Hettiweediye Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 985
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hettiweediye Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 985
File number(s): SYG 3364 of 2018 Judgment of: JUDGE LAING Date of judgment: 2 November 2023 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a Student (Temporary) (Class TU) visa – whether the Tribunal failed to consider relevant considerations and/or evidence – whether the Tribunal’s decision was open on the material before it – allegation of bias – application dismissed Legislation: Migration Act 1958 (Cth) ss 368, 476, 499
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646
Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 20 September 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms A Wilford of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3364 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAKUNTHALA CHATHURANI PARANAGAMA HETTIWEEDIYE MUDIYANSELAGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be 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 LAING:
Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who applied for the student visa that is the subject of these proceedings on 6 December 2016.
On 23 February 2017, the Delegate refused to grant the application on the basis that the applicant did not meet cl 500.212 (genuine temporary entrant criterion) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 2 March 2017, the applicant applied for review by the Tribunal.
On 10 April 2018, the applicant attended a hearing before the Tribunal.
On 13 November 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is 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
(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 intends to comply with any conditions subject to which the visa is granted, 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.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the evidence before it, the criterion in issue and the effect of Direction No. 69 at [1]-[16] of its decision. The Tribunal then reasoned as follows at [17]-[20]:
17.The applicant gave evidence about her circumstances in her home country and in Australia. Prior to coming to Australia the applicant had completed a Diploma in Pre-School Education and Management. The applicant’s parents reside in Sri Lanka and evidence was submitted of her sponsor’s assets and financial position. Since arriving in February 2009 the applicant has returned to her home country twice, once in 2013 for approximately four weeks and again in 2015 for less than one week. The applicant’s evidence is that since her sister is in Australia and her parents have visited several times, she has not returned to Sri Lanka more often. Given the length of time the applicant has resided in Australia, the Tribunal finds she does not have significant ongoing ties to her home country and is not satisfied there is any strong incentive for her to return after completing her current course of study.
18.The applicant studied a Diploma of Community Welfare in Australia and was then granted a Subclass 485 visa. She has been employed by a childcare centre as an Educator since June 2012 as evidenced by a Statement of Service from the employer. The applicant did not provide any evidence of having worked in the area of Community Welfare. According to the applicant, she began to study a Bachelor of Applied Social Science but it did not meet her expectations so she did not continue. Instead the applicant decided to pursue Accounting, a field unrelated to her original Community Welfare course. The applicant began the course in February 2014 and at the time of the Tribunal hearing in April 2018, had not completed it. In a written GTE statement to the Department the applicant said she had expected to finish her course by October 2016 but had failed subjects.
19.The Tribunal accepts an applicant may decide to change the course of the studies as the applicant chose to do. However, the Tribunal finds the amount of time spent studying a Bachelor of Accounting to be excessive. The applicant claimed her course completion was delayed because she had failed some subjects that were only often at certain times thus affecting her progress. The applicant’s Academic Transcript for her Bachelor of Accounting degree shows that she completed her first year in 2014 successfully but thereafter, from 2015 to 2017 she failed the majority of her units of study. Some subjects such as ACCT19060 Management Accounting were attempted twice and not passed, while the transcript shows the applicant was enrolled in unit FINC19011 Business Finance four times but failed the course each time. The applicant conceded she had failed subjects but did not provide a satisfactory explanation for her poor grades and lack of progress. It may be the demands of full-time study and regular work of 20 hours per week was excessively demanding. Nevertheless, the Tribunal considers the applicant has had ample opportunity since 2009 to complete her academic goals and is not satisfied she intends to complete her Bachelor of Accounting and return to her home country. Although the applicant provided a letter of offer of employment from Sri Lanka dated 10 January 2017, the Tribunal does not accept an employer would offer and hold a position so far in advance of an applicant completing their studies.
20.The Tribunal has considered the value of the applicant’s studies to her future. There is no doubt a Bachelor of Accounting will be useful for her career if she decides to pursue Accounting. However, the Tribunal is concerned the length of time the applicant has spent in Australia, her long term employment as an Educator and her lack of strong ties to her home country outweigh this consideration.
Based upon the above, the Tribunal found that the applicant was unable to meet cl 500.212 of Schedule 2 to the Regulations and affirmed the Delegate’s decision (at [21]-[24]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 3 December 2018, relying upon the following grounds:
1.I disagree with Immigration and AAT’s decision. They did not consider that I have a genuine intention to apply for a student visa and have been obeying student visa conditions since my arrival in Australia.
2.DIBP and AAT should granted my student visa and allow me for further study in Australia.
3.I tried my best to find a suitable course for me for my future career and I worked very hard to achieve good results. My purpose of stay in Australia is definitely for genuine study…
4I am a citizen of Sri Lanka and applied for further student visa in Australia. I have always obeyed my visa condition and never breached it.
5AAT member have strong prejudice on my review application simply because I spent long time here. The member ignored the fact that I have good attendance and genuine intention for study here.
6AAT did not well consider of my failed course which was situation beyond my control and did not provide me a chance for further study which is not fair for me.
To the extent that the grounds sought review of the Delegate’s decision, it should be noted that this Court has no jurisdiction to undertake such a review: s 476(2) of the Act.
Grounds 1 to 4
Grounds 1, 2 and 3 disagreed with the Tribunal’s decision and its conclusions regarding the genuine temporary entrant criterion.
I accept the Minister’s submission that this seeks to engage the Court in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh, Gummow JJ. At the hearing of this matter, I sought to explain the limitations of the Court’s role in proceedings such as the present. This Court has no general power to remake the factual findings of the Tribunal, or its conclusions regarding the ability of the applicant to qualify for the visa. All this Court is able to do is determine whether the Tribunal’s decision is affected by any material, legally relevant error, such that it should be required to re-determine the application made to it according to law.
To this end, grounds 1 and 4 raised that the applicant had previously complied with her visa conditions. At the hearing, the applicant submitted that the Tribunal failed to consider her evidence in this regard. In certain cases, a failure to consider centrally relevant evidence may result in jurisdictional error. Direction No. 69 also referred to compliance with previous visa conditions as a consideration.
However, as was submitted by the Minister, Direction No. 69 was not to be used as a “checklist”. The Tribunal was not required to make express findings regarding every factor in that direction: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [96] per Derrington and Thawley JJ. Nor was the Tribunal required to refer to every aspect of the evidence that was before it. Rather, the Tribunal’s obligation to give reasons extended under s 368(1) of the Act to setting out its findings on questions of fact it considered were material.
The applicant’s evidence regarding her previous compliance with her visa conditions was brief and limited to a statement that this had occurred. I accept that the Tribunal made no express reference to that statement in its decision. However, the Tribunal was clearly aware of the applicant’s visa history (at [4]-[11] and [18]-[19]) and does not appear to have doubted that she had complied with the conditions of those visas. The issue for the Tribunal, rather, was the length of time that the applicant had spent in Australia whilst on those visas, when contrasted with the limited academic progress that she had made.
Having regard to the above, I accept the Minister’s submission that it has not been demonstrated that the Tribunal failed to consider this evidence, as opposed to having not considered it material to its decision.
For the above reasons, grounds 1 to 4 are unable to succeed.
Ground 5
Ground 5 contended that the Tribunal had a “strong prejudice” regarding her application because of the length of time she had spent in Australia.
I have understood this to raise an allegation of bias. As was discussed at the hearing, such grounds have high thresholds. Actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J. Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
At the hearing, the applicant did not seek to expand upon this ground. From my own review of the materials, I am unable to perceive any basis upon which an allegation of bias may be demonstrated. It was open to the Tribunal to take into account the length of time that the applicant had remained in Australia in assessing her intentions for the purposes of cl 500.212 of Schedule 2 to the Regulations. The Tribunal did not simply rely upon this factor but weighed it in relation to the other evidence that was before it including its assessment of the applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future.
I understand that the applicant may be disappointed by the Tribunal’s decision and may disagree with it. However, this is not sufficient to demonstrate that the Tribunal was biased.
Ground 5 otherwise contended that the Tribunal ignored the applicant’s attendance record and genuine intention for study. However, the applicant was unable to indicate any specific evidence that she gave regarding her course attendance (as distinct from completion of certain subjects and courses). I do not accept that the Tribunal overlooked any evidence before it in this regard. The Tribunal did consider the applicant’s submissions that she had a genuine intention to study (at [6] and [9]-[11]). It was nonetheless open to the Tribunal not to have been satisfied that the applicant intended to stay in Australia temporarily, and to have found that she was therefore unable to meet cl 500.212(a).
Having regard to the above, ground 5 is unable to succeed.
Ground 6
Ground 6 contended that the Tribunal did not “well consider” the applicant’s failed course, which was submitted to be a situation beyond her control.
I accept the Minister’s submission that the Tribunal had regard to the applicant’s evidence as to why she had failed some subjects and required additional time (at [10] and [18]). I also accept the Minister’s submission that it was nonetheless open to the Tribunal to have considered that the applicant had not satisfactorily explained her grades and lack of academic progress (at [19]). The Tribunal considered that the applicant’s employment during the period may have impacted upon her study. In any event, the Tribunal considered that the applicant had been afforded adequate opportunity since 2009 to complete her academic goals. The Tribunal was not satisfied, on the evidence before it, that the applicant intended to complete her course and return to her home country (at [19]).
It has not been demonstrated that this reasoning was relevantly closed to the Tribunal. The Tribunal was not obliged to accept that the applicant’s limited academic progress had been beyond her control. Nor was the Tribunal required to give the applicant a further chance for study. It had no power to do so in circumstances where it was not satisfied that she met the criteria for the visa.
I accept that the outcome in this matter may have been disappointing to the applicant and that she may well consider that it was unfair. However, this does not provide a basis for the Court to set aside the Tribunal’s decision.
CONCLUSION
For the above reasons, no jurisdictional error has been demonstrated by the grounds relied upon by the applicant. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 2 November 2023
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