Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 598
•26 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 598
File number(s): ADG 14 of 2020 Judgment of: JUDGE EGAN Date of judgment: 26 March 2021 Catchwords: MIGRATION – Application for Student Visa – failure to satisfy PIC 4012A in that proposed guardian failed to satisfy genuine temporary entrant criterion – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s 359A, 360.
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, PIC 4012A.
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: 16 Date of last submission/s: 22 March 2021 Date of hearing: 22 March 2021 Place: Brisbane Applicant: Francesk Gjoni appearing in person on behalf of the Applicant as Litigation Guardian. 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 14 of 2020 BETWEEN: LUIGJ 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 THAT:
1.The Application for Review filed on 9 January 2020 be dismissed.
2.The Applicant’s Litigation Guardian 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 child citizen of Italy having been born on 24 May 2010. He arrived in Australia on a tourist visa which was due to expire on 13 March 2018.
On 12 March 2018, the applicant’s mother applied for a Guardian Visa in respect of her two (2) children, namely Luigj (the applicant) 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’s mother 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 Student Visa on the ground that the applicant did not satisfy the criteria as set out in PIC 4012A of Schedule 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’). PIC 4012A of Schedule 4 to the Regulations relevantly provided as follows:
“4012A In the case of an applicant who has not turned 18:
(a) the application expresses a genuine intention to reside in Australia with a person who:
(i) is a parent of the applicant or a person who has custody of the applicant; or
(ii) is:
(A) a relative of the applicant; and
(B) nominated by a parent of the applicant or a person who has custody of the applicant; and
(C) aged at least 21; and
(D) of good character; or
(b) a signed statement is given to the Minister by the education provider for the course in which the applicant is enrolled confirming that appropriate arrangements have been made for the applicant's accommodation, support and general welfare for at least the minimum period of enrolment stated on the applicant's:
(i) confirmation of enrolment; or
(ii) AASES form;
plus 7 days after the end of that period; or
(c) if the applicant is a Foreign Affairs student or a Defence student, appropriate arrangements for the applicant's accommodation, support and general welfare have been approved by:
(i) in the case of a Foreign Affairs student--the Foreign Minister; and
(ii) in the case of a Defence student--the Defence Minister.”
On 12 December 2019, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision of the delegate on the ground that because the applicant’s mother, having had her Student Guardian Visa Application refused, did not have an established entitlement to remain in Australia, the applicant’s intention to reside with her as his guardian could not therefore be considered a “genuine” intention so as to satisfy PIC 4012A of Schedule 4 to the Regulations.
At [10] – [26] inclusive of its reasons, the Tribunal set out its findings in relation to the application before it as follows:
“[10] The applicant does not claim to meet part (b) or part (c). There is no evidence that the applicant falls within either of those provisions and the Tribunal finds that he does not.
[11] There is no claim by the applicant or evidence that 4012A (a) (ii) is satisfied and the Tribunal finds that it is not.
[12] The applicant therefore needs to satisfy part (a) (i) to satisfy 4012A.
[13] The Tribunal has had regard to the applicant’s application for a student visa date 13 March 2018, a form 157N submitted on the applicant’s behalf and providing details of proposed student guardianship arrangements and the decision of the delegate of the Minister for Home Affairs, a copy of which was provided by the applicant.
[14] The applicant’s representative also provided submissions dated 21st of September 2019 in which the Tribunal was asked to proceed on the available documents and the right to a hearing was waived.
[15]The Tribunal notes that the substance of those submissions related to an application by the applicant’s mother, Lule Gjone, for review of her application for a Student Guardian visa.
[16] The applicant’s mother’s application for a Student Guardian visa was not successful. The Tribunal affirmed the decision by a delegate of the Minster to refuse the applicant’s mother’s Student Guardian visa.
[17] The student visa application and the form 157N submitted on the applicant’s behalf both nominate the applicant’s mother, Lule Gjone, as the person with whom the applicant intends to reside in Australia. The Tribunal notes that the applicant’s representative sent an email to the Department on 25 June 2018 that said in part “The student will stay with the father, who currently has a bridging visa A or the mother who currently holds a bridging visa A…”.
[18] The suggestion that the applicant will stay with his father is not reflected in the Application for a Student Visa nor in the form 157N and the Tribunal finds that the applicant has not expressed a genuine intention to do so for the purposes of public interest criterion 4012A(a).
[19] By letter dated 20 November 2019 the applicant, through his representative, was invited, in a way that complied with s.359A, to comment or respond to the information that the parent he nominated as the parent with whom he intends to reside may not be permitted to stay in Australia and in that event, he will not be able to reside with her.
[20] The applicant did not respond or comment on that information within the 14 days allowed for him to do so, nor did he seek further time in which to comment or respond.
[21]The Tribunal finds that the application expresses the intention to reside in Australia with Lule Gjone who is a parent of the applicant.
[22] The Tribunal finds that the application does not express the intention to reside in Australia with any other person who satisfies public interest criterion 4012A (a)(i) or (ii).
[23] The Tribunal finds that Lule Gjoni having had her student guardian visa application refused by a delegate of the Minister and that refusal affirmed by the Tribuanl does not have an established entitlement to remain in Australia.
[24] The Tribunal further finds that the applicant’s expressed intention to reside with Lule Gjoni cannot therefore be considered a “genuine” intention and does not therefore satisfy public interest criterion 4012A.
[25] Accordingly, the Tribunal is not satisfied that cl.500.217 is met in relation to the applicant.
[26] Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.”
On 9 January 2020, the applicant filed an Application for Review of the decision of the Tribunal. The grounds for review as set out in the application 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 500.217(2), the applicant was required to satisfy PIC 4012A as he was under the age of 18. This criterion may be satisfied if the application expresses a ‘genuine intention’ to reside in Australia with a parent or nominated relative.
b. Through the lodgement of a form 157N, the applicant had nominated his mother as the proposed guardian. An associated application for a subclass 590 Student Guardian visa was also lodged by the Mother.
c. 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’.
d. 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.
e. 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
f. the Student guardian visa can only be successful if the linked student visa is granted prior to a decision on the Student guardian visa. f. The Mother’s Student Guardian visa was linked to the Applicant’s Student visa. The Student guardian visa application was refused on 5 June 2018.
g. Whilst the ongoing enrolment of the applicant was raised in the delegate’s decision on the Student Guardian visa, 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.
h. A delegate of the Department then requested that applicant provide evidence of an alternate means of welfare. The visa application was subsequently refused on the basis that no suitable welfare arrangements were identified. No adverse finding was made regarding course enrolment.
i. Applications to the Administrative appeals Tribunal for review of the respective refusals of the applicant and his mother were lodged. The Tribunal ostensibly sought to deal with these applications concurrently and invited the applicant and his mother to attend a hearing on 30 September 2019.
j. Submissions and supporting documents supplied by the applicant were primarily directed at the mother’s intentions in Australia and incentives to return. It was also contended that the applicant 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 was in dispute.
k. The mother’s refusal decision was affirmed by the Tribunal before a decision was made on the applicant’s matter. In refusing the mother’s 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 without putting the Applicant or his mother on notice that this issue was in contention.
l. The ongoing enrolment of the applicant is an essential eligibility requirement for his application. This is a time of decision criterion.
m. The Tribunal has therefore processed the associated applications in way that prevented the possibility of a successful outcome. In processing the Guardian application first, and refusing this (without notice) on the basis of insufficient evidence of enrolment, and then refusing the applicant’s student visa application on the basis that the Guardian visa had been refused, the Tribunal has effectively created a paradoxical ‘catch-22’ situation that has denied the applicant procedural fairness.
a. In the premises, the Tribunal did not comply with s 360 of the Migration Act.
b. If the Tribunal had instead given notice to the applicant and his mother that his ongoing enrolment was in contention, and that this would impact on the ability of his mother to provide the guardianship required under PIC4012A, 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
By order of this Court made today in ADG455/2019, the Application for Review of the decision of the Tribunal in respect of the applicant’s mother was dismissed.
The applicant could therefore not satisfy cl. 500.217 of Schedule 2 to the Regulations in that the applicant failed to meet the relevant PIC 4012A criteria. Clause 500.217 of Schedule 2 to the Regulations relevantly provided as follows:
“500.217
(1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
(2)If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.
(3)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(4)The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.
(5)The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.”
The Tribunal complied with its statutory obligations under s. 360 of the Migration Act 1958 (Cth) (‘the Act’). To the extent that the applicant complained about the Tribunal’s non-acceptance of propositions advanced on behalf of the applicant, the applicant seeks an impermissible merits review of the decision of the Tribunal. Otherwise, the Court finds that the applicant has failed to discharge its evidentiary burden in respect of ongoing enrolment claims.
In circumstances where an applicant is unable to meet qualifying criteria for the grant of the visa, and further, in circumstances where the Tribunal has duly availed the applicant of an opportunity to comment on or respond to information under the provisions of s. 359A of the Act but the applicant has failed to do so, the Tribunal was entitled to dismiss the Application for Review and affirm the decision of the delegate.
Further, the applicant has not demonstrated any procedural unfairness in relation to the hearing and determination of his claims before the Tribunal. The applicant elected not to appear before the Tribunal. In such circumstances, the Tribunal did not err.
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.”
The applicant has not demonstrated any 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 sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 26 March 2021
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