Kader v Minister for Immigration
[2020] FCCA 880
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KADER & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 880 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – show cause hearing – where primary applicant found not to be a genuine temporary entrant – no reasonably arguable case that there is jurisdictional error on part of Tribunal. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, s.476 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| First Applicant: | SAIRA BEEBEE KADER |
| Second Applicant: | SHEIKH REYAJOODDIN KADER |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 320 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 17 April 2020 |
| Date of Last Submission: | 17 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Mr S Cummings |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Spake Helmore Lawyers |
ORDERS
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 320 of 2019
| SAIRA BEEBEE KADER |
First Applicant
| SHEIKH REYAJOODDIN KADER |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 3 August 2019. That decision affirmed a decision of the first respondent (the “Minister”) to not grant the applicants Student (Temporary) (Class TU) visas (the “visas”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). The matter was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). To succeed before this Court, the applicants must satisfy the Court that they have a reasonably arguable case that the Tribunal fell into jurisdictional error in assessing their case.
The Court had before it the applicants’ application for judicial review dated 20 August 2019, an affidavit of the first applicant affirmed 20 August 2019, a Court Book (“CB”) numbering 163 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 24 March 2020.
The first applicant appeared on behalf of herself and her partner (the second applicant). The Court confirmed with the first applicant that she had received a copy of the Court Book and the Minister’s written submissions.
This matter was heard on 17 April 2020 and proceeded by way of teleconference. In light of the current health advice, the Court determined that this was an appropriate way to conduct the hearing. The applicants did not request an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for the parties to participate and engage in these proceedings.
Background
The applicants are citizens of Mauritius. They are married. They first arrived in Australia on 6 October 2008 as the holders of Student (Class TU) (Subclass 572) visas (CB 65).
On 1 February 2018, the applicants applied for the visas the subject of these proceedings (CB 53). The first applicant was the primary applicant. The second applicant was a member of the family unit. The first applicant was enrolled to study a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care.
On 22 March 2018, a Ministerial delegate refused to grant the applicants the visa (CB 59-70). The delegate was not satisfied that the first applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the first applicant was a “genuine temporary entrant”.
On 8 April 2018, the applicants applied for review at the Tribunal (CB 71-73).
On 9 May 2019, the Tribunal invited the applicants to provide information that would demonstrate that the first applicant was currently enrolled in a course of study and that she was a genuine applicant for entry and stay as a student (CB 81-87).
On 20 June 2019, the applicants responded to the invitation (CB 94-148). The applicants’ indicated that they agreed to the Tribunal determining the application without a hearing. The applicants also provided a number of supporting documents including written submissions, financial documents, enrolment confirmation, media articles and a statutory declaration from the first applicant.
On 3 August 2019, the Tribunal affirmed the decision to refuse the applicants the visas.
Tribunal’s Decision
The Tribunal’s decision is 12 pages long and 36 paragraphs long. The Minister’s written submissions (at [11]-[20]) accurately summarise the Tribunal’s decision in detail. The Court adopts that summary as its own. With some additions, it provides as follows.
The Tribunal (at [1]-[9]) set out the background to the application and the relevant legislation. The Tribunal noted that it was required to have regard to Direction No.69 and summarised the factors specified in Direction No.69. Relevantly, the Tribunal explained:
6.The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
7.Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily having regard to:
(i)the applicant’ s circumstances; and
(ii)the applicant’ s immigration history and
(iii)if the applicant is a minor, the intentions of a parent legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
8.In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69 , ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
9.The Direction indicates that the factors specified should not be used as a checklist but rather are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then set out the first applicant’s evidence regarding her circumstances in Mauritius. It was noted (at [10]-[12]) that:
a)the first applicant’s evidence was that she had arrived in Australia in 2008;
b)the first applicant’s yearly income in Mauritius prior to coming to Australia was $3,360;
c)the first applicant had property and bank deposits in Mauritius;
d)the applicants’ family had visited them twice during their stay in Australia; and
e)the first applicant regularly communicated with her family through WhatsApp.
The Tribunal found that, whilst the first applicant had given evidence of her community involvement in Mauritius before she left that country, there was no evidence of any current community ties in Mauritius (at [14]).
At [15], the Tribunal stated as follows:
The applicant recently completed a Certificate Ill in Early Childhood Education and Care, and is currently studying a Diploma of Early Childhood Education and Care. The applicant claims to have plans to open her own child care centre in Mauritius although she has produced no detailed business plan in respect of that proposal. The applicant claims to research the availability of similar courses in Mauritius, and has stated that such courses are very selective, and because of her age she may not be accepted by the course providers, but has provided no corroborative evidence of this. The applicant has provided no evidence of any attempt to gain acceptance by course providers in Mauritius. The applicant has stated that her reason for choosing to study this course in Australia is that courses in Mauritius are at a lower standard compared to those courses provided in Australia.
The Tribunal found, based on the first applicant’s own evidence, that she was primarily motivated to stay in Australia to provide “moral support” to her sons who were also studying here (at [16]-[17]).
The Tribunal then determined that, given the length of stay and the first applicant’s varied list of courses of study since arriving in Australia, her reason for studying the current proposed courses in Australia as opposed to Mauritius were “disingenuous” (at [18]).
Further, and notwithstanding that the first applicant had property and family ties in Mauritius, the Tribunal determined that, given the length of stay in Australia, the fact that the first applicant had made a single return to Mauritius and did not provide any evidence of community ties, there was no significant incentive for the applicants to return to Mauritius (at [19]).
The Tribunal then considered the applicants potential circumstances in Australia. It found the first applicant’s duration of stay and the significant difference between her salary in Australia and her salary in Mauritius weighed heavily against her and demonstrated a significant incentive to remain in Australia (at [20]-[22]).
The Tribunal then considered the value of the proposed course to the first applicant’s future. After outlining the courses the first applicant had been enrolled in since arriving in Australia, the Tribunal stated that the frequent and substantial changes indicated that the applicants were using the visa program to “maintain residence in Australia” (at [23]-[25]). The Tribunal did not accept the first applicant’s evidence regarding her proposed career plan or the reasons for her switching courses. In light of that determination, the Tribunal concluded that the proposed course was of no value to the first applicant (at [26]-[29]).
The Tribunal found that the applicant’s length of stay was inconsistent with being a “temporary” entrant. Further, the Tribunal concluded that the “whimsical” study history of the first applicant weighed against her being a genuine temporary student (at [30]-[32]).
On the basis of the above, the Tribunal concluded that it was not satisfied that the first applicant was a genuine temporary entrant and, as such, did not meet cl.500.212 of the Regulations (at [33]-[35]).
The Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [36]).
Proceedings in this Court
The applicants’ application for judicial review contains 3 grounds of review as follows:
1. THE DECISION MADE BY THE TRIBUNAL WAS NOT ACCORDING TO LAW.
2. JURISDICTIONAL ERROR.
3. IGNORING RELEVANT MATERIAL AS PER (CL.500.212) OF SCHEDULE 2 TO THE MIGRATION REGULATIONS.
In the first applicant’s affidavit affirmed 20 August 2019, she writes as follows:
1. THE DECISION MADE BY THE TRIBUNAL WAS NOT ACCORDING TO LAW.
2. JURISDICTIONAL ERROR. THAT IS, IGNORING RELEVANT MATERIAL
Despite an opportunity to provide an amended application, any affidavit material and an outline of submissions, the applicants did not file any further materials.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the applicants. Notwithstanding r.44.13 of the Rules (which the Court notes can be dispensed with pursuant to r.1.06 of the Rules), the Court allowed the first applicant to elaborate on, and further particularise, the applicant’s grounds of review. The applicants were advised that they could raise any concerns they had with the Tribunal’s decision. This is now the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]).
To assist the applicants, the Court explained that in the context of a show cause application they had to satisfy the Court they had a reasonably arguable case that the Tribunal had made a material error. The Court explained that in determining whether they had an “arguable case”, the Court could only assess whether it is at least arguable that there was jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant them the visas they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that the Tribunal was incorrect when it found that she was not a genuine student. Specifically, she referred to the “moral support” she provided to her sons and stressed that she wants to have a good career. The first applicant referred to undertaking a further course (a Bachelor of Education – Early Childhood Studies) that would help her future and explained that she wants to study further to gain skills and knowledge that will improve her future. She also explained that her migration agent had made many mistakes in presenting her evidence to the Tribunal.
Unfortunately, the matters raised by first applicant orally did not identify any jurisdictional error in the Tribunal’s decision. The Court does not doubt that the first applicant was a “good student”; however, this is not relevant to the issues before the Court. The only issue for the Court is whether the Tribunal has fallen into jurisdictional error.
Consideration
Ground 1
1. THE DECISION MADE BY THE TRIBUNAL WAS NOT ACCORDING TO LAW.
Without particulars, it is difficult for the Court (and the Minister) to gage what the applicants are saying when they say that the decision was “not made according to law”.
Here:
a)the Tribunal correctly identified the relevant legislative provisions and policy (being Direction No.69) that needed to be considered in a review of this sort;
b)the Tribunal had regard to all of the information before it. Importantly, it made reference to the evidence the applicants had provided in their response to the Tribunal’s invitation; and
c)the Tribunal adhered to the obligations of procedural fairness as required by div.5 of pt.5 of the Act. The applicant’s waived their right to attend a hearing, were on notice of the determinative issue and the Tribunal allowed an extension of time within which to provide further information.
Before this Court the first applicant stated that her migration had “made a lot of mistakes” in relation to the evidence before the Tribunal. Having reviewed the materials in the Court Book in detail, the Court is of the view that there is nothing to suggest that the migration agent engaged in any fraud on the visa applicants. Rather, any mistakes that were made amount to no more than negligence or incompetence: Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501.
If the first applicant has concerns in relation to the conduct of her migration agent generally, she is encouraged to raise those concerns with the Office of the Migration Agents Registration Authority.
Overall, the Court does not consider it reasonably arguable that ground 1 identifies jurisdictional error.
Grounds 2 and 3
2. JURISDICTIONAL ERROR.
3. IGNORING RELEVANT MATERIAL AS PER (CL.500.212) OF SCHEDULE 2 TO THE MIGRATION REGULATIONS.
Ground 2 is a bald assertion that is, in effect, meaningless. However, the first applicant’s affidavit suggests that the jurisdictional error referred to in ground 2 is that which is referred in ground 3. The Court will, accordingly, consider these together.
The applicants argue that the Tribunal ignored relevant material when determining whether they met the requirements of cl.500.212(a).
After identifying that the issue before it was whether the applicants met cl.500.212, the Tribunal noted that it was required to have regard to Direction No.69 and the matters specified in Direction No.69.
Here, the Tribunal specifically used the headings of Direction No.69 to structure its consideration and findings. It is apparent that the Tribunal was familiar with and considered the factors in Direction No.69. For example, the Tribunal specifically referred to the fact that the applicants had indicated that they had no concerns relating to military service or civil and political unrest (at [13]). This is a matter mentioned in Direction No.69.
The Court is satisfied that the Tribunal considered all “relevant” considerations. It engaged fully with the applicants’ evidence and placed particular weight on the first applicant’s own evidence that she wanted to continue to study so she could provide “moral support” for her sons while they finished their studies in Australia.
The weight that the Tribunal gives each of the factors in Direction No.69 is a matter for the Tribunal – as is the assessment of the applicant’s evidence against those factors. Clause 500.212 is purely evaluative: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [6]-[7].
The Tribunal’s reasons explain why, having regard to the factors in Direction No.69 (and having assessed the first applicant’s evidence and materials against these factors), it was not satisfied that cl.500.212 of the Regulations were met. There was nothing illogical in that conclusion and nothing was overlooked. It was based solely on the evidence before the Tribunal and was entirely sound.
Grounds 2 and 3 do not disclose an arguable case of jurisdictional error.
Conclusion
The applicants’ judicial review application and the first applicant’s affidavit do not disclose an arguable case of jurisdictional error. The Court has otherwise reviewed the decision and does not identify any arguable error.
The application is, accordingly, dismissed pursuant to r.44.12(1)(a) of the Rules that govern this Court.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 22 April 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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