Kaur v Minister for Immigration
[2020] FCCA 2678
•25 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2678 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider a relevant consideration – whether the Tribunal acted illogically – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | NATH MANDEEP KAUR |
| Second Applicant: | SUKHRAJ BIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 504 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 September 2020 |
| Date of Last Submission: | 23 September 2020 |
| Delivered at: | Perth |
| Delivered on: | 25 September 2020 |
REPRESENTATION
| Applicant: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The first respondent have leave to rely on the affidavit of Cody Nathalie Allen affirmed 27 August 2020.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 504 of 2019
| NATH MANDEEP KAUR |
First Applicant
| SUKHRAJ BIR SINGH |
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 are citizens of India. The first applicant and the second applicant are wife and husband respectively. They arrived in Australia on a Subclass 573 Student visa on 7 February 2014 (Court Book (“CB”) 67).
On 16 September 2016, the first applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”). The first applicant indicated that she was enrolled in a Bachelor of Business. The second applicant was included in the application as a member of the first applicant’s family unit (CB 1-45).
On 4 November 2016, the then Department of Immigration and Border Protection requested that the first applicant provide, among other things, a Genuine Temporary Entrant statement (CB 47-50). The applicant responded to this request on 1 December 2016 (CB 58-59).
On 10 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the visa (CB 60-71). The delegate was not satisfied that the first applicant was a genuine temporary entrant. Accordingly, the delegate found that the applicant did not meet cl.500.212(a) of the Migration Regulations 1994 (the “Regulations”). As the first applicant could not satisfy the primary visa criterion, it followed that the second applicant’s visa application was also refused.
On 31 January 2017, the applicants lodged an application for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 72-89).
On 9 May 2019, the Tribunal invited the applicants to provide information relating to whether the first applicant was enrolled in a course of study and whether she was a genuine applicant for entry and stay as a student (CB 97-98).
On 23 May 2019, the applicants responded to the invitation. They provided a statement concerning the first applicant’s status as a genuine student, submissions, academic documents and a completed information form (CB 99-130).
On 24 June 2019, the applicants attended a hearing before the Tribunal (CB 143-145).
On 25 June 2019, the applicants provided further information to the Tribunal (CB 146-147; Affidavit of Cody Nathalie Allen affirmed 27 August 2020).
On 1 December 2019, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 159-180).
On 24 December 2019, the applicants sought judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to be successful the applicants must establish that the Tribunal fell into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 19 pages long and spans 73 paragraphs.
The Tribunal began by outlining the nature of the application for review. It identified the type of visa applied for, summarised the basis of the delegate’s decision for refusing the visa and itemised the materials that were before it (at [1]-[11]).
The Tribunal determined that it did not have jurisdiction in relation to the applicants’ son as he was not included in the initial visa application (at [3]-[4]).
The Tribunal identified that the relevant issue before it was whether the first applicant was a genuine temporary entrant for stay and study as a student (at [12]).
The Tribunal recorded that there were inconsistencies in the oral statements, written statements and the GTE statement which relate to the genuine temporary entrant issue (at [13]).
The Tribunal then discussed the relevant Regulations, as follows:
14. 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.
15. 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 applicants 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.
16. 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 applicants circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
When considering the applicants’ circumstances in India, the Tribunal noted that the first applicant’s family live in India, she married before she came to Australia, her mother had encouraged her to travel to Australia, her brother runs a restaurant and her father works in transport (at [17]-[19]).
The Tribunal also referred to the first applicant’s evidence that her mother had asked her to “come home” after learning that she did not complete her MBA but that the first applicant had convinced her mother that her courses would assist the family in the future (at [20]).
The Tribunal found that the first applicant had some family ties in India which provided some incentive to return. The Tribunal gave this factor “a little weight” in the first applicant’s favour. The Tribunal also found that the first applicant was not subject to national service and there was no political or civil unrest or economic reasons that would be cause for the applicant not to return to India. The Tribunal also gave some weight to these matters in the first applicant’s favour.
The Tribunal then considered the applicant’s course of study and her reasons for coming to Australia. The Tribunal accepted that obtaining an education at a Masters degree level in Australia was a reasonable motive to study in Australia and gave this factor some weight in the first applicant’s favour (at [23]).
The Tribunal continued:
24. She was enrolled in a Masters of Business Administration at the University of Western Sydney. At the hearing she told the Tribunal that her aim when she came to Australia was to complete the course and return to assist her father in her father’s business. She said she believed that the Masters course would assist her to assist her father in that business. She was hoping to complete the course and return home in July 2016. She completed 3 units in the first semester, and failed one. At the hearing of this matter the applicant told the Tribunal that before she left India she knew that her mother had some health problems such as high blood pressure. She told the Tribunal at the hearing that it was during the first semester at the University of Western Sydney that she found out that her mother was even more ill than when she left. She felt alone, having no friends in Sydney, and struggled with the study and the worry about her mother.
25. Therefore, from the information given orally at the hearing, the applicant knew of her mother’s health problems when she was in Sydney, and her worry over them affected her study.
26. In the letter from her agent dated 22 May 2019 the applicant told the Tribunal that due to the illness of her mother “and the subsequent time taken to provide support for her she was not able to manage the academic rigour of the Masters degree.” Further, that letter says that she herself became ill and was stressed to the point where she could not focus on her studies and she therefore withdrew from the masters of business administration course. The Tribunal has not been provided with any medical certificates which attest to the applicant being so ill that she could not complete her course or any information which shows that she spent time providing support to her mother from Australia. The Tribunal has received a medical report about the applicant, but this is dated 2016, so well after she left Sydney and the MBA course. While the Tribunal heard from the applicant at the hearing that she was worried about her mother and that this caused her to be distracted from her studies, it did not appear at the hearing that the applicant was asserting that it was her own illness, whatever that may have been, that caused her to cease studying, or that it was her mother’s illness alone which was the cause.
27. Contrary to her agent’s letter, in her letter to the Tribunal of 21 May 2019 the applicant says that she failed the semester because she had difficulty finding suitable accommodation and she was in a different society having to learn everything from scratch. In that letter she said that it was those factors that impacted on her studies and she failed all of her units; there is no mention of her or her mother’s illnesses as being the cause of her failure. This also contradicts the information the applicant gave the Tribunal at the hearing about the impact of her mother’s illness on her at the time of her being in Sydney. The Tribunal does accept that the applicant would have been worried about her mother if she knew while she was in Sydney that her mother was so ill. However, as explained below, there is contrary information from the applicant about whether she did know of that illness, or at least the seriousness of the illness, when she was in Sydney and the Tribunal can give little weight to the applicant’s evidence that she had such knowledge and that it caused her to cease studying in Sydney.
The Tribunal then summarised the first applicant’s evidence in relation to her move from Sydney to Perth after her first semester of study (at [28]). The Tribunal noted that the first applicant had enrolled in a Master of Commerce but, as she was worried that the stress of her mother’s illness would not allow her to complete the course, she went to a migration agent for advice (at [29]).
The Tribunal recorded a contradiction in the first applicant’s evidence about when she did, in fact, find out that her mother was ill (at [30]).
The Tribunal referred to the first applicant’s evidence at the hearing about the fact that the migration agent advised her to complete a commercial cookery course and how she thought the course would assist her (at [31]-[32]).
The first applicant had submitted to the Tribunal prior to the hearing that she had decided to reshape her education and employment profile after realising that she would not complete her Masters course (at [33]). The Tribunal accepted that the first applicant had undertaken some research into the courses she undertook and gave this some weight (at [34]).
The Tribunal continued:
35. The Tribunal asked the applicant at the hearing what experience she had had of cooking. She said that she had assisted her mother to cook before she came to Australia, and once her mother became ill she cooked for the family. The Tribunal is not satisfied that this is any experience over and above anyone else who cares for a family, and does not depict a ‘lifelong hobby.’ Again, in contrast, in her letter to the Tribunal dated 21 May 2019 the applicant said that she decided at this point to turn her “long-term hobby of cooking” into her career, and that she had decided then to pursue a career in the hospitality industry as it was a growing industry and industry that would always provide employment as people have to eat. Further, in the letter she has told the Tribunal that she would start up her own restaurant once she returned back to her home. The applicant did not talk about cooking being a long term hobby at the Tribunal hearing, just that she had had experience in it. In addition, at the hearing the applicant was clear about working for her father and merely assisting her brother in his small restaurant for a small amount of time. This could not be said therefore to be a career, and not opening her own restaurant, or making her career in the industry. The applicant gave no explanation to the Tribunal at the hearing as to why there were such differences in her letter and evidence.
36. In any event, at the hearing the applicant told the Tribunal that her cooking with her mother gave her an interest in cooking, and she wanted to be able to cook various types of food from different regions of India. Learning here would mean she would learn to cook western cuisine as well. She agreed that it was, ultimately, her idea, rather than the agent’s, to go into cooking. The applicant said that this would still assist her father; once she finished her cookery courses she would be able to complete a Bachelor of Business, as she is doing now. After she has finished her bachelors course she would work for him. She felt that most of the units in the Bachelor course were also in the Masters course. She named units such as accounting and business law which would be helpful to assisting her father, without her having to do the Masters level course.
37. When asked at the hearing what her intentions were, she said that she will go home and help her father. She was pressed on what it meant to help him, and she said that her father had plans to expand, and needed an accountant in the business to assist him to expand. In relation to the cooking courses, she said that she will assist her brother in his small restaurant. She has spoken to her brother about this, and he is happy to have her assist him in expanding the business to global cuisine. Again, none of this involves opening her own restaurant, or being employed by a hotel or restaurant, or making her career in the hospitality industry.
The Tribunal then discussed the first applicant’s family businesses and the first applicant’s role in the future of these businesses. It recorded that the first applicant said she would work for both her parents and her brother’s businesses and that she anticipated working in her parents’ businesses 4 days a week and her brother’s businesses 2 days a week (at [38]).
The Tribunal found:
39. The Tribunal is not satisfied that this is a realistic proposition as to the applicant’s potential in India. It was not clear to the Tribunal, and there was no evidence of, why the applicant would receive half of the business’ profits or whether this was the subject of a confirmed business plan with her father. In addition, the applicant did not explain what differences there would be to her share of any profit if she was full time at her father’s business or only part time as she had proposed. She did not provide information to the Tribunal about prospective compensation from her brother in assisting him in his enterprise and she did not provide the Tribunal with financial information for the businesses, or any indication from her father that he agreed with the proposal or how it was to be implemented. As a result the Tribunal is not satisfied that the applicant has provided sufficient information to show a comparison between the applicant’s potential circumstances in Australia and those in India. Without that ability to make a comparison, the Tribunal cannot make any findings on whether there is incentive for the applicant to return home over and above an economic incentive to remain in Australia. Therefore, although the Tribunal accepts that the applicant has family who run businesses that she may work in, putting aside for a moment her other stated desire to open a restaurant, no weight can be placed on those opportunities in favour of the applicant; it is not clear what her goals are, or that they provide any incentive for her to return to India.
40. Further, given that the plans the applicant has in relation to working with her father and brother, or wanting to be employed in the hospitality industry or open her own restaurant are vague, limited, and inconsistent, the Tribunal is not satisfied that the applicant has shown that she needs to complete any of the courses she has completed, or is now completing, to achieve her career goals. The Tribunal is not satisfied that the applicant has any incentive to return to India over and above the fact that she has her parents there. These factors weigh against her being in Australia to study to increase her opportunities for her career and future, and add weight to a finding that she is using the student Visa program to maintain ongoing residence in Australia.
The Tribunal then considered the first applicant’s circumstances in Australia.
The Tribunal:
a)discussed the applicants’ living and working arrangements. The Tribunal noted that it could not give any weight to the first applicant’s earning capacity in India as opposed to Australia as an incentive for the first applicant to return. Further, the Tribunal was not satisfied that the first applicant did not have incentive to stay in Australia and found that this added weight to a finding that the first applicant was using the student visa regime to maintain ongoing residence in Australia (at [41]-[42]);
b)noted that the first applicant had not entered into a relationship of concern and gave this limited weight in favour of the first applicant (at [43]); and
c)referred to the first applicant’s family and extended family in Australia and determined that these ties to the Australian community might provide her with some incentive to remain in Australia and weaken her incentive to return to India. Accordingly, the Tribunal placed only limited weight on the fact that the first applicant’s parents were in India as an incentive for the first applicant to return (at [44]).
The Tribunal then considered the value of the first applicant’s courses to her future. The Tribunal noted that the first applicant had provided a number of different explanations for her courses of study and found that the variations in those explanations led it to form the view that it could not be satisfied about what her goals actually were. This meant that the Tribunal could not be satisfied that the current course that the first applicant was completing had any value to her future (at [45]).
The Tribunal then stated:
47. In their decision record the delegate made reference to a genuine temporary entrance statement provided to the Department. The details in the statement as recounted by the delegate in their decision are different to those the applicant gave to the Tribunal at the hearing. In that statement to the Department, the applicant told the Department that the applicant had considered a future career plan based on a dream to open a restaurant dedicated to Indian cuisine fusion food. According to the delegate she said that she had realised she needed to explore the fascinating world of business and food and wished to study business and food to enable her to embark on a business idea and how the food business is little impacted by economic changes. It is not clear what that business idea was. The applicant also told the Department that she had been offered employment as the assistant hotel manager of the Sunny Hotel, Restaurant and Beer Bar after her studies are completed.
48. The Tribunal accepts that given the passage of time that offer of employment may no longer be available, however, the fact that the applicant was looking for employment in the hospitality industry suggests that she was not interested in working with her father. This contradicts the information provided to the Tribunal at the hearing.
The Tribunal then extracted the applicants’ migration agent’s letter dated 22 May 2019. The Tribunal referred to the fact that the first applicant did not tell the Tribunal about the aspirations contained in the letter. Rather, she told the Tribunal something quite different. As a result, the Tribunal could not be satisfied that the first applicant had provided any acceptable information about her intentions for the future or what she hoped to achieve from her current studies (at [49]-[50]).
In relation to the value of the first applicant’s courses to her future, the Tribunal concluded:
52. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it provided by the applicant, including the information previously provided by the applicant to the Department, and the information provided by the applicant’s agent. Because the applicant has provided what the Tribunal considers to be inconsistent and conflicting information on important matters that would assist it in reaching a finding about whether the applicant satisfies the genuine temporary entrance criterion, the Tribunal can give no weight to the applicant’s stated goals for the future and intentions in regards to her study and career, or therefore the value of the course she is currently studying, or her past courses, to the applicant’s future. The absence of any weight in her favour in relation to those factors weighs heavily against her being granted a Student visa.
The Tribunal then considered the first applicant’s travel and visa history. The Tribunal discussed the first applicant’s attempt to apply for a Temporary Work (subclass 457) visa in 2017. It put it to the first applicant that it appeared that, having been told her application for the student visa had been refused, she applied for the work visa as a means to remain in the country. The first applicant denied this. The Tribunal placed no weight on the fact that the applicants had been refused a work visa (at [53]-[55]).
The Tribunal then explained why it placed weight on the fact that the first applicant had applied for a work visa. The Tribunal found that the work visa application demonstrated that the first applicant was prepared to try other means to remain in Australia. This added weight to the proposition that the first applicant was circumventing the intentions of Australia’s migration programme (at [56]).
The Tribunal continued:
57. The applicant has not returned to see her mother because, she said, her mother wanted her to stay home for over 3 months. She knew that because she was studying, or on a bridging visa, she could not stay for that long. She said that she speaks to the doctor, and he says that her mother is OK, but that she should not be stressed. He encouraged her to remain in Australia and complete her studies. In her letter to the Tribunal dated 21 May 2019 the applicant said that she had not been home because there had been ups and downs in her studies and therefore she did not get the chance to visit her family. However, the applicant did not explain at the hearing or elsewhere why “ups and downs” in studies impact on a person’s travel to see family. The applicant has asked the Tribunal to place weight on the fact that her mother has been ill as a reason why, according to her at the hearing, she was unable to complete her masters course in Sydney and, in effect, her course at Curtin University, however, the Tribunal notes that the applicant has not returned to see her mother other than once in 2017. While the Tribunal acknowledges that the applicant may not have wanted to have a confrontation with her mother about why she could not stay for three months if she returned or why she was taking so long to complete a course which she should have completed by July 2016, the Tribunal is not satisfied that those reasons outweigh the concern the applicant expressed for her mother’s illness and that being the reason that she found it difficult to apply herself to her studies. As a result, the Tribunal is not satisfied that the applicant’s family and their circumstances in India provide strong community and family ties such that there is significant incentive for her to return to India.
58. The applicant’s husband has been in consistent employment in Australia since their arrival. Since 2017 the applicant has also been in constant employment in Perth at an Indian restaurant and now at an aged care facility. The Tribunal is satisfied that the employment history and potential of both the applicant and her husband provides ties to the community here in Australia and an incentive to remain in Australia, adding weight to a finding that the applicant is using the Student visa to maintain ongoing residence in Australia. The Tribunal gives this factor weight against the applicant being granted a further Student
The Tribunal then noted that the first applicant had not had any other visa refused or cancelled and that there was no evidence to suggest that she had failed to comply with visa conditions in Australia or elsewhere. The Tribunal gave some weight in the applicants’ favour in relation to those factors (at [59]).
The Tribunal did not place any weight against the first applicant for being unable to complete her first Masters course (at [60]). However, the Tribunal noted that the first applicant had not achieved her stated goals of completing a Masters degree and, should she complete her current course, she would not have progressed beyond a level she already had when arriving in Australia. This weighed against the first applicant (at [61]-[62]).
The Tribunal continued:
63. As the delegate has also noted, the applicant did not advise the Department of her change in enrolment or apply for the appropriate visa. While the Tribunal accepts that the applicant may have received some incorrect advice or a promise from an agent which was not fulfilled, it is the responsibility of the applicant to understand their obligations under the Australian Visa programme. The Tribunal notes that the applicant is capable of research and completing diploma level courses and therefore is of the view that she is capable of understanding her obligations and ensuring that they are complied with. The Tribunal is not satisfied that the applicant has a reasonable reason for not notifying the Department of her change in enrolment. The Tribunal is of the view that this failure is important to its determination in this case as it illustrates the intentions of the applicant to circumvent the Department, and the Tribunal gives this factor a little weight against her.
The Tribunal noted that the first applicant’s family had no visa history of concern and gave this some weight in favour of the first applicant (at [64]). As neither the first or second applicants were minors, the Tribunal found that cl.500.212(a)(iii) was irrelevant.
When considering “other relevant matters”, the Tribunal stated:
66. The Tribunal notes that as described above the applicant has said in her response to the invitation to provide information pursuant to section 359(2) that in Australia is a person that she has described as “son.” The applicant did not refer to this person in her letter to the Tribunal or in any other material provided to the Tribunal. In her statement to the Department she said that her son was living in India. Given her answer in the response to the request pursuant to s 359(2), that no longer appears to be the case. This person is not an applicant in relation to this review. The Tribunal has taken into account the fact that the applicants’ son now appears to be living in Australia as described elsewhere in these reasons. Therefore, while not spoken of in the Tribunal hearing, the Tribunal is of the view that the existence of their son, and the fact that he now appears to be living in Australia, is relevant, and it has accorded this factor weight, as has been described elsewhere in these reasons.
In light of the discussion the Tribunal had recorded, the Tribunal was not satisfied that the first applicant genuinely intended to stay in Australia temporarily as was required by cl.500.212(a) (at [68]). Accordingly, the first applicant did not meet cl.500.212 of the Regulations. The Tribunal affirmed the delegate’s decision to refuse the visa (at [69]-[70]).
As the first applicant did not meet cl.500.212, the Tribunal found that the second applicant did not satisfy cl.500.311 of the Regulations (at [71]-[72]).
The Tribunal affirmed the decision to refuse the visa (at [73]).
Proceedings in this Court
The applicants filed an application for judicial review on 24 December 2019 and an amended application on 18 March 2020, which contained the following grounds of review:
Ground One
1. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Migration Regulations 1994 (the Regulations) for Student Visa applications by failing to have regard, as required by Paragraph 9 of Direction No 69 - Assessing the genuine temporary entrant criterion for Student visa applications (the Directions), to the following factors in considering the first applicant’s circumstances in her home country.
Particulars
a. The Tribunal failed to have regard to paragraph 9a of the Direction: “whether the applicant has reasonable reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant”.
Ground Two
2. The Tribunal made a jurisdictional error by acting on a mistaken understanding of the applicant’s evidence in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications, and engaging in a process of reasoning that was illogical and not based on findings of fact supported by logical grounds.
Particulars
a.Paragraph 9a of the Direction required the Tribunal to have regard to: “the extent of the applicant’s personal ties to their home country (for example family, community and employment)
b.At paragraph 57 of its statement of reasons, the Tribunal stated that it was not satisfied that the first applicant’s family and their circumstances in India provide strong community and family ties such that there is a significant incentive for her to return to India.
c.In reaching the above conclusion, the Tribunal relied on the fact that the first applicant had not returned to see her mother other than once in 2017.
d.The Tribunals conclusion was based upon a mistaken understanding of the first applicant’s evidence as to her ties to her mother and family.
e.The Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds.
Ground Three
3. The Tribunal made a jurisdictional error by failing to consider evidence of the first applicant’s ties to her home country and to her economic circumstances there, which was evidence relevant to the assessment of the genuine temporary entrant criterion ass Schedule 2 of the Regulations for Student visa applications.
Particulars
a.The first applicant provided to the Tribunal a document Certificate of Cattle Holding Estimate Dairy Income from Dr. Ashok Kumar dated 12 July 2016.
b.The Tribunal gave no, or no proper consideration, to the Certificate of Cattle Holding and accordingly made a jurisdictional error.
(Without alteration)
The first applicant’s affidavit dated 17 March 2020 provides as follows:
1.I refer to my affidavit sworn on 23 December 2019 and I make this supplementary affidavit in support of my application for judicial review of a decision made by the Administrative Appeals Tribunal (Second Respondent).
2.I applied to the Department of Home Affairs (First Respondent) for a Student (Subclass 500) visa (visa) on 16 September 2016.
3.On 10 January 2017, the First Respondent refused to grant me the visa.
4.I applied to the Second Responded to review the First Respondent’s decision.
5.On 24 June 2019, I appeared before a hearing held by the Second Respondent in relation to the conduct of the review.
6.On 1 December 2019, the Second Respondent upheld the First Respondent’s decision.
7.I am aggrieved by the Second Respondent’s decision.
8.I believe that at the time of the decision, I would have met the requirements of clause 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth).
9.I therefore seek orders that the decision of the Second Respondent by quashed and that the matter be remitted to the Tribunal differently constituted for consideration in accordance with law.
(Without alteration)
The applicant was given an opportunity to file an outline of written submissions. No further materials were provided.
The evidence before the Court is thus limited to the materials discussed above, an Affidavit of Cody Nathalie Allen affirmed 27 August 2020, a Court Book numbering 180 pages (marked as Exhibit 1) and the Minister’s outline of written submissions filed 27 August 2020.
The first applicant appeared on behalf of herself and the second applicant at the hearing. The Court confirmed that she had received a copy of the Court Book, the affidavit of Ms Allen and the Minster’s outline of written submissions filed 27 August 2020.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, her grounds of review and to advise the Court if there was anything else she thought that the Tribunal “did wrong”. This is now the standard procedure 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 to the first applicant that this Court can only turn its attention to the issue of 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] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); 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 the visa that the applicants 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 she was concerned with the fact that the Tribunal repeatedly asked her the same questions about why “she didn’t go home” and about her studies. She explained that she found it difficult to explain her concerns about her mother. The first applicant also seemed to suggest the Tribunal was “biased” because it did not accept the first applicant’s personal reasons about why she could not go home.
The Court will address these submissions below.
Consideration
Ground 1
For ease of reference, ground 1 provides as follows:
1. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Migration Regulations 1994 (the Regulations) for Student Visa applications by failing to have regard, as required by Paragraph 9 of Direction No 69 - Assessing the genuine temporary entrant criterion for Student visa applications (the Directions), to the following factors in considering the first applicant’s circumstances in her home country.
Particulars
a. The Tribunal failed to have regard to paragraph 9a of the Direction: “whether the applicant has reasonable reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant”.
Ground 1 refers to [9(a)] of Direction 69 which relevantly states:
When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant
…
Direction 69 is a “guide” to what should be considered when assessing whether an applicant meets cl.500.212(a). A failure to expressly refer to a particular factor in Direction 69 does not itself amount to jurisdictional error: Jan v Minister for Home Affairs [2019] FCA 1837 at [24]. A failure to make an express finding on each matter in Direction 69 does not amount to jurisdictional error. Nor does it necessarily mean that that factor was not considered: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [96] (“Kumar”).
In relation to the particulars relevant to ground 1, the Court is satisfied that the Tribunal did “turn its mind” to [9(a)] of Direction 69.
It is apparent that the Tribunal took into account the first applicant’s reasons for studying in Australia as opposed to India. Specifically:
a)the Tribunal referred to the first applicant’s evidence at the hearing that Australia provided better opportunities and a higher level of education (at [23]). The Tribunal accepted that this was the case and that it was a “reasonable motive” to study in Australia (as per the language used in Direction 69). This “finding” equates to a direct consideration of [9(a)] of Direction 69;
b)the Tribunal acknowledged that in the first applicant’s oral evidence at the hearing she stated that learning in Australia would allow her to “cook Western cuisine” (at [36]). The Tribunal appears to accept that this is the case. Nonetheless, the Tribunal went on to acknowledge the first applicant’s evidence that her intention was to return to help her father and to “assist” her brother (which did not involve a career in the hospitality industry) (at [37]). The Tribunal clearly considered the evidence about why the first applicant would benefit from studying in Australia (i.e., as she could learn western cuisine) but ultimately found that this was inconsistent with her future career plans; and
c)at [49], the Tribunal expressly referred to the migration agent’s submissions about why studying in Australia would be “favourable for her employment and business prospects”. This submission can be directly attributed to the migration agent seeking to address [9(a)] of Direction 69. At [50], the Tribunal stated that at the hearing the first applicant made no mention of any of the matters in the migration agent’s submissions and, in fact, gave “quite different” responses. Accordingly, the Tribunal did “have regard” to the applicants’ arguments addressing [9(a)] of Direction 69 and noted that the first applicant’s oral submissions did not accord with these arguments.
All of the above equates to direct and indirect references to [9(a)] of Direction 69. The Tribunal was not required to consider [9(a)] in isolation. Here, the Tribunal adopted the correct approach and had regard to [9(a)] in the broader context of addressing the first applicant’s circumstances as a whole.
More generally, it is readily apparent that the Tribunal had close regard to the factors in Direction 69. The Tribunal used the headings of Direction 69 when structuring its reasons. The language of Direction 69 is utilised throughout the Tribunal’s reasons. For example, the Tribunal:
a)referred to the “incentive” of the first applicant’s personal ties to return to India (a factor mentioned in [9(b)] of Direction 69);
b)noted an absence of national service commitments and political and civil unrest (a factor mentioned in [9(e)] of Direction 69);
c)stated that there was an absence of information in relation to the potential compensation that the first applicant would receive in India (a factor mentioned in [12(c)] of Direction 69); and
d)placed weight on the fact that the first applicant was intending to use the visa to maintain ongoing residence (a factor mentioned in [11(c)] of Direction 69).
The Tribunal’s reasons rationally explain why, having regard to Direction 69 and the materials before it, the Tribunal was not satisfied that the first applicant met cl.500.212(a): Kumar at [7].
The Court is satisfied that the Tribunal forensically considered the first applicant’s evidence, the matters in cl.500.212(a) and the factors in Direction 69 when coming to its ultimate conclusion. There was no “failure to have regard” to any of the matters relevant to the case before it.
Ground 1 is dismissed.
Ground 2
For ease of reference, ground 2 provides:
2. The Tribunal made a jurisdictional error by acting on a mistaken understanding of the applicant’s evidence in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications, and engaging in a process of reasoning that was illogical and not based on findings of fact supported by logical grounds.
Particulars
a.Paragraph 9a of the Direction required the Tribunal to have regard to: “the extent of the applicant’s personal ties to their home country (for example family, community and employment)
b.At paragraph 57 of its statement of reasons, the Tribunal stated that it was not satisfied that the first applicant’s family and their circumstances in India provide strong community and family ties such that there is a significant incentive for her to return to India.
c.In reaching the above conclusion, the Tribunal relied on the fact that the first applicant had not returned to see her mother other than once in 2017.
d.The Tribunals conclusion was based upon a mistaken understanding of the first applicant’s evidence as to her ties to her mother and family.
e.The Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds.
The applicants have not identified what part of the first applicant’s evidence was “misunderstood”. At the hearing, the first applicant stated that she found it difficult to explain the nature of her relationship with her mother.
A “misunderstanding” of the evidence does not generally amount to jurisdictional error: Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51.
Here, the first applicant’s oral submissions appear to suggest that any misunderstanding was brought about by her inability to explain her relationship with her mother. There is nothing to suggest that the Tribunal prevented the first applicant from explaining “in detail” her evidence about her mother.
Unfortunately, the applicant’s submissions do not give rise to jurisdictional error. The applicants were required to advance their evidence and arguments with clarity. Any failure to do so does not arise from anything the Tribunal did or did not do.
It appears that the applicants may also be saying that the Tribunal’s “misunderstanding” of the first applicant’s evidence about her ties to her mother and family caused the Tribunal to make an illogical or irrational finding.
Broadly, what ground 2 as pleaded appears to be suggesting is that the Tribunal’s conclusion at [57] is illogical or irrational.
Paragraph [57] provides as follows:
The applicant has not returned to see her mother because, she said, her mother wanted her to stay home for over 3 months. She knew that because she was studying, or on a bridging visa, she could not stay for that long. She said that she speaks to the doctor, and he says that her mother is OK, but that she should not be stressed. He encouraged her to remain in Australia and complete her studies. In her letter to the Tribunal dated 21 May 2019 the applicant said that she had not been home because there had been ups and downs in her studies and therefore she did not get the chance to visit her family. However, the applicant did not explain at the hearing or elsewhere why “ups and downs” in studies impact on a person’s travel to see family. The applicant has asked the Tribunal to place weight on the fact that her mother has been ill as a reason why, according to her at the hearing, she was unable to complete her masters course in Sydney and, in effect, her course at Curtin University, however, the Tribunal notes that the applicant has not returned to see her mother other than once in 2017. While the Tribunal acknowledges that the applicant may not have wanted to have a confrontation with her mother about why she could not stay for three months if she returned or why she was taking so long to complete a course which she should have completed by July 2016, the Tribunal is not satisfied that those reasons outweigh the concern the applicant expressed for her mother’s illness and that being the reason that she found it difficult to apply herself to her studies. As a result, the Tribunal is not satisfied that the applicant’s family and their circumstances in India provide strong community and family ties such that there is significant incentive for her to return to India.
The Tribunal’s reasons must be read as a whole. The Tribunal considered the first applicants personal and family ties in some detail at [17]-[21]. At [21], the Tribunal found that the first applicant’s family ties gave her “some incentive” to return. The Tribunal also noted the first applicant’s inconsistent evidence about when she learned that her mother was ill (at [24]-[30]).
Reading those matters with [57], it is apparent that it was not the fact that the first applicant had not visited her mother since 2017 that led the Tribunal to determine that the first applicant’s personal ties were not a “significant incentive” to return. Rather, it was inconsistencies in the first applicant’s evidence generally. More specifically, it was the inconsistency between the level of concern that the first applicant expressed for her mother’s illness (which resulted in her being unable to complete her studies at two different universities as was her evidence at [24]-[30]) and her explanation that she had not returned to see her mother after 2017 because the she could not stay as long as her mother wanted her to.
It cannot be said that no reasonable decision-maker acting on the same evidence could not have come to the same conclusion: SZMDS at [135]. It cannot be said that it was unreasonable for the Tribunal to have had concerns about the fact that the first applicant did not return home to visit a sick relative. Nor is the finding that the explanation provided (i.e., that the first applicant did not return because she could not stay long) was unconvincing in any way unreasonable. The first applicant’s evidence was inconsistent and there was a logical and rational connection between the inconsistencies and the Tribunal’s conclusion, in reference to [9(b)] of Direction 69, that the first applicant’s family ties were not a significant incentive to return.
The Tribunal’s finding in this regard was not illogical or irrational. It was not arbitrary or capricious. It was entirely open to be made in light of the evidence that the first applicant had provided.
There is nothing to suggest that the Tribunal misunderstood the first applicant’s evidence. It appears that the first applicant is simply disagreeing with the conclusions that the Tribunal came to in assessing her evidence. While she may now feel that she could have better explained her circumstances, this is not relevant to the issue of whether there was jurisdictional error in the Tribunal’s decision.
Ground 2 is dismissed.
Ground 3
For ease of reference, ground 3 provides:
The Tribunal made a jurisdictional error by failing to consider evidence of the first applicant’s ties to her home country and to her economic circumstances there, which was evidence relevant to the assessment of the genuine temporary entrant criterion ass Schedule 2 of the Regulations for Student visa applications.
Particulars
a.The first applicant provided to the Tribunal a document Certificate of Cattle Holding Estimate Dairy Income from Dr. Ashok Kumar dated 12 July 2016.
b.The Tribunal gave no, or no proper consideration, to the Certificate of Cattle Holding and accordingly made a jurisdictional error.
At the hearing, the first applicant seemed to suggest that the Certificate of Cattle Holding was not looked at properly. She submitted that the Certificate was evidence as to her “financial reasons” for returning to India.
The first part of ground 3 states that the Tribunal failed to consider evidence of the first applicant’s ties to India. The applicants have not identified what evidence was not considered. The Tribunal clearly had regard to the first applicant’s ties to India at [21]-[24] and [57]. It made express findings on this issue.
Any absence of a reference to particular evidence (which has not been identified here), does not amount to jurisdictional error. The Tribunal is not required to refer to every piece of information that is before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184.
Here, the Tribunal made reference to the first applicant’s evidence and submissions throughout its decision and did so in considerable detail. The Court agrees with the Minister that that the absence of any reference to particular pieces of evidence results from the Tribunal having determined that the evidence was not material to its findings.
The second part of ground 3, which appears to relate to the particulars, alleges that the Tribunal did not consider the first applicant’s economic circumstances in India because it failed to give consideration to a particular piece of evidence.
The particular piece of evidence that the applicants refer to in ground 3 is a Certificate of Cattle Holding. The applicants suggest that the Tribunal did not consider the Certificate of Cattle Holding.
Ms Allen’s Affidavit annexes the Certificate of Cattle Holding. This indicates that the second applicant’s mother is the cattle holder. There is also a land holding certificate which identifies that the second applicant shares land with his brother and mother.
The absence of a reference by the Tribunal to the Certificate of Cattle Holding in the circumstances of this matter can be attributed to the fact that it was not material to the Tribunal’s decision.
From the materials before the Court, the Certificate of Cattle Holding was provided with the visa application as “Evidence of ongoing annual income” (CB 20). The applicants again provided the Certificate of Cattle Holding to the Tribunal on 25 June 2016 using the heading “income source”.
There is nothing to suggest that the Certificate of Cattle Holding was ever advanced in support of the genuine temporary entrant criterion. That is, there is nothing to suggest that the Certificate of Cattle Holding was advanced to the Tribunal to suggest that it was a reason for the applicants to return to India. Rather, it appears to have been advanced solely for the purpose of satisfying the financial capacity criterion.
The applicants cannot now claim on judicial review that it was advanced for that purpose when there is nothing express or implied in the materials to suggest that it was ever advanced for that reason.
Accordingly, any failure to consider the Certificate of Cattle Holding by the Tribunal arises because the Certificate of Cattle Holding was not advanced in support of the genuine temporary entrant criterion.
The Tribunal’s assessment of the genuine temporary entrant criterion is reactive to the way that the applicants advance their claim for the visa: Kumar at [7]. In circumstances where the Certificate of Cattle Holding does not appear to have ever been advanced in support of the genuine temporary entrant criterion any failure to assess it does not result in jurisdictional error.
Ground 3 is dismissed.
Bias
At the hearing of this matter, the first applicant made a submission to the effect that the Tribunal was “biased”.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The first applicant submitted that the Tribunal was biased because it did not believe or accept the first applicant’s personal reasons for why she “cannot go home”.
The fact that a decision maker does not accept evidence does not mean that the decision maker is biased. There is nothing in the Tribunal’s decision record that indicates any bias.
Further, here the Tribunal gave certain matters weight in the first applicant’s favour (see, [21], [22], [23], [34], [43]). It cannot be said that the Tribunal was not open to persuasion or was not impartial.
No error on the basis of bias arises here.
Conclusion
The application for judicial review has failed to identify any jurisdictional error. The Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 September 2020
15
3