Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 103
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
File number(s): MLG 753 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 31 January 2023 Catchwords: MIGRATION – unrepresented applicant failed to seek mandamus – application technically incompetent – duty of Minister to take substantive and practical approach to applications – application deemed amended to seek proper relief Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth)
Federal Circuit And Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452
BZD17 v Minister for Immigration and Border Protection [2018] 263 FCR 292
C v Minister for Immigration and Multicultural Affairs [1999] 60 ALD 255
CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1
EII17 v Minister for Immigration and Border Protection [2018] FCA 1863
FRA18 v Minister for Home Affairs [2019] FCCA 2287
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889
SZJOG v Minister for Immigration and Citizenship v [2010] FCA 244
SZSDP v Minister for Immigration and Border Protection [2013] FCCA 1647
WZAQB v Minister for Immigration & Anor [2012] FMCA 688
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 31 January 2023 Place: Sydney The Applicant: In person via Microsoft Teams Solicitor for the Respondents: Ms A Meaney of Mills Oakley via Microsoft Teams ORDERS
MLG 753 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SINDER PAL KAUR
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINSITRATIVE APPEALS TRIBUNAL
Second respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
31 JANUARY 2023
THE COURT ORDERS THAT:
1.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the application filed on 23 March 2018 is taken to have been amended so as to seek a writ of mandamus.
2.Pursuant to rr 1.07, 3.03 and 7.02 of the Rules, the Court dispenses with the need for the amended application referred to in order 1 above to have the amendment physically made, filed or served.
3.The application filed on 23 March 2018, as amended, is dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,400.
5.Pursuant to r 17.02 of the Rules, orders 3 and 4above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 23 March 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on
9 March 2018, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Student (Subclass 573) visa (visa).
The only order sought in the application for judicial review is a writ of certiorari for the Tribunal decision to be quashed. As the applicant has not sought a writ of mandamus the first respondent says that she has failed to properly invoke the jurisdiction given to this Court by s 476(1) of the Migration Act 1958 (Cth) (Act).
Background
The background and summary of the Tribunal’s decision is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicant is a female citizen of India who first arrived in Australia on 15 April 2009 (CB 187) as the holder of a Student (Subclass 572) visa (CB 150). The applicant was subsequently granted three further Student visas on the basis of enrolments in courses in the fields of Production Horticulture, Information Technology, Marketing and Business (CB 218 to 223).
On 13 May 2016, the applicant applied for a Student (Subclass 573) visa (CB 1 to 22) on the basis of her enrolment in a Bachelor of Business (Management), scheduled for completion on 14 October 2018 (CB 27). The applicant appointed her migration agent as her authorised representative (CB 29 to 31) and provided, among other things, a statement by which she said she wished to study the proposed course to assist her brother with the management of “ancestral properties” owned by her family in India (CB 50).
On 30 June 2016, the applicant lodged a Form 1229 – Consent to grant an Australian visa to a child under the age of 18 years, adding her Australian-born son as a secondary visa applicant (CB 78 to 81).
On 26 May 2016, the first respondent’s Department wrote to the applicant to request more information, including an explanation for why a Bachelor level qualification was required to assist with the management of the family properties and also that the applicant respond to the Department’s concerns about her “extended proposed stay onshore” (CB 58 to 68).
On 21 July 2016, the applicant responded to the request for more information (CB 95 to 137) providing various documents relating to the ownership of property and sale of agriculture in India (CB 99 to 122). She also provided a statement by which she claimed:
(a)“growing nature of business” in India encouraged her to undertake a Bachelor’s degree;
(b)the proposed course would provide her with “stronger knowledge base and additional skills” to operate the family business; and
(c)the qualifications she had gained in Australia were “crucial for developing the structures” for her career. (CB 128)
On 10 October 2016, the delegate refused to grant the applicant the Student visa. Having regard to the applicant’s lack of academic progress, study history and the lack of value of the course to the applicant’s future, the delegate found that the applicant was using the Student visa program to circumvent migration programs, and was therefore not satisfied that she was a genuine applicant for entry and stay as a student as required by cl 573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate refused to grant the secondary applicant the visa on the basis that cl 573.322(b) was not met (CB 144 to 153).
The Tribunal decision
On 26 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision and appointed the same migration agent as her authorised recipient. The applicant gave the Tribunal a copy of the delegate’s decision and a statement which repeated the claims from her 21 July 2016 statement. The applicant’s son was included as a secondary review applicant (CB 154 to 159).
On 9 February 2018, the applicant was invited to attend a hearing of the Tribunal, and to provide documents evidencing past studies, and requesting that she provide an explanation of any gaps in her enrolments by 2 March 2018 (CB 171 to 184).
On 19 February 2018, the Tribunal accessed the applicant’s Provider Registration and International Student Management System (PRISMS) record (CB 189 to 190).
On 8 March 2018, the applicant’s representative provided a submission to the Tribunal which stated that the applicant deferred her studies for one semester due to medical reasons, but that she had otherwise completed all of the courses of studies in which she had enrolled (CB 191 to 192). Accompanying the submission were various medical documents and an updated confirmation of enrolment (COE) (CB 202 to 213) indicating a course completion date of 19 May 2019 (CB 199).
On 9 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. Her migration agent was also in attendance (CB 214 to 217). At the hearing, the applicant and submitted a completed Student Visa – GTE Questionnaire (CB 218 to 223) and the Tribunal invited the applicant to comment on or respond to particulars of information under s 359AA of the Act (CB 239 at [21] to [23]).
At 12:27pm on 9 March 2018, the Tribunal made an oral decision affirming the decision under review on the same basis as the delegate (CB 224 to 230). The Tribunal produced a written statement of the reasons of that decision on 4 April 2018 (CB 236 to 241).
The Tribunal found the issue on the review was whether, having regard to the considerations in Direction No. 53, the applicant intended genuinely to stay in Australia temporarily as required by cl 573.223(1)(a) (CB 237 at [6] to [7]).
The Tribunal summarised the applicant’s circumstances in Australia and India and her migration history (CB 238 at [8] to [15]). The Tribunal accepted that the applicant’s completed studies were “broadly relevant” to her stated intention of running her family business (CB 238 at [11]) and that the applicant was currently enrolled in a Bachelor of Business course (CB 238 at [12]). However, it was not satisfied the applicant intended to leave Australia on completion of her Bachelor’s degree to work in the family enterprise and found she intended to stay in Australia indefinitely (CB 241 at [31]).
In reaching this conclusion, the Tribunal:
(a)placed weight on:
(i)the considerable time the applicant had spent in Australia (nine years);
(ii)the “significant number of courses that are continually being enrolled in”; and
(iii)the applicant’s employment in Australia (CB 238 at [14]);
(b)considered the applicant’s evidence that she had made five visits to India but noted she was unable to return to India to attend her mother’s funeral and the applicant had not had any visits to Australia by her family members (CB 238 to 239 at [15] to [16]);
(c)considered the applicant’s evidence about her study history and that she was unwell in March 2017 (CB 239 at [18]);
(d)found there were “shifts in logic” as to why the applicant was studying. The applicant said she was prepared for her child to be educated in India and that her family were missing her, but it was also her mother’s dream for her to complete a degree and that she required “fully developed skills” to manage the family business. The Tribunal found that the “most notable shift” was the applicant’s expressed need for a university degree (CB 239 at [19]);
(e)did not accept the applicant’s claim that, because there was a great deal of stress upon farmers, it was imperative for her to get a degree (CB 239 at [20]);
(f)put information from the applicant’s PRISMS records to her under s 359AA of the Act, accepted the applicant’s explanation about the 10 course cancellations shown in her records and placed no reliance on the material (CB 239 to 240 at [21] to [24]);
(g)found that, upon completion of her marketing degree in 2016, the applicant was well educated and capable of returning to India but did not depart Australia. The Tribunal was satisfied that if the applicant’s stated intention of returning to India to work in the family business was true, then she would have returned to India in July 2016 (CB 240 at [25] to [28]); and
(h)accepted that the applicant had family ties to India, but found such ties were “tempered somewhat” given that:
(i)the applicant’s father was being cared for and helped by her brother;
(ii)that applicant had expressed “ambivalence” concerning the location in which her son was educated; and
(iii)the applicant had stable employment and an “apparent desire and enjoyment” of studying in Australia (CB 240 at [29]).
The Tribunal found that the cumulative factors in Direction 53 suggested that the applicant was not a genuine student, but was using the Student visa program as a means of maintaining ongoing residence in Australia. The Tribunal was not satisfied the applicant was a genuine student who intended to stay in Australia temporarily and therefore did not meet cl 573.223(1)(a) of the Regulations (CB 241 at [31] to [32]).
Proceedings in this Court
On 23 March 2018 the applicant commenced these proceedings. Despite being an applicant before the delegate and the Tribunal, the applicant’s son is not a party to these proceedings. This matter was initially docketed to a different judge of the Court, and on 20 March 2019 a Registrar of the Court made orders which provided, inter alia, for the applicant to file and serve any amended application and evidence 28 days before the hearing fixture. The matter was later returned to the central migration docket. On 17 August 2022, the applicant appeared before a Registrar at a telephone callover on which occasion the matter was listed before another Judge of this Court (other than the Judge to whom it was initially docketed) and listed for hearing on 10 November 2022. Due to judicial unavailability, the matter was again re-docketed, this time to me, and on 28 October 2022. I listed it for hearing before me today.
The applicant is located in Victoria and the Court is presiding in Sydney. Accordingly, the matter was heard using the Microsoft Teams platform albeit the applicant was eventually only able to connect using audio. The applicant did not indicate by her application whether she required an interpreter, or in what language. However, the Court arranged for an interpreter in the Punjabi language to be available out of an abundance of caution. Even applicants with good English language skills are entitled to the benefit of their mother tongue for Court proceedings which can be unfamiliar and complex. When the matter commenced the interpreter was not present and I asked the applicant whether we needed to wait for an interpreter to be present. The applicant she said she did and so the Court adjourned briefly until the interpreter arrived. Once the interpreter was present the applicant confirmed that she could hear and understand the interpreter. The first respondent was represented by a solicitor. From the Court’s perspective, the hearing connection was clear throughout with a few exceptions during which the parties were asked to repeat submissions. At one stage, the applicant said that she was having difficulty hearing the interpreter, but that appeared to be a volume issue. Ultimately the hearing was able to proceed, and to my observation, the parties and the Court did not have any difficulty in understanding each other or interacting.
As noted, the initial grant of leave to the applicant to amend the application and file evidence was by reference to any eventual hearing date. Despite this, other than the originating application, an Affidavit in support and a Notice of Address for Service which was filed in March of 2019, the applicant has not filed any additional documents in these proceedings. The first respondent filed a Court Book in accordance with the Court’s orders which was received at the hearing without objection and marked Exhibit “1R”. The first respondent also filed written submissions as ordered. While I could not see the applicant, she confirmed to me that she had both her originating application and the Court Book in front of her, and that she had received and read the Minister’s written submissions. From the ability the applicant demonstrated to refer to those documents,[1] I was satisfied she did have access to them.
[1] E.g. [40] and [43] below
In the absence of an amended application, the grounds which arise for consideration are those contained in the originating application, and I will have them set out in full. I had the grounds which are in narrative form summarised to the applicant. In my view, they raise two particular issues, namely, that the Tribunal failed to take into account a relevant consideration[2], and that the decision is not fair and reasonable because the Tribunal member is not an expert in “that field”, which presumably is intended to be a reference to business[3].
[2] See [2] and [6] of the applicant’s grounds
[3] See [5] of the applicant’s grounds
While I make no criticism of the applicant in this regard, there are technical and legal flaws in the manner in which the grounds are expressed. Given that the applicant has been unrepresented since the commencement of the proceedings this is unsurprising, and there is no suggestion before me that she is legally trained, much less in the ways of the Australian legal system.
This leads to another observation. By the Response filed on 19 April 2019 in advance of the hearing, the first respondent observes that the only order sought by the originating application is that the Tribunal decision be quashed, namely a writ of certiorari, albeit the Court form does not describe it thusly.
At the time that these proceedings were commenced the Court’s prescribed form included in part, the below section:
Final orders sought by applicant/s (select boxes and add additional or alternative order/s)
☐ An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.
☐ A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
☐ An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
☐ (state precisely each other order sought by way of final relief)
It will be observed that the form (which was no doubt created to assist unrepresented litigants) provides for some likely standard orders which an applicant may wish to seek. The making of those prayers for relief can be achieved by the marking of boxes next to the template orders, or the amendment or augmentation of same. In this case, the applicant marked the first box, but no others.
The first respondent, relying on WZAQB v Minister for Immigration & Anor [2012] FMCA 688 (WZAQB), says that the application is incompetent. Strictly, that is true. WZAQB was determined nine years ago. The principles in it are not in any way inaccurate, and I accept that it has been referred to by some later authorities: see FRA18 v Minister for Home Affairs [2019] FCCA 2287 (FRA18) at [15] to [21] per Judge Driver. In FRA18, his Honour found that the application was incompetent after the applicant was invited to seek to amend the relief sought, but declined to do so. I make no criticism of the reasoning in either WZAQB or FRA18, their Honours are clearly correct at law.
However, the approach of the Courts in such a high volume jurisdiction has necessarily evolved in the past decade. One need only contrast the decisions of SZJOG v Minister for Immigration and Citizenship v [2010] FCA 244 and EII17 v Minister for Immigration and Border Protection [2018] FCA 1863 (both of which are decisions of Flick J), to see how the approach of the Courts has changed. Bearing in mind the overarching purpose of this Court’s civil practice and procedure, and the fact that the first respondent has obligations as a model litigant which includes to not take technical points, while it is fine to reserve the formal position as to competence, a practical approach to the hearing and determination of migration matters in this Court is required.
In EII17 at [17], Flick J said as follows:
To unrepresented litigants, especially litigants who may not be able to speak English and to whom the intricacies of the Australian judicial system may be a mystery, legitimate concern may be expressed on their part as to “what is happening?” A primary concern of this Court should be, to the extent that it is permissible to do so, to ensure that such litigants both receive and be seen to receive a proper judicial resolution of their claims.
It is also important to ensure that an applicant’s judicial review application is substantively considered by this Court so that any appeal to the Federal Court of Australia enables that Court to undertake its appellate function, and not to have to hear a case in a manner which is tantamount to determine it at first instance: see AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [15] per Perram J and EII17 (supra) at [13] per Flick J.
It was tolerably clear to me that the applicant wished to invoke the Court’s jurisdiction under the Act. I asked her to confirm this at the hearing, and she said that this was so. In the circumstances of this case and of this applicant, if a jurisdictional error were to be found, the Court would not deny her the necessary Constitutional writ relief simply because of the irregularity in the box ticking exercise on the form. Accordingly, I would equally not be prepared to simply dismiss, as incompetent, an application because of a technical error in the form. I note the first respondent has not formally asked me to do so, but says that the application is “liable” to dismissal on that basis.
I consider the approach that I am going to take to the regularisation of the application to be in keeping with the interests of the administration of justice, as discussed by Judge Kendall in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889, at [44] to [51] citing C v Minister for Immigration and Multicultural Affairs [1999] 60 ALD 255 at 6, per Mansfield J. As I noted earlier, in FRA18, the Court invited the applicant to seek the amendment. However, when the applicant (seemingly unwittingly) declined that invitation the application was dismissed as being incompetent.
Making no criticism of the primary Judge in FRA18, the preferable course where the omission is glaring and its rectification is not prejudicial to another party (who has, in any event, prepared the matter substantively for hearing as though the correct relief had been sought) I consider the most appropriate course to be that the Court simply order the amendment of its own motion pursuant to rr 7.01 and 7.02 of the Federal Circuit And Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). Rules 7.01 and 7.02 of the Rules provide as follows:
7.01 Power to amend
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
7.02 Who may be required to make an amendment
If the Court orders an amendment to be made to a document, the Court may order a party, a Registrar, a Judge's associate or another appropriate person to make the amendment.
In the present case, I will make orders to the effect that the amendment be taken as made. Pursuant to r 1.07 of the Rules, I will dispense with the need for anyone to physically make the amendment, as would otherwise be appropriate pursuant to r 7.02 of the Rules, and I will also dispense with the need for any fresh version to be filed and served. The first respondent’s lawyers are sufficiently skilled to be able to take the changes on notice.
Applying a similarly practical approach, to the extent that [2] of the grounds of the application makes reference to the Administrative Decisions (Judicial Review) Act 1977 (Cth), while I agree with the submissions of the first respondent that the allegation and the jurisdiction sought there to be invoked is misplaced, the paragraph can otherwise be construed as making an allegation against the Tribunal, and I will construe it as such.
This Court also does not have jurisdiction to review the decision of the delegate pursuant to s 476(2)(a) of the Act. I explained this to the applicant.
To the extent that by [1] of the grounds, the applicant alleges that the delegate erred by reference to s 499 of the Act, this does not give rise to any allegation which falls within the Court’s jurisdiction, given that section empowers the Minister to give directions under the Act. I can see no possible interpretation of that allegation as intersecting with the decision of the Tribunal. If it was intended to take aim at Direction 53 (which applied to the consideration of the applicant’s visa) that is not clear. To the extent that other paragraphs of the originating application (in particular [5] and [6]), make criticisms of the delegate’s decision, the Court is prepared to assume that those allegations can be interpreted as having been made about the Tribunal, and will consider them as such.
Accordingly, the Court will consider the following two matters as arising for consideration from the six paragraphs in the applicant’s originating application:
(a)Ground 1: the Tribunal failed to take into account a relevant consideration (which is paragraphs [2] and [6]) of the applicant’s grounds; and
(b)Ground 2: that the decision is not fair and reasonable because/and the Tribunal is not an expert.
Ground 1
I invited the applicant to address me in relation to “ground 1”. The central theme of the applicant’s submissions in this regard did not really direct itself to the allegation that the Tribunal failed to take into account a relevant consideration. Rather, the applicant made submissions to the effect that matters were not considered, because she wished to undertake the relevant degree, and the Tribunal did not accept that she was a genuine temporary entrant.
I attempted to focus the applicant’s attention on the ground, and eventually, she drew the Court’s attention to what she said was an error, which arises from [17] of the Tribunal’s decision (CB 239), as set out below (emphasis added):
The tribunal notes that you have not had family visits to Australia. The tribunal notes that you have provided certificates from the following institutions: a confirmation of completed studies from Cambridge International College of 20 February 2018; an achievement of 20 credit points 240 credit points and an accompanying statement. There is also a Technical Institute of Victoria Diploma of 2 December 2015. 2 December 2015, for a Diploma of Production of Horticulture. There is a completion letter of the Australian College of Agriculture and Horticulture where the Diploma of Agriculture's results are stated, and that is 14 January 2014. Then there is the statement of results from the Australian National Institute, that you have been assessed for units of competency for various subjects, dated 16 January 2010.
The documents in question are at CB 196 to 197. The applicant says that there is an error in the decision of the Tribunal because it found that she had completed only 20 credit points, out of a possible 240. The applicant says that this is inaccurate, because the documents at CB 196 and 197 indicate that she had, in fact, completed 110 credit points out of 240.
I accept that the documents demonstrate that the applicant had completed 110 out of 240 credit points. I do not, however, consider that the error in [17] gives rise to a legal error. Firstly, the documents at CB 196 to 197 are not properly described by [17] of the Tribunal’s decision. The sentence in question is not coherent. Secondly, as a factual error, it does not (in and of itself) give rise to a jurisdictional error. Thirdly, and most importantly [17] is a facilitative paragraph by which the Tribunal listed documents which were before it. Even if the Court were to accept that the error contended for by the applicant is present, namely, that the Tribunal somehow thought she had achieved only 20 out of the 240 credit points, I cannot see how this gave rise to any actual error in the Tribunal’s substantive reasoning.
The error in question did not feature as part of the reasons for why it was that the Tribunal was not satisfied that the applicant met the genuine temporary entrant criteria. Further, the applicant has not alleged materiality and has not satisfied her onus by establishing it. Even if [17] properly recorded an achievement of 110 credit points out of a possible 240 credit points, this could not have realistically resulted in another decision having been made.
Next, the applicant drew the Court’s attention to [15] of the Tribunal’s decision, and took issue with the finding which is the last sentence of that paragraph, as set out below (emphasis added):
The tribunal has questioned you about your savings, and you said that you have approximately AUD1000 in savings. You told the tribunal that your family funds the fees for your various courses. You told the tribunal justifiably that having a two year-old toddler is a costly experience for you. You told the tribunal that you've made five visits to India, and these were for family reasons. The tribunal notes that your mother died relatively recently. The tribunal notes that were are unable to attend her funeral or post-death arrangements due to your needs around your child.
The applicant says that she was unable to travel to India at that time, because she was nine months pregnant. She rhetorically asked the Court “who can travel when they are nine months pregnant?” Otherwise the applicant was unable to explain why this part of the Tribunal’s reasons gave rise to an error. It appears to me the Tribunal was simply recounting the applicant’s own evidence. I discern no adverse finding in the last sentence of [15], much less any error of the kind alleged by ground 1. To the extent that the applicant takes issue with the manner in which the Tribunal approached the visa criteria, there is nothing which bears this out. Having regard to the materials before the Tribunal, it was not satisfied that the applicant was a genuine temporary entrant based on a variety of factors. Those findings were open to it.
Based on the applicant’s submissions to me today, this ground is really directed to her disagreement with the Tribunal’s conclusions. While it is understandable that the applicant takes such a view, that is not a basis which gives rise to jurisdictional error. As I explained to the applicant at the outset of the hearing, the Court was not determining for itself whether or not she ought to have been granted the visa, whether she was a genuine temporary entrant of any of the other merits of her case. In my view, ground 1 must fail.
Ground 2
The second ground is somewhat difficult to understand, and despite my attempts to focus the applicant upon assisting the Court to better understand it, she did not do so. The ground alleges that the decision of the Tribunal[4] was not reasonable, and also makes a statement that the applicant is not satisfied with the Tribunal’s decision because the member was not an expert in “that field”.
[4] See [36] above
The allegation takes aim at the Tribunal’s finding at [25] (CB 240). By that paragraph, the Tribunal found that the applicant did not require a Bachelor degree to assist her with her stated intention to run a rural business. At [26] of the Tribunal’s decision (CB 240), the Tribunal expressed difficulty in understanding why particular subjects within the applicant’s Bachelor of Business would assist her in the running of a rural business. On a number of occasions, I asked the applicant to explain to what expertise she was referring by this ground. However, the applicant would not answer the question. In order to interpret the ground, the only expertise to which I can infer the allegation is that the Tribunal lacked expertise in either business or tertiary/vocational requirements. I will return to that issue momentarily.
In relation to this ground, the only submissions that the applicant did make again went to the merits of her case. The applicant says that she would to repeat this submission to the Court on a number of occasions (which she in fact did). The applicant says that she was a genuine student, attended her classes, paid her fees, did not breach her visa conditions, and that she was, “passing nicely”. The applicant says that the “officer” (which I take it to mean the Tribunal) made a mistake. She said that a person in such a position should be responsible and should have taken time to consider the decision, but that the Tribunal did not do so. The applicant points to the fact that the Tribunal delivered an oral decision at the end of her hearing as demonstrating a lack of consideration. The Tribunal is entitled and empowered by s 368D of the Act to proceed to an oral decision. Much like the delivery of ex tempore judgments by Courts, it can be a useful tool, and often necessary in a high volume jurisdiction.
I asked the applicant to tell me what, other than the mere fact that the decision was delivered orally, might give rise to a legal error. The applicant said she did not have any submissions to make. Without more, the mere fact that the Tribunal proceeded to utilise the oral decision mechanism which is provided by the Act, does not give rise to a jurisdictional error. Perhaps, it is understandable that a lay person may consider that by the delivery of an oral decision, the matter has not been fully considered. However, that is not necessarily so.
In relation to this ground, jurisdictional error will be established where a decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds. This can be demonstrated by findings or reasons along the way to reaching a conclusion by the decision maker which are illogical or irrational: BZD17 v Minister for Immigration and Border Protection [2018] 263 FCR 292 at 34, citing SZMDS at 132, per Crennan and Bell JJ. Relevant error will exist if a finding of fact was simply not open on the evidence, or there is no logical connection between the evidence, and the inferences or conclusions drawn: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135], per Crennan and Bell JJ. As part of the assessment process, a decision-maker can make assumptions, or draw on their own common sense, a reasonable appreciation of human experience, and personal or specialised knowledge: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21] per Keane, Gordon, Edelman, Steward and Gleeson JJ, and SZSDP v Minister for Immigration and Border Protection [2013] FCCA 1647 at [45] per Judge Manousaridis.
In addition, the Tribunal is not required to uncritically accept an applicant’s evidence, and does not require rebutting evidence before holding that a factual assertion is not made out: see CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496 at [65] per McKerracher, Griffiths, and Rangiah JJ.
With those principles in mind, there is nothing arising from the present matter which indicates that the Tribunal’s conclusions about the applicant’s intentions in Australia were not open to it. I am not satisfied that the Tribunal’s conclusion could not be drawn based on the member’s common sense. In the present case, the findings in question did not require the Tribunal member to have expert knowledge in any of the fields which the applicant might be taken to allege.
The Tribunal did not require specialised knowledge, nor was it required to have some specific material, in order to rebut the applicant’s evidence: see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [5] to [7] per Logan J. I am not satisfied that there is any error as alleged by ground 2, as construed, or at all. Accordingly, the decision is not affected by jurisdictional error, absent which the decision is a privative clause decision, and should be dismissed, and I will so order.
Costs
Consequent upon the dismissal of the application, the first respondent sought an order that the applicant pay costs fixed in the sum of $5,400. When asked to make submissions as to whether a costs order should follow the event, and if so, in what amount, the applicant said that she could not pay so much and asked if the Court could reduce the amount. Relative to the Court’s scale amount and to the work done in this matter, that it has also been on foot for almost five years and has had several changes of docket across that time, I am of the view that the amount sought is reasonable. In my view, costs ought follow the event in this matter.
57 I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 16 February 2023
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