Joiya v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 15
Federal Circuit and Family Court of Australia
(DIVISION 2)
Joiya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 15
File number(s): MLG 349 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 20 January 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant Student (Temporary) (Class TU) visa – whether Tribunal failed to take into account all relevant considerations – whether Tribunal made an incorrect finding or one that was not open on the evidence – no jurisdictional error – application dismissed Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) cl 573.223
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 18 January 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 349 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARUN JOIYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
20 JANUARY 2023
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
By application filed on 13 February 2018, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 16 January 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister to refuse to grant the applicant a Student (Temporary) (Class TU) visa (student visa). The delegate and the Tribunal both found that the applicant did not satisfy the genuine temporary entrant criterion in cl 573.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons I have explained below, I find that the applicant has not established that the Tribunal decision was affected by jurisdictional error. The application to this Court is therefore dismissed.
BACKGROUND
The applicant is a non-citizen who arrived in Australia on 17 October 2012 as the holder of a student visa which was valid until 15 March 2016.
On 11 March 2016 the applicant applied for the student visa the subject of this application. The applicant provided four confirmation of enrolment (COE) documents with his student visa application, indicating that he was enrolled to study:
(a)a Certificate III in Commercial Cookery from 29 February 2016 to 24 December 2016;
(b)a Certificate IV in Commercial Cookery from 23 January 2017 to 18 June 2017;
(c)a Diploma of Hospitality from 17 July 2017 to 9 December 2017; and
(d)a Bachelor of Business from 19 March 2018 to 31 December 2019.
On 9 May 2016 the Minister’s Department wrote to the applicant requesting further information in relation to the genuine temporary entrant criterion. In response, the applicant provided a statement dated 26 May 2016.
On 13 July 2016 a delegate of the Minister made a decision refusing to grant a student visa to the applicant. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The delegate therefore found that the applicant did not satisfy cl 573.223 in Schedule 2 to the Regulations.
On 1 August 2016 the applicant lodged an application in the Tribunal seeking review of the delegate’s decision.
On 14 December 2017 the Tribunal invited the applicant to attend a hearing on 16 January 2018. The Tribunal enclosed with this invitation a copy of Ministerial Direction No 53 and, amongst other things, asked the applicant to provide a written statement addressing whether he is a genuine temporary entrant referring to Ministerial Direction No 53.
The applicant gave evidence and made submissions at the hearing on 16 January 2018 and he provided a number of documents to the Tribunal on the day of the hearing.
On 16 January 2018 the Tribunal affirmed the delegate’s decision.
Tribunal decision
The Tribunal decision is accurately summarised in the Minister’s written submissions and I respectfully adopt that summary, with some minor amendments.
The Tribunal found that the issue for its determination was whether the applicant met the genuine temporary entrant criterion in cl 573.223 in Schedule 2 to the Regulations. The Tribunal noted that in considering whether the applicant met cl 573.223, it was required to have regard to Ministerial Direction No 53.
The Tribunal recorded that the applicant had been enrolled in a Bachelor of Business from July 2015. This enrolment was cancelled on 4 August 2015 and he enrolled in an Advanced Diploma of Management which was also cancelled soon after. The Tribunal found that the applicant was unable to provide course transcripts of study or relevant certificates for any studies in the second half of 2015. Aside from this period in 2015, the Tribunal otherwise accepted that the applicant had been enrolled in studying a series of courses from around 2013 to the time of the decision.
The Tribunal found that the statement provided by the applicant on the day of the hearing did not address the reasons for his enrolment in a Bachelor of Business. When questioned about this, the applicant stated that he wished to study at the Bachelor level to attain a Graduate Certificate to impress his father.
The Tribunal found that the applicant said he wanted to be a chef and that he had not provided a sound reason for his enrolment in a Bachelor of Business. The Tribunal was not satisfied that the applicant was a genuine student and found that he enrolled in the Bachelor’s degree to continue residence in Australia. The Tribunal had regard to the applicant’s statements that he provided to the Department and the Tribunal and noted that neither of his statements referred to his enrolment in a Bachelor of Business, or how such a degree would assist him in future employment or as part of a career objective.
The Tribunal also had regard to the applicant’s Provider Registration and International Student Management System (PRISMS) records and found that the applicant had originally been granted a student visa to enable him to undertake a Bachelor of Accounting, but that he had never commenced the course and his enrolment had been cancelled. The Tribunal found that the applicant had completed a number of courses at the Vocational Education Training (VET) sector level, but had never commenced a course at the Higher Education level as required and that he was in breach of condition 8516 which was a condition of his previous student visa.
The Tribunal gave no weight to a letter dated 30 May 2016 offering the applicant a job at a restaurant in India. It found that this was a statement of general intention and family welcome, not a detailed or specific offer, and was at that time 18 months old and effectively superseded by the applicant’s enrolment in a Bachelor of Business from 19 March 2018 until 31 December 2019.
The Tribunal noted that there was no relevant evidence before it regarding the following factors in Ministerial Direction No 53: potential military service in India; economic or political circumstances; civil unrest in India; circumstances in India relative to Australia or any other country; or the applicant’s circumstances in India relative to others in India.
The Tribunal found that the applicant was not a genuine student who intended to stay temporarily in Australia, and that he did not meet the criteria for the grant of the visa at cl 573.223(1)(a) in Schedule 2 to the Regulations.
Judicial Review Application
The applicant filed his application to this Court on 13 February 2018, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The application contains two grounds:
1. I believe the tribunal has not considered my case in precise details.
2.My visa condition for subclass 573 is not in breach as I held COE for bachelor degree course.
The only relief sought in the application as filed is an order that the decision of the Tribunal be quashed. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which extends to matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The Court does not have jurisdiction to determine this matter if the only relief the applicant seeks is an order that the Tribunal decision be quashed.
At the hearing, I made an order to allow the applicant to orally amend his application to seek a writ of mandamus. The Minister did not object to this. Consequently, the application is now within the Court’s jurisdiction.
Pursuant to an Order made by a Registrar of the Court on 28 November 2018, the applicant was required to file any amended application, any affidavits, any supplementary court book and written submissions 28 days prior to the hearing. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions on 15 June 2022. The only evidence before the Court is the court book and an affidavit sworn by the applicant on 13 February 2018.
Consideration
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Ground 1
By ground 1 the applicant asserts that the Tribunal did not consider the precise details of his case. The applicant did not identify in his written application any consideration or details that he says the Tribunal was required to, but did not, take into account. In an affidavit that was filed at the same time as his judicial review application, the applicant deposed:
I have not been given justice by AAT member as I have evidence of enrolment in bachelor degree program to be followed after completion of diploma course.
It might be inferred from this that the applicant is asserting that the Tribunal failed to consider his COE in relation to the Bachelor of Business course that he was enrolled in from March 2018.
I also gave the applicant an opportunity at the hearing to explain what details of his case he believes the Tribunal failed to consider. The applicant submitted to the Court that he came to Australia to study accounting at La Trobe University but when he arrived here, he explored other options and then started to study in hospitality. He also explained that when he arrived in Australia, he undertook a 10 week English Language Intensive Courses for Overseas Students program but was still not confident in English after the completion of that course and was not confident to proceed with his accounting degree. The applicant submitted that he studied a Certificate III, a Certificate IV and a Graduate Diploma and was about to start his Bachelor degree when he heard the result that his visa had not been granted. He submitted that he was on a pathway to study a Bachelor degree and the Tribunal would have seen the pathway if it had considered his Certificate and Diploma courses.
The Minister submitted that this ground should be dismissed because there are no particulars provided and, even after the applicant made submissions on the ground at the hearing, it still lacks any meaningful particularisation. I do not dismiss ground 1 on this basis. Taking into account the explanation the applicant gave at the hearing, I am satisfied that the Minister was able to sufficiently understand the ground and respond to it, and the Court is in a position to address the ground.
The applicant’s main concern is that he studied his various Certificate and Diploma courses as part of a pathway and he was also planning to undertake a Bachelor degree as part of that pathway. However, it is clear from the Tribunal decision that the Tribunal was aware of the various courses that the applicant had completed and his enrolment in a Bachelor of Business and took these matters into account in reaching its decision. These matters are therefore not relevant considerations (or ‘precise details’ to adopt the applicant’s words) that the Tribunal failed to consider.
The Tribunal acknowledged the applicant’s past study in its reasons at [14], where it referred to the documentary evidence that the applicant provided in relation to his qualifications including a Certificate IV in Business, a Diploma of Business, a Diploma of Management, an Advanced Diploma of Management, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management; at [16] where it expressed satisfaction that the applicant had been enrolled in and studying a series of courses from 2013 to the time of its decision, other than for a period in 2015; and at [42] where it referred to the courses the applicant had completed that would assist him in pursuing his intended career path. The Tribunal referred to the applicant’s explanations as to why he enrolled in VET courses rather than courses in the Higher Education sector at [18] and [21] of its reasons, and it carefully considered the explanations that he provided about his path of study and future intentions in his genuine temporary entrant statements to the Department and the Tribunal: see in particular [24] and [34] of the Tribunal’s reasons.
The Tribunal was plainly aware that the applicant was enrolled in a Bachelor of Business and took this into account when assessing whether he met the genuine temporary entrant criterion. This can be seen from the following parts of the Tribunal’s reasons:
(a)at [14] of its reasons, the Tribunal listed the various documents that the applicant had provided on the day of the hearing, including his COE for the Bachelor of Business;
(b)at [16] of its reasons, the Tribunal acknowledged that the applicant was seeking to enrol in a Bachelor of Business for a two year period from March 2018;
(c)after summarising the written statement that the applicant provided to the Tribunal and noting that it did not address the reasons for enrolling in a Bachelor of Business, the Tribunal at [25] of its reasons referred to the applicant’s evidence at the hearing that he wished to study at Bachelor level to attain a graduation certificate that his father could display on his wall;
(d)at [28] of its reasons the Tribunal referred to the applicant’s acceptance at the hearing that his statement did not address the reasons for enrolling the Bachelor degree and that this was because he intended to become a chef;
(e)the Tribunal found at [29] of its reasons that the applicant had not provided a sound reason for his enrolment in a Bachelor of Business and found that the applicant enrolled in the Bachelor degree to continue his residence in Australia;
(f)at [35] of its reasons the Tribunal observed that neither the applicant’s statement to the Tribunal nor his statement to the Department made reference to his enrolment in a Bachelor of Business or how such a degree would assist in future employment or as part of a career objective and at [40] the Tribunal then observed that the applicant did not relate his statements to the Tribunal or the Department to his enrolment in a Bachelor of Business; and
(g)at [42] of its reasons the Tribunal expressed the view that the applicant appeared to have enrolled in a new course, which in context is properly seen as a reference to the Bachelor of Business, for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress.
Taking into account the applicant’s previous study, his proposed future study and his proposed career path, the Tribunal reached the view that the applicant had attained sufficient qualifications already to fulfil his career objectives and studying a Bachelor of Business would therefore be of no apparent value to his future: see the Tribunal’s reasons at [27], [28], [35], [40], [41] and [42]. This finding reflects the Tribunal’s consideration of the applicants path of study and it was open to the Tribunal to place weight on this finding, as it did at [41] of its reasons, in finding that the applicant was using the student visa program as a means to maintain residence in Australia and that he did not genuinely intend to stay in Australia temporarily.
I also accept the Minister’s submission that the Tribunal considered the applicant’s claims and documentary evidence in making findings and reaching its decision in this matter. After taking into account the applicant’s evidence, the Tribunal made findings in relation to those factors identified in Ministerial Direction No 53 which were addressed in the applicant’s submissions and evidence. It also indicated the factors referred to in Ministerial Direction No 53 that were not the subject of relevant evidence and which the Tribunal therefore made no finding on. There is no error in this approach, as Ministerial Direction No 53 itself makes clear that it is not a checklist, but rather a guide to assist decision-makers.
Ground 1 is not established.
Ground 2
By ground 2 the applicant appears to be asserting that the Tribunal erred in finding that he had breached his visa conditions for a Subclass 573 visa because he held a COE for a Bachelor degree course.
At the hearing, the applicant submitted that this ground was related to his first ground and that he held a COE for a Bachelor course.
In addressing this ground, it is important to recognise that the Tribunal’s finding that the applicant had breached his visa conditions related to the visa that he previously held from 2012 to 2016. The applicant declined to comment on the Tribunal’s finding that he had breached the conditions of his previous student visa by not maintaining his enrolment in a Higher Education sector course when I invited him to do so at the hearing.
Pursuant to Ministerial Direction No 53, whether the applicant had complied with the conditions of his previous visa was a factor that the decision-maker was required to consider if it was relevant (see paragraph 14(b)(i) of Ministerial Direction No 53). The COE for the applicant’s Bachelor of Business degree that he was due to commence in March 2018 was not relevant to whether he had complied with the conditions that attached to the student visa that he held between 2012 and 2016.
The Tribunal addressed the issue relating to the applicant’s breach of conditions that attached to his visa at various places in its reasons, and the reasons are in some respects repetitive. One part of the reasons where this issue is addressed is at [30] to [33] where the Tribunal said:
30.The applicant’s student visa was granted under the streamlined visa processing (SVP) arrangements. It was subject to Condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa.
31.One of the primary criteria for the grant of the applicant’s previous student visa was that the applicant must be studying for an eligible course at an eligible education provider.
32.The applicant’s student visa was granted in order for him to undertake the principal course Bachelor of Accounting at La Trobe University. Examination of the applicant’s history in PRISMS indicates that enrolment was cancelled by the education provider on 15/03/2013 due to non-commencement of studies.
33.As the applicant did not study an eligible course at an eligible education provider since 17/10/2012, he did not comply … with visa condition 8516. The Tribunal has regard to this lack of compliance with visa condition 8516.
The Tribunal made similar findings and engaged in similar albeit differently expressed, reasoning at [36] to [39] where it said:
36.The primary objective of a Student visa holder/international student in Australia must be to study a registered course and progress academically. The applicant’s student visa was granted under the streamlined visa processing (SVP) arrangements and was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa. One of the primary criteria for the grant of the applicant’s previous student visa is that the applicant must be studying an eligible course at an eligible education provider.
37.The applicant’s student visa was granted in order for him to undertake the principal course “Bachelor of Accounting” at La Trobe University. Examination of study history in PRISMS as published in the decision record showed the applicant did not commence the course on 04/03/2013 and his COE was cancelled by the education provider on 15/03/2013. Thereafter the applicant enrolled to undertake a Certificate IV in Business at Australian Learning on 08/04/2013 which is not an eligible education provider. As the applicant was no longer studying an eligible course at an eligible education provider this indicates that he had not complied with visa condition 8516.
38.Even though the applicant held a subclass TU573 visa from 04/10/2012 to 15/03/2016, he never commenced a course at that level as his education provider cancelled his enrolment for the Bachelor of Accounting on 15/03/2013 due to non-commencement of studies. Further examination of his study history indicates that he studied a Certificate IV in Business, a Diploma of Business, a Diploma of Management and Advanced Diploma of Management which are courses in the Vocational Education and Training (VET) Sector.
39.This is a breach of the applicants’ student visa condition 8516 (not studying at subclass). If the applicant was unable to study at the visa subclass he was approved for, he is required to apply for a change in the subclasses to reflect the level of study he is completing. This means the applicant could have contacted the Department, his education provider and lodged a new visa application under the correct subclass to enable him to undertake further studies in the VET sector.
The applicant’s PRISMS records on which the Tribunal relied are in evidence before the Court at pages 70 to 72 of the court book. Those records support the Tribunal’s finding that the applicant’s enrolment in a Bachelor of Accounting was cancelled on 15 March 2013 due to non-commencement of studies.
The applicant has not submitted to this Court that his previous student visa was not subject to condition 8516 and has not suggested that the Tribunal was wrong to find that this condition required him to maintain his enrolment in a Higher Education level course rather than a VET level course. His sole basis for challenging the Tribunal’s finding is that he held a COE for a Bachelor degree course. The applicant is unable to establish jurisdictional error on this basis for the reasons already expressed, namely, the Tribunal’s finding that his first COE for a Bachelor of Accounting degree was cancelled was open to it, and the COE dated 12 January 2016 for a Bachelor of Business degree which was due to commence on 19 March 2018 was not relevant to the Tribunal’s finding that the applicant had breached the conditions of his first student visa by failing to study an eligible course at an eligible education provider during the period of his visa.
The applicant has failed to establish the jurisdictional error alleged in ground 2.
Conclusion
Given that the applicant has not established jurisdictional error in the Tribunal decision, the application for judicial review must be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 20 January 2023
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