KAMBOLE v Minister for Immigration

[2018] FCCA 2130

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAMBOLE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2130

Catchwords:
MIGRATION – Student (temporary) (class TU) visa – applicant had been enrolled in 17 courses since 2005 – applicant’s course enrolments disparate – applicant’s history revealed a gap in studies – tribunal considered all matters that the applicant put before it – applicant failed to submit evidence in support of claims at tribunal hearing – applicant variously misconstrued, misstated or misconceived tribunal’s findings – application dismissed.

Legislation:

Migration Act 1958, ss.359AA, 499

Migration Regulations 1994, sch.2, cls.572.223(1)(a)
Direction No 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications

Cases cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v State of South Australia (1995) 184 CLR 163
Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Toura v Minister for Immigration and Border Protection [2017] FCA 1405

Applicant: CONSTANTINO KAMBOLE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 421 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 31 July 2018

Date of Last Submission: 31 July 2018

Delivered at: Perth

Delivered on: 31 July 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application filed on 20 September 2016 is dismissed.

2. The applicant pay the first respondent’s costs in the fixed sum of $5 000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 421 of 2016

CONSTANTINO KAMBOLE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. On 17 August 2016, the Administrative Appeals Tribunal affirmed a decision of the minister’s delegate to not grant the applicant a student (temporary) (class TU) visa for which the applicant applied on 9 April 2015 and in respect of which tribunal decision the applicant sought judicial review in this court by a proceeding commenced on 20 September 2016.

2. In essence, the tribunal found that the applicant did not satisfy the elements of cl 572.223(1)(a) of sch 2 of the Migration Regulations (“regulations”) on the basis that the tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

3. The applicant relied on four propositions that he said were the grounds of his application for judicial review.  It is convenient to record them at this point in the narrative.  They were as follows (with errors in the original) –

   1.The officer/assessor did not consider my loan transfer document of my property my late mum left me. She failed to consider that because of technology/computers and mal administration it has been hard for me to get the little deeds for the same property.

   2.The assessor said I had a gap in my studies but, I have never stopped studying.

   3.The assessor said that, I can earn more money here than in my home country. Which is not true according to her research.

   4.The assessor said I did not have a 820 visa which I had as she used my old passport number.

4. The question in this case was whether the applicant demonstrated that the tribunal fell into jurisdictional error on any of the grounds mentioned immediately above.

Synopsis

1. For the reasons that follow, in my judgment none of the grounds of review had merit.  In my view, the tribunal’s decision was not affected by jurisdictional error.  This proceeding must be dismissed.  The applicant must pay the minister’s costs.

Factual recital

1. The applicant is and at all relevant times was a citizen of Zambia.  He arrived in Australia on 9 October 2005 as the holder of a temporary student visa.  A further temporary student visa was granted, valid until 30 July 2009.  On 10 January 2011, the applicant was refused a combined partner (class UX) (subclass 820) and partner (class BS) (subclass 801) visa.

2. The applicant applied for the visa that was the subject of this proceeding on 9 April 2015, as mentioned above. 

3. The minister’s delegate refused to grant the visa by a decision dated 26 May 2015.  The delegate was not satisfied that the applicant met the elements of cl 572.223. 

4. The applicant sought a merits review in the tribunal by application filed 8 June 2015.  On 28 June 2015, the tribunal invited the applicant to attend a hearing scheduled for 21 July 2016.  In the application, the tribunal requested the applicant to provide documents in support of his application, together with a written statement that addressed the matters raised in ministerial direction 53 on the question of whether the applicant was a genuine temporary entrant.  On 11 July 2016 the applicant provided a written statement setting out the matters paraphrased immediately below –

   a)he inherited property from his mother, who passed away in November 2011;

   b)his uncle, a successful businessman, had a business partner who had offered the applicant employment as a consultant;

   c)his potential circumstances in staying in Australia were low, as the costs to an international student were high and he was not eligible to migrate permanently to Australia;

   d)in Zambia the majority of students are African and in studying in Australia he would have more exposure to people with a diverse background, thereby allowing him to communicate effectively with clients from different backgrounds in the tourism industry where education in an international environment is crucial;

   e)he arrived in Australia in 2005 to pursue information technology but he changed course and did not complete that course;

   f)after commencing an intimate relationship with an Australian citizen in 2007, their relationship ended in 2010, leading to the cancellation of his subclass 820 visa;

   g)he completed certificate qualifications in marketing, aged care work, travel and international trade as well as diploma qualifications in international business and marketing; and

   h)in 2014 he obtained a certificate of enrolment in commercial cookery courses and in hospitality.

5. The tribunal hearing record revealed that the hearing commenced at 1:49pm and concluded at 3:12pm.

6. On 17 August 2016 the tribunal decided to affirm the delegate’s decision not to grant the applicant the student visa that he sought.  The tribunal’s reasons ran for 53 paragraphs.  It is necessary to identify the main issues that the tribunal’s reasons canvassed.  Relevantly paraphrased, they were as follows –

   a)the tribunal correctly identified that the relevant subclass of the student temporary visa was subclass 572 ;[1]

   [1] Administrative Appeals Tribunal decision record, 147 August 2016, [7]

   b)the tribunal recorded accurately the terms of cl 572.223(1)(a) of the regulations together with the terms of ministerial direction 53 incorporated by operation of s 499 of the Migration Act (“Act”) ;[2]

   [2] Ibid [8]

   c)the tribunal stated that it had regard to a number of factors when assessing whether the genuine entry criteria were met ;[3]

   [3] Ibid

   d)those criteria are a guide and not a checklist;[4]

   [4] Ibid [9]

   e)the applicant was, at the time of the hearing, 46 years of age and a citizen of Zambia ;[5]

   [5] Ibid [11]

   f)after working for five years in Africa, mostly in the computer industry, the applicant applied to study in Australia undertaking a bachelor of information technology qualification ;[6]

   [6] Ibid [14]

   g)the applicant arrived in Australia on 9 October 2005 at which time he commenced a course of study then he returned to Zambia for five weeks between May and June 2006 ;[7]

   [7] Ibid [15]

   h)he returned to Australia in late June 2006, at which time he decided to undertake studies directed to a different career than information technology, such as working in a hospital ;[8]

   [8] Ibid [16]

   i)the applicant enrolled in a bachelor of nursing but failed the physics and chemistry components of the course, so he transferred to another college where he commenced a course in adult tertiary preparation yet he failed physics and chemistry ;[9]

   j)thereafter the applicant enrolled in courses concerning aged care but was unable to complete a certificate IV course in aged care, so he enrolled in a certificate IV health sciences foundations course and passed all units save for chemistry and physics ;[10]

   k)the applicant thereafter decided to pursue a career related to commerce so he enrolled in a certificate IV in marketing, a diploma of marketing and an advanced diploma of accounting, which he mostly completed by May 2012 ;[11]

   l)between June 2008 and May 2012 the applicant’s study revealed a gap ;[12]

   m)he met a woman called Adele in 2006 or 2007 thereafter developing an intimate relationship which was the basis for his contentions that in 2010 he was granted a subclass 820 partner visa yet the tribunal found that no such subclass 820 visa was in fact granted ;[13]

   n)between November 2005 and July 2009 the applicant held a student visa as well as between October 2009 and March 2011 plus the period from July 2014 and April 2015 ;[14]

   o)after completing the marketing qualification in April 2012, the applicant enrolled in a diploma in international business and a certificate IV in international trade, which he obtained in April 2015 from Kingston College;[15]

   p)the visa application the subject of this case was the applicant’s fourth student visa application and it was made on the basis that the applicant wished to pursue a certificate III commercial cookery, a certificate IV commercial cookery and a diploma of hospitality, in relation to which the applicant said he wanted to use those qualifications in South Africa or Zambia where he would consult to his uncle in respect of kitchen design work in the applicant’s uncle’s architectural practice ;[16]

   q)in response to the applicant’s assertion that he owned two parcels of real estate in Zambia that he inherited from his late mother, the tribunal questioned the applicant about why he did not produce documentation evidencing his legal title to that land, to which the applicant said that the process of land title transfer takes a long time ;[17] and

   r)the applicant had been employed since 2008 as a part-time carer, he had returned to Zambia in 2006, in 2011 and in 2016 and he had no assets in Australia .[18]

   [9] Ibid [17]-[18]

   [10] Ibid [20]-[21]

   [11] Ibid [23]

   [12] Ibid [24]

   [13] Ibid [25]-[27]

   [14] Ibid [30]

   [15] Ibid [32]

   [16] Ibid [33]

   [17] Ibid [35]

   [18] Ibid [38]-[40]

7. Having recorded certain factual matters, the tribunal proceeded to express its consideration of those factual issues against cl 572.223 of sch 2 to the regulations as well as ministerial direction 53. Specifically, the tribunal –

   a)expressed its concern that the applicant had been in Australia since 2005 and had undertaken several low-level courses with no clear career path ;[19]

   b)said it was not persuaded that the applicant owned land in Zambia or that he had financial ties to Zambia providing an incentive for his return to Zambia ;[20]

   c)said the applicant’s employment in Australia was an incentive for him to remain in Australia ;[21]

   d)stated that the applicant had been enrolled in 17 courses since 2005 and that the tribunal was persuaded that such enrolling in 17 courses over then 11 years indicated that the applicant was seeking to maintain residence in Australia under the student programme and the current student visa application was his fourth ;[22]

   e)stated that it was not clear how the applicant’s current course would provide the skills and knowledge to be a consultant in an architectural firm ;[23]

   f)said the applicant’s lack of academic progress over 11 years, having held three student visas over that time, indicated the applicant was using the student visa program to maintain residence in Australia ;[24] and

   g)placed significant weight on the fact that the applicant had resided in Australia since 2005, returning to Zambia in that period on three occasions only and only for short periods, indicating that he did not intend genuinely to stay in Australia temporarily .[25]

   [19] Ibid [41]

   [20] Ibid [45]

   [21] Ibid [46]

   [22] Ibid [47]

   [23] Ibid [48]

   [24] Ibid [49]

   [25] Ibid [50]

8. As mentioned earlier, the tribunal found that the applicant did not meet cl 572.223(1)(a).

9. With that lengthy recital of the tribunal’s treatment of this matter it is necessary to address whether the tribunal fell into jurisdictional error on any of the four bases alleged.  But before moving to a consideration of the grounds alleged in this case on which the applicant relied for his claim to jurisdictional error, it is necessary to say some general observations about jurisdictional error.

10. Under the Act, this court is concerned with judicial review. It is not concerned with a merits review. Cases beyond any doubt have held as much, including Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[26] Attorney-General (NSW) v Quin,[27] Australian Broadcasting Tribunal v Bond,[28] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[29] 

    [26] (1989) 169 CLR 379

    [27] (1990) 170 CLR 1

    [28] (1990) 170 CLR 321

    [29] (1996) 185 CLR 259

11. It is not permissible for this court to re-evaluate factual findings under the guise of judicial review. 

12. Traditionally, jurisdictional error is demonstrated when it is shown that an administrative tribunal –

    a)identified a wrong issue;

    b)asked itself a wrong question;

    c)ignored relevant material;

    d)relied on irrelevant material; or

    e)in some instances, made an erroneous finding or reached a mistaken conclusion.

13. Cases that have so held include Craig v State of South Australia[30] and Minister for Immigration and Multicultural Affairs v Yusuf.[31]  Yet the above mentioned classification of jurisdictional error is not exhaustive, as there is no rigid taxonomy of the existence of jurisdictional error, as was held in Kirk & Anor v Industrial Court of New South Wales & Anor.[32]

    [30] (1995) 184 CLR 163

    [31] (2001) 206 CLR 323

    [32] (2010) 239 CLR 531

14. In this case, it was necessary for the applicant to demonstrate that the tribunal’s decision was so affected by jurisdictional error that this court should intervene by ordering the issue of constitutional writs.  The applicant did not file any submissions on point to correspond with orders previously made.  Instead, today in court he handed to me a document dated 30 July 2018, which set out matters of mixed fact and law but which were largely reflective of a document previously filed and considered by the tribunal.

Ground 1

1. In two places under this ground, the applicant asserted that the tribunal failed to consider something.  From the extracts of the cases of Craig and Yusuf set out above, in certain circumstances a tribunal’s failure to consider relevant material may very well provide the basis of a legitimate claim to the existence of jurisdictional error.  In this case, the applicant asserted that the tribunal failed to consider –

   a)transfer documents of property of his late mother; and

   b)that by reason of technological issues and “mal administration” it had been difficult for the applicant to obtain (what I took him to mean) the title deeds for the same property.

2. Those assertions raised a factual matter as well as a legal matter.  So far as the factual matter was concerned, the tribunal in fact considered whether the applicant did not provide any documentation to verify land ownership held by the applicant in Zambia.  In paragraph 45 of its reasons the tribunal stated that there was no documentary evidence of the applicant owning land in Zambia despite his assertion that he owned two parcels of land in that country.  The tribunal said in the same paragraph of its reasons that on the evidence available the tribunal was not satisfied that the applicant owned any land in Zambia.  In my consideration of whether that finding was correct I have examined all documents in the court book and saw no documentation whatsoever evidencing the applicant’s assertion that he owned land in Zambia.  It must be kept in mind that it is up to the applicant to provide his or her evidence in sufficient detail to enable the decision-maker to establish the relevant facts, as was held in Minister for Immigration and Multicultural Affairs v Lay Lat,[33] and that the minister is not required to make out the applicant’s case for him, as was held in Abebe v Commonwealth of Australia.[34]  Nor is the tribunal required to make out the applicant’s case for him, as was held in Minister for Immigration and Citizenship v Le[35] as well as in Toura v Minister for Immigration and Border Protection,[36] an unsuccessful appeal from one of my decisions.  The applicant has the onus of establishing jurisdictional error, as was held by the High Court in Minister for Immigration and Citizenship v SZGUR.[37]

   [33] (2006) 151 FCR 214

   [34] (1999) 197 CLR 510

   [35] (2007) 164 FCR 151

   [36] [2017] FCA 1405

   [37] (2011) 241 CLR 594

3. The second factual matter which the tribunal allegedly failed to consider was that it had been difficult for the applicant to obtain the title deeds.  In fact, the tribunal did consider the difficulties encountered by the applicant by reason of administrative delays in Zambia and the manual process that existed in relation to title registration in Zambia.  Those observations appeared at paragraph 35 of the tribunal’s reasons.  In those circumstances, I reject the suggestion that the tribunal failed to consider both the factual matters alleged in ground one of the applicant’s grounds of review.

4. But as mentioned above, a legal issue surrounded the factual propositions alleged in ground one.  If a tribunal fails to consider a matter in its conduct of a merits review, any such failure will only amount to jurisdictional error if the tribunal failed to consider what Mason J held was a mandatory consideration in Minister for Aboriginal Affairs v Peko-WallsendLtd.[38]  In order for a matter to amount to a mandatory consideration, the matter must be expressly stated to be required to be taken into account by the legislation itself or otherwise by implication arising from the subject matter, scope and purpose of the relevant legislation.  It seemed to me there was merit in the minister’s submission that, relying on the observations of the Full Court of the Federal Court of Australia in Applicant S214/2003 v Refugee Review Tribunal,[39] if the applicant had wished to use evidence of his land ownership, then he should have brought it to the attention of the tribunal.  He failed to do so. 

   [38] (1986) 162 CLR 24

   [39] [2006] FCAFC 166

1. Ground one failed.

Ground 2

1. In this ground the applicant asserted that the tribunal stated that the applicant had a gap in his studies whereas he said no gap had been shown because he said he had never stopped studying. 

2. The reference to a gap in studying was a reference to the tribunal’s observations in paragraph 24 of its reasons.  The tribunal said there was a gap in the applicant successfully completing any courses from June 2008 and the completion of his marketing course in May 2012.  The tribunal’s statement in that regard was correct.  The applicant did not accurately record the tribunal’s findings.  I take the view that the applicant misstated the tribunal’s finding, with the consequence that ground two failed.

Ground 3

1. Under this ground, the applicant took issue with a finding allegedly made about the applicant’s ability to earn a higher income in Australia.  Again, the applicant incorrectly distilled the relevant tribunal passage.  In paragraph 42 of its reasons the tribunal noted that the applicant would earn a higher income in Australia than in Zambia to which the applicant responded that it would depend on the business and the job in Zambia as to whether the income in Australia would be higher or not.  Then, in the second sentence at paragraph 46 of its reasons, the tribunal made an observation (that I took to be in the nature of a finding of fact) that the applicant had been employed in Australia for at least eight years and had been generating a reasonable income from ongoing casual employment with the same employer in that period.  Those two items of information did not support the construction placed on them by the applicant in ground three, namely that the tribunal said the applicant “can earn more money here than in my home country.”  The tribunal did not say that. 

2. In my view, ground three was not made out.

Ground 4

1. Under this ground, the applicant addressed the applicant’s subclass 820 visa, a factual matter peripheral to the visa application of relevance in this case.  At all events, the applicant asserted that the tribunal member stated that the applicant did not have a subclass 820 visa, which the applicant said was untrue as she (presumably meaning the tribunal member) used the applicant’s old passport number.  That much was the gravamen of ground four.

2. The minister argued that this ground of review was misconceived.  The minister said the tribunal did not rely solely on the applicant’s passport number in considering whether the applicant had, in fact, been granted a subclass 820 visa and instead the tribunal had regard to departmental records, especially the applicant’s movement records, support for which the minister said lay in paragraph 26 of the tribunal’s reasons.

3. It was readily apparent that a factual conflict existed on whether or not the applicant had previously been granted a subclass 820 visa. In considering the applicant’s assertions in that regard the tribunal analysed the applicant’s version of events as were set out in paragraphs 25 and 26 of the tribunal’s reasons. It is relevant to consider that in the invitation that the tribunal sent to the applicant on 28 June 2016 for him to attend at the tribunal hearing, the tribunal specifically requested the applicant to provide to it all relevant documentation on which he wished to rely. It seemed he brought his passport in which no reference to his subclass 820 visa appeared. Then, in accordance with the procedure prescribed by s 359AA of the Act, the tribunal invited the applicant to comment on the fact that departmental records showed that no subclass 820 visa had been granted, which, importantly, the applicant did not refute. When questioned more closely about the document the applicant asserted he may have been given, the tribunal recorded[40] that the applicant said the document may have been a bridging visa.  That led the tribunal to find as a fact that, on the information available, the applicant had not been given a subclass 820 visa.

   [40] Administrative Appeals Tribunal decision record, above n 1, [27]

4. Did that exchange and conclusion amount to jurisdictional error warranting intervention by this court on a judicial review hearing? In my view, the exchange was unremarkable and it was correct. In other words, the tribunal correctly probed for answers to the correct issue and examined the correct documents, including the applicant’s own passport (that revealed no subclass 820 visa) and department records were also examined. When the tribunal’s investigations revealed that the applicant’s assertions about the existence of or validity of the subclass 820 visa may have been erroneous, the tribunal correctly engaged the procedure set out in s 359AA to the effect that the tribunal invited the applicant to comment on the departmental records that indicated the applicant had not been granted a subclass 820 visa. The applicant then conceded that he may have been given a bridging visa.

5. It is important to bear in mind that, based on the authorities recorded above, it falls to the applicant – not the minister, nor the tribunal – to make out his case.  In my view, the finding that the applicant had not been granted a subclass 820 visa was proper.  I detected no error in the factual finding set out in the final sentence of paragraph 27 of the tribunal’s reasons. 

6. It followed that ground four failed.

7. Today the applicant said he should be permitted to finish his study and that the tribunal’s error lay in the tribunal stopping him from continuing to study.  That was not jurisdictional error.

Conclusion

1. In my judgment, none of the grounds of review succeeded.  In those circumstances, this application for judicial review failed.  The proceeding is dismissed.  I order the applicant to pay the minister’s costs that the minister submitted were in the sum of $5 000.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     6 August 2018