Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 938
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 938
File number(s): ADG 506 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 15 November 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India - Student Temporary Class TU visa – whether consideration of previous and remaining study in Australia – whether extra time ought to have been provided to provide further evidence – whether jurisdictional Legislation: Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 360, 474, 476
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 28 October 2022 Date of hearing: 28 October 2022 Place: Heard in Perth, delivered in Adelaide First Applicant: In person via CISCO Webex and on behalf of the second and third applicants Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 506 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BALJINDER KAUR
First Applicant
HARJINDER SINGH
Second Applicant
ANGELA CHUMBER BY HER LITIGATION GUARDIAN BALJINDER KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 11 December 2019 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 LUCEV
Introduction
Before the Court is an application filed on 11 December 2019 for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 21 November 2019. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision not to grant the first applicant, Ms Baljinder Kaur (“Ms Kaur”), a Student Temporary (class TU) Higher Education Sector subclass 500 visa (“Student Visa”).
The second and third applicants are Mr Harjinder Singh (Ms Kaur’s husband) and Ms Angela Chumber (Ms Kaur’s daughter). For convenience, the applicants will be referred to by reference to the first applicant, Ms Kaur only, with the visa status of the other applicants being dependent upon the grant or refusal of Ms Kaur’s Student Visa.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 124-134.
Background
The relevant background to the matter is as follows:
(a)Ms Kaur is a citizen of India and arrived in Australia on 24 June 2009 on a previous Student Temporary (class TU) Higher Education Sector subclass 572 visa: CB 84;
(b)on 27 March 2017 Ms Kaur enrolled in an Advanced Diploma of Agribusiness Management: CB 57, 86;
(c)one week later, on 3 April 2017, Ms Kaur lodged an application for a Student Visa: CB 1, 86;
(d)on 5 July 2017 the Delegate refused Ms Kaur’s application for a Student Visa on the basis that she did not meet the requirements set out in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 82-90;
(e)Ms Kaur applied to the Tribunal for review of the Delegate’s Decision on 20 July 2017: CB 91-93;
(f)prior to lodging the review application with the Tribunal Ms Kaur had enrolled in nine courses (as set out below from (i)-(ix)), of which Ms Kaur had completed eight (as set out below from (i)-(viii)): CB 100;
(i)Certificate III in Aged Care Work;
(ii)Diploma of Nursing (Enrolled/Division 2 Nursing);
(iii)Diploma of Management;
(iv)Certificate III in Horticulture (Wholesale Nursery);
(v)Certificate IV in Business;
(vi)Certificate IV in Horticulture;
(vii)Diploma of Horticulture;
(viii)Diploma of Agribusiness Management; and
(ix)Advanced Diploma of Leadership and Management.
(g)Ms Kaur completed the course that was the subject of the Delegate’s Decision in March 2018: CB 112;
(h)in February 2018 Ms Kaur enrolled in two further courses, namely, an Advanced Diploma of Leadership and Management: CB 116, and an Advanced Diploma of Business: CB 117;
(i)on 2 October 2019 the Tribunal invited Ms Kaur to attend a Tribunal hearing on 29 October 2019: CB 98-99;
(j)on 22 October 2019, in response to Ms Kaur’s request to postpone the Tribunal hearing, the Tribunal rescheduled the Tribunal hearing to 11 November 2019: CB 106-108;
(k)on 11 November 2019 Ms Kaur attended the Tribunal hearing along with her representative and with the assistance of a Punjabi interpreter. The Tribunal hearing took just over an hour: CB 118-119;
(l)the Tribunal concluded that upon review of Ms Kaur’s circumstances as a whole, Ms Kaur did not meet the genuine temporary entrant criteria (“GTE Criteria”) in cl 500.212(a) of the Migration Regulations: CB 134 at [51]-[52]; and
(m)on 21 November 2019 the Tribunal Decision affirmed the Delegate’s Decision not to grant Ms Kaur a Student Visa: CB 134 at [55]. Aspects of the Tribunal Decision are set out below in the discussion of the grounds of the Judicial Review Application.
Judicial Review Application
Litigation History
Given that it is almost three years since the Judicial Review Application was filed in the Adelaide Registry of the Court on 11 December 2019, it is appropriate to detail the subsequent litigation history of the matter which is as follows:
(a)on 27 February 2020 the parties were notified that the matter was to be listed for a first court date before a Registrar of this Court on 6 March 2020;
(b)on 5 March 2020 Registrar Carlton made orders by consent that the Judicial Review Application was to be listed for a show cause hearing on a date to be advised. In consequence the listing of 6 March 2020 was vacated;
(c)more than two years passed until in May 2022 the matter was docketed to the presiding Judge (in the Perth Registry of the Court), and the parties were notified on 19 May 2022 of a directions hearing to be listed before the presiding Judge on 27 May 2022;
(d)on 27 May 2022 the parties attended a directions hearing where orders (“May 2022 Orders”) were made:
(i)for Ms Kaur to file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)for the Minister to file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)programming the matter for final hearing by video link on 28 October 2022 at 1.00pm AWST/3.30pm ACDT before Judge Lucev;
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) if Ms Kaur did not appear at the final hearing;
(e)Ms Kaur filed no written submissions or other documents pursuant to the May 2022 Orders; and
(f)on 29 September 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
The Judicial Review Application contained the following three grounds (reproduced unaltered):
1. Tribunal made jurisdictional error by not considering my previous study. I have completed Diploma of Management, Certificate III in Horticulture (Wholesale Nursery), Certificate IV in Business, Certificate IV in Horticulture, Diploma of Horticulture, Advance Diploma of Horticulture, and Diploma of Agribusiness Management and Advance Diploma of Leadership and Management. Further I am enrolled in Advance Diploma of Business.
2. Tribunal made jurisdictional error by not considering my remaining study in Australia.
3. Tribunal made jurisdictional error by not granting me extra time to provide evidence from my home country which was related with my employment while I will go back to my home country.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: Migration Act, s 360(1); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Grounds 1 and 2
Submissions
Having filed no written submissions, at hearing Ms Kaur’s submissions in relation to grounds 1 and 2 went no further than to reiterate the content of the grounds themselves.
The Minister submitted in relation to grounds 1 and 2 that:
(a)by ground one Ms Kaur alleges that the Tribunal failed to take into account her past study and current enrolment and by ground two she alleges that the Tribunal failed to consider her “remaining study in Australia”;
(b)these grounds must fail because the Tribunal did consider Ms Kaur’s past studies, her current enrolment, and her proposed future course of study: CB 125-133 at [9e], [9f], [12]-[14], [17]-[19], [24]-[28], [30], [44], [46]; and
(c)no error is revealed by Ms Kaur contending in this Court that more weight should have been placed on her past, present and future study by the Tribunal because the relative weight to be given to those matters and the other factors in Direction 69 was a matter for the Tribunal: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [85] per Derrington and Thawley JJ.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)noted that Ms Kaur gave evidence that:
(i)she had worked as a registered nurse in India and wanted to get an Australian nursing qualification: CB 126 at [12];
(ii)Ms Kaur was not able to finish her Australian qualification as she could not get the second placement Ms Kaur needed to finish the course. Ms Kaur stated that she was required to do a placement relating to mental health however her study provider was not able to arrange a placement for Ms Kaur: CB 126 at [13];
(iii)as her visa was due to expire, Ms Kaur applied to study her Diploma in Business and enrolled in the course for the purpose of extending her visa: CB 126 at [14]; and
(iv)she was in continuous contact with her study provider to determine whether she could get the second placement she required. As this did not occur, Ms Kaur continued to study and work and obtained a job working with her husband in the horticultural industry: CB 126 [14]-[15];
(v)she had completed her Advanced Diploma in Agribusiness in 2018. When questioned by the Tribunal as to why she did not return back to India upon completion of her Advanced Diploma in Agribusiness, Ms Kaur said that her uncle (Harinder Singh) had suggested that she stay in Australia and study further: CB 127 at [24]-[26];
(b)noted that Ms Kaur then further enrolled in an Advanced Diploma in Leadership and Management which she completed in August 2019. When questioned by the Tribunal as to why she did not return to India then, Ms Kaur stated that she wished to study further to learn how to manage a business. Ms Kaur enrolled in an Advanced Diploma of Business for which Ms Kaur had a confirmation of enrolment for the course to occur from 4 November 2019 to 1 November 2020: CB 127 at [26]-[27];
(c)identified that Ms Kaur and her uncle first discussed the possibility of work in 2014: CB 127 at [37];
(d)pointed out to Ms Kaur that her Student Visa application in April 2017 made no reference to her uncle’s job offer. Ms Kaur responded that she may have forgotten about the job offer when filling out the form: CB 128 at [38];
(e)set out cl 500.212 of Sch 2 of the Migration Regulations in full: CB 128 at [41];
(f)noted that it must have regard to Direction 69 which indicates that the factors specified in it are not to be used as a checklist but rather as guidance. The Tribunal identified that it must consider Ms Kaur’s circumstances as a whole in determining whether Ms Kaur satisfies the GTE Criteria: CB 128 at [42]-[43];
(g)set out the relevant provisions in Direction 69 when assessing Ms Kaur’s circumstances: CB 128 at [44]. In doing so the Tribunal:
(i)made reference to Ms Kaur’s circumstances in India and:
(A)noted that Ms Kaur had provided evidence that she had not made enquiries about the availability of relevant courses in India: CB 129 at [44];
(B)identified that Ms Kaur suggested that it may be hard for her to be accepted into a similar course in India: CB 129 at [44];
(C)was not satisfied that Ms Kaur had reasonable reasons for not undertaking study in India: CB 129 at [44];
(D)noted that Ms Kaur had some, but not a significant, incentive to return to India due to family ties: CB 129 at [44];
(E)was not satisfied that Ms Kaur’s arrangements to work for her uncle upon her return to India were settled and was not of the opinion that the alleged work opportunity was a significant incentive to return to India: CB 129 at [44];
(F)referred to Ms Kaur’s evidence that both Ms Kaur and her husband earn more in Australia than they would in India: CB 129 at [44];
(G)noted that Ms Kaur stated that she, her husband and her daughter rented a house and enjoyed that they did not share it with any other families: CB 129 at [44];
(H)despite Ms Kaur’s denial, the Tribunal found that Ms Kaur’s economic circumstances presented as a significant incentive not to return to India: CB 129 at [44];
(I)was satisfied that Ms Kaur is not liable for military service commitments should she return to India: CB 129 at [44]; and
(J)was satisfied that there is no relevant political or civil unrest in India and that Ms Kaur would feel safe if she were to return to India: CB 130 at [44].
(ii)made reference to Ms Kaur’s potential circumstances in Australia and:
(A)found that Ms Kaur had no strong ties with Australia which would present as a strong incentive to remain in Australia: CB 130 at [44];
(B)noted that Ms Kaur and her husband have been in Australia for more than 10 years on a series of study related visas: CB 130 at [44];
(C)noted Ms Kaur’s evidence that much of the delay in Ms Kaur’s return to India has been because of her change in interest from nursing to horticulture: CB 130 at [44];
(D)referred to Ms Kaur’s denial of using the student visa program as a means to stay in Australia: CB 130 at [44];
(E)was not satisfied that Ms Kaur had a settled plan to return to India and work in the horticulture business: CB 130 at [44]; and
(F)found that the evidence suggested that Ms Kaur was using the student visa program to circumvent the intentions of the migration program and maintain ongoing residence in Australia: CB 130 at [44];
(iii)made reference to the value of the course to Ms Kaur’s future and:
(A)identified that Ms Kaur had previously studied several courses in business and agribusiness: CB 131 at [44];
(B)noted that Ms Kaur could not explain why she now considers the need to undertake further studies: CB 131 at [44];
(C)was not satisfied that the proposed course would assist Ms Kaur in finding work or in Ms Kaur’s proposed work with her uncle: CB 131 at [44];
(D)noted that Ms Kaur had not made reference to the alleged work offer in her Student Visa application: CB 131 at [44];
(E)identified that the alleged work agreement was in place since 2014: CB 131 at [44];
(F)was not satisfied that Ms Kaur had a concrete plan to work for her uncle and did not accept that the past or proposed future study was relevant to Ms Kaur’s past or proposed future employment either in India or elsewhere: CB 131 at [44]; and
(G)made reference to the speculative nature of Ms Kaur’s assessment of her earnings in India and the Tribunal was accordingly not satisfied that Ms Kaur’s potential earnings in India would be an incentive for her return: CB 132 at [44].
Consideration - grounds 1 and 2
There can be no question that the Tribunal considered Ms Kaur’s past study, current enrolment and future intended study, by referring to and considering:
(a)her confirmations of enrolment in Advanced Diplomas of Leadership and Management (2018-2019) and Business (2019-2020): CB 125 at [9(e) and (f)] and 127 at [26]-[27];
(b)her previous nursing studies: CB 126 at [12]-[15];
(c)her completion of a Diploma in Business in July 2011: CB 126 at [17];
(d)her completion of Certificates III and IV in Horticulture in about November 2012;
(e)her enrolment in an Advanced Diploma in Horticulture, and its completion in about March 2017: CB 126 at [18];
(f)her enrolment, at the time she applied for the Student Visa under review in about April 2017, in an Advanced Diploma in Agribusiness: CB 126 at [19]-[20];
(g)her completion of the Advanced Diploma in Agribusiness in 2018: CB 127 at [24]; her enrolment in an Advanced Diploma in Leadership and Management, and her completion of that course in August 2019;
(h)her reasons for undertaking the various courses of study: CB 126 at [12]-[16], [19]-[20] and 127 at [25]-[28];
(i)her plans for future employment in India as a consequence of her Australian studies: CB 126 at [19]-[21], 127 at [25]-[37] and 128 at [39];
(j)how her studies impacted upon the various considerations under Direction 69: CB 128-133 at [44]; and
(k)whether the various areas of study would assist her in running a nursery business in India: CB 133 at [46].
Having regard to the matters set out at [11] above particularly, and more generally in the Tribunal Decision (see [10] above), it cannot be said that the Tribunal failed to consider Ms Kaur’s past, present or intended future studies in the Tribunal Decision, those studies being specifically referred to and considered in the context of the reason for study in relation to Ms Kaur’s alleged future intended employment in India, and whether she met the GTE Criteria: CB 133-134 at [45]-[53]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48 at [46]-[49] per Besanko, Barker and Bromwich JJ.
It follows that grounds one and two of the Judicial Review Application have not been made out, and do not establish jurisdictional error in the Tribunal Decision.
Ground 3
Submissions
Having filed no written submissions, at hearing Ms Kaur did not make any oral submissions that touched upon ground 3.
The Minister submitted in relation to ground 3 that:
(a)Ms Kaur alleges that the Tribunal “committed jurisdictional error by not granting [her] extra time to provide evidence from [her] home country which was related with [her] employment while [she] will go back to [her] country”;
(b)there is no evidence before the Court which establishes that Ms Kaur sought additional time at the hearing; and
(c)in any event, it would have been pointless for the Tribunal to adjourn the matter of its own accord to allow Ms Kaur to provide documents in relation to this issue in circumstances where Ms Kaur explicitly told the Tribunal that no such documents existed: CB 126 at [20] and [22].
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)identified that at the time Ms Kaur applied for the Student Visa that is the subject of review, Ms Kaur was enrolled in an Advanced Diploma in Agribusiness and Ms Kaur proceeded with this study as she was offered a job by her uncle to work as a manager with his business and to introduce a hydroponic system. Ms Kaur said that she did not have corroborative evidence of any such job offer and had not discussed her potential salary with her uncle. Ms Kaur maintained that upon her arrival in India, Ms Kaur and her uncle would make a partnership: CB 126 at [19]-[23]; and
(b)noted that in the submissions made by Ms Kaur’s representative and sent to the Tribunal on or around 6 November 2019, no reference to the uncle’s job offer was made and instead, the submissions stated that Ms Kaur wished to start her own business: CB 133 at [49].
Consideration - ground 3
There is no indication in any of the pre-Tribunal hearing materials before the Court that Ms Kaur sought extra time in which to produce further evidence related to her possible future employment in India. In the absence of affidavit evidence based upon or referring to a transcript or an audio recording of the Tribunal hearing, the best evidence of what occurred before the Tribunal is what is said in the Tribunal Decision: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] and [24] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev. There is nothing in the Tribunal Decision to indicate that Ms Kaur sought extra time in which to produce further evidence related to her possible future intended employment in India at the Tribunal hearing, or otherwise.
It follows that ground three of the Judicial Review Application has not been made out, and does not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is cognisant that Ms Kaur was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
The Court notes that the Tribunal was required to invite Ms Kaur to appear before it to give evidence and present arguments relating to the issues arising on the Tribunal’s review of the Delegate’s Decision: Migration Act, s 360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal was also required to put Ms Kaur on notice of the determinative issues in the review in order for Ms Kaur to have an opportunity to present arguments or evidence on those issues. In circumstances where specific aspects of a matter may be referred to in the Tribunal Decision and may be open to doubt, the Tribunal must also at least ask for an explanation or expansion of the evidence in relation to those specific aspects: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
On the material before the Court the Tribunal invited Ms Kaur to a Tribunal hearing to which she attended: CB 98-99 and 118-120, and provided a meaningful opportunity for Ms Kaur to put forward all relevant materials to make out her case.
It follows from the above that Ms Kaur was not denied procedural fairness by the Tribunal.
In the Court’s view there is nothing otherwise in the materials before it which indicates that the Tribunal made a jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court has concluded that none of the three grounds of the Judicial Review Application have been made out, and that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 11 December 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 November 2022
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