Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 794
•3 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 794
File number: MLG 544 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 3 September 2024 Catchwords: MIGRATION – Student Visas – Administrative Appeals Tribunal concluded the primary visa applicant, the first applicant, did not genuinely intend to stay temporarily in Australia – applicants applied for judicial review of Tribunal’s decision – allegations that Tribunal did not conduct a merits review and did not consider material facts including the first applicant’s compliance with her visa conditions – allegations that the first applicant was confused by the legal process – allegation that the Tribunal did not assess the applicants’ evidence – jurisdiction error not established – application for judicial review dismissed – parties to be heard on costs. Legislation: Migration Act 1958 (Cth) ss 359(2), s 476(2)(a), 476(4)(a), 499
Migration Regulations 1994 (Cth) Sch 2 cl 500.211, 500.212, 500.212(a), 500.218, 500.311
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
Jan v Minister for Home Affair [2019] FCA 1837
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 20 August 2024 Date of hearing: 21 August 2024 Place: Melbourne Counsel for the First Applicant: First applicant appeared in person Counsel for the Second Applicant: Second Applicant appeared in person Counsel for the Third Applicant: No appearance by or on behalf of the third applicant Solicitor for the First Respondent: Ms A Rath Solicitors for the Respondents: Sparke Helmore Counsel for the Second Respondent: Second respondent filed a submitting appearance ORDERS
MLG 544 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVNEET KAUR
First Applicant
SUKHJINDER SINGH
Second Applicant
NIMRAT KAUR THANDI
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
3 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 28 February 2019 is 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 Gostencnik
INTRODUCTION AND BACKGROUND
The first applicant is a citizen of India who applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa on 22 February 2017 because she was studying a Certificate III and IV in English as an Additional Language. The second and third applicants are the first applicant’s husband and daughter respectively and were included in the visa application as members of the first applicant’s family unit: CB1-CB20. A delegate of the then Minister for Home Affairs refused to grant the first applicant a visa. The delegate concluded the first applicant had not met the criteria in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied the first applicant intended genuinely to stay temporarily in Australia: CB70. The delegate also refused visas to the members of the first applicant’s family unit as each was unable to satisfy the secondary criteria in clause 500.311 in the circumstances: CB71 and CB73.
The applicants applied to the Administrative Appeals Tribunal (Tribunal) on 7 July 2017 for a review of the delegate’s decisions: CB74. On 15 February 2019 the Tribunal affirmed the delegate’s decisions not to grant the applicants visas: CB185, CB190 at [38]. By application filed on 28 February 2019, the applicants applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.
Once the review application to the Tribunal had been made, the Tribunal wrote to the applicants on 10 July 2017 advising that it had requested Immigration and Border Protection to provide the Tribunal with all documents and files which it considered relevant to the applicants’ review application and that if the applicants wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible: CB79.
By correspondence dated 3 December 2018, the Tribunal invited the applicants to provide, in writing, information about the course(s) of study the first applicant is undertaking and her entry and stay in Australia as a student: See s 359(2) of the Migration Act 1958 (Cth) (Act); CB84. The correspondence also advised the applicants that “[i]n considering whether an applicant is a genuine applicant for entry and stay as a student, the [Tribunal] must have regard to Ministerial Direction No. 69 'Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications'” [bold emphasis in original] made under s 499 of the Act: CB84. A copy of Ministerial Direction No. 69 was attached to the correspondence: CB86 – CB90.
Subsequently, the applicants’ representative requested and was given more time to provide the information requested. The extended time meant that the information could be provided to the Tribunal by 15 January 2019: CB91, CB95.
By correspondence from the applicants’ representative dated 15 and 17 January 2019, the applicants provided the Tribunal with several documents. These included a completed Request for Student Visa Information form, copies of identity documents, academic results records, financial documents, the first applicant’s written statement dated 2 January 2019, two Confirmation of Enrolments for a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management, collectively showing the first applicant was enrolled from 14 January 2019 to 5 December 2020: CB96-CB161.
The applicants were invited to appear before the Tribunal at a hearing scheduled for 9:30 am on 11 February 2019: CB164. The invitation advised the applicants to provide all documents on which they intended to rely to establish the applicants met the criteria for a visa: CB164. On 8 February 2019 the applicants, through their representative, provided the Tribunal with additional documents comprising a further written statement by the first applicant and a series of financial documents: CB171 – CB177. The first and second applicants attended the Tribunal hearing along with their representative on 11 February 2019 at which they gave evidence and made arguments, assisted by an interpreter, in support of the visa applications: CB179; CB186 at [4]-[5].
THE TRIBUNAL’S DECISION
On 15 February 2019 the Tribunal affirmed the delegate’s decisions not to grant the applicants’ Student (Temporary) (Class TU) visas: CB185, CB190 at [38]. In doing so the Tribunal reasoned that:
(a)the first applicant must satisfy the primary criteria in clauses 500.211 to 500.218 of the Regulations while the second and third named applicants, as members of the family unit, need only satisfy the secondary criteria: CB186 at [8];
(b)in considering whether the first applicant satisfies cl 500.212(a), the Tribunal must have regard to Ministerial Direction No. 69, noting that factors specified therein should not be used as a checklist and are intended to guide a decision maker when considering an applicant's circumstances as a whole, in reaching a finding about whether the first applicant satisfies the genuine temporary entrant criterion: CB187 at [10];
(c)since her arrival in Australia in February 2017 the first applicant:
(i)had been enrolled in and completed a Certificate III in EAL and a Diploma of Leadership and Management;
(ii)was (at the time of the Tribunal hearing) enrolled to study a Certificate III in Commercial Cookery commencing in January 2019 with a completion date in January 2020;
(iii)was (at the time of the Tribunal hearing) enrolled to study (but had not commenced) a Certificate IV in Commercial Cookery (beginning January 2020 and due to be completed in June 2020), a Diploma of Hospitality Management (beginning June 2020 and due to be completed in December 2020): CB188 at [16];
(d)as to the circumstances in the first applicant’s home country, the first applicant:
(i)acknowledged that she could study cookery in her home country: CB188 at [17];
(ii)did not adequately explain, having originally arrived in Australia on a dependent student visa and possessing high level qualifications gained in her home country and some work experience, why she now wanted to undertake a series of lower-level cookery and hospitality courses after completing a Diploma of Leadership and Management: CB188 at [18];
(iii)was using a series of lower-level enrolments to maintain residence in Australia: CB188 at [18];
(iv)was using the student visa program to circumvent the migration program: CB188 at [18];
(v)was in regular, almost daily, contact with her mother, siblings, and in-laws and was not having any trouble maintaining those relationships - and the Tribunal did not consider this as evidence to be weighed as an incentive to return home: CB188 at [20];
(e)there was no relevant evidence to support findings about any potential military service, political circumstances and civil unrest in India, nor was there any relevant evidence to support findings as to the first applicant’s circumstances in her home country relative to others there: CB188 at [21];
(f)as to the first applicant’s circumstances and study in Australia, the first applicant:
(i)together with her partner were both employed earning over $1000.00 per week, rendering her economic circumstances a significant incentive for her not to return to India: CB189 at [23];
(ii)had made only a single return to India since her arrival in November 2017 indicating that her personal ties there did not serve as a significant incentive to return to India: CB189 at [24];
(iii)had significant ties here in the local community, evident through her volunteer work at temples and the local library, and her involvement in community groups and organisations, which presented a strong incentive to remain in Australia: CB189 at [25];
(iv)had personal ties in Australia with both her daughter and her partner who worked as a driver, living with the first applicant here in Australia. These ties also served as significant incentives for the applicant not to return to India: CB189 at [26];
(v)although the first applicant said she wanted to improve her skill set and study in Australia so that she could be successful in the hospitality sector in India, the Tribunal was concerned that this was at odds with her earlier statement to the delegate wherein the first applicant said she believed her enrolment in an English language course at that time will allow her to develop her language ability. The first applicant did not mention her prospective future enrolments in cookery and hospitality: CB189 at [27]-[28];
(vi)although the first applicant said that she had substantial financial and personal ties in India and wishes to send her daughter to an Indian school, the Tribunal was not persuaded to give weight to this statement because the applicant did not provide any other specific evidence that the Tribunal found convincing in terms of her incentive to return home: CB189 at [29];
(vii)the first applicant did not provide any evidence about her need to study cookery in Australia rather than in India, stating only that she enjoyed cooking, and that Australia has a good reputation in education. The first applicant did not provide any evidence about why she could not undertake study in cookery in her own country or region as similar courses would be available there: CB189 at [30];
(g)the first applicant did not have reasonable reasons for not undertaking this study in her own country or region;
(h)given the first applicant’s study and work history:
(i)the first applicant was not serious in her intention to develop a hospitality career in India, and she was using the student visa system to circumvent the migration program: CB190 at [31];
(ii)her most recent cookery enrolments were of limited relevance to her past or proposed future employment in India or a third country, and the remuneration that she could expect to receive as a result of these qualifications would also be limited: CB190 at [32];
(i)the first applicant’s visa and immigration history were concerning because she arrived in Australia as a dependent on her husband’s student visa, and subsequently chose to commence study at a time later than that visa, with the result that her husband is now dependent on her bridging visa. The Tribunal considered this, together with the combined weekly earnings of the first and second applicants, meant that the first applicant’s primary purpose in Australia was not to gain specific qualifications in hospitality to apply in India: CB190 at [33];
(j)because of the matters described above, the Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily. Accordingly, the first applicant did not meet the criteria in cl 500.212(a) of the Regulations: CB190 at [34]; and
(k)the second and third applicants were not therefore members of the family unit of a person who satisfies the primary criteria: CB190 at [36].
REVIEW GROUNDS AND CONSIDERATION
Although orders were made by Registrar van der Westhuizen on 3 April 2024 permitting the applicants to file written submissions in support of their application, they have not done so. The originating application filed sets out 5 grounds.
Grounds 1 and 5 of the application overlap and may be dealt with together. By ground 1 the applicants contend that the Tribunal committed jurisdictional error by relying only on the file notes of the case officer from the Department of Home Affairs. Ground 5 contends jurisdictional error because the Tribunal affirmed the delegate’s decision based on the facts provided by the Department case officer rather than assessing the applicants’ current evidence. During the hearing of this application on 21 August 2023, the first applicant said that she had told the Tribunal that she wanted to continue studying, that cookery was her passion and that she wanted to establish her own restaurant or catering business in India.
A review by the Tribunal of the delegate's decision to refuse a visa application is a merits review and provides the opportunity for a complete rehearing of all the issues relevant to the application. The Tribunal may reconsider evidence before the delegate as well as any new evidence that an applicant might seek to adduce. The Tribunal decides the merits of the application, unencumbered by the earlier delegate's decision or the reasoning adopted by the delegate in making the earlier decision. The Tribunal must determine the correct or preferable decision in all the circumstances. The Tribunal was entitled to have regard to the delegate’s decision record, which the first applicant submitted with her application for review, and any documents provided to it by the Department.
However, the Tribunal did not confine its review to the delegate’s decision record. As the summary of the Tribunal’s decision earlier set out and the Tribunal’s Statement of Decision and Reasons show, the Tribunal considered the first applicant’s particular circumstances as disclosed in the statements and other documentary materials the first applicant had provided. The Tribunal also considered the first applicant’s oral evidence and the answers she gave in response to questions posed by the Tribunal member during the review hearing. All of this is clear from the Tribunal’s discussion at [15]-[33] of the Tribunal’s Statement of Decision and Reasons.
As to the matters raised by the first applicant at the hearing of this application, it is clear the Tribunal considered and assessed those matters. For example, the Tribunal noted that the first applicant has said that she wanted to improve her skill set and study in Australia so that she could be successful in the hospitality sector in India. But the Tribunal was concerned that this was at odds with her earlier statement to the delegate wherein the first applicant said she believed her enrolment in an English language course at that time would allow her to develop her language ability. The Tribunal noted that the first applicant did not mention her prospective enrolments in cookery and hospitality: CB 189 at [27]. Both these conclusions were open on to the Tribunal the evidence. Grounds 1 and 5 do not disclose jurisdictional error and therefore fail.
By ground 2 the applicants contend the Tribunal erred by not considering “material facts” and that the first applicant completed her “enrolled studies”. The applicants have not, in their application to the Court, specified or particularised the material facts said not to have been considered. At the hearing of that application, the first applicant told the Court that the Tribunal did not consider her to be a genuine student but ignored the fact that she attended and completed all her studies. The first applicant appears to misunderstand that which was before the Tribunal.
The Tribunal was not concerned with whether the first applicant was a genuine student, rather it had to consider whether the applicant is a genuine applicant for entry and stay as a student having regard to the enumerated matters in clause 500.212(a) of the Regulations – the genuine temporary entrant criteria – informed by Ministerial Direction 69. In any event, the Tribunal expressly noted the fact that the first applicant completed a Certificate III in EAL in 2017 and a Diploma of Leadership and Management in November 2018 at [15] and [32] of its Statement of Decision and Reasons. The Tribunal also referred to the first applicant’s then current enrolments at [16] and [27]-[32]. The Tribunal engaged at [28]- [32] in a discussion about that which should be made from the first applicant’s completed and enrolled courses of study, her circumstances and study in Australia and the value of the proposed or enrolled study course on the first applicant’s future. The Tribunal considered the information in the Completed Request for Student Visa Information form at [15]. It also considered the first applicant’s statements about her purpose for undertaking the proposed courses of study made both to the Tribunal and the delegate at [27]-[29]. Ground 2 does not therefore disclose any jurisdictional error and so fails.
By ground 3 the applicants contend the Tribunal “confused” the first applicant with “strict legal complications” without considering the material facts and did not hear and consider her personal circumstances. Put another way, the first applicant says she was confused by the Tribunal processes and the Tribunal did not take account of material facts. Again, the material facts about which complaint is made are not disclosed in the application. Nor does the ground articulate the “strict legal complications” raised or used by the Tribunal or how these confused the first applicant. At its highest as expressed during the hearing of this application, the first applicant complains that during the Tribunal hearing, she was a bit nervous, stressed, was asked a lot of questions and was not able to explain matters. As I earlier noted, the Tribunal’s Statement of Decision and Reasons discloses that the Tribunal considered the first applicant’s circumstances. The correspondence from the Tribunal to the first applicant before the hearing, together with the Tribunal’s hearing record disclose the applicants were invited to attend and the first and second applicants attended the hearing on 11 February 2019 with the assistance of their representative and a Punjabi interpreter: CB 164, CB179.
As earlier noted, correspondence from the Tribunal to the applicants dated 3 December 2018, invited the applicants to provide, in writing, information about the course(s) of study the first applicant was undertaking and her entry and stay in Australia as a student: CB84. The correspondence also advised the applicants that in considering whether the first applicant is a genuine applicant for entry and stay as a student, the Tribunal was required to have regard to Ministerial Direction No. 69: CB84. A copy of Ministerial Direction No. 69 was attached to the correspondence.
Considering the above, the earlier delegate’s decision and the Tribunal’s evident questions during the hearing, the applicants were on notice that the dispositive issue on review before the Tribunal would be whether the applicant met the genuine temporary entrant criteria. The Tribunal also considered the first applicant’s oral evidence as disclosed at [17]-[25] and [30] of its Statement of Decision and Reasons. It is not apparent from the material before the Court that the first applicant had difficulty communicating with the Tribunal during the hearing directly, or with the aid of the interpreter, or that there were deficiencies in the manner or quality of the interpreting service provided. There is nothing in the materials which suggests any material deficiencies or material unfairness such that the first applicant was or might have been denied a real and meaningful opportunity to advance her case and be heard. The first applicant does not suggest that she was overborne or intimidated by the Tribunal through or by its questioning, merely that she was asked a lot of questions. On reviewing the Tribunal’s Statement of Decision and Reasons, the questions raised by the Tribunal are directed to eliciting information relevant to matters the Tribunal was required to determine. The applicants were also represented by a migration agent at the hearing and had the benefit of an interpreter. In the circumstances, ground 3 does not disclose any jurisdictional error and fails.
By ground 4, the applicants assert that the “department” erred by making a procedural error in not correctly assessing relevant information in support of the first applicant’s case and her compliance with her visa conditions. It is not the Court's function in this application to review the delegate's decision: s 476(2)(a) and s 476(4)(a) of the Act. As earlier noted, a review by the Tribunal of a delegate’s decision to refuse a visa application is a merits review unencumbered by the earlier delegate's decision or the delegate’s reasoning. Any procedural deficiencies or other errors that may have been associated with the delegate's decision were capable of cure before the Tribunal. The first applicant was unable to elaborate on this review ground during the hearing of the application.
The Tribunal noted at [10]-[11] of its Statement of Decision and Reasons that it had to have regard to Ministerial Direction 69. It noted that the factors contained in the direction were not to be used as a checklist. Rather they guide the Tribunal when considering the first applicant’s circumstances as a whole. Necessarily this included the first applicant’s immigration history, in relation to which compliance with previous visas held by the first applicant was a relevant consideration. The Tribunal noted at [13] the first applicant arrived in Australia on 15 February 2017 as the holder of a dependent student visa, which was valid until 15 March 2017. The Tribunal reasoned (for example at [33]) that this was one of the factors favouring its finding that the first applicant was using the visa to maintain ongoing residence in Australia. This was because although the first applicant was granted a dependent student visa on 20 January 2016, she arrived in Australia over a year later, on 15 February 2017. The first applicant lodged her student visa application on 22 February 2017 – in which she proposed to study a program of studies – only a month before the dependent student visa would expire.
Furthermore as the Minister correctly contends, although the Tribunal did not make a specific finding about the first applicant’s compliance with previous Australian visas held, it was under a jurisdictional obligation required to make a finding in respect of each factor in Ministerial Direction 69 irrespective of its materiality and the Tribunal is not required, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 [96]. Section 368 of the Act includes an obligation to set out findings that were material to the decision, not findings that were immaterial: Kumar at [96]. ; The Tribunal is not obliged to go down and check off each factor in the Ministerial Direction irrespective of the circumstances and bring it to account in its reasons: Jan v Minister for Home Affairs[2019] FCA 1837 at [26]. Matters that are not sufficiently germane to the Tribunal’s decision do not warrant express mention, separately or collectively: Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [17]. In the case before the Tribunal, the first applicant advanced little to no evidence and made no submissions about her compliance with previous visas. The first applicant’s compliance was therefore not germane to the Tribunal’s decision. But even if the Tribunal erred in not considering the first applicant’s visa compliance, I am not persuaded that had the Tribunal taken the matter into account, in the context of the other matters the Tribunal considered and weighed – particularly those at [32]-[33] of the Statement of Decision and Reasons, there exists a realistic possibility that the outcome of the Tribunal’s decision could have been different.
Consequently ground 4 does not disclose jurisdictional error and so fails.
As the applicants are unrepresented before the Court, I have reviewed the Tribunal's written Statement of Decision and Reasons and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond merely dealing with the applicants’ grounds of review, but I have not identified any such error.
Accordingly, the application is dismissed.
I will hear the parties on costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 3 September 2024
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