’s positive study history, including evidence that he had achieved satisfactory attendance and course progress.

    (d)The Tribunal also accepted that there was no adverse immigration history which would have existed if the applicant had not maintained satisfactory attendance and course progress in accordance with the required notifications under the “provider registration and international student management system”.

    (e)At the hearing, the applicant’s representative in closing submissions asked the Tribunal whether any further evidence of face-to-face course attendance was required.  The Tribunal responded that she did not and that if she wanted it, she would have asked for it. The applicant was therefore not on notice that the Tribunal did not accept that he was maintaining satisfactory course attendance and progress.

    (f)As a result, the Tribunal deprived the applicant of the opportunity of providing oral or post-hearing submissions regarding the issue of whether he had been “studying as claimed” and therefore the opportunity to fairly put forward his case.

14. The applicant did not file written submissions. He was apparently unaware of the grounds as drafted by his then lawyers.  He was unable to make intelligible submissions on the ground I have referred to, or on the issue of jurisdictional error more generally.  The Minister says that the ground reveals no error, or is mistaken in its factual claims.  I agree that whether or not the applicant studied online or face-to-face was not material to the Tribunal’s reasoning process in relation to the question of whether the applicant was studying as claimed.

15. The Tribunal was not satisfied about that because of the vagueness of his answers about the names of his subjects. Further, the Minister says that the Tribunal was not obliged to give the applicant an opportunity to comment about its concerns about whether he was studying as claimed. The Minister relied on section 359(4)(b)(a) of the Migration Act, which excludes from the general requirement that the Tribunal is to give particulars of any information that the Tribunal considers would be the reason for affirming a decision under review because, according to (4)(b)(a), the section does not apply to information that the applicant gave for the purpose of the application for review.

16. I accept the Minister’s submission in relation to the ground of review, and in relation to that information.  The matter that has concerned me is whether there is an evident and intelligible justification for the Tribunal’s conclusion that it was “not satisfied that the applicant has been studying as claimed”.  There is no indication that this was in issue and, given my conclusion above, I am satisfied that there was no obligation for the Tribunal to give notice that that was an issue.  However, the Tribunal’s reasoning is that because of the applicant’s vague answers and inability to remember his subject names, it was not satisfied that he had been studying as claimed. 

17. That conclusion must be seen in the context that there was evidence that the applicant had successfully completed a course of study for a Diploma of Leadership and Management and had commenced, and almost completed, his Certificate IV in Marking and Communication. Indeed, as noted, he was due to complete that course on 16 January, that is, shortly after his interview with the Tribunal in December 2017 and before its decision on 31 January 2018. No inquiry was made of the applicant before the Tribunal delivered its decision about whether he had actually completed the course.

18. I asked counsel for the Minister whether there was an evident and intelligible justification for the Tribunal’s finding on that issue.  She said that the phrase “not satisfied the applicant has been studying as claimed” simply meant that the Tribunal was not satisfied that the applicant was studying with the genuine purpose of obtaining education or skills to further his career on his return to Italy.  She said that the phrase should not be interpreted to mean that the applicant was not actively attending or completing his study. 

19. I am unable to accept that submission.  If that was what the Tribunal meant, I would have expected the Tribunal to use those words or something similar, such as, “for the purpose or intention claimed”. To my mind, the phrase “as claimed” suggests that the claimed study is false.  In my view, that conclusion was not open on the material. 

20. Counsel for the Minister submitted that the reasons should not be read “with an eye keenly attuned to error”. However, in my view, this is an important finding and one which is entirely inconsistent with any suggestion by the applicant that he is either a genuine student or a genuine temporary entrant. If that conclusion was correct, in my view, it would lead inexorably to the conclusion that the applicant was not a genuine temporary entrant. However, in my view, there is no evident or intelligible justification for that conclusion and it is unreasonable.

21. I am also satisfied that it is a material error.

22. I accept that there are other bases on which the Tribunal could have reached the conclusion that it was not satisfied that the applicant was a genuine temporary entrant based on his long absence from Italy and his family, his evidently successful employment in Australia, and his family connections but I am not satisfied that the error could not have deprived the applicant of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 and Hossain v Minister for Immigration and Border protection (2018) 359 ALR 1. This is an error identified by the court, so I will order the application to be amended to reflect that.

23. The Tribunal’s finding that it was not satisfied that the applicant was studying as claimed is unreasonable and the error is material. I propose to quash the decision.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  24 June 2019