Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 599
•26 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 599
File number(s): ADG 455 of 2019 Judgment of: JUDGE EGAN Date of judgment: 26 March 2021 Catchwords: MIGRATION – Application for Student Guardian Visa – whether applicant had a genuine intention to remain in Australia temporarily – findings of Tribunal open on the evidence before it – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl 500.215 Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs: 17 Date of last submission/s: 22 March 2021 Date of hearing: 22 March 2021 Place: Brisbane Applicant: The Applicant appeared in person on her own behalf Solicitor for the First Respondent Australian Government Solicitor Counsel for the First Respondent: Ms Battiste Second Respondent Submitting appearance save as to costs ORDERS
ADG 455 of 2019 BETWEEN: LULE GJONI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
26 MARCH 2021
IT IS ORDERED THAT:
1.The Application for Review filed on 15 November 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $3,300.00.
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Italy. She arrived in Australia on a tourist visa which was due to expire on 13 March 2018.
On 12 March 2018, the applicant applied for a Guardian Visa in respect of her two (2) children named Luigj and Blerta Gjoni. Applications for Student (Temporary) (Class TU) (Subclass 500) Visas were lodged in respect of each such child on 13 March 2018. The applicant was nominated as the person with whom each child intended to reside whilst they were in Australia.
On 5 June 2018, a delegate of the Minister refused to grant to the applicant a Guardian Visa on the ground that the applicant did not satisfy the criteria as set out in cl. 590.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), namely that the applicant only genuinely intended to stay in Australia temporarily. Clause 590.215 of Schedule 2 to the Regulations relevantly provided as follows:
“590.215
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:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) any other relevant matter; and
(b) the applicant intends to comply with any conditions to which the visa may be subject, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
On 24 October 2019, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision of the delegate.
On 15 November 2019, the applicant filed an Application for Review of the decision of the Tribunal. The grounds for review, which were largely a re-statement of the visa application history from the applicant’s perspective, were as follows:
“1. The Administrative Appeals Tribunal (“the Tribunal”) erred in failing to comply with s 360 of the Act (and in so doing denying the applicant procedural fairness.
Particulars
a. Pursuant to sc 590.211 of Schedule 2 of the Migration regulations, an applicant for a Subclass 590 Student Guardian visa must be nominated by a ‘nominating student’.
b. Sc 590.111 provides that a ‘nominating student’ means a person who, at the time of decision for the applicant, holds a student visa that was granted on the basis that the person met the primary criteria for the grant of the student visa.
c. Pursuant to the ‘note’ at sc.590.2, all criteria must be satisfied at the time a decision is made on the application. That is, a valid application for an application of this kind can be lodged in connection with an undecided Student visa application, but the application for the Student guardian visa can only be successful if the linked student visa is granted prior to a decision on the Student guardian visa.
d. The applicant’s Student Guardian visa was linked to the Student visa applications of her minor son and daughter. The Student guardian visa application was refused on 5 June 2018.
e. Whilst the ongoing enrolment of the children was raised in the delegate’s decision, this was not relied on by delegate to refuse the application. The primary factors relied on in refusing the application were the adverse inferences drawn from the applicant’s immigration history and a lack of evidence of significant incentives to return to Italy.
f. A delegate of the Department then requested that the two children provide evidence of an alternate means of welfare. The two student visa applications were subsequently refused on the basis that no suitable welfare arrangements were identified. No adverse finding was made regarding course enrolment.
g. Applications to the Administrative appeals Tribunal for review of the respective refusals of the applicant and her son were lodged. The Tribunal ostensibly sought to deal with these applications concurrently and invited the applicant and her son to attend a hearing on 30 September 2019.
h. Submissions and supporting documents supplied by the applicant were primarily directed at the Applicant’s intentions in Australia and incentives to return. It was also contended that the student had ‘applied for a proper course in the Cricos RTO by providing all the relevant documentation is [sic] required by law’. It is therefore plain that the applicant was not aware that the enrolment of the son was in dispute.
i. The applicant’s appeal was affirmed by the Tribunal before a decision was made on the application of her son.
j. In refusing the application, the Tribunal applied Ministerial Direction No. 69 Assessing the genuine temporary entrant criterion for student and student guardian visa applications. In doing so, the Tribunal made a number of adverse findings regarding the study plans of the son:
i. At [24] – ‘the applicant has not since provided any evidence of further enrolment’
ii. At [28] – ‘Tribunal notes that no current COE has been provided in relation to the applicant’s children.’
i. At [34] - ‘The applicant has not provided any reason for seeking a Student Guardian visa other than the unsupported suggestion that her children wanted to study here. The applicant suggested in the letter of 15 April 2018 that “…I am only here for short time.” and that she wants a visa so that “…I can be with my children while they are studying here for a short period of time.”
The applicant does not say how much longer she proposes to stay or for how much longer her children are going to study in Australia, if indeed they are studying. The above statements that she will only stay for a “short time” were made well over a year ago. Although there is no way of knowing what the applicant meant by a “short time” the Tribunal is instructed to some extent by her statement in the same letter that she had decided to enrol the children until December 2018.
It appears that the applicant may be using the student visa program to circumvent the intentions of the migration program.’
k. The ongoing enrolment of the son is an essential eligibility requirement for his application. This is a time of decision criterion. A decision was not made by the Tribunal on the Son’s application prior to the decision to affirm the applicant’s matter, and no request or notice had been issued to the son by the Tribunal to provide evidence of enrolment.
b. The findings identified in particular (j) above:
i. were, and were treated by the Tribunal as, issues on the review;
ii. did not form part of the basis for the Delegate’s decision to refuse the initial visa application; and
iii. were not put to the Applicant as issues on the review.
c. In the premises, the Tribunal did not comply with s 360 of the Migration Act.
d. If the Tribunal had put the proposed findings in particular (a) to the Applicant, there is a realistic possibility that:
i. the Applicant would have been able to respond to the proposed findings;
ii. the Tribunal would not have made the proposed findings; and
iii. the Tribunal would not have affirmed the decision under review.”
Consideration of Grounds of Review
In her visa application, matters in support of that application were recorded as follows: [1]
[1] Court Book (Exhibit 1) CB – p. 21.
“a. The children were enrolled in South Australian schools and had obtained COEs. A COE was provided from March-December 2018;
b. The children required Lule’s care because of their age and because they had not been apart from her since they were born;
c. There was a strong cultural and religious bond linking the mother and the two children;
d. They came to Australia to visit the country and their husband and father who is studying in Australia;
e. The parents had some savings;
f. The parents wanted the children to have some study experience in Australia where their study could be in English. It said that the children were enrolled “just to give them an opportunity to study in an English language school”;
g. It was good for the children to have this exposure;
h. Lule had strong incentives to return back with the children to Italy because her family was in Europe, her house and her work;
i. The Italian economy was very strong, Lule spoke Italian very well and her future was in Italy; Lule’s family was providing financial back up to support her and the children in Australia while they were studying;
j. As a mother Lule needed to be close to the children to care for them in various described ways.
k. Lule was currently unemployed and had worked as a kitchen helper in a restaurant for almost ten years and on a casual basis since her children were born.”
When considering the application for the visa, the Tribunal recorded that it had had regard to the matters as set out in paragraphs [13] – [25] of its reasons which relevantly provided as follows:
“[13] The applicant seeks a visa to reside temporarily in Australia as guardian for her two children, Blerta Gjoni who was born on 19 July 2007 and is 12 years old, and Luigj Gjoni who was born on 24 May 2010 and is nine years old.
[14] The applicant was born in Albania on 23 August 1978. She and her husband Francesk were married in Albania on 6 September 1998.
[15]She moved to Italy at some point, possibly after she was married although the timing of her move is not important for this application.
[16] The applicant said in her application on 12 March 2018 that she and her children came to Australia to visit the country and her husband who is studying here.
[17] The application says that they had some savings and wanted the children to have some study experience in Australia where their study could be in English.
[18] The application does not say why the applicant believes that being educated in English will be of benefit to her children.
[19] The Department asked the applicant to provide further information by filling in a document known as Form 80 which was done on 15 April 2018.
[20] Included with the form 80 was a document entitled “Genuine criteria letter for Mrs Lule Gjoni”.
[21] In that document, which is apparently signed by the applicant, she says that she came to Australia with her two children in order to visit their father who had been living here for a few years.
[22] The letter says “… the children wanted to learn English and have a new experience of studying in Australia before returning to Italy. So, I decided to enrolled the children to school until December 2018.”
[23] Tribunal notes that in the delegate’s decision of the 5 June 2018, the delegate noted that the applicant’s children were enrolled to start primary school at Paradise Primary School in March 2018 but at the time of the decision the certificates of enrolment had expired and there was no evidence of any further enrolment.
[24] The applicant has not since provided any evidence of further enrolment.
[25] In the submissions of 21 September 2019 the applicant’s representative submits that the delegate has wrongly found evidence of an adverse economic situation and of political unrest in the applicant’s home country. The representative appears to think that the delegate has confused the applicant’s country of birth with her country of nationality.”
When considering the evidence placed before the Tribunal, the Tribunal at [28] – [33] of its reasons said as follows:
“[28] Tribunal notes that no current COE has been provided in relation to the applicant’s children.
[29] The representative says that the applicant’s children require care and assistance and indicates that her cultural and religious background mean it is important to her that she be present here while her children study.
[30] The tribunal notes that in her application the applicant said that it was important that she be close to her children to take them to and collect them from school, prepare their food and clean their clothes. In the letter of 15 April 2018 the applicant says “…My children are under the age of 18, by law they need a guardian and therefore I am here for them.”
[31] There is no support for the suggestion that the applicant is compelled by religious or cultural considerations to stay with her children.
[32] The submissions also observe that persons who enter Australia as temporary visitors are entitled to apply for certain visas onshore if they meet the relevant criteria. It is submitted that if a further visa is not going to be granted there should be a “no further stay” condition placed on the temporary visa. The Tribunal finds that it is obliged to consider the application on its merits and that this consideration is not a relevant one.
[33] In considering whether the applicant satisfies cl. 500.212 (a) the Tribunal must have regard to Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for student Visa and student Guardian Visa applications”.”
The Tribunal recorded that it was required to have regard to Ministerial Direction No. 69 when assessing the relevant genuine temporary entrant criterion for Guardian Visa applications. The Tribunal closely considered all relevant matters which it was required to take into account under the Ministerial Direction. At [34] of its reasons, the Tribunal made findings by reference to such direction. A relevant summary of those findings is as follows:
34. Applicant’s Circumstances in Home Country
9.
(a)On the question as to whether the applicant had reasonable reasons for not undertaking study in her home country, it was noted that the children did have access to schooling in Italy. The applicant maintained that there was an advantage and preference for the children to study English for a short period in Australia. The Tribunal was not satisfied that there were reasonable reasons provided for the applicant’s children to study in Australia.
(b)On the question of the extent of the applicant’s personal ties to her home country, the applicant maintained that she had strong incentives to return back to Italy with the children where she had family, a house and work. The Tribunal noted that most of the applicant’s family lived in Albania rather than Italy, and that though Italy was relevantly close to Albania, the Tribunal did not accept that that represented a significant incentive to return to Italy. The Tribunal noted that there was no evidence about the applicant’s house in Italy. It further noted that the applicant had described herself as unemployed in her visa application. The Tribunal was not satisfied that the applicant had such personal ties to Italy such that they constituted a significant incentive to return there.
(c)On the question of the economic circumstances of the applicant, the Tribunal noted that there was nothing to suggest that the applicant’s economic circumstances in Australia were better than what they would be in Italy or that that represented an incentive not to return. The Tribunal noted that the applicant had submitted that the Italian economy was relatively strong.
(d)There were no military service commitments which would have required the applicant to return to Italy.
(e)There was no evidence of political or civil unrest in Italy such that that would constitute a motivating factor in the applicant’s application for a Student Guardian Visa.
10. …
Potential Circumstances in Australia
11.
(a)Though the applicant said that she was married to her husband Francesk Gjoni, she also said that she was separated from him. Though the Tribunal did not find that the applicant’s marriage was a strong incentive for her to remain in Australia, it was noted that the applicant relied upon her husband’s financial security as part of her own visa application. The Tribunal did not find such consideration of assistance in its deliberations.
(b)The applicant’s only reason for seeking a Student Guardian Visa was because her children wanted to study here. The applicant did not state for how long she intended to stay in Australia. The applicant’s statement that she only intended to stay for a “short time” was made more than a year prior to the Tribunal hearing. It appeared to the Tribunal that the applicant could be using the student visa program as a means of staying in Australia.
(c)The Tribunal found that in the absence of good reasons being provided to it by the applicant as to when she intended to return to Italy, the applicant was using the student guardian visa process to maintain ongoing residence.
(d)…
(e)On the question of the applicant’s knowledge of living in Australia, the Tribunal accepted that the applicant had a good knowledge of what would be involved with living in Australia and what courses of study her children were undertaking.
Value of the Course to the Applicant’s Future
12.
(a)On the question of whether the children were seeking to undertake courses of study consistent with their current levels of education and whether the courses would assist them in attaining employment or improving their prospects of attaining employment in their home country, the Tribunal found that the children were undertaking primary school education which was appropriate for them.
(b)…
(c)…
13–14.
(a) On the question of the applicant’s immigration history, though the Tribunal found that the applicant had not stayed in Australia in breach of the terms of any visa, or had ever held a visa that had been cancelled or considered for cancellation, the Tribunal found that the amount of time spent in Australia was substantially longer than what was originally suggested initially by the applicant, and that on that basis it was considered that the applicant may be using the student guardian visa application process as a means of maintaining ongoing residence.
Having weighed up all of the evidence against the relevant criteria as set out in cl. 590.215 of the Regulations and in the Ministerial Direction, the Tribunal was not satisfied that the applicant intended genuinely to remain in Australia only temporarily. The Tribunal found that the applicant did not satisfy the relevant cl. 590.215 criteria.
The Tribunal noted that the applicant had failed to explain appropriately why she had remained in Australia beyond December 2018, as was initially stated by her as being the time up to which her children were to be enrolled as students in primary school. In the light of all of the evidence before the Tribunal, the Tribunal was entitled to make the finding that it was not satisfied that the applicant intended only to remain in Australia temporarily.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Further, it cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 26 March 2021
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