Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 855
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 855
File number(s): ADG 58 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 13 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – request for an adjournment – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider relevant information – refusal of adjournment request – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359(1), 359A, 359A(4)(b), 359A(4)(ba), 360, 360A, 476
Migration Regulations 1994 (Cth) cll 500.212, 500.212(a)
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146, (2016) 253 FCR 496
Craig v State of South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2606
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126, (1998) 86 FCR 547
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, (2015) 238 FCR 158
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Sidhu v Minister for immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 28 May 2024 Date of hearing: 26 August 2024 Place: Adelaide Applicant: Self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Jake Kyranis Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 58 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANPREET KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
BACKGROUND
The applicant is a citizen of India. She first arrived in Australia on 22 April 2009 as the holder of a Vocational Education and Training Sector (Class TU) (subclass 572) student visa (Court Book (CB) 38-39). Subsequently, the applicant has remained in Australia following the grant of five further student visas (CB 39).
Since arriving in Australia, the applicant has attained the following qualifications (CB 5):
·Certificate in English, completed in July 2009;
·Diploma of Management, completed in March 2011;
·Diploma of Children’s Services, completed in September 2013;
·Certificate III in in Retail Banking, completed in February 2017;
·Certificate IV in Retail Banking, completed in March 2018.
On 3 May 2018, the applicant applied for a Student (Class TU) (Subclass 500) visa (the visa) (CB 1-29). In that visa application, the applicant indicated that she intended to study the following courses (CB 5):
·Certificate III in Commercial Cookery (end date of 26 May 2019);
·Certificate IV in Commercial Cookery (end date of 22 December 2019); and
·Diploma of Hospitality Management (end date of 7 June 2020).
On 2 July 2018, a delegate of the first respondent (the Minister) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 36-41). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 18 July 2018, the applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 42-52).
On 8 January 2021, the Tribunal wrote to the applicant inviting her to provide further information in a “Request for Student information” form by 22 January 2021 (CB 57-60). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (CB 61-65).
On 17 January 2021, the applicant provided a completed “Request for Student information” form (CB 72-83). In that form, the applicant confirmed that she was not enrolled in a course of study. The applicant also advised that she had not been enrolled in a course of study between July 2018 and January 2021 and provided the following explanation in respect of that period of non-enrolment (without alteration) (CB 79):
My personal circumstances did not let me continue my enrolment. My spouse was sick for a quite sick and I had went a lot looking after him. It had happened in the past as well. Due to which my life got very distorted. I lost my father and my life went on to a very rough patch. It is easy to say for anybody that I could have managed my stress and study but it was not easy. Sometimes the silence in your life kills you more than anything.
I started my choice of course Cookery in 2015 and I lost my father. I had to leave my studies to do last rites of my father. It was quite disturbing time for me. My college told me that I had to restart my study and pay the full fee again. I then shifted to another college and got myself in Retail baking. But my heart was stuck in cookery and rather than leaving the course again and go for cookery, I decided to gain baking skills and then achieve my dreams and baking is part of cooking in some career options like chef or cooks in hotels do the cooking as well as baking. After finishing my courses, I choose to study cookery again but then my visa got refused. I got stuck in the middle of nowhere.
I got scared to be honest what if I did not get my visa grant through MRT. What ever fee I pad will also be lost. I had lost too much and the uncertainty of my life did not let me go further and take risk.
I am willing to study and have discussed my study options.
On 28 January 2021, the applicant was invited to attend a hearing scheduled for 18 February 2021 (CB 84-87).
On 5 February 2021, the Tribunal provided the applicant with a copy of her Provider Registration and International Student Management System (PRISMS) record (CB 90-100).
On 11 February 2021, the applicant provided additional material which indicated that she had re-enrolled in the same three courses set out in her visa application, with the last course having an end date of 10 April 2023 (CB 107-128).
On 18 February 2021, the applicant attended the hearing (CB 130-132). At the conclusion of that hearing, the Tribunal delivered an oral decision affirming the delegate’s decision not to grant the applicant the visa (CB 135). The Tribunal delivered reasons in writing on 6 April 2022 (CB 138-144).
On 15 March 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 7 pages long and spans 44 paragraphs (CB 138-144).
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 3 May 2018 (at [3]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian), but that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [3]-[4]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 18 February 2021 to give evidence and present arguments (at [5]). The Tribunal also observed the hearing had been conducted by telephone in accordance with the COVID-19 Special Measures Practice Direction – Migration and Refugee Division, noting that the applicant had raised no difficulty with appearing by telephone and that the Tribunal considered there had been no disadvantage to the applicant in presenting her case (at [6]).
The Tribunal identified that the issue in this matter was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [9]). The Tribunal also set out the relevant legislative provisions in that regard (at [10]).
The Tribunal stated that, in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Ministerial Direction No. 69. The Tribunal noted, however, that the factors set out in Ministerial Direction No. 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [11]-[12]).
The Tribunal observed that the applicant had been granted a total of six student visas (at [14]) since her arrival in Australia on 21 April 2009 (at [13]). The Tribunal noted that she had returned to India twice (in 2012 and 2015) but had been unable to return more frequently as her husband’s health was not good (at [20]). The Tribunal noted that the applicant had said that she remained in contact with her mother and brother who resided in India, speaking with them on a daily basis about three to four times a day via WhatsApp (at [19]).
The Tribunal noted that the applicant had confirmed that her husband is also living in Australia and had been here since 30 May 2013. The applicant told the Tribunal that her husband had submitted an as yet undetermined protection visa application on 11 April 2018 and that she was financially supporting him as his visa did not permit him to work (at [21]).
Against this background, the Tribunal made the following findings.
The Tribunal found that the applicant’s family ties to India did not constitute a strong incentive for her to return to India. In this respect, the Tribunal took into account the fact that the applicant had resided in Australia for almost 12 years, had only returned to India on two occasions during that period, and had remained in contact with her family through electronic means (at [22]).
Conversely, the Tribunal found that the applicant’s family ties to Australia were a strong incentive for her to remain in Australia. In reaching this finding, the Tribunal placed significant weight on the fact that the applicant’s husband had resided with her in Australia since May 2013 and had submitted an application for a protection visa that had not yet been determined (at [23]).
The Tribunal noted that the applicant had told the Tribunal that she had not been enrolled in any courses or studying between July 2018 and January 2021. The Tribunal observed that this was a period of approximately two and a half years. The Tribunal asked the applicant why she had not been enrolled in a course or studying during this period and the applicant said that she had commenced studying commercial cookery but then her visa was refused and so she was not in a stable condition to continue. The applicant also told the Tribunal that she was under financial stress, and her father’s death in 2015 and her husband’s ill health had made it difficult for her to study. The applicant told the Tribunal that her husband had suffered lead poisoning in 2016 and could not do things for himself for a period of about a year. The applicant told the Tribunal that by 2017 he was “fairly well” although his health still gets bad sometimes (at [25]-[26]).
The Tribunal did not accept the applicant’s explanation for the period where she had not been enrolled in any course or undertaking and study. The Tribunal expressed concern that she was attempting to use the student visa system to extend her stay in Australia, having regard to her re-enrolment just prior to the hearing, and that she had swapped the focus of her studies a number of times (at [27]-[30]).
The Tribunal noted that the applicant had told the Tribunal that she had not applied for any jobs in India to gain experience as she felt she needed to gain qualifications prior to applying. The applicant also told the Tribunal that she did not have a written business plan for her proposed business that she said she wanted to start in India. She told the Tribunal that “she is still working on things” and when pressed, she said that this meant research, finding a location and the support of her family (at [31]-[34]). On the basis of the applicant’s evidence, the Tribunal found that her future career plans were vague (at [36]).
The Tribunal did not accept the applicant’s evidence that she expected to earn between approximately $17,700 to $21,200 AUD per year when she returned to India. The Tribunal did not accept this evidence having regard to its earlier findings in respect of the vagueness of her future plans (at [39]).
The Tribunal expressed concern that a further student visa may be used primarily for maintaining ongoing residence in Australia having regard to (at [40]):
(a)The Tribunal’s finding that the applicant’s family ties to India do not, of themselves, constitute a strong incentive for the applicant to return;
(b)The Tribunal’s finding that the applicant’s family ties to Australia do constitute a strong incentive to remain in Australia;
(c)The fact that the Tribunal does not accept the applicant’s explanation for the two and a half years she spent not enrolled or studying;
(d)The fact that the applicant has swapped the focus of her studies a number of times since arriving in Australia;
(e)The Tribunal’s finding that the applicant has provided only vague information about her future plans; and
(f)The applicant’s immigration history insofar as she has been in Australia for almost 12 years and has previously been granted six student visas yet is attempting to extend her stay in Australia to sometime during 2023.
The Tribunal was therefore not satisfied that the applicant intended genuinely to stay in Australia temporarily, as required by cl 500.212 of the Regulations (at [41]).
The Tribunal affirmed the delegate’s decision (at [43]).
REQUEST FOR AN ADJOURNMENT
At the commencement of the hearing in this Court, the applicant sought leave to hand up and rely upon a letter to the Court and accompanying medical documents. That letter and documents relate to a request for an adjournment. The applicant told the Court that she would like the hearing to be adjourned for “a few months” so she could submit a skills assessment and subsequently make an application for a further visa.
The applicant’s request stated (without alteration):
Through this letter, I am requesting you to extend my hearing date. I have already received my Skilled Assessment through VETASSESS as a restaurant manager. The state is open now and I have collected my all documents to applying for state nomination that I will apply within a few weeks. After a year of struggle finally I am on right track with my visa’s. Because previous years my husband was sick for a quit long time. He was admitted in Royal Adelaide Hospital for few months, he was in critical condition because the doctors were unable to find the reason of his problem. After few months of research, they found that he has a lead poisoning. His doctors declared him debilitated patient and he was on complete bed rest. And he needs ADL’s all the time. At that time, I was the only family member here in Australia to look after him. Even, I was unable to attend my university not even my work. Same time I was facing financial difficulties as well. These ongoing situations effected my mental health too.
I am requesting you to consider my situation and give my some more time so I can go for next steps. I have attached some documents for reference.
The Minister did not oppose the applicant relying upon the letter by way of written submission but did oppose the Court having regard to the attached documents as they were not before the Tribunal. The Court accepted the documents into evidence. There is force to the Minister’s argument that the documents should not be before the Court as they were not before the Tribunal. However, the Court confirmed with the applicant that she relied on these documents in relation to her application for an adjournment and not in respect of her substantive application. The additional documents were accepted and considered on that basis.
The Minister also opposed the applicant’s request for an adjournment. The Minister observed firstly that these proceedings had been on foot since 2021 and submitted that the applicant had ample opportunity to submit whatever documents or submissions they wished to the Court. The Minister’s principal objection, though, was that the adjournment was unnecessary given the request was connected to the applicant seeking a skills assessment in relation to applying or considering her options in respect of other visas. The Minister submitted that the Court was concerned with the limited issue of whether a decision made by the Tribunal in 2021 was affected by jurisdictional error and, consequently, the outcome of any subsequent skills assessment was not relevant to that review.
The principles relevant to a request for an adjournment were summarised by Judge Kendall in Sidhu v Minister for immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107 at [27] as follows:
When determining whether or not an adjournment should be granted, the following factors are considered:
(a) the evidence in support of the adjournment request and the explanation for the adjournment;
(b) the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c) any prejudice to the respondent that cannot be mitigated by costs; and
(d) modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University[2009] HCA 27; Luck v Chief Executive Officer of Centrelink[2015] FCAFC 75 at [44]).
Having regard to those principles, the Court refused the applicant’s request for an adjournment. Ultimately, the applicant’s sole basis for seeking an adjournment, that is, to put a new skills assessment before the Court, has no relevance to these proceedings. As correctly submitted by the Minister, the question before this Court is limited to whether the Tribunal’s decision contained jurisdictional error. The skills assessment outcome has no bearing on that issue and there is consequently no utility in delaying the proceedings. In practical terms, that meant that the applicant would not be prejudiced by the refusal of the adjournment because the skills assessment could not have assisted the applicant.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 15 March 2021 contains a single ground of review as follows (without alteration):
1.The honourable member did not consider the compelling and compassionate grounds of my case.
The applicant filed an affidavit with that judicial review application on 15 March 2021. The affidavit annexed a copy of the Tribunal’s decision and repeated the ground identified in the application.
The applicant appeared before the Court (on 26 August 2024) without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 15 March 2021 (the affidavit being taken as read and in evidence at the hearing on 26 August 2024), a Court Book numbering 144 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 28 May 2024. The Court also had regard to the letter the applicant handed to the Court in respect of her application for an adjournment insofar as it related to the substantive application for judicial review (marked as Exhibit 2).
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 26 August 2024, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 176-180) (Craig);
(b)where the decision-maker ignores relevant material (Craig at 176-180);
(c)where the decision-maker relies on irrelevant material (Craig at 176-180);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]).
However, it was also explained to the applicant that this was not an exhaustive list, and she should attempt to articulate why she said the Tribunal had fallen into error.
Against this background, the applicant initially told the Court that, when she submitted the application for the student visa, she was going through a difficult period and that things didn’t work out the way she had thought they would. When asked whether there was anything the Tribunal should have done, the applicant simply stated that the Tribunal should have given her another chance so she can finish her studies. In reply to the Minister’s submissions, the applicant said that her only focus was to study in Australia and then to return to India and do some good things. However, she reiterated that because of the difficulties she was experiencing at the time, she wasn’t able to concentrate on her studies and that was why she could not enrol for some time in study. Furthermore, when she did finally enrol, she wasn’t focusing at the time.
CONSIDERATION
As outlined above, there is a single ground of review advanced in these proceedings. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s ground as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, (2015) 238 FCR 158). Having regard to what the applicant has said in her application, the material submitted in support of her request for an adjournment, and her submissions before the Court, it appears that the applicant’s principal complaint is that the Tribunal failed to have regard to the impact that the death of her father and her husband’s illness had upon her capability of undertaking study during the period she wasn’t enrolled.
In written submissions, the Minister observed that the applicant had not specified in her application what “compelling and compassionate” circumstances the Tribunal is said to have not considered. The Minister further submitted that the Tribunal was not required to consider whether there were compelling or compassionate circumstances to justify the grant of the visa, but rather had to be satisfied that the applicant intended genuinely to stay in Australia temporarily (citing Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2606 at [23]). To the extent that the applicant referred to her evidence about her father’s death in 2015 and her husband’s ill health in 2016, the Minister submitted that the Tribunal’s reasons demonstrated that it clearly had regard to that evidence but found that this was not a satisfactory explanation for her non-enrolment between July 2018 to January 2021. Overall, the Minister submitted that the Tribunal’s reasons also demonstrate that it had regard to the relevant factors set out in Direction 69, the entirety of the applicant’s written and oral evidence, and rationally explains why it had concerns that she was using the student visa system to maintain ongoing residence in Australia and therefore was not a genuine applicant for entry and stay as a student.
The issue before the Tribunal was whether the applicant met the mandatory criteria for the grant of the visa. In the applicant’s case, the Tribunal was not satisfied that she met the criteria in clause 500.212 which was a requirement that the applicant is a genuine applicant for entry and stay as a student. In considering whether or not the Tribunal was so satisfied, it was required to take into account the particular factors identified in Ministerial Direction No. 69, including the applicant’s circumstances. The Tribunal was therefore required to consider any evidence the applicant put forward in respect of her circumstances.
The applicant submits that the Tribunal did not have regard to the difficult period she was going through as set out above. The Minister submits that the Tribunal did in fact have regard to those factors in its decision but ultimately did not accept that they were an adequate explanation for the applicant’s period of non-enrolment.
The Tribunal’s reasons in respect of this are as follows:
25.The applicant told the Tribunal she was not enrolled in courses or studying between July 2018 and January 2021. This is a period of approximately two and a half years. The Tribunal asked the applicant why she was not enrolled or studying during this time. The applicant said that she began studying commercial cookery but then her visa was refused and so she was not in a stable condition to continue. The applicant said she was also under financial stress and her husband's health as well as the death of her father made it difficult for her to study.
26.The applicant said she thought the Tribunal's decision would take a period of two months but it took longer than this for the matter to be listed for a hearing. The applicant said her father died in 2015 and in 2016 her husband suffered from lead poisoning. The applicant said her husband could not do things for himself for a period of one year and by 2017 he was fairly well and could do things for himself again. The applicant said her husband's health still gets bad sometimes.
27.The Tribunal does not accept the applicant's explanation for her period of non-enrolment between July 2018 and January 2021. When this is taken into account in addition to the fact that the applicant enrolled in her most recent set of courses just prior to the Tribunal hearing, the Tribunal is concerned that the applicant is attempting to use the student visa system to stay in Australia for longer.
It is clear that the Tribunal was both alert to, and considered, the applicant’s claims that the death of her father in 2015 and her husband’s health issues in 2016 impacted her ability to study. The Tribunal did not just set out those claims but engaged with the applicant at the hearing in relation to them. It is equally clear that the Tribunal rejected that evidence as an adequate explanation for the lengthy period between 2018 and 2021 when the applicant was not enrolled in a course of study. That was reinforced by the Tribunal’s observation that the applicant had not been enrolled in any course until the eve of the Tribunal hearing. Whilst the Tribunal’s explanation for this rejection could have been more fulsome, its reasons for rejecting the applicant’s evidence as an explanation were clear. Furthermore, they were rational, logical and clearly open on the evidence before it.
The applicant’s argument that the Tribunal failed to take into consideration these matters is not made out.
Whilst not raised by the applicant in either her application or oral submissions, the Minister further submitted that the Tribunal had complied with its exhaustive procedural fairness obligations set out in Division 5 of Part 5 of the Act. In this regard, the Minister observed that the Tribunal exercised its discretion under s 359(1) on 8 January 2021 and invited the applicant to provide information, which she did. The Minister also observed that the Tribunal had invited the applicant under s 360, in compliance with s 360A, to attend a hearing on 18 February 2021, which she attended. The Minister also submitted that there was no information that the Tribunal was required to put to her under s 359A. This, the Minister submitted, is because the Tribunal’s decision to affirm the delegate’s decision was based on the information provided by the applicant in her visa application, the material provided during the review, and her oral evidence at the hearing, all of which fell within the exceptions of s 359A(4)(b) and (ba) respectively.
The Court accepts the submissions of the Minister in this respect. No denial of procedural fairness is discernible from the procedures followed by the Tribunal or the way in which it conducted the hearing.
Furthermore, looking at the Tribunal’s decision as a whole, the Court can find no easily discernible jurisdictional error. The Tribunal’s decision reveals it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146, (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126, (1998) 86 FCR 547 and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none.
The Court is satisfied that, even adopting the broad approach referred to in [45] of these reasons, no denial of procedural fairness arises.
CONCLUSION
The application for judicial review, supporting affidavit and additional written and oral submissions presented by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 13 September 2024
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