Jaskiewicz v Minister for Immigration

[2017] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

JASKIEWICZ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1947

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal accurately summarised the evidence before it – whether errors in the Administrative Tribunal’s restatement of the applicant’s claims were typographical errors – whether any typographical error mischaracterised or misunderstood the applicant’s claims – whether any typographical error had any effect on the disposition of the Administrative Tribunal’s claims – whether any typographical error rendered meaningless the Administrative Tribunal’s considerations of the applicant’s evidence – whether the Administrative Tribunal’s finding that the applicant intended genuinely to stay in Australia temporarily was open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.2.01, cl.572.223

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95
SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63

Applicant: KRZYSZTOF JASKIEWICZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2681 of 2015

Judgment of: Judge Emmett

Hearing date: 16 August 2017

Date of Last Submission: 16 August 2017

Delivered at: Sydney

Delivered on: 16 August 2017

REPRESENTATION

Applicant appeared in person with a Polish interpreter

Solicitors for the Respondents: Ms Jennifer Strugnell
Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2681 of 2015

KRZYSZTOF JASKIEWICZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 2 September 2015 (“the Tribunal”), refusing to grant the applicant a Student (temporary) (Class TU) visa on the basis that the applicant is not intending genuinely to stay in Australia temporarily.

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 16 April 2006, the applicant arrived in Australia on a student visa.

2. On 19 September 2014, the applicant lodged an application for a Student (temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 21 January 2015, the Delegate refused the applicant’s application for a student visa.

4. On 10 February 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 2 September 2015, the Tribunal affirmed the decision of the Delegate not to grant a student visa.

6. On 30 September 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student (temporary) (Class TU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. At the time of the Tribunal’s decision, an applicant for a student visa is required to satisfy cl.572.223 of the Regulations as follows:

   “572.223 (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; and

   (b) the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.”

   (Emphasis added)

4. In assessing whether an applicant is a “genuine temporary entrant”, the Tribunal was required to take into consideration Ministerial Direction No.53, Assessing the genuine temporary entrant criterion for the student applications (“Ministerial Direction No.53”). The Tribunal was required to consider, inter alia, the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia; the value of the course to the applicant’s future; and, whether the applicant’s application for a Student visa is intended primarily for maintaining residence in Australia.

5. Under s.338 of the Act, a decision to refuse to grant a Student visa is a decision which may be reviewed by the second respondent.

6. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   360  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

7. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

8. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 21 January 2015, the Delegate refused the applicant’s application for a student visa on the basis that the applicant did not satisfy the cl.572.223 of the Regulations.

The Tribunal’s review and decision

1. On 10 February 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of his review application including various certificates of completion and character references.

3. On 28 July 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 1 September 2015 to give oral evidence and present arguments.

4. On 1 September 2015, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that the applicant arrived in Australia in 2006 and never returned to his country of origin, Poland. The Tribunal further noted that the applicant had enrolled in about twenty courses during his stay in Australia, of which he had completed all but seven. The Tribunal noted that the applicant is currently enrolled in a Certificate IV in International Trade and has been admitted into a Diploma of International Business in 2016.

6. The Tribunal also noted the various correspondences between the applicant and the Department. The Tribunal noted the applicant’s evidence that he had no intention to return to Poland.

7. Further, the Tribunal noted that in assessing whether the applicant met cl.572.223 of the Regulations, it was required to have regard to Ministerial Direction No.53. The Tribunal noted that it was required to assess the applicant’s circumstances in his home country, his potential circumstances in Australia, the value of the course to the applicant’s future and his immigration history.

8. The Tribunal noted that it had discussed with the applicant these matters at the hearing. The Tribunal noted the applicant’s evidence that he did not know how to utilise the knowledge that he gained from studying his current Diploma of International Business. The Tribunal found that it was unable to assess the value of that course to the applicant. The Tribunal noted that the applicant was able to finance his studies through part-time jobs although he had no job at the moment. The Tribunal further noted that the applicant had never returned to Poland since he left that country in 2006.

9. In the circumstances, the Tribunal was not satisfied that the applicant satisfied the temporary entrant criterion and affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court although he had the assistance of a Polish interpreter.

2. The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 12 November 2015. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The applicant was also provided with the contact details of legal services providers and translating and interpretive services in documents in English.

3. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

4. The applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

5. The applicant confirmed that the grounds of his application were those annexed to his substantive application for judicial review filed on 30 September 2015, which are as follows:

   “In The Decision Record used as base for conclusion/decision:

   1) Assessment of my study results prepared by R.C. Titterton Member of Administrative Appeal Tribunal presented:

   “In the period 2006 to date he has enrolled in no fewer than twenty courses. He did not complete seven courses, but he did finish the remainder. He is currently enrolled in a Certificate IV in International Trade and has been admitted into a Diploma of International Business in 2016.”

   Above statement is incorrect. I completed four core courses related to my career as below with a fifth in progress:

   - Business Management – awarded Diploma

   - Business – awarded Advance Diploma

   - Information Technology (Networking) – awarded Diploma

   - Information Technology (Website Development) – awarded Certificate IV

   - International Business – study in progress for Diploma, see letter from principal of ACCIT college (Mr Paul Naraiyanansamy)

   Prior to core studies it was necessary to improve my English which I studied primarily for three months and I continue to study English at all opportunities between core courses. I have completed all of the English courses I have undertaken.

   On 07/10/2010 I achieve IELTS results:

   overall band score – 6.0

   Speaking – 6.5

   Listening – 6

   Writing – 5.5

   Reading – 5

   2) In the same Decision Record three of my written statements were quoted incorrectly. As result of that they become mean-less:

   I stated that:

   -“All my adulthood has been in Australia” this sentence was presented as:

   “All my adult would has been in Australia.”

   -“I really enjoyed this course as it affords me the opportunity to learn more about international trading law"  this sentence was presented as:

   “I really enjoyed this course is it affords me the opportunity to learn more about international trading law”

   -“I have 30 family members in Australia: 3 uncles, 3 aunties, my brother, 4 first cousins” this sentence was presented as:

   “I have 30 family members in Australia: three uncles, three a unties, my brother, for first cousins”

   3) I am a genuine student and have always valued my studies as a very important part of my life. As a student in Poland I was awarded third place in a National “Contest of Young Masters of Technology” for my work on my Diploma thesis (all supporting paperwork is attached).

   All my studies in Australia and Poland have always been undertaken with a view to furthering my career.

   The courses I have studied in Australia were chosen based on guidance given by Educational Advisers and Professional Engineers working in Australia.

   For this reason I do not consider the Decision Record presents an accurate representation of my circumstances or my level of literacy.”

6. The applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the following statement by the Tribunal is incorrect:

   “7. In the period 2006 to date he has enrolled in no fewer than 20 courses. He did not complete 7 courses, but he did finish the remainder. He is currently enrolled in a Certificate IV in International Trade, and has been admitted into a Diploma of International Business in 2016.”

2. The applicant then sets out the courses completed by him.

3. The applicant said that there were other courses that had been cancelled and counted as finished courses and that these had been provided by the relevant school of study. It is difficult to understand what the applicant’s complaint in relation to Ground 1 is. 

4. I understand the findings of the Tribunal in paragraph 7 above to relate to the number of courses in which the applicant had enrolled; those that he had not completed; and, those that he had completed.

5. The first respondent tendered a bundle of relevant documents, identified as the Court Book and filed on 26 November 2015, which was marked Exhibit 1R. Exhibit 1R made clear that at the time of the Tribunal’s decision record the applicant was enrolled in a Certificate IV in International Trade, had approval to enrol in a Diploma of International Business and had otherwise finished 10 courses. Exhibit 1R also made clear that seven other courses had been cancelled, according to the Provider Registration and International Student Management System.

6. The Tribunal found that in the period between 2006 and to date, the applicant had enrolled in no fewer than 20 courses. On the evidence before the Court, that is a correct statement.

7. The Tribunal then went on to say that the applicant did not complete seven courses but did finish the remainder. Again, other than the Diploma of International Business for which the applicant was approved, the applicant had completed the remainder of the courses.

8. In the circumstances, the Tribunal’s statements in paragraph 7 of its decision record are accurate.

9. The applicant in Ground 1 asserts that those statements by the Tribunal are incorrect. On the evidence before the Tribunal, the statements of the Tribunal are correct and the Tribunals findings were open to it on the evidence and material before it and for the reasons it gave.

10. Ground 1 does not demonstrate any error on the part of the Tribunal. 

Ground 2

1. Ground 2 identifies three errors in the Tribunal’s restatement of the applicant’s claims. They are as follows:

   (i)‘adult would’ should read ‘adulthood’

   (ii)‘as’ should read ‘is’

   (iii)‘for’ should read ‘4’

2. The context of the errors makes it apparent that they are typographical errors.

3. I am conscious that a Court should be cautious to fill in gaps.  However, the typographical errors that have been identified are of no relevant significance. If an omission or defect is plain, there is no reason, in principle, why the Court should not supply the necessary words. The typographical errors identified in Ground 2 are explained by inadvertence, mistake, accident or clerical error. (see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 per Marshall J at [29]; Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 per Marshall J at [48]; Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95; [2000] FCA 1830 per Finkelstein J at [48]).

4. I accept the first respondent’s submission that the Tribunal’s typographical errors clearly did not cause the Tribunal to mischaracterise or misunderstand the applicant’s claims, nor did they have any effect on the Tribunal’s disposition of those claims (see SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63 per Greenwood J at [45]). I further accept the first respondent’s submission that the typographical errors did not render the Tribunal’s consideration of the applicant’s evidence meaningless.

5. Accordingly, Ground 2 does not disclose any jurisdictional error.

Ground 3

1. Ground 3 does no more than restate the applicant’s claims to be a genuine student and otherwise does not identify any error capable of review.

2. It was necessary for the Tribunal to be satisfied that the applicant is both a genuine student and a genuine temporary entrant in order to meet the mandatory criteria in cl 572.223 of the Regulations to be a genuine student who intends genuinely to stay in Australia temporarily.

3. The Tribunal accepted that the applicant’s history of courses undertaken demonstrated that he had a sustained period of successful studies in Australia. 

1. However, the Tribunal noted that the applicant told the Tribunal that the Diploma in International Business would be the last course that the applicant would study. The Tribunal noted that it asked the applicant what he would do when he completed this course and noted the applicant’s response that he did not know how to use his knowledge. The applicant indicated to the Tribunal that the course continued until December 2016 and, at that point, he would make decisions about his future.

2. The Tribunal found that it was unable to assess the value of the study to the applicant for the particular course in which he was enrolled. The Tribunal noted that the applicant described his ties to Australia as strong and that he confirmed he had not returned to Poland since he left in 2006. The Tribunal noted that it asked the applicant to explain how he could satisfy the temporary entrant criterion in circumstances where he had been studying in Australia for eight years, had not once returned to Poland and where his own statement indicated that he had no intention of returning to Poland. The Tribunal found that the applicant had no satisfactory response to those concerns expressed by the Tribunal.

3. The Tribunal then concluded that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily, after having considered all the evidence and material before it and the factors set out in Ministerial Direction No.53.

4. Accordingly, the Tribunal found the criteria for the applicant’s application for a Subclass 572 Visa not to be met. The Tribunal found there was no evidence that the applicant was eligible to be granted a student visa in any other subclass.

Conclusion

1. In the circumstances, the Tribunal affirmed the decision under review. The Tribunal’s findings and reasons were open to it on the evidence and material before it and for the reasons it gave. The applicant failed to satisfy the Tribunal that he met the criteria set out in cl.572.223 of the Regulations. In particular, the Tribunal’s finding that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

2. The Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. Further, the Tribunal put to the applicant matters of concern it had about his evidence, particularly in relation to exploring the applicant’s need to meet the criterion of an intention genuinely to stay in Australia temporarily; and the Tribunal noted the applicant’s responses.

3. The Tribunal then made findings based on the evidence and material before it which were open to it for the reasons given and to which it applied the correct law. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no power to interfere.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  18 August 2017