Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 751
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 751
File number(s): ADG 362 of 2018 Judgment of: JUDGE BROWN Date of judgment: 9 September 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – application for adjournment by applicant – applicant asserts unable to present case due to medical condition – application supported by generalised medical documents not directed towards incapacity to present case – proceedings on foot for significant period – adjournment application declined on basis of inadequate evidence – applicant has failed to provide coherent grounds of jurisdictional error – hearing directed to proceed after short adjournment – temporary student visa – evidence available to the AAT indicated applicant had been in Australia for over ten years – applicant had completed numerous courses in the period – AAT found applicant had no commitment to return to country of origin – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 474
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021.
Migration Regulations 1994 sch 2, cl 500.212
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZZGY v Minister for Immigration & Border Protection [2014] FCA 488
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 2 September 2022 Place: Adelaide Applicant: Applicant appeared in person Counsel for the First Respondent: Mr Chan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
ADG362/2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
9 September 2022
THE COURT ORDERS THAT:
1.The application filed 10 September 2018 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00).
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 BROWN:
INTRODUCTION
These reasons relate to an application for judicial review of a decision of the Administrative Appeals Tribunal[1] made on 9 August 2018. The decision confirmed an earlier decision of a Delegate of the Minister for Immigration & Border Protection not to grant the Applicant, Kuldeep Kaur[2] a Student (Temporary) (Class U) Student (sub-class 500) Visa,[3] pursuant to the provisions of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “Ms Kaur” or “the applicant”.
[3] Hereinafter referred to as “the student visa” or “the visa”.
[4] Hereinafter referred to as “the Act”.
Ms Kaur is a citizen of India, where she was born on 12 October 1982. Ms Kaur is to be regarded as the primary visa applicant, which supports an application by her husband, Amandeep Singh (Mr Singh), who was born on 13 July 1985, also in India and their child, Snavy Singh, born on 3 September 2012, at the Flinders Medical Centre, in suburban Adelaide. Ms Kaur, Mr Singh and Snavy are all citizens of India.
The applicant first arrived in Australia on 3 June 2008, pursuant to a Higher Education (sub-class 573) Visa, which was valid until 28 July 2010. In this period, she completed a Certificate in Spoken & Written English; a Certificate in Printing & Graphic Arts; and a Diploma of Multimedia, which was completed on 7 May 2010. Thereafter, Ms Kaur has been granted further student visas, which related to studies in business and management, interspersed with bridging visas.
On 7 December 2016, she made an application for the visa relevant to the current proceedings. She indicated that she wished to undertake study leading to the qualification of an Advanced Diploma of Leadership & Management. The required course of study would run from 17 October 2016 to 14 October 2018. Her husband and child were included in the visa application as members of her family unit. Subsequently, Ms Kaur has given birth to another child, Aivy Singh, also born at the Flinders Medical Centre, on 6 September 2017.
The conditions, which must be satisfied before the relevant visa can be granted, are specified in clause 500.212 in Schedule 2 of the Migration Regulations 1994.[5] The criteria are as follows:
[5] Hereinafter referred to as “the Regulations”.
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In general terms, before the relevant student visa can be granted, the Minister must be satisfied that the relevant applicant is only intending to remain in Australia, on a temporary basis, whilst he or she completes the proposed course of either tertiary or vocational education training.
The relevant Minister has provided directions[6] regarding how the regulatory regime set out above is to be administered. These matters, which any administrative decision maker is required to consider in making any student visa determination can be summarised as follows:
·The applicant’s circumstances in his/her home country, including the economic reasons for pursuing study in Australia;
·The degree of personal ties that the applicant has to their home country;
·The existence of sound reasons for not studying in the relevant home country;
·Factors that would provide a significant incentive for the applicant not to return to their own country;
·The applicant’s potential circumstances in Australia, including evidence that the applicant concerned may be using the student visa program as a mechanism to circumvent Australia’s migration program;
·The value of the proposed course to the applicant’s future, including whether the course would assist the applicant to gain employment in their home country and the relevance of any past or future employment in this regard; and
·The applicant’s migration history.
[6] See Ministerial Direction No 69.
In refusing the current visa application, the Ministerial Delegate had access to the Provider Registration and International Student Management System[7] which indicated the Applicant had the following enrolment history, in Australia, since her arrival in this country:
·Certificate IV in Spoken and Written English Completed 19/09/2008
·Certificate III in Printing and Graphic Arts Completed 17/07/2009
·Diploma of Multimedia Completed 07/05/2010
·Course for which [she was] granted the higher education TU 573 was never completed
·Certificate IV in Business – cancelled due to cessation of studies
·Diploma of Management – cancelled due to non-commencement of studies
·Advanced Diploma of Business Completed 11/09/2016[8]
[7] Hereinafter referred to as “PRISMS”.
[8] See Court Book at page 87
In these circumstances, the Delegate indicated as follows:
With this application you propose to complete an Advanced Diploma of Leadership and Management which will extend your stay in Australia a further 12 months bringing your overall period of stay in Australia to over 10 years.
Records indicate since you and your spouse arrived in Australia on 03 June 2008 both of you have been present in Australia for 2935 days and outside Australia for 106 days. The two of you have not left Australia since 05/02/2015.
I have considered your study history, the information you provided with your application regarding your stated intention to comply with the Student visa (subclass 500) and your immigration history. I have serious concerns you are using the Student visa program to maintain ongoing residence and circumvent the intentions of the migration programme given the length of time you have been residing and studying in Australia and limited time visiting your country of citizenship.[9]
[9] See Court Book at page 88.
Given these findings, the Delegate refused Ms Kaur’s application for the relevant temporary student visa on the basis that she had not satisfied the various conditions attached to its grant, namely that she intended to remain in Australia on a temporary basis whilst she completed her studies.
Given this determination, on 25 November 2016, Ms Kaur applied to the AAT for review of the Delegate’s decision. On 28 November 2016, Ms Kaur was invited, by the Tribunal, to provide material or written arguments, which she wished it to consider in support of her application for merits review.
Thereafter, on 10 July 2018, Ms Kaur, Mr Singh and Snavy were invited to appear before the Tribunal on 6 August 2018, to give evidence and make any necessary submissions, which they wanted to present to the Tribunal for its consideration. They were also requested to bring documents relevant to Ms Kaur’s current educational enrolment and documents evidencing her past studies in Australia. She was formally advised that the purpose of the hearing, on 6 August 2018, was to assess whether you are a genuine applicant for entry and stay, as a student. In this context, she was provided with a copy of Ministerial Direction No. 69.[10]
[10] See Court Book as page 111.
The Tribunal initially indicated that it proposed to conduct the hearing via telephone from Melbourne. In these circumstances, on 11 July 2018, Ms Kaur requested that the relevant hearing take place, in person, before a Tribunal based in Adelaide. On 17 July 2018, the Tribunal declined this request and indicated that the hearing would take place, as previously scheduled, by telephone from Melbourne. The applicant was offered the assistance of a Punjabi interpreter.
The hearing before the aat
The AAT hearing is to be characterised as a merits hearing, in contrast to the current proceedings, which are directed towards judicial review of the AAT proceedings. In the former, the AAT is able to gather evidence, whilst the latter involves a review of the legal basis for the decision in question and whether or not it is vitiated by jurisdictional error.
The decision of the AAT indicates that Ms Kaur did appear before the Tribunal on 6 August 2018 and the relevant hearing was conducted with the assistance of an interpreter in both the Punjabi and English languages. Ms Kaur has not ventilated any specific complaint that she was not able to advance her case, in this hearing, or was precluded from placing any evidence before it.
The Tribunal, as the Ministerial Delegate before it, had reference to the Applicant’s PRISMS record and noted the number and nature of the courses she had undertaken and the period over which the courses had been taken. As had the Delegate, the AAT clearly set out these courses and the periods to which they related.
Ms Kaur also advised the Tribunal that between 5 May 2010, when she completed her Diploma of Multimedia, until 31 August 2015, when she started her Advanced Diploma of Business, she was not formally studying but was able to remain, in this country, pursuant to various bridging visas, during which she had unsuccessfully applied for temporary residence in Australia, whilst she was working.
Ultimately, the Tribunal concluded that Ms Kaur was not genuine in her assertion that she intended to remain in Australia, on a temporary basis, whilst she completed the course of study on which her visa depended. In so doing, it assessed the evidence provided by Ms Kaur in respect of her circumstances and degree of connection to her home country of India; assessed the value of her proposed course of study to her future prospect if she returned there; and finally considered her current circumstances, in Australia, particularly in terms of the incentives available to her to return to India.
To the Tribunal, Ms Kaur indicated that she had completed Year 12 in India, as well as a Bachelor of Arts degree. She had come to Australia, in her words, to become something. In this context, the Tribunal noted its concern as to why having completed a tertiary degree in India, she had elected to come to Australia, to study what were described as lower level courses not connected to her original qualification.[11]
[11] See Court Book at page 152.
The Tribunal did not consider that there were any factors relating to political instability or civil strife, in India, which precluded the Applicant from returning to that country where she had strong familial connections.
In respect of the Applicant’s current situation, the Tribunal noted that Ms Kaur and her family had been in Australia for longer than 10 years now and this, of itself, represented a strong incentive for her to remain in Australia.
Ms Kaur, in her evidence to the Tribunal, indicated that her husband was working as a taxi driver earning between $500.00 to $700.00 per week. The Tribunal considered that Mr Singh’s employment represented a significant disincentive for Ms Kaur to return to India.
In addition, as had been found by the Ministerial Delegate, Ms Kaur had returned to India on three occasions, in 2011, 2013 and 2015 for periods of weeks. Again, the AAT regarded this as being indicative of a lack of a strong incentive, on Ms Kaur’s part, to return permanently to India.
In all these circumstances, ultimately, the Tribunal determined that Ms Kaur was not genuine in her intention to remain in Australia temporarily and so did not satisfy the criteria attaching to clause 500.212. In so doing, it was concerned that the applicant had not adequately explained what she hoped to achieve in the course of study, which she was currently proposing for herself, given the nature of the other courses, which she had previously undertaken in Australia and her migration and employment history in this country.
In particular, the Tribunal found as follows:
The Tribunal is concerned by this evidence as the applicant did not specifically address the reasons for her study here in Australia and the reason why she moved from studying printing and graphic arts and multimedia courses which she successfully finished, and then moved on for a significant period of time to study low-level business and leadership courses after she was unable to get temporary residency here in Australia. The applicant when pressed by the Tribunal to provide a reason why she was studying leadership and management here now after having stated that she wished to return home to a get highly paid job she stated that “prospective employers want me if I have management experience”. The applicant did not provide any evidence as to the value of her recent and current enrolments and did not provide any link with these enrolments to the skills she would be acquiring that would assist her in getting a job back in her home country after having already finished her Bachelor of Arts and also several printing and graphic arts and multimedia qualifications. The Tribunal finds that the applicant is using the student visa system to circumvent the migration program and to maintain residence in Australia.
The Tribunal is also concerned by the applicant’s current enrolment in an Advanced Diploma of Leadership and Management and finds that the applicant is seeking to undertake a course that is not consistent with her current level of education and will not assist the applicant to obtain employment or improve employment prospects in her home country. The Tribunal finds that this demonstrates that the applicant is using the student visa system to remain in Australia and does not genuinely intend to remain in Australia temporarily.[12]
[12] See Court Book at pages 153 & 154.
In broad terms, the Tribunal found that the course proposed by Ms Kaur to support her visa application was not congruent with her previous level of education and, as such, was unlikely to improve her career prospects in India. Thus, it was found that she had applied for the visa to facilitate remaining in Australia, which when viewed with her personal circumstances in this country, indicated that she was not a genuine temporary entrant.
In my view, each of these conclusions must be characterised as findings of fact following the Tribunal’s evaluation of the evidence available to it both from PRISMS and the applicant herself. I am not entitled to re-examine that evidence and substitute my own findings of fact for that of the AAT. Such a course would represent a further merits review, which I have no jurisdiction to undertake.
The grounds for review
Given this decision, on 10 September 2018, the applicant commenced proceedings, in this court, seeking a judicial review of the decision of the AAT made on 9 August 2018. She has prepared her own grounds and has not formally indicated what final orders she seeks. The grounds of her application are as follows:
[The] case officer did not consider my circumstances and evidence.
Enough evidence provided, which is required, but not consider[ed].
I am not satisfied with this decision, because I provided all the evidence which is related to my case, in this decision. He did not mention any of these evidence, look like he already made this decision before my hearing, so I request please reconsider my case, I [am] really thankful to you.[13]
[13] See Application - Migration filed by Kuldeep Kaur on 10 September 2018.
By necessary implication, Ms Kaur seeks that the decision be quashed and remitted to the Tribunal for reconsideration. However, the amorphous nature of the grounds of review make it difficult, if not impossible for the court discern what are the errors attributable to the Tribunal, which attracts the jurisdiction of this court. This is of itself provides grounds for the dismissal of the application concerned.[14]
[14] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
Ms Kaur has filed an affidavit in support of her application.[15] This does not provide any clear grounds, which delineate some species of jurisdictional error. It merely attaches the decision sought to be reviewed.
[15] See affidavit of Kuldeep Kaur filed 10 September 2018.
The case came before the court, for the first time, on 2 November 2018. On this occasion, the case was fixed for a final hearing on an unspecified date. Ms Kaur was directed to file an outline of submissions 14 days prior to the date to be fixed for the hearing.
For reasons which are not altogether clear to me, the case was not subject to any further direction until 6 June 2022. Ms Kaur did not appear personally before the Registrar, on this date, but was apparently represented by her husband. He advised that she was unable to attend court due to unspecified medical reasons.
Notwithstanding this assertion, the case was listed before me on 29 August 2022 for final hearing. On 15 August 2022, as directed, Ms Kaur filed her submissions, as directed. Again, in my view, these do not provide any obvious grounds for a finding of jurisdictional error.
It is not the function of the court to make the applicant’s submissions for her or endeavour to decipher her application. However, as best I can discern, she asserts that the Tribunal fell into jurisdictional error because:
·The Tribunal had not given any consideration to the fact that she had been able to financially support herself, during her period in Australia, which had enabled her to complete her course in August of 2021;
·She needed to remain in Australia to provide financial support for her family, both in Australia and in India, particularly her son;
·She had been granted temporary visas and did not intend to live in Australia permanently;
·She intended to open a multimedia and printing company in India and her qualifications would enable her to run such a company;
·The refusal of a visa to her would affect her child’s future visa applications; and
·She had never previously contravened any conditions relating to visas granted to her in the past.
In my assessment, the applicant’s submission is a summary of her various contentions that she personally merits the granting of the visa in question and further that it would be unfair to both her and her family, if the visa was not granted. In essential terms it is a plea to the court to exercise a discretion, which it does not have, to allow her to remain in Australia.
I appreciate that the applicant is not legally qualified. However, my impression is that her application and the written submissions which support it can be characterised as an inchoate appeal to quash the relevant decision on the basis solely that the applicant is dissatisfied with it and would prefer the outcome was different.
WHAT HAPPENED AFTER 29 AUGUST 2022
As previously indicated, the application was fixed for hearing on 29 August 2022. Prior to that date, on 25 August 2022, the applicant filed an application in a proceeding in which she sought to adjourn the proceedings for an unspecified period of time. Her application was supported by an affidavit, sworn by herself, on 25 August 2022. In this affidavit, she deposed that she was unable to attend court because of her critical medical condition. Attached to the affidavit were a variety of medical documents, the most recent of which was dated 22 August 2022 and was under the hand of Dr Gurdial Sidhu, who is apparently a general medical practitioner. Dr Sidhu wrote To whom it may concern, in the following terms:
I am writing to state that Kuldeep Kaur suffers from intermittent P/V bleeding and pain in lower abdomen due to a medical conditions. Its onset and duration is unpredictable. She has is [sic] currently under care is a gynaecologist [sic] and is awaiting surgery.[16]
[16] See affidavit of Kuldeep Kaur filed on 25 August 2022 at page 8.
In addition, Ms Kaur has provided a letter from Amit Singla, who is a gynaecologist, dated 7 July 2022, who indicates that Ms Kaur suffers from fibroids leading to abnormal uterine bleeding for the last few years for which she is awaiting surgery.
Counsel for the Minister was not willing to agree to any adjournment on the basis of this medical material. In particular, it was the Minister’s view that the material did not indicate whether there were any specific medical reasons which precluded Ms Kaur from presenting her case and more particularly if and when her condition would resolve. In these circumstances, the Minister was concerned that the application was directed towards securing the delay of her case, in circumstances in which it had been subject to a significant level of administrative delay.
Ms Kaur appeared before the court on 29 August 2022 via the telephone. In all the circumstances prevailing at the time, I was not prepared to adjourn the case for any lengthy period of time, particularly given what I regarded as the uncertain nature of Ms Kaur’s medical condition with her asserted inability to present her case. In addition, in this context, I was concerned that as presently formulated, her case did not appear to have any obvious merits.
In my view, the situation was one analogous to that which confronted Davies J in the case of MZZGY v Minister for Immigration & Border Protection[17]. In the case, her Honour said as follows, in respect of various medical certificates, which had been submitted to her:
These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.[18]
[17] MZZGY v Minister for Immigration & Border Protection [2014] FCA 488.
[18] MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [13].
In these circumstances, I determined to adjourn the case to 2 September 2022 and directed that the hearing take place on a face to face basis. To her credit, Ms Kaur attended court on the adjourned date.
I do not doubt that Ms Kaur has significant gynaecological issues. However, on 2 September 2022, in my view, apart from her assertion that she was not in a position to present her case, she was not able to advance the medical evidence, which I continued to consider to be inadequate.
Although sympathetic to Ms Kaur and whilst acknowledging the moment of these proceedings for her and her family personally, I did not consider it to be in the interest in the overall administration of justice for her case to be subject to any further delay. Particularly given my preliminary assessment that her case was tantamount to an application for merits review based on a plea to be able to remain in this country.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness. Which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in her application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from her application.
In determining whether the reasoning utilised by the AAT is illogical or irrational in nature, the reviewing court must look to the applicable statutory framework applicable to its decision as well as the decision itself. In so doing the court should not subject the AAT’s reasoning to any degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[19]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.[20]
[19] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[20] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
The High Court also emphasised the following passage from Attorney-General (NSW) v Quin[21]
The duty and jurisdiction of the court to review administrative
action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[22][21] Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[22] See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at page 35-36.
In essence, this court, in conducting a judicial review, has no authority to substitute its own judgment, in respect of factual issues, for that of the Tribunal or to exercise any discretion residing in it in a manner of its own election. Rather this court’s authority is to intervene only if it is satisfied that the Tribunal has exercised the jurisdiction conferred upon it erroneously or in a legally unreasonable manner.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[23] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[23] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148].
It is not for this court to conduct a re-hearing on the merits and determine whether it considers that Ms Kaur was or was not genuine in her intentions regarding the temporary or otherwise basis of her stay in Australia. That factual issues was for the Tribunal alone.
conclusions
The applicant has not been able to establish (and indeed, as previously indicated has not made any submissions in this regard) that there is any jurisdictional error in the decision of the AAT, which is subject to review in these proceedings. It is not the court’s function to seek out some basis on which it could be asserted that there is some species of jurisdiction error which could conceivable vitiate the Tribunal’s decision, nor can it engage in a merits review of the applicant’s case.
However, in my view, it is apparent from a reading of the Tribunal’s decision that it considered the relevant criteria applicable to the grant of the relevant visa and rationally and logically reached the conclusion that the applicant could not be considered a genuine temporary entrant to Australia, which was an essential precondition to the grant of the relevant student visa.
It reached this conclusion on the basis of the following findings, which in my view, were clearly open to it:
·The applicant had been unable to explain adequately what was the logical progression of the various courses undertaken by her in terms of returning to her home country, during her decade long years of study in Australia. In particular, she had not explained what she hoped to achieve from her move from diploma level graphic art, printing and multimedia courses to a low level business and leadership course, given the fact that she had a tertiary qualification from India;
·More particularly, she had not adequately explained how she would use her most recently sought for qualification, in India, given her other qualifications;
·The applicant had only briefly left Australia in the course of a long period of residency in this country;
·The applicant had unsuccessfully sought permanent residency in Australia, in a period in between her courses, during which she had been employed; and
·In all the circumstances, including her husband’s employment, the evidence indicated that the applicant had established a life for herself and her family in Australia, which provided little incentive for her to return to India.
In these circumstances, in my view, it was logical and reasonable for the Tribunal to conclude that the Applicant was not undertaking a course of study in Australia, which necessitated her and her family remaining in this country on a temporary basis. In addition, the applicant has not articulated any basis on which the conduct of the proceedings before the Tribunal could be characterised as being procedurally unfair to such a degree as to constitute a jurisdictional error.
The applicant was provided with an opportunity to address the AAT and was informed in advance of the hearing what were the issues required to be ventilated before the Tribunal and what documents would be likely to be needed to assist the Tribunal in discharging its functions under the Act. In my view, the fact that the applicant would have preferred a face to face rather than a telephone hearing, does not abrogate from the finding that the relevant hearing is to be regarded as procedurally fair.
In my view, the following observations of Logan J in Kumar v Minister for Immigration and Border Protection[24] are an apposite characterisation of the proceedings before the AAT in the current matter, namely that they can be described as being:
A routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the [applicant] had put [his] claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the [applicant] was a genuine student. They were sufficient unto the day.[25]
[24] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16.
[25] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].
I agree. The AAT in this case provided the applicant with such a routine and fair merits based rehearing of her visa application. Its conclusion was logical and its reasons adequate. The AAT was entitled to conclude that Ms Kaur was not a genuine student for the purposes of the Act and the Regulations made under it.
For these reasons, the application must be dismissed. Initially the first respondent sought costs in an amount of five thousand dollars ($5,000.00), which was less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. However due to the short adjournment of the proceedings, necessitated by Ms Kaur’s unsuccessful adjournment application, it now seeks the sum of six thousand five hundred dollars ($6,500.00). Given Ms Kaur has been entirely unsuccessful in her application for judicial review, costs should follow the event and I will make the costs order, as sought by the Minister.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 9 September 2022
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