Igbenoba v Minister for Immigration
[2017] FCCA 1539
•5 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IGBENOBA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1539 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Nigeria – applicant seeking seventh temporary student visa – whether genuine temporary entrant – whether alleged errors particularised – whether relevant matters considered – whether bias – whether impermissible merits review sought – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 357A, 360, 474, 476, 499 Migration Regulations 1994 (Cth), Schedule 2, cl.572.223 |
| Cases cited: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321 Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 24 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 |
| Applicant: | PHILLIP ISIOMA IGBENOBA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 9 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 June 2017 |
| Date of Last Submission: | 26 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 5 July 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr E Solana |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 9 of 2016
| PHILLIP ISIOMA IGBENOBA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns an application for a seventh student visa by the applicant, Phillip Isioma Igbenoba (“Mr Igbenoba”). Mr Igbenoba worked in banking in Nigeria for nine years until the age of 36 when, in 2006, he came to Australia to study a Masters in International Relations, and since graduating from Curtin University of Technology with a Graduate Diploma in International Relations in 2008, Mr Igbenoba has studied, or sought to study, in a wide range of courses including community work, religious ministry, chaplaincy, business, sports management, fitness and marketing, all said to be areas of study relevant to his two aspirations, to be a diplomat or work in diplomacy, or to own and run a sports fitness centre where sports chaplaincy is also offered. Mr Igbenoba has been living in Australia, continuously, since 2006, together with his wife, and his four Nigerian born children, on student and bridging visas.
A decision of the second respondent the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) dated 17 December 2015, affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant Mr Igbenoba a seventh student visa, specifically a Student (Temporary) (Class TU) visa (“Temporary Student Visa”). A copy of the AAT Decision appears in the Court Book (“CB”) at CB 195-202.
By an application filed on 18 January 2016 Mr Igbenoba now seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of the AAT Decision.
Background
The background to this matter prior to the AAT Decision is as follows:
a)Mr Igbenoba is a citizen of Nigeria, born on 11 May 1971: CB 1, who lodged an application for the Temporary Student Visa on 14 February 2014: CB 1-11;
b)Mr Igbenoba has resided in Australia, together with his wife, and four Nigerian born children, since 2006, on six previous student visas as well as bridging visas, during which time he has studied or proposed to study courses ranging “from international relations, to community work, to religious ministry, chaplaincy, business, courses proposed in sports management and fitness, and the present proposed VET sector course in marketing”: CB 199 at [22] and [24];
c)the Temporary Student Visa application was made on the basis that Mr Igbenoba had confirmation of enrolment (“COE”) certificates for a Diploma of Sports and Recreation Management and Certificates III and IV in Fitness: CB 2 at [50]-[54];
d)Mr Igbenoba's spouse and four children also applied for the Temporary Student Visa as members of Mr Igbenoba's family unit: CB 2-3;
e)on 18 February 2014, Mr Igbenoba was requested to provide further information, including evidence to demonstrate his intention to temporarily stay in Australia and a statement outlining his reasons for undertaking the course specified in the Temporary Student Visa application: CB 12-19;
f)on 2 April 2014 Mr Igbenoba submitted a statement: CB 43-44 (“April 2014 Statement”), which stated that he:
i)intended to open his own fitness centre business in the future and that the proposed courses were relevant to develop and operate the business; and
ii)started investing in his self-development ten years ago and had an ambition to conclude his "educational foray" by completing a master's degree in social work;
g)on 27 May 2014, the Delegate refused to grant Mr Igbenoba the Temporary Student Visa on the basis that the Delegate was not satisfied that Mr Igbenoba genuinely intended to temporarily stay in Australia and therefore did not satisfy cl.572.223(1)(a) or (2) of Schedule 2 to the Migration Regulations: CB 61-84;
h)on 9 June 2014, Mr Igbenoba applied to the AAT for review of the Delegate’s Decision: CB 88-91;
i)on 29 January 2015, Mr Igbenoba was invited to appear at a hearing before the AAT to give evidence and present arguments, scheduled for 11 March 2015: CB 95-99;
j)on 10 March 2015, Mr Igbenoba provided the AAT with a further statement addressing the genuine temporary entrant criterion: CB 141-144 (“March 2015 Statement”). In the March 2015 Statement Mr Igbenoba said that:
i)at CB 143:
I chose Australia as an international education destination for self and intellectual advancement driven by a need to add valued to my community during my stay, emerge a multi-skilled Policy Analyst, Sports Fitness/Business Personnel and a Cross-Cultural Sports/Pastoral Care Mentor. To do these, I craft a study plan that would allow me to outwork my three passions in life - Foreign Affairs, Sports Fitness-business and Cross Cultural Sports/Pastoral Care Mentoring"; This culminates in my decision to undertake the following educational endeavors from following institutions around Perth since I arrived Australia August of 2006:
a. Edo State University, Nigeria • Bachelor of Arts (HONS) English (Prior to my arrival)
b. Curtin University of Technology, Perth WA - Graduate Diploma of International Relations - (Completed). 2006 August - 2008 Fulltime.
c. Polytechnic West Thornlie, WA - Certificate IV in Community Services Work - (Completed) 2009 - 2010.
d. Riverview Leadership Christian College Perth, WA - Certificate IV in Ministry (Completed) 2010-2011
e. Sterling Business College Perth - 2010 Diploma of Management (Opted out of choice of course because course content differed from my objective)
f. Vose Seminary 2011 - Master of Divinity - Pulled out of course following family problems with fully approved Letter of Release.
g. Tabor College - Graduate Diploma of Christian Ministry - Could not continue because of wife's surgery which incapacitated her for 14 weeks. Letter of Release approved by institution and DES.
h. Technical College of Western Australia - Advanced Diploma of Business; completed (Aug.2012-0ct.2013) Initially cancelled COE was reinstated, enabling me complete full course in November 2013.
i. Australian College of Fitness - Cert Ill, IV & Diploma of Sports Recreation and Fitness; started course in January up till late May after School intimated me of my visa refusal and subsequent 572 Subclass visa application was rejected 5 months in to the study by the immigration.
In view of the above, I state clearly my only intention is to develop myself intellectually in Australia for as much as I can while at the same time giving my children opportunity of good education in Australia whilst my study is going on.
ii)he had spent nearly $60,000 on his personal and intellectual development: CB 143-144;
iii)at CB 144:
All of these happening with my family around with me - Wife and 5 kids and no relatives here. I volunteered for the Australian Red Cross for two years of my life unpaid and also worked under the Riverview Church Service team as field placement for 1 year with impeccable records to show for it.
I do not know the technicalities of Australian immigration laws but all I am pleading is for this great Tribunal to look at my efforts as an individual, my study achievements and not just my errors and grant me just another 2 years visa to conclude this advanced diploma of marketing study.
My first boy Prince is in year 10, 6" 2 already playing basketball for his School team and would be graduating from high school in just before two years; also my second boy Derek who stands 6" 5 inches tall has been inducted into specialist basketball development program to represent Western Australia in the 2016 under 16 basketball inter-state competitions under the WABL and NBL of Australia.
I assisted the Western Australian Police for two years through the School-Watch Community Security Neighbourhood watch initiative of the Department of Education through schools assets protection and prevention of vandalism in over 310 public schools in Perth area in WA performing mobile patrol duties, and attending alarms from a central control room system.
I guarantee the Tribunal that all they can find to my name is a few speed fines and nothing more for the 8years I have lived, and studied in this country. I Sincerely appeal to the good and humane judgement of this Tribunal to please grant me at least two years to undertake and finish my Advanced Diploma in Marketing studies so as to proceed to the next phase of our lives. You are at liberty to check my records with all the police institutions in the country and I promise nothing negative would be found to my name.
iv)he had otherwise lived a law-abiding life in Australia: CB 144;
k)Mr Igbenoba appeared at a hearing before the AAT on 11 March 2015: CB 146-149;
l)on 14 August 2015, Mr Igbenoba was advised that the AAT Member who conducted the hearing was no longer available and a new Member would complete the review: CB 155-161. A further hearing was scheduled for 1 September 2015, which the AAT then cancelled: CB 162-163;
m)the AAT wrote to Mr Igbenoba on 1 September 2015 indicating that it would make a decision based on the documentary evidence before it and on the issues and evidence discussed at the hearing on 11 March 2015, and that Mr Igbenoba was to provide any further evidence to the AAT prior to 8 September 2015: CB 167-168;
n)on 1 December 2015, the AAT invited Mr Igbenoba to a further hearing scheduled for 16 December 2015: CB 169-175 (“December 2015 Letter”), which expressly referred to the AAT’s intention to assess whether Mr Igbenoba intended genuinely to stay in Australia temporarily and to the fact that Direction 53 was relevant to that assessment: CB 174;
o)Mr Igbenoba provided a written response to the AAT on 7 December 2015 and requested further time to provide documentation: CB 181;
p)the AAT declined Mr Igbenoba's request for an extension of time to provide further documentation on 9 December 2015: CB 182;
q)on 15 December 2015, Mr Igbenoba provided a new COE for an Advanced Diploma of Marketing: CB 185; and
r)Mr Igbenoba appeared at the scheduled hearing before the AAT on 16 December 2015: CB 186-189.
AAT Decision
In the AAT Decision the AAT:
a)noted that the issue in the case was whether Mr Igbenoba met cl.572.223(1)(a) of Schedule 2 to the Migration Regulations: CB 197 at [13], and referred to the factors in Direction 53 which it said were intended to guide decision-makers in reaching a finding about whether an applicant satisfies the genuine temporary entrant criterion: CB 197 at [14]-[15];
b)informed Mr Igbenoba:
i)of the mandatory criterion that Mr Igbenoba was required to meet as a genuine applicant for entry and stay as a student as required by the Migration Regulations;
ii)that a major issue on review was whether Mr Igbenoba was a genuine applicant for entry and stay as a student because Mr Igbenoba intends genuinely to stay in Australia temporarily having regard to Mr Igbenoba’s circumstances and immigration history, and of the considerations in Direction 53 relevant to Mr Igbenoba;
iii)that the criterion has as its focus an examination of the intentions of Mr Igbenoba, that is whether they are for stay as a student, whether they are genuine, and whether they are for a temporary stay in Australia;
iv)of the considerations in Direction 53 (in overview); and
v)that all subclasses of the class TU student visa had equivalent genuineness criteria, and that if the criteria were not met, it would likely not be met for each of those subclasses: CB 198 at [16];
c)“… had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53 as they were engaged by the evidence, and, given the applicant’s significant stay in Australia, particular emphasis was given to the applicant’s immigration history, circumstances in Australia and in the home country, and value of past and presently proposed courses of study to the applicant’s future”: CB 198 at [17];
d)referred to Mr Igbenoba's evidence given at the hearing that he no longer proposed to complete the three sports and fitness related courses listed in his application for the Temporary Student Visa and had provided a certificate of enrolment for an Advanced Diploma in Marketing: CB 198 at [19]-[20];
e)says that it had a "very full discussion" with Mr Igbenoba as to whether he intended to stay in Australia temporarily and as to the Direction 53 factors: CB 198 at [21] (and see [5(c)] above);
f)discussed with Mr Igbenoba what value to ascribe to the diverse range of study undertaken and proposed in Australia since 2006 including international relations, community work, religious ministry, chaplaincy, business, sports management and fitness and marketing: CB 199 at [22], in relation to which Mr Igbenoba claimed that the study areas could be funnelled into two aspirations: to be a diplomat or to own and run a fitness centre where sports chaplaincy was offered: CB 199 at [23];
g)noted that Mr Igbenoba wished to pursue both a career in international relations or diplomacy and sports and fitness after completing the VET sector marketing course that he proposed to study, and that completion of the marketing studies would bring his entire time in Australia to over 10 unbroken years, he having never departed Australia since 2006, citing cost and time as factors preventing him visiting his mother, siblings, wife’s family and friends in Nigeria for that period: CB 199 at [24];
h)said that if he had been offered a diplomatic role between 2009 and now he would have returned to Nigeria to that job, after consultation with his wife and children who had been living with him in Australia: CB 199 at [27], but disagreed with a suggestion from the AAT that this suggested that his subsequent study had reduced value to him and was undertaken whilst waiting for a diplomatic position in Nigeria to become available to him: CB 199 at [28];
i)noted Mr Igbenoba’s evidence “that he believed he could and should be allowed to study whatever he wanted”: CB 199 at [30]
j)noted that Mr Igbenoba “stated that one of his priorities was to simply better himself through study and learning and it was not for others to decide what he chose to study” and “that all of his study in Australia has intrinsic value to him, whether or not that study may be related to a future use”: CB 200 at [33];
k)noted Mr Igbenoba’s assertion (an assertion repeated at hearing before the Court) that he can run a fitness centre long after he has retired from the diplomatic corps: CB 200 at [34];
l)expressed doubt as to whether the studies Mr Igbenoba had pursued “could realistically be woven into a coherent future plan that would incentivise the applicant to pursue aspirations outside Australia”: CB 200 at [36], noting Mr Igbenoba’s proposition that the current marketing course would assist Mr Igbenoba in marketing his future sports and fitness centre, but suggesting to Mr Igbenoba that it added little to the advanced diploma in business and the wide range of other study he had done, in response to which Mr Igbenoba “insisted” that he “needs to have specialist marketing skills and knowledge to better promote a sports and fitness centre”: CB 200 at [36];
m)noted that Mr Igbenoba had proposed three VET sector courses in fitness and sports management when he first applied for the Temporary Student Visa, but no longer proposed to do those courses: CB 200 at [37], and further noted that Mr Igbenoba had “no dedicated qualifications in fitness and sports management”, to which Mr Igbenoba asserted that non-CRICOS certificates in sports chaplaincy and a “mere two months of study in fitness” gave him the skills he needed to operate a sports and fitness centre and he did not need to pursue the sports and fitness studies originally proposed for the Temporary Student Visa: CB 200 at [38];
n)considered that the successful opening of a sports and fitness centre was a key aspiration claimed by Mr Igbenoba, but it had residual concerns whether the sports chaplaincy certificates completed by Mr Igbenoba would confer the same skills and knowledge that a dedicated sports management and fitness course would confer, or that the study of chaplaincy in sport was considered sufficient to run and manage a sports management facility as claimed: CB 200 at [39];
o)found that much of Mr Igbenoba’s study had been undertaken because he had a personal interest in the area and that there was little evidence that his study would “coalesce into concrete actionable plans which will render to him value over and above the intrinsic academic value of having studied, achieved and learned”, which the AAT indicated that it did not discount, and which it respected, but went onto point out that Mr Igbenoba’s “notion” of opening a sports and fitness centre had “not yet galvanised into a definite plan that will incentivise the applicant to action the business idea outside of Australia in the foreseeable future by bringing his near one decade stay in Australia to an end”: CB 201 at [41] and [42];
p)found that a VET sector Advanced Diploma in Marketing had limited value in addition to Mr Igbenoba’s existing Advanced Diploma in Business, and that the course had more value to Mr Igbenoba as it supported the Temporary Student Visa application enabling Mr Igbenoba to stay in Australia for a further year to January 2017: CB 201 at [43];
q)noted that Mr Igbenoba was “insistent” that he and his family would leave Australia and said that his wife “was thoroughly sick of Australia and wanted to go home”, which led the AAT to observe that the marketing course now proposed had limited value to Mr Igbenoba’s future, and given Mr Igbenoba’s long absence from Nigeria, it could see “little subjective reason for him now to seek his seventh student visa to bring his continuous stay in Australia to over a decade”: CB 201 at [45];
r)summarised (at CB 201 at [44]) the following considerations in Direction 53 as relevant to Mr Igbenoba:
i)his long and uninterrupted stay in Australia as not appearing to be a temporary stay;
ii)that his wife and children were with him in Australia “and do not function as incentives for him to depart Australia”;
iii)that his family and friends in Nigeria had not been an incentive enough for him to make time and spend money to travel outside Australia in almost a decade;
iv)that the bulk of his “meandering study” in the VET sector was at the level below the bachelor's degree he already held and lacked direct application in the foreseeable future in a context that would incentivise Mr Igbenoba to leave Australia; and
v)the marketing course was of limited additional value to his aspiration to open a business, an aspiration which lacked form and a concrete plan that would incentivise him to depart Australia;
s)found that Mr Igbenoba sought his Temporary Student Visa to extend his continuous stay in Australia to more than a decade: CB 202 at [48];
t)did not accept that a diplomatic or other job will materialise to incentivise Mr Igbenoba to depart: CB 202 at [48];
u)did not accept that Mr Igbenoba’s aspiration to open and run a sports and fitness centre will coalesce into an actionable plan outside of Australia to incentivise Mr Igbenoba to depart: CB 202 at [48]; and
v)ultimately, was not satisfied that Mr Igbenoba intended to genuinely stay in Australia temporarily, and found that Mr Igbenoba did not meet the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations : CB 202 at [50], and therefore affirmed the Delegate’s Decision: CB 202 at [54].
Judicial Review Application – grounds
By an application filed in this Court on 18 January 2016, Mr Igbenoba raises the following ground of review:
Cumulative evidence section of the AAT's decision does not comply with Migration Act 1958; see attached affidavit.
Mr Igbenoba’s affidavit also filed on 18 January 2016 (“Mr Igbenoba’s Affidavit”) expands upon the single ground of the Judicial Review Application, and says as follows:
1.) That in regards to the Administrative Appeals Tribunal's Decision Record, AAT Case no: 1410169, an error in Law was made in clause 572.223 (1) (a) of Migration Regulations 1994.
2.) That the Department refused my visa application (according to them), based on my application not meeting the criteria in cl.572.223 (1)(a) and cl.572.223 (2) of the Regulation. Despite providing all the evidence that clearly meets the requirements to have my student visa granted, I was refused my student visa. I decided to appeal the Department's decision to the Tribunal; however, the Tribunal failed to see the misjudgment the department had made with regards to my application.
3.) Below is one of the clause which was not met by me according to the department, but I strongly disagree as I have provided ALL the evidence with my student visa application that meets the criteria for this clause. I have satisfied my English Language proficiency requirement; complied with all my visa conditions to date and intend to do so in future; I am a genuine student who intend to stay temporarily in Australia because:
i. I have my full family including 4 siblings and our 79 year old Mother to whom I am directly responsible and must go back to take care of, being a first and eldest son of the family according to our tradition and values system.
ii. My prospects of career growth and development as a Diplomat to-be within the Nigerian Diplomatic Corps would be brightened in my country Nigeria, following foreign qualifications obtained internationally from Australian Curtin University and other institutions
iii. Lastly, all my solid assets acquired from 9 years of banking working life are stationed in Nigeria including two plots of Land and an old inherited property.
I have also provided proof of funds to cover all expenses for me and my family during our stay in Australia.
Please find one of the clause upon which the Department hinged its refusal to grant me the student visa:
… [cl.572.223 of Schedule 2 to the Migration Regulations is set out.]
Please note that the conditions of the clause utilized to refuse the visa application have been met as enumerated above the clause as described above.
4.) The Member during the AAT hearing, based on his personal views, claimed he did not see how my proposed course of study in the vocational sector correlates with my initial Post Graduate qualifications; nor does he think the Tribunal could be convinced that a vocational education qualification could complement University Graduate Diploma qualifications. This is unfair because the Tribunal adopted this as a cardinal reason to affirm my VET student visa application refusal. This is of concern because the Member's/Tribunal's views on career development are and should not be of any relevance to my own personal career objectives or what choice of course I choose to undertake for my own development.
5.) I am hereby not convinced that the Member was fair when he was considering all of my Family's circumstances as they relate to considerations laid out in Direction 53. The Member's approach to this portion of the issue is "textbook" rather than a real-life situation approach involving real humans, their careers and life ambitions (please see statement of decision reason 8)
6.) That although I acknowledge the Bridging Visa carried no condition preventing me to study, I hereby also acknowledge forthwith, that the Bridging Visa carried no explicit condition stating in any way or form that applicants with pending hearings with the AAT must continue to study while hearing judgments was pending and being awaited.
7.) That from the Members' assertions in the (statement of decision reason 33), it appears to give the impression that the Member is determined to misconstrue everything I said in the last hearing session with him; for instance, I told the Member (please refer to recorded hearing), that all of my studies in Australia including the Certificate courses taken onshore would be of intrinsic value to me when I get back to my country, Nigeria and also in a world where multiskilled workers reign supreme in organizations of all kinds. I also told the Member that even a Certificate IV from Australia could carry weight and value in my country, Nigeria, but the Member adamantly maintains in this (statement of decision 33) that studies must be related to future use before they can have intrinsic value.
8.) That from the (statement of decision reason 39), the Member contests the fact that qualified Community Sports Chaplains has same skills as a Sports Manager would? But all over Australia, examples are legion where Community Sports Chaplains support teams and sports groups in conjunction with Coaches to run fitness programs, and all kinds of sports tournaments. Coaches take care of strategic and physical tactics of games and athletes' development whilst Sports Chaplains mentor, advice and handle pastoral care and the psychological requirements of the athlete's life; besides this, most Sports chaplains are skilled from long experience in managing activities around the fitness industry.
The Court made orders on 26 August 2016, permitting Mr Igbenoba to file:
a)an amended Judicial Review Application, including complete particulars, and “any affidavit containing any additional evidence … relevant … to the grounds of review” by 5 October 2016; and
b)any written submissions by 21 April 2017.
Nothing was filed prior to the hearing.
At hearing, Mr Igbenoba submitted that:
a)he was not legally competent to deal with the issues before the Court, that he had tried to get legal support, and that he could not afford a lawyer: Transcript, page 3;
b)the AAT was biased because it had discounted all of the issues raised by him: Transcript, page 3;
c)his physical fitness studies were a “hobby” which he wished to utilise in his retirement, and which did not necessarily relate to a formal vocation: Transcript, page 5;
d)he did not feel that the AAT had “the right to make a judgment of what my own life or my own career ambition … is”: Transcript, page 5;
e)he had, despite being in Australia for approximately a decade, not made an application for permanent residence: Transcript, pages 6-7;
f)at no point was he given professional advice that if he studied beyond a certain amount of time his intention to stay in Australia temporarily would be treated as not being genuine: Transcript, page 7; and
g)he had made endeavours to work in diplomacy becoming a member of the Australian Institute of International Affairs, and, as he described it, liaising with the Nigerian Ambassador in Canberra in an endeavour to lift his professional standing: Transcript, page 9.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The AAT only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Legislative criteria
In order to be granted the Temporary Student Visa, Mr Igbenoba had to meet a number of criteria: ss.31(3) and 65(1)(a)(ii) of the Migration Act. The criteria included those set out in cl.572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) (the genuine temporary entrant criterion) which required that the following criteria be satisfied at the time of the decision:
(1) The Minister is satisfied that the Applicant is a genuine Applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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.
Ministerial Direction No 53
The relevant factors are also set out in "Ministerial Direction No. 53 - Assessing the genuine temporary entrant criterion for Student visa" (“Direction 53”). Direction 53 was made pursuant to s.499 of the Migration Act and by operation of s.499(2A) of the Migration Act the AAT was required to comply with Direction 53. The relevant factors set out in Direction 53 in relation to Mr Igbenoba are as follows:
a)Mr Igbenoba’s circumstances in Nigeria, potential circumstances in Australia, and the value of the course to his future;
b)Mr Igbenoba’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; and
c)any other relevant information provided by Mr Igbenoba, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to Mr Igbenoba.
Ground in the Judicial Review Application
Mr Igbenoba's sole ground in the Judicial Review Application asserts that "the cumulative evidence section of the decision" did not comply with the Migration Act. It is unclear what error Mr Igbenoba is asserting the AAT made. Without further particulars as to the specific provision of the Migration Act which Mr Igbenoba contends the AAT failed to comply with this ground does not, of itself, establish any jurisdictional error in the AAT Decision and ought to be dismissed: WZAVW v Minister for Immigration & Anor [2015] FCCA 257 at [35] per Gilmour J (and cases there cited) (“WZAVW”); SZNXA vMinister for Immigration & Anor [2010] FCA 775 at [21] per Reeves J (“SZNXA”).
Mr Igbenoba’s Affidavit – grounds
Treating each of the paragraphs of Mr Igbenoba’s Affidavit as grounds of the Judicial Review Application, the Court makes the observations and findings set out hereunder.
Ground 1
Mr Igbenoba contends that there was an error of law in the AAT Decision. Mr Igbenoba has not particularised that error, and whether any such error amounted to a jurisdictional error. This ground is a baseless unparticularised assertion and cannot succeed: SZNXA at [21] per Reeves J, WZAVW at [35] per Gilmour J (and cases there cited).
Ground 2
Ground 2 simply sets out factual material and asserts that the AAT “failed to see the misjudgement” made by the Delegate’s Decision. As such, the ground asserts no jurisdictional error. The alleged “misjudgement” is not particularised, and therefore cannot succeed: see WZAVW and SZNXA as cited at [13] and [15] above. Otherwise, the allegation of “misjudgement” might be seen as an application for factual merits review of both the Delegate’s Decision and the AAT Decision.
To the extent that ground 2 of Mr Igbenoba’s Affidavit complains about the Delegate’s Decision this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, and in any event, it is well-established that if the AAT Decision is not flawed, it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
In relation to the AAT Decision, there is a want of particulars as set out at [16] above, and otherwise to the extent that this ground seeks factual merits review it constitutes an impermissible request by Mr Igbenoba to engage the Court in a review of the AAT's factual findings, which is not the function of this Court on judicial review: Migration Act, ss.474 and 476; Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ (“NADR”).
Ground 2 is not made out and establishes no jurisdictional error in the AAT Decision.
Ground 3
In ground 3 Mr Igbenoba asserts that he has provided all of the evidence that meets the criteria for the genuine temporary entrant criterion, and that he is a genuine student because of matters there set out, in relation to which the Court observes as follows:
a)the AAT considered Mr Igbenoba’s family situation, including his relationship with his aged mother and siblings, and notes that for the better part of a decade he has not visited his mother, siblings, wife’s family or friends in Nigeria: CB 199 at [24] and CB 201 at [45] and [47];
b)the AAT considered the prospects of Mr Igbenoba obtaining employment as a diplomat, having regard to his existing qualifications relevant to such a career, and also his subsequent qualifications which it considered irrelevant to his career as a diplomat, and had regard to his age (he was 44 years of age at the time of the AAT Decision) and his qualifications in the context of whether or not they evinced a coherent career plan or path which would result in Mr Igbenoba leaving Australia: see, for example CB 199-200 at [27]-[36]; and
c)the AAT was aware of the fact that Mr Igbenoba had worked for nine years in banking in Nigeria prior to coming to Australia, and adverted to that fact in the AAT Decision: CB 199 at [23] and [25].
Otherwise, ground 3 seeks impermissible merits review: see the legislation referred to and case law at [18] above.
Ground 3 is therefore not made out, and does not establish jurisdictional error in the AAT Decision.
Ground 4
Ground 4 takes issue with the AAT’s assessment of the various qualifications undertaken by Mr Igbenoba, and whether those qualifications complimented each other, and how they related to the AAT’s views on Mr Igbenoba’s career path, which Mr Igbenoba asserts should not be of any relevance because it is for him to choose his career path and to undertake his own personal career and study and intellectual development.
There is no jurisdictional error in the manner in which the AAT has assessed Mr Igbenoba’s qualifications, the career path (more correctly discrete paths) that he appears to be seeking to follow. In particular the AAT was required to assess the value of the course, and in this case the advanced diploma in marketing, to Mr Igbenoba’s future, that being one of the criteria set out in Direction 53. It is also relevant to note that insofar as Mr Igbenoba had been granted previous visas in Australia, his immigration history in relation thereto, was also a matter for consideration as a factor under Direction 53 by the AAT. The AAT’s finding that the marketing qualification, relating as it did to Mr Igbenoba’s desire to run a sports and fitness centre, seemingly in his retirement (he was 44 at the time of the AAT Decision), and after a career as a diplomat which has not yet commenced (and which shows no signs of commencing), was of marginal value to Mr Igbenoba in a career sense, but of more value to him in supporting a Temporary Student Visa application which would enable him to stay in Australia, was a finding which was arguably obvious, and certainly, at least, open to the AAT on the evidence before it. Moreover, the AAT’s findings in this regard were, in the Court’s view, otherwise sustainable having regard to its observations concerning the length of the “temporary” stay by Mr Igbenoba (and his family) in Australia for study purposes, and the nature of the study undertaken in relation to a career which does not seem to be reaching fruition (diplomacy), or a retirement vision in relation to Mr Igbenoba’s “hobby” of running a sports and fitness centre.
Ultimately, ground 4 simply seeks to quibble with the factual findings made by the AAT in the exercise of its consideration of the factors under Direction 53 and the genuine temporary entry criterion in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, and seeks impermissible merits review: Migration Act, ss.474 and 476; Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ.
Ground 4 is therefore not made out, and does not establish jurisdictional error in the AAT Decision.
Ground 5
The assertion by Mr Igbenoba that the member was not fair when considering the circumstances of his family is not made out. The AAT had regard to Mr Igbenoba’s family circumstances both in Australia and in Nigeria: CB 199 at [24] and CB 201 at [45] and [47], and noted particularly the views of Mr Igbenoba’s wife as relayed to the AAT by Mr Igbenoba: CB 201 at [45], and the fact that Mr Igbenoba had not been back to Nigeria since 2006 to visit his mother, siblings or wife’s family: CB 199 at [24]. Mr Igbenoba’s assertion in ground 5 that the AAT adopted a text book approach, and did not consider the real life situation involving himself, his family, and the career and life ambitions of all concerned is at odds with the detailed consideration of those issues, and in particular Mr Igbenoba’s own circumstances, as set out in the AAT Decision: see, in particular, [5] above.
The AAT did not fail to consider Mr Igbenoba’s family circumstances, or the personal, career and life ambitions of those concerned, and in particular Mr Igbenoba as the primary applicant for the Temporary Student Visa. In the circumstances, ground 5 is not made out, and does not establish jurisdictional error in the AAT Decision.
Ground 6
Ground 6 does not alleged or particularise any jurisdictional error in relation to the consideration of the Temporary Student Visa application, and to the extent that it suggests that the AAT erred in considering whether or not Mr Igbenoba continued to study during periods whilst on a bridging visa, that was a matter for the AAT as part of its merits review, and does not give rise to any jurisdictional error: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ.
Ground 7
Insofar as Mr Igbenoba refers to the AAT misconstruing everything that Mr Igbenoba said: Mr Igbenoba’s Affidavit at [7], this could give rise to an allegation of bias, as it did in Mr Igbenoba’s oral submissions: Transcript, page 3, or a Dranichnikov-style failure to properly consider his claims, or a procedurally unfair failure to afford him an opportunity to be heard: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321 at [23]-[25] and [32]-[34] per Gummow and Callinan JJ (“Dranichnikov”)]
An allegation of bias is serious and the basis of such an allegation must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1; CLR at 531 per Gleeson CJ and Gummow J. Mr Igbenoba has made no attempt to comply with the requirement that bias must be firmly and distinctly made and clearly proven. No transcript or recording of the AAT hearing was filed by Mr Igbenoba, despite his being given the opportunity to file relevant evidence pursuant to the Court’s orders of 26 August 2016. On a fair reading of the AAT Decision there is no basis for any contention that the AAT was affected by actual or apprehended bias: SZUZY vMinister for Immigration & Anor [2015] FCCA 502 at [23] and [35] per Judge Smith, following Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; 86 ALJR 14; (2011) 282 ALR 685. Furthermore, no inference of bias or prejudgment can be drawn from the mere fact that the AAT made findings adverse to Mr Igbenoba: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23 at [21] per Kenny J. The findings that the AAT did make were open to it on a consideration of the evidence in relation to the claims, assessed against the genuine temporary entrant criterion in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations and Direction 53. No jurisdictional error arises in relation to the claim of bias.
In relation to any alleged Dranichnikov-type failure to consider the claims made, or the integers of the claim, the Court is of the view that there was no such failure. It is plain that the AAT considered all of the claims made by Mr Igbenoba, and arrived at findings in relation to the issue before it, namely whether Mr Igbenoba met the genuine temporary entrant criterion having regard to the findings on his claims. No jurisdictional error arises in relation thereto.
In relation to procedural fairness, again there is no jurisdictional error arising from the AAT Decision. The Court considers that the AAT discussed with Mr Igbenoba those aspects of his evidence that the AAT considered may be important to the AAT Decision, and upon which the AAT findings might be made: see [5] above, and that the AAT took proper and adequate steps to identify the determinative issues arising in relation to the issues, and in particular whether Mr Igbenoba satisfied the genuine temporary entrant criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations. In those circumstances there was no failure to comply with ss.357A and 360 of the Migration Act: see the December 2015 Letter at CB 174; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [33]-[35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Ground 7 is not made out, and does not establish jurisdictional error in the AAT Decision.
Ground 8
Ground 8 simply takes issue with a factual finding made by the AAT, and as such seeks impermissible merits review in relation to the AAT’s findings concerning whether the study of chaplaincy in sport was considered to be sufficient to run and manage a sports facility as claimed by Mr Igbenoba. No jurisdictional error is thereby raised or established, and ground 8 is no more than a plea for factual merits review which this Court is not permitted to undertake upon judicial review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ.
Other matters
In his oral submissions Mr Igbenoba raised the issue of legal representation. A lack of legal representation on judicial review does not constitute jurisdictional error in the AAT Decision. Nor is there a right to legal representation in a judicial review before this Court: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [35] per Wigney J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZATU v Minister for Immigration & Anor [2016] FCCA 2247; (2016) 314 FLR 416 at [25] per Judge Lucev. No jurisdictional error therefore arises on this basis.
Mr Igbenoba also asserted that at no point had he been given professional advice that if he studied beyond a certain amount of time his intention to stay in Australia temporarily would be treated as not being genuine. Again, that fact cannot give rise to jurisdictional error in the AAT Decision. There obviously comes a point in time when a student on a succession of temporary student visas ceases to be a genuine “temporary” entrant into Australia. In the circumstances of this case, the AAT was entitled to find, in light of all the circumstances, that Mr Igbenoba’s near decade long stay meant that he was no longer a genuine temporary entrant.
Generally
The AAT Decision:
a)indicates that the AAT correctly identified that the issue in the present case was whether Mr Igbenoba met the criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, which required it to have regard to the factors in Direction 53: CB 197 at [13]-[14];
b)correctly noted that the factors in Direction 53 should not be used as a checklist but were intended to guide decision-makers to weigh up Mr Igbenoba's circumstances as a whole in reaching a finding about whether Mr Igbenoba satisfied the genuine temporary entrant criterion: CB 198 at [15];
c)demonstrates that the AAT considered Mr Igbenoba's evidence and engaged in an "active intellectual process" and gave "genuine" consideration to the factors set out in Direction 53: Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26; and
d)made findings in relation to the factors that had practical relevance to Mr Igbenoba's circumstances and evidence: Singh v Minister for Immigration & Border Protection [2016] FCA 74.
It cannot therefore be said that the AAT identified a wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material. In order to grant the Temporary Student Visa application the AAT had to be satisfied that the relevant criteria under cl.572.223(1)(a) of Schedule 2 to the Migration Regulations had been met, and if they were not met, the AAT could not be so satisfied, and could not therefore grant the applicant the Temporary Student Visa: Migration Act, s.65(1). In this case those criteria were not met. In the Court’s view the AAT’s finding that Mr Igbenoba did not meet the criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations was reasonably open to it. It was not a finding which no rational or logical decision maker could reach on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ. Indeed, it is arguable, that in circumstances where Mr Igbenoba’s “temporary” stay as a student had extended to almost a decade, where, apart from his first course studied in Australia, the courses that he studied were below the level of the educational qualification that he had when he came to Australia, and below the level of the educational qualification he first attained on entering Australia, and where his entire family was with him, and there had been no return to Nigeria since 2006, and the courses studied by Mr Igbenoba were disparate, and his proposed course, as found by the AAT was of little additional future value to Mr Igbenoba in relation to one of his discrete career ambitions, it is arguable that no other finding was open to the AAT. The AAT therefore engaged in a legitimate and proper exercise of administrative decision-making which reveals no jurisdictional error, either in relation to the grounds set out in the Judicial Review Application, or otherwise.
Conclusion and orders
For the reasons set out above, Mr Igbenoba has failed to establish any jurisdictional error in the AAT Decision. It follows that the Judicial Review Application must be dismissed, and the Court will make an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 5 July 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction