Kaur as Litigation Guardian of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2034
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur as Litigation Guardian of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2034
File number(s): BRG 288 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 27 August 2021 Catchwords: MIGRATION – Judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – secondary applicant – minor dependent – whether conclusion attended by irrational or illogical fact-finding – no jurisdictional error – dismissed. Legislation: Migration Act 1958 (Cth) s. 499
Migration Regulations 1994 (Cth). regs. 500.312, 500.312 (a), 500.312(a)(iii)
Cases cited: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
MZZUG v Minister for Immigration [2015] FCA 1151
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225[
Number of paragraphs: 39 Date of last submission/s: 18 March 2021 Date of hearing: 18 March 2021 Place: Brisbane Counsel for the Applicant: Mr Steel Solicitors for the Applicant: Sentry Law Counsel for the Respondents: Mr Byrnes Solicitors for the Respondents: Clayton Utz ORDERS
BRG 288 of 2020 BETWEEN: HARPREET KAUR AS LITIGATION GUARDIAN OF GURVEER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The amended application for review filed on 8 March, 2021 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application for review to be fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant, by his litigation guardian seeks review of the decision of the second respondent made on 22 April, 2020 which affirmed a decision of the first respondent’s delegate to refuse him the grant of a Student (Temporary) (Class TU) visa. His mother was the primary visa holder, having been granted a Student (Subclass 500) visa on 1 August, 2018.
The applicant seeks that the application should be allowed, and the decision of the second respondent (Tribunal) set aside, because the finding (at [33]) that the applicant does not intend to stay in Australia temporarily was arrived at in a way that is illogical, irrational, or unreasonable. That is, the purported decision was not one which was made within jurisdiction, because the Tribunal did not have a properly-formed (being as it was illogical, irrational and unreasonable) state of mind. In particular:
(a)there is no basis for any finding that the applicant’s father does not intend to stay in Australia temporarily. He does not even live here, and does not have a visa allowing him to stay in Australia, even if he wished to;
(b)the Tribunal provides only two bases for concluding that the applicant’s mother does not intend to stay temporarily:
(i)her studies in Australia; and
(ii)her pregnancy.
(c)in relation to her studies:
(i)the Tribunal accepts (at [25]) her reasons for not finishing particular courses; and
(ii)nevertheless, despite finding that it accepts her explanation, concludes (at [25]) that she intends to remain in Australia because she has not completed particular courses;
(d)in relation to her pregnancy:
(i)the Tribunal did not in terms reject the mother’s contention (at [28]) that she suffers from travel sickness, as a reason for not returning to India or the UAE while pregnant or with a young baby;
(ii)to the extent the mother’s explanation about travel sickness was otherwise not accepted, no logical basis was advanced for not accepting it; and
(iii)in any event, remaining in Australia while pregnant (which is a temporary condition) can not provide a logical basis for concluding that the mother does not intend to stay in Australia temporarily;
(e)the mother (the only parent in Australia):
(i)is the holder of a temporary visa only;
(ii)is not said ever to have been in breach of any temporary visa; and
(iii)is married to a person who lives in a different country; and
(f)the Tribunal’s views about the strength of any “incentive” of the mother to return to India (at [23]) or the UAE (at [30])), can not logically provide a basis for any finding about the mother’s (and therefore the applicant’s) intention to remain in Australia temporarily.
BACKGROUND
The applicant is an Indian citizen. He is 8 years of age. He was five and three-quarter years old at the time of the second respondent’s decision the subject of this review.
The applicant is a secondary applicant for a visa. He lives with his mother and younger sister in Australia. His mother is the holder of a student visa.
In the application for her student visa, the applicant’s mother listed the applicant and her husband, who is the applicant’s father as non-migrating family members.
Since arriving in Australia, the applicant’s mother has enrolled in an Advanced Diploma of Leadership and Management and a Diploma of Leadership Management but has failed to complete either course.
However, there is no contention that she is in breach of that temporary visa, or that she has ever been in breach of that or any other temporary visa.
The applicant’s father lives in India, but operates a business in the United Arab Emirates. He applied for a temporary visa to come to Australia in 2018 and again in 2019, but each application was refused.
On 24 August, 2018 the applicant and his father lodged applications for Student (Subclass 500) visas as secondary applicants. The applicant’s father was overseas at the time and had no review rights. The applicant was in Australia on a visitor visa.
On 22 November, 2018 the first respondent’s delegate refused the grant of the visa to both the applicant and his father on the basis that the applicant did not satisfy cl.500.312 of the Migration Regulations 1994 (Cth), because the delegate formed the view that the applicant did not intend to stay in Australia temporarily. Clause 500.312 relevantly provides:
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, because:
the applicant intends genuinely to stay in Australia temporarily, having regard to:
the applicant's circumstances; and
the applicant's immigration history; and
if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
any other relevant matter;
The applicant sought review of the delegate’s decision by the second respondent. In the course of that review, on 25 March, 2020 the second respondent sent correspondence to the applicant inviting him to attend a hearing on 9 April, 2020. The applicant’s mother appeared before the Tribunal by telephone on 9 April, 2020 to give evidence and present arguments as the applicant’s representative.
On 22 April, 2020 the second respondent affirmed the decision of the delegate to refuse the grant of the visa. It is in respect of this decision that the applicant now seeks judicial review.
GROUND OF REVIEW
The applicant pursues a single ground of review in his amended application for review filed on 8 March, 2021 expressed as follows:
1. The Second Respondent’s decision was affected by jurisdictional error as its finding that the Applicant does not intend to stay in Australia was arrived at in a way that is illogical, irrational or unreasonable.
The second respondent gave written reasons for its determination. They are relatively brief. In them, the second respondent identified that the issue for determination was whether the applicant satisfied cl.500.312(a) of the Regulations. The second respondent recorded that it was required to have regard to Direction No.69 made pursuant to s.499 of the Migration Act 1958 (Cth) “but 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.”
Regulation 500.312(a)(iii) required the second respondent to have regard to the intentions of a parent, legal guardian or spouse of the applicant where the applicant is a minor. The applicant concedes that the second respondent was obliged to have regard to the intentions of at least his mother and probably both his mother and his father in determining whether it was satisfied that the applicant genuinely intended to stay temporarily. Thus, the second respondent paid close attention to the applicant mother’s actions and claims.
The second respondent then set about recording the evidence and other material before it having regard to the framework established by the Direction and the issue at hand.
The second respondent recorded that in her visa application the applicant’s mother had declared that her husband would be remaining in the United Arab Emirates and that the applicant would be returning to India to stay with her parents for “the next couple of years”. She had not included her husband and the applicant as secondary applicants in her own visa application. Notwithstanding that, 23 days after her student visa was approved, the applicant’s father and the applicant applied to join the applicant’s mother in Australia.
At paragraph [20] of the reasons, the second respondent said:
The visa holder advised the Tribunal that she has three children: an older son who lives in India with her parents; the applicant, her second son; and a daughter born in Australia in January 2019. She stated that her oldest son has bonded with her mother in India, but her second son has bonded with her and for this reason can’t be separated from her. She stated that the applicant wept when she told him he might have to go back to India. She stated that the applicant is going to school, a state public school, where he is in preparatory year, and that he has an illness for which he is receiving ongoing medical treatment. She argued that her two youngest children as siblings should stay together, in Australia, with her. She stated that she has advised the Department about the birth of her daughter
The second respondent set out the arrangements for the applicant’s family – where his father lived and worked and where his siblings lived. It set out the applicant’s mother’s intentions and her intentions regarding the applicant and where they would live. The second respondent accepted that the presence of the applicant’s mother’s eldest son and her parents in India provided some incentive for her to return to that country but it noted however that she had stated that her older son had bonded with her mother rather than with her and that it was her intention to return on completion of her studies to the United Arab Emirates rather than to India.
The second respondent put to the applicant’s mother the information that it obtained via the Provider Registration and International Student Management System records. It put to her that those records showed that most of her enrolments had been cancelled and that she had completed none of her enrolled courses. It put to her that her study record raised concerns that she was not a genuine student and that she was using the student visa system to circumvent the intentions of the migration program and to maintain her in the applicant’s residence in Australia. The applicant’s mother was given the opportunity of extra time to consult with a representative the writ before responding that assertion but she did not seek that extra time.
The applicant’s mother told the second respondent that she did not attend courses in 2018 and 2019 because she was having a baby. She told the second respondent that she was not able to attend classes in 2020 because of the coronavirus. The second respondent accepted both of those propositions.
The second respondent recorded:
27. The Tribunal asked the visa holder why she chose, after she had lodged her student visa application, to have another child, at a time she claimed to intend to travel and remain temporarily in Australia for employment-related study purposes. The visa holder claimed that she didn’t realise she was pregnant when the visa was granted. The Tribunal asked the primary visa holder why, when she did realise she was pregnant, she didn’t cancel or indefinitely defer her study plans and return to India or the UAE to be with her husband and family while having another baby, rather than remaining with the applicant in Australia without family support, and without studying.
28. The visa holder claimed that she suffered from travel sickness and didn’t want to fly while pregnant or with a young baby. The Tribunal found the primary visa holder’s explanations as to why she had a third child in Australia without family support, and why she has remained in Australia after she learned she was pregnant, and after she realised she could not attend to her studies, weak and unconvincing. The Tribunal considers that the visa holder and her husband’s intentions have been to maintain residence in Australia, and that they have intended to use the student visa program for this purpose.
The second respondent recorded that the applicant’s mother made no claim that she needed qualifications that she said she wished to study for in Australia in order to obtain employment in India or in the United Arab Emirates. The Tribunal noted that she was performing, via the Internet, her role of managing the paperwork for the family business and there was no argument to show how an Australian qualification in Leadership and Management might progress the business and enhance the applicant’s mother’s and the family’s income and future prospects in India or the United Arab Emirates. Further, the second respondent considered that the applicant’s father intended to join him and the applicant’s mother and the other child in Australia and that the lack of information about the business conducted by him in the United Arab Emirates led to the conclusion that there was no incentive for the applicant’s parents to return and live in the United Arab Emirates. Rather, the second respondent considered that with his wife and two youngest children in Australia, incentive would be for the applicant’s father to remain in this country.
As the applicant submits, critical paragraphs of the second respondent’s decision were [31] and [33]. They are as follows:
[31] The circumstances of the applicant are that he was brought, at a very young age, to Australia by his mother. As discussed above, the visa holder stated that the applicant wants to stay in Australia because he is attending school here and receiving medical treatment here, and because he wants to stay with her. She indicated that her intention and desire is that the applicant remains and attends school, and receives medical treatment, in Australia. She argued that the applicant needs to stay in Australia to be with his sister, her daughter who was born in Australia. The Tribunal finds these arguments to indicate that the visa holder does not intend for the applicant to stay temporarily in Australia.
…
[33] Having considered the evidence, arguments and circumstances of the applicant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl.500.312(a)
CONSIDERATION
The applicant contends that the second respondent’s reasons do not logically support the finding that the applicant does not intend to remain in Australia temporarily. But the second respondent made no such finding. In the last sentence of [31] it made a finding about his mother’s intentions, not those of the applicant.
Insofar as the applicant seeks to attack this finding, it is apparent from that paragraph that the finding was made on the basis of the matters set out in [31]. That is to say that the applicant’s mother said that the applicant wanted to stay in Australia because:
(a)he is attending school here;
(b)he is receiving medical treatment here; and
(c)he wants to stay with her.
Further she indicated that her intention and desire was that the applicant remains and attend school and receive medical treatment in Australia. The second respondent recorded the applicant’s mother’s argument that the applicant needs to stay in Australia to be with his sister, her daughter who was born in Australia. It was “these arguments” that the second respondent found indicated that the applicant’s mother does not intend for the applicant to stay temporarily in Australia. They were arguments that the second respondent considered in the context of its earlier conclusions that the applicant’s mother was not a genuine student and was utilising the student visa system to remain in Australia.
Those matters identified by the second respondent in [31] were capable of leading to the finding that the second respondent made. Whilst it might be the case that other decision-makers may not have reached the same finding, that does not mean that the finding was illogical or irrational.
The relevant jurisdictional fact in this case, namely whether the second respondent was satisfied that the applicant met the description required by cl.500.312(a), was addressed in [33]. There is no finding in this paragraph, only the expression of a lack of satisfaction about the relevant jurisdictional fact. There is a difference: MZZUG v Minister for Immigration [2015] FCA 1151 at [57] citing SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [73].
The applicant argues that the conclusion reached by the second respondent expressed in [33] of its reasons was “vitiated by illogicality or irrationality in its formation”. He submits that the matters that the second respondent referred to in support of its conclusion in that regard do not logically or rationally support the conclusion it reached.
The applicant argues that as to his parents’ intention, the second respondent only made a finding about his mother’s intentions. Indeed, the second respondent made a finding about the applicant’s mother’s intention to remain in Australia. I have set that finding out above where I have extracted [31] of the second respondent’s reasons. As to the applicant’s father, the second respondent said:
30. No evidence was provided regarding the visa holder’s or the visa holder’s husband’s income from the business in the UAE, and the fact that the primary visa holder’s husband has applied to join her in Australia indicates that the business is not an incentive for the visa applicant’s parents to return to live in that country. The Tribunal does not accept that the visa holder’s husband’s intentions when he applied for visitor and student visas in 2018 and 2019 were that he would ‘come and go’ between the UAE and Australia. The Tribunal considers that with his wife and two youngest children in Australia, the incentive would be for him to remain in this country.
It is clear that as part of its overall consideration, the second respondent paid regard to whether the applicant genuinely intended to stay in Australia temporarily having regard to his mother’s intention as found in [31]. But it also identified and took into consideration the applicant’s father’s intention as found in [28] and what the second respondent described as the incentive for his father to remain in Australia in [30]. These were matters to which the second respondent, if not obliged, then certainly was entitled to take into account in its deliberations.
The applicant argues that the second respondent’s determination that the applicant’s father did not intend to stay in Australia temporarily was erroneous. However, the second respondent made no such finding or determination. The finding in [28] was that his intention has been to maintain residence in Australia and to use the student visa program for this purpose. As to [30], as I have described above, the second respondent considered that there was an incentive for him to remain in this country should he come here. The basis for that determination is self-evident. He had attempted to come here on two occasions by applying for a visitor visa and a student visa. His wife’s assertion that he would come and go between the United Arab Emirates in Australia was rejected and the second respondent concluded that with his wife and two youngest children in Australia, the incentive would be for him to remain in this country. That was made against the second respondent’s conclusion that the applicant’s mother did not intend to reside in Australia temporarily. The approach and determination of the Tribunal to this matter was not illogical or irrational in the legal sense. I do not think it could be said that no other rational decision-maker could not reach the same conclusion.
The applicant argues that the second respondent provided only 2 bases for concluding that the applicant’s mother did not intend to stay temporarily in Australia namely her studies in Australia and her pregnancy. The respondent submits that this is incorrect and there were more reasons than those. In particular, the first respondent submits that the second respondent also took into account the circumstances surrounding the visa application is made by the applicant and his father soon after the applicant’s mother secured her student visa, the applicant’s mother’s continued stay in Australia notwithstanding that she was not studying because of her pregnancy and her weak and unconvincing explanation as to why she had a third child in Australia without family support, and why she has remained in Australia after she learned she was pregnant, and after she realised she could not attend to her studies. Indeed, the second respondent’s reasoning in [31] also supplies another basis for concluding that the applicant’s mother did not intend to stay temporarily in Australia.
The applicant argues that the second respondent’s reliance upon the applicant’s mother’s failure to complete any studies does not support its conclusion that she intends to remain in Australia other than temporarily. Whilst it is true that the second respondent accepted the mother’s explanation for why she had changed her course of study over the years because of her pregnancy and because her study was affected by the coronavirus pandemic, the second respondent concluded that the fact that the applicant’s mother remained in Australia without studying indicated that she has not and does not intend to stay in Australia temporarily. That finding, in my view, is directed more to the failure of the applicant’s mother to return to India once it became clear that she was not going to study in Australia for the period of her pregnancy or the pandemic. The second respondent considered that the applicant had no family support in Australia and considered her explanation as to why she did not return to India or the United Arab Emirates where her husband was as weak and unconvincing.
The applicant further argues that the second respondent did not in terms reject his mother’s contention that she suffered from travel sickness, as a reason for not returning to India or the United Arab Emirates while pregnant or with a young baby. He argues that to the extent that his mother’s explanation about travel sickness was otherwise not accepted, no logical basis was advanced for not accepting it. However, it is trite that the second respondent was not required to accept uncritically any and all of the applicant’s evidence. It was within the second respondent to make an assessment of the weight that would attach to the applicant’s mother’s explanation for why she did not return to India or the United Arab Emirates in all the circumstances, including the fact that she had no family support in Australia and she would not be able to study while pregnant or with a baby.
I reject the applicant’s submission that the fact that his mother remained in Australia while pregnant could not provide a logical basis for concluding that his mother did not intend to stay in Australia temporarily. It is logically connected given that her pregnancy prevented her from studying (on her own case), she had no family support in Australia, the reasons given for not returning to India or the United Arab Emirates were assessed as weak and unconvincing and she had no other reason to remain in Australia. Nor did she return to India or the United Arab Emirates after her baby was born and after the commencement of the coronavirus pandemic notwithstanding that she was able to do so.
CONCLUSION
I am not persuaded that no other reasonable decision-maker could not reach the same conclusion as the second respondent did in this case. The matters taken into account by the second respondent in reaching its conclusion were all available to it on the material presented by the applicant. I accept the first respondent’s submission that the applicant is seeking to engage in an impermissible review of the merit of the second respondent’s decision.
The application does not disclose that the second respondent’s decision is attended by jurisdictional error. The application for review must be dismissed with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Associate:
Dated: 27 August 2021
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