Kaur v Minister for Immigration
[2020] FCCA 1107
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1107 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Student (Temporary) (Class TU) – Tribunal held that the Applicant did not meet the genuine temporary entrant criterion – application for review in this Court contained eighteen grounds – unparticularised grounds – allegations of bias – weight given to evidence – consideration of whether the Tribunal’s decision is unreasonable – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958, ss.357A, 499, div.5 of pt5 Migration Regulations 1994, Sch.2, cl. 571.223 Federal Circuit Court Rules 2001, rr.44.11(c), 44.12 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 |
| Applicant: | KAMALJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1950 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Advocate for the Respondents: | Mr Sypott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 4 July 2018 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1950 of 2018
| KAMALJIT KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 6 June 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) (‘visa’).
For the reasons that follow, I have decided to dismiss the application.
Background
The Applicant is an Indian national. She arrived in Australia on 7 December 2008 as the holder of a valid student visa. That visa expired on 30 August 2013. A further student visa was granted to the Applicant on 29 October 2013, which was valid until 15 March 2016.
The Applicant applied for the visa the subject of these proceedings on
15 February 2016. The application was refused by a delegate of the Minister (‘delegate’) on 16 September 2016. The delegate was not satisfied that the Applicant was a ‘genuine applicant for entry and stay as a student’ as required in clause 572.223 in Schedule 2 of the Migration Regulations 1994 (‘Regulations’).
On 19 September 2016, the Applicant sought a review of the delegate’s decision before the Tribunal.
On 16 January 2018, the Applicant was invited to a hearing before the Tribunal in respect of her application for review of the delegate’s decision. The Applicant subsequently appeared at a hearing before the Tribunal on 13 February 2018, where she gave evidence and presented arguments. She was assisted by a representative at the time.
On 6 June 2018, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa (‘Decision’).
On 4 July 2018, the Applicant filed an application for judicial review of the Decision with this Court (‘Application’). The Applicant filed an affidavit in support of her application.
On 30 October 2019, Registrar Carlton made orders by consent, providing, among other things, that:
a)Pursuant to rule 44.11(c) of the Federal Circuit Court Rules 2001, a hearing pursuant to rule 44.12 be dispensed with and the matter be listed for final hearing;
b)On or before 13 November 2019, the Minister file and serve a Court Book;
c)the Applicant file and serve any amended application with proper particulars of the grounds, written submissions and a supplementary court book, if any, at least 28 days prior to the final hearing;
d)the Minister file and serve submissions at least 14 days prior to be final hearing; and
e)the matter be listed for final hearing on a date to be fixed.
A Court Book and written submissions were subsequently filed by the Minister. The Applicant did not file any amended application or any written submissions. She relies on the Application and affidavit in support, as filed.
The temporary entrant criterion
This matter centres on the application by the Tribunal of clause 572.223 in Schedule 2 of the Regulations. At the relevant time, that clause was in the following terms:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor — the intentions of the parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter…
Clause 572.223 of Schedule 2 to the Regulations must be applied consistently with a direction under section 499 of the Migration Act 1958 (‘Act’). Direction 53 – ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’ applied at that time (‘Direction’). The Direction required, inter-alia, consideration to be given to matters including:
a)An applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
b)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;
c)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.
The weight to be given to the various factors is generally a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
The Decision of the Tribunal
A review of the Decision discloses the following:
a)The Tribunal identified the issue in the present case as whether the Applicant satisfied the requirements of clause 572.223 of Schedule 2 to the Regulations. In identifying that issue, the Tribunal recognised it was required to have regard to the factors set out in the Direction: paragraphs [11]-[12] of the Decision.
b)The Applicant was informed about the nature of the hearing, and among other things, the relevant criteria, and was given an opportunity to address those matters: paragraphs [14]-[15] of the Decision.
c)The Tribunal set out the Applicant’s history in Australia, and also, the list of courses undertaken by her at paragraphs [16]-[17] of the Decision which included the following:
i)Certificate IV in Spoken and Written English (completed January 2009);
ii)Certificate III in Hairdressing (completed February 2010);
iii)Certificate IV in Business (completed January 2011);
iv)Diploma of Management (completed July 2011);
v)Advanced Diploma of Management (completed April 2013);
vi)Diploma of Business (completed September 2013);
vii)Certificate IV in Marketing (completed May 2014);
viii)Diploma of Marketing (completed March 2015);
ix)Advanced Diploma of Marketing (completed November 2015);
x)Certificate III in Commercial Cookery (completed May 2017);
xi)Certificate IV in Commercial Cookery (completed November 2017); and
xii)Diploma of Hospitality Management (completed January 2018).
d)The Tribunal found that the Applicant was not a genuine temporary entrant for the purposes of study for the following reasons:
i)The Applicant’s study history, which included enrolment in a variety of different courses: paragraphs [22]-[30] of the Decision.
ii)The Applicant’s lack of a genuinely held career or business goal: paragraph [31] of the Decision.
iii)That the Applicant’s claimed career aspirations appear tailored to fit the Applicant’s current course selection in Australia, which the Tribunal found was not as it should be: paragraph [32] of the Decision.
iv)The Applicant’s strong ties to Australia which operate as an incentive for her to maintain residency in Australia: paragraph [44] of the Decision.
v)The Applicant’s ties to India were not enough to persuade her to return there: paragraph [34] of the Decision.
Having undertaken the above review, the Tribunal affirmed the Decision of the delegate not to grant the Applicant the visa.
The Application for Review
The Application for Review filed on 4 July 2018 contains 18 grounds of review. I have reviewed the grounds. Some of them overlap. Others appear to amount to an invitation to conduct a merits reviews. This is not entirely surprising. The Applicant was unrepresented at the time she filed the application and she appeared unrepresented at the hearing.
Many of the grounds of review are unparticularised. An unparticularised ground is one that does not specify what the nature of the jurisdictional error, allegedly committed by the decision-maker, is. Failure to particularise a ground of review is itself a sufficient basis for it to be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
It is against this backdrop that the Court now embarks on a review of the grounds of review that are set out in the Application.
Grounds 3, 8-9, 11-13 and 17-18
These grounds of review in the Application are as follows.
‘3. Tribunal was merely focused on the application for review which was not received by the Tribunal and decided that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.’
‘8. The disadvantage to the applicant inuring to him on account of the decision not to proceed or not to have jurisdiction is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing extenuating and compelling circumstances which would remedy further issues and doubts.’
‘9. I do have exceptional circumstances beyond the application lodgement previously.’
‘11. The Tribunal fell in error by not considering that Applicant had compelling circumstances that eventuated beyond his control which resulted in his absence to file the application for review timely.’
‘12. The Tribunal failed to exercise its jurisdiction while in some way affirming the decision of the delegate even after accepting that the Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement.’
‘13. The Tribunal failed to consider relevant considerations in deciding that the application for review was not received within the prescribed period. The application for review solely hinges on the fate and outcome of the whole Hearing proper.’
‘17. The Tribunal fell into jurisdictional error by not accepting the applicant's explanation for why his application for review to the Tribunal was filed outside the prescribed time limit.’
‘18. The Tribunal had discretion to extend the time limit in which an application for review could be filed, as it would be apparent the visa applicant could have successfully advanced argument suggesting that the delegate's decision contained jurisdictional error in any case.’
These grounds of review are, in many respects, difficult to understand. They were not elaborated on by the Applicant at the hearing. All of the grounds above appear to raise an issue that the Tribunal lacked jurisdiction on the basis of, inter alia, late lodgement of the review application, or failure to extend time, or failure to file documents in a prescribed time.
It is not apparent from anything that I have reviewed that there was any issue in relation to late lodgements, time periods, or applications to extend time periods. The Decision record of the Tribunal discloses no issue in these respects. There is not an issue in relation to the present application being filed out of time.
Given the above, these grounds of review raise issues that are not relevant to any matter in these proceedings. On this basis, and given their unparticularised nature, I dismiss these grounds for review.
Grounds 1, 2, 4, 5 and 10
These grounds of review in the Application are as follows:
‘1. The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.’
‘2. Tribunal did not give consideration to the evidence provided so it has fall into “Jurisdiction error”.’
‘4. The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.’
‘5. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits.’
‘10. I have been denied procedural fairness.’
These grounds appear to raise the following complaints. First, a failure by the Tribunal to properly consider all of the evidence and the material. Second, a failure to accord the Applicant natural justice or procedural fairness.
Once again, the grounds of review above are unparticularised. The Applicant has not identified, in the Application or in her oral submissions, what evidence was not considered, or given less weight. She has not identified what practice or decision gives rise to the complaint about being denied procedural fairness or natural justice.
In any event, when the Tribunal’s Decision is examined, none of the allegations are capable of being made out. As noted at paragraphs 14 and 15 above, the Tribunal considered all of the matters it needed to consider having regard to clause 572.223 of Schedule 2 to the Regulations and the Direction. Those matters included the Applicant’s study history, the value of the course to her in light of her career goals, her immigration history, her circumstances and her ties to India. There is nothing I can see to suggest there was a failure by the Tribunal to consider all of the relevant evidence and matters.
The complaints about a denial of procedural fairness or natural justice also lack merit. Section 357A of the Act applied to this matter. That section provides that this ‘Division is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with’. A review of the material before me indicates that the Tribunal complied with the requirements imposed on it under Part 5, Division 5 of the Act. The Applicant was invited to appear at the hearing. Her representative provided written submissions. She attended with her representative. She was heard in relation to the matters the subject of the visa application. She was on notice of the issues since the Decision of the delegate. In short, I can find nothing to indicate a breach of the natural justice requirements.
Finally, I observe that Ground 1 is, in part, a complaint about the weight the Tribunal attached to the evidence before it. It is well established that the weight to be given to evidence is a matter for the Tribunal: see QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918 at [22].
For these reasons, I dismiss grounds 1, 2, 4, 5 and 10 of the grounds of review.
Ground 6
The sixth ground of review in the Application is as follows:
‘The Tribunal Member with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member.’
The Applicant did not elaborate on this ground at the hearing. No matters have been identified by the Applicant upon which to base an assertion that is effectively an assertion of bias.
A party alleging bias carries a heavy onus. The allegation must be ‘distinctly made and clearly proved’: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531. Further, ‘it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision’: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
The allegation of bias here is not distinctly made. The Applicant did not point to how the conduct of the hearing could lead to an assertion of bias or prejudice. There is nothing before me to suggest that the Tribunal has prejudged the Applicant’s claims. There is also nothing before me to suggest that the manner in which the Tribunal conducted the inquiry led to the Applicant being intimidated or overborne. The analysis of the Tribunal’s reasons that I have summarised above indicates that the Tribunal considered all relevant matters.
For the above reasons, I dismiss ground 6 of the grounds of review.
Grounds 7, 14 and 16
These grounds of review of the Application are as follows.
‘7. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error.’
‘14. The Tribunal exercised its decision making power unreasonably and unconscionably.’
‘16. The decision is based on mistaken presumptions and/or erroneous findings.’
These grounds remained unparticularised following the hearing. The Applicant did not elaborate upon them in any meaningful way at the hearing.
Unreasonableness occurs where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (Associated Provincial Picture House Ltd v Wednesbury Corporation [1949] 1 KB 223 at [234]) or where a decision has been made that lacks and ‘evident and intelligible justification’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. Unreasonableness or illogicality is only to be found where it is ‘extreme … measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions, and against the framework of the enquiry being as to whether or not there has been jurisdictional error’: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148].
I have already summarised earlier, in these reasons, the Decision. It is apparent from that review that the Tribunal did not take a superficial approach to its task. There do not appear to me to be any mistaken presumptions. Nor does there appear to me to be any unreasonableness or illogicality in respect of the Decision reached by the Tribunal.
I am satisfied that the Tribunal’s findings were open to it. Accordingly, for the reasons above, I dismiss grounds 7, 4 and 16 of the grounds of review.
Ground 15
This ground of review in the Application is as follows:
‘There was no evidence to support the decision that the application for review was tainted with evidentiary flaws, ambiguity and was not factually genuine;’
At the outset, it must be observed that this ground of review appears to be almost unintelligible. It is difficult to identify with any precision exactly what the Applicant complains about. She did not elaborate on it at the hearing.
I have set out earlier in these reasons a summary of the approach taken by the Tribunal. To recap, it is apparent that the Tribunal had in mind the relevant Regulation and also the Direction. With those matters in mind, the Tribunal then considered all of the Applicant’s circumstances. The Tribunal gave ‘actual intellectual consideration’ to the review application.
Another way to consider this ground, and it must be said that many of the other grounds, is that the Applicant is inviting the Court to undertake a merits review. It is well-established that is not the role of the Court to undertake a merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
For all of the above reasons, I dismiss the Application for review.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 8 May 2020
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