Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 517
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 517
File number(s): MLG 1273 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 7 June 2024 Catchwords: MIGRATION – student (temporary) visa – application for judicial review – where Tribunal not satisfied applicant genuinely intends to stay in Australia temporarily – Tribunal did consider applicant’s ties to India amongst other required considerations in Ministerial Direction – reasoning of Tribunal not unreasonable or illogical – grounds of application reflect impermissible merits review – jurisdictional error not established – application for review dismissed Legislation: Migration Act1958 (Cth)
Migration Regulations 1994 (Cth)
Ministerial Direction No 53
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379
Solimon v University of Technology Sydney [2012] FCAFC 146
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 10 April 2024 Place: Hobart For the Applicant: The Applicant in person Solicitor for the First Respondent: Mr O’Shannessy, Mills Oakley ORDERS
MLG 1273 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMANDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The application for review filed 10 May 2018 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
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 TAGLIERI
By application filed on 10 May 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 April 2018, whereby the Tribunal affirmed a decision of a delegate of the first respondent to refuse a Student (Temporary) (Class TU) Visa (“student visa”).
The application invokes the Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the Tribunal’s decision.
UNCONTENTIOUS BACKGROUND
The applicant is a citizen of India who arrived in Australia on 16 August 2009 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa. She has been the holder of four student visas since her arrival and has remained in Australia since then except for two visits to India.
In March 2012, the applicant was involved in a traffic accident, suffering fractures to her right leg that later required surgery in 2013.[1]
[1] Court Book filed by the first respondent on 1 April 2019 (“Court Book”), pp 95-100.
On 1 April 2016, the applicant applied for the student visa and that application was refused by a delegate of the first respondent on 29 August 2016. The refusal to grant the student visa was on the basis that the applicant was not considered to be a genuine applicant for entry and stay in Australia as a student,[2] a requirement of cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which applied at the relevant time. The applicant applied to the Tribunal for a review of the delegate’s decision on 16 September 2016.[3]
[2] Court Book, p 32.
[3] Court Book, p 37.
On 30 January 2018, the applicant appeared before the Tribunal to give evidence and present arguments.[4] On 12 April 2018, the Tribunal affirmed the delegate’s decision.[5]
[4] Court Book, p 105 at [4].
[5] Court Book, pp 104-111.
The hearing of the application for judicial review was conducted by the Court on 10 April 2024 by way of Microsoft Teams. The applicant appeared self-represented while the first respondent was represented by Mr O’Shannessy.
As there was no objection to receipt of all documents in the Court Book filed by the first respondent as evidence, it was received and marked as Exhibit R1.
The applicant had not filed and served any additional evidence or submissions relied upon in accordance with the Orders of 26 June 2019. Despite this, she attempted to rely on an email dated 2 April 2024 attaching a document evidencing acceptance of an enrolment to study an Advanced Diploma of Civil Construction Design. As evidence of this enrolment was not before the Tribunal and irrelevant to the decision made by it in 2018, I declined to receive the email and attachment in evidence.
The applicant made oral submissions in support of the grounds of review relied upon. The first respondent’s representative relied on written submissions dated 27 March 2024 and supplemented those with oral submissions.
JUDICIAL REVIEW – RELEVANT PRINCIPLES
For the applicant to succeed, she needs to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
STATUTORY REQUIREMENTS FOR STUDENT VISA
The Tribunal’s written reasons reveal that it correctly identified the requirements to be satisfied and relevant considerations for the grant of a student visa.[6]
[6] Court Book, p 106 at [11]-[13].
BASIS FOR TRIBUNAL DECISION UNDER REVIEW
The Tribunal then made findings about:
·The applicant’s study history since coming to Australia;[7]
·The value of the courses of study to the applicant’s stated future and employment or career goals;[8] and
·The applicant’s ties to India and ties to Australia which may act as incentive to remain indefinitely here.[9]
[7] Court Book, p 107 at [17]-[18].
[8] Court Book, p 110 at [37]-[40].
[9] Court Book, p 110 at [46]
Based on the findings the Tribunal made, it was not satisfied that the applicant intended genuinely to stay in Australia temporarily meaning the statutory criteria for grant of a student visa were not satisfied.[10]
[10] Court Book, pp 110-111 at [48]-[50], referring to cl.572.223(1)(a) of the Regulations.
GROUNDS OF REVIEW
In eight paragraphs of her application filed 10 May 2018, the applicant sets out her purported grounds of alleged jurisdictional error. However, paragraphs 6, 7 and 8 do not comprise grounds capable of constituting jurisdictional error. Instead, those paragraphs appear to be submissions or arguments in support of the grounds set out at paragraphs 1 and 2. In summary, the grounds of jurisdictional error adequately formulated by the applicant are as follows:
(1)The Tribunal failed to consider particularised evidence leading to an erroneous finding that the applicant was not a genuine applicant for entry and would stay in Australia temporarily as a student.
(2)The Tribunal erred in concluding that the applicant did not intend to study in Australia and that the only purpose of her student visa application was to secure a stay in Australia, not considering her subjective intent to return to India on completing study.[11]
(3)The Tribunal failed to comply with various statutory provisions in the Act.
(4)The Tribunal breached its statutory obligation to provide proper reasons for decision and its findings of material fact.
(5)The Tribunal failed to objectively consider the totality of evidence before it. The applicant also provided particulars of this alleged failure.
THE PARTIES’ CONTENTIONS
[11] As noted at [15] of these reasons, paragraph 6 appeared to be a submission related to ground 2.
The applicant’s case
Not surprisingly because the applicant is not a lawyer, her submissions were not formulated or logically capable of interpretation referable to the grounds of review in her application. Instead, the applicant’s submissions constituted a narrative explaining the difficulties she had encountered in undertaking and completing study in Australia.
She stated that before suffering an accident in March 2012 she was studying Information Technology. But after the accident, having suffered a broken leg and being unable to walk, she found it very hard to continue with her studies. Further, that the college at which she was studying did not assist her or make allowances to enable her to complete her studies.
The applicant also stated that she was having difficulties at the time with a partner who had been violent towards her, which made her depressed and not in her right mind.
She stated that she had been in Australia for 15 years and struggled with life, adding a plea that she had nowhere to go. I took this to mean if she were forced to return to India.
Critically, the applicant did not identify any specific evidence which had not been considered by the Tribunal. Rather her submissions conveyed an overall grievance about the conclusion reached at by the Tribunal at [49] and [50] of its reasons for decision.
The first respondent’s case
While relying on the written submissions filed on behalf of the first respondent, Mr O’Shannessy orally addressed each of the grounds of review, ultimately submitting that none of them were established.
EVALUATION OF GROUNDS
Ground 1
Ground 1 seeks to persuade the Court that the Tribunal jurisdictionally erred when it concluded that the applicant was not a genuine entrant for stay in Australia temporarily as a student, because it failed to consider certain evidence leading to an unreasonable and erroneous ultimate finding. On its own, the ground is a complaint about the ultimate conclusion of the Tribunal and not demonstrative of jurisdictional error. However, read together with the particulars set out in the application, the ground may be established.
Particulars (a) and (b) of ground 1 relate to [41] and [42] of the Tribunal’s decision. They assert a failure to consider evidence about the applicant’s ties to India as an incentive to return there after study. However, the particulars do not identify what that evidence is and during submissions to the Court, the applicant did not identify that evidence either.
The first respondent submitted that the Tribunal’s conclusion that the applicant was not a genuine entrant for stay in Australia temporarily as a student was reasonable and logically open to it based on evidence before it, particularly her meandering study history and family ties to Australia that were the subject of its findings at [41] and [43] of the reasons for decision.
Review of the entirety of the Court Book reveals that there is no evidence about the applicant’s ties to India in it and the Court can only infer that the source of [41] of the Tribunal’s written reasons was statements made by the applicant at the hearing. The Tribunal records at [41]:
The applicant submits that she has strong ties to India, as her parents live there and they have “found” a suitable candidate for her to marry; in evidence the applicant disclosed that she has a brother and his wife currently living in Australia.
The Tribunal self-evidently considered the limited evidence the applicant provided about her ties to India and she does not claim or identify now that she gave other or additional evidence at that hearing.
Accordingly, I am satisfied that the Tribunal considered what evidence it had from the applicant about her ties to India but weighed that against evidence of more recent and stronger ties in Australia, which together with other findings it made led it to reach the conclusion it did. There is nothing unreasonable or illogical about the Tribunal’s approach and the applicant’s complaint is about the merits of the Tribunal’s conclusion.
Particular (c) seeks to make out ground 1 by asserting that the Tribunal failed to properly consider the history of different courses studied, that the courses were chosen to improve the applicant’s employment prospects, and did not adequately allow for “reasonable changes to career pathways.”
The first respondent submits the Tribunal considered the evidence about the courses studied and choice of study but concluded that it did not disclose a clear plan and was not explicable in regard to career aspirations.[12] It is submitted this was a conclusion reasonably and logically open to it.
[12] See [42]-[43] of the Tribunal’s reasons, at p 110 of the Court Book.
The Tribunal’s reasons at [44] to [46] demonstrate that it considered the historical evidence of the applicant’s studies and the reasons she had given for choosing certain courses, but ultimately it was the incongruity of that history of study with her stated career objectives and the number of inexplicable changes in courses,[13] amongst other open findings, that led to the conclusion that the applicant was not a genuine temporary entrant in Australia for study purposes.
[13] See [37]-[38] of the Tribunal reasons, at p 109 of the Court Book.
Accordingly, I agree with the first respondent’s submission that this particular of ground 1 is not established and amounts to impermissible merits review.[14]
[14] See, eg, Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at [116]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17].
Particular (d) of ground 1 asserts that there is no proper basis for the Tribunal finding that the traffic accident on 29 March 2012 did not explain the study gap or lack of evidence of enrolment between 1 January 2012 and 22 April 2012.[15]
[15] See the reasons given by the delegate at p 35 of the Court Book and the PRISMS record at p 74 of the Court Book.
The applicant did not provide evidence of enrolment in a course of study between 1 January 2012 and the date of the accident on 29 March 2012. The evidence demonstrated a gap in study which was put to the applicant. It is logically and causally correct, as the Tribunal stated, that the accident on 29 March 2012 could not explain the gap prior to the accident occurring and there was no explanation provided for the gap between 1 January 2012 and the date of the accident.[16] Even before the Court, the applicant did not identify any evidence explaining this gap. Rather, she simply gave further information about the lack of support after the accident and the difficulties this caused regarding her study.
[16] Court Book, p 74 being the PRISMS record for the relevant period.
The Tribunal’s reasons at [29] to [30] provide a proper basis for the conclusion it draws at [30] and [31]. The complaint by the applicant is properly characterised as disagreement with the Tribunal’s fact finding, which does not amount to jurisdictional error.[17]
[17] See authorities listed at footnote 14 of these reasons.
Particular (e) of ground 1 is also a complaint about the Tribunal finding there were unexplained gaps in study. The findings made by the Tribunal about each of the three study gaps are based on evidence that was before it either in the Provider Registration and International Students Management System (“PRISMS”) documents or the oral evidence from the applicant, which the Tribunal did not accept as probative or satisfactory.[18]
[18] See [26]-[35] of the Tribunal reasons, at pp 108-109 of the Court Book.
The movement details records at pages 75 and 76 of the Court Book demonstrate that the applicant left Australia for two limited periods, one in 2011 and another in 2015. However, these absences from Australia also do not explain much of the gap in her studies. In any event, the applicant did not rely on her absences from Australia for the purposes of her grounds of review. If the Tribunal did not consider the evidence about her absences from Australia in the context of considering her study pathway and gaps, such a failure would not be material and therefore does not constitute jurisdictional error. That is because the absences do not account for the number and duration of study gaps and other evidence and considerations led to the Tribunal’s conclusion and it would have been the same.[19] In addition, I am also not persuaded that the Tribunal failed to consider absences from Australia in this context, as the Tribunal was not obliged to refer to every piece of evidence before it.[20]
[19] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [2] to [16].
[20] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594.
Fact finding and merits review is purely the domain of the Tribunal and the applicant has not established any of the particulars relied upon to assert jurisdictional error in ground 1.[21] Further to the extent that each particular of ground 1 either individually or collectively are relied on to demonstrate illogicality and unreasonableness of the Tribunal’s findings or conclusion, they fail. The threshold for establishing such an error is not satisfied.[22]
[21] See authorities listed at footnote 14 of these reasons.
[22] See, eg, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Ground 1 fails.
Ground 2
The Tribunal’s reasons at [41] to [42] specifically note the evidence/submissions relied upon by the applicant about ties to India, which were said to operate as an incentive for her to return there. This was limited to her parents living there and them having found her a candidate for marriage. The evidence taken at its highest and not treated merely as a submission, the applicant’s statements were limited, generalised, vague and lacking particularisation.[23] When weighed against evidence about her family here in Australia and the findings about her study history and choices, the Tribunal concluded at [43] that the applicant lacked incentive to return to India and was using the student visa program to maintain residency in Australia.
[23] See above at [25] and [26] of these reasons.
The applicant does not particularise any additional evidence that is said to have been before the Tribunal in regard to her stated “subjective intention” to return.
The evaluation of the evidence by the Tribunal and findings of fact based on what was before the Tribunal was open, reasonable and logical. This ground is not made out and is a complaint about fact finding, not demonstrative of jurisdictional error.[24]
[24] See authorities listed at footnote 14 of these reasons.
Ground 3
This ground asserts breaches of ss 338, 348, 353 and 357A of the Act. No particulars or submissions have been provided about how the breaches are said to have occurred and why they are demonstrative of jurisdictional error. This alone is sufficient reason to be satisfied that ground 3 is not established.[25]
[25] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Further, I accept the submissions of the first respondent at [22] of its written submissions.
To the extent that the applicant may have intended to argue that she was not afforded a fair hearing or that there was a breach of the natural justice hearing rule, that is plainly wrong. The applicant was given prior notice of the hearing date, attended the hearing and provided information/evidence and submissions to the Tribunal.
Notice was given to the applicant about the PRISMS records that were to be considered and their relevance to the decision the Tribunal was required to make. She was also offered time to respond to the information in the PRISMS record and s 359AA of the Act was discussed with her. The applicant stated she did not require time and provided responses to the issues raised.[26]
[26] See [20]-[22] of the Tribunal’s reasons, at p 108 of the Court Book.
Ground 4
By ground 4 of her application, the applicant contends that the Tribunal did not provide “proper” reasons for its decision of 12 April 2018. There is no dispute that a written statement of decision and reasons was provided.[27]
[27] Court Book, pp 104-111.
The lack of any statement or particular as to why the reasons were not “proper” or “adequate” means that this ground must fail. Further, on their face, the written reasons do set out factual findings and explain what mandatory considerations were balanced for the purpose of making the decision.
In the context of a complaint about written reasons of a Tribunal, it is also useful to remind the applicant that a Tribunal is not held the same high level of giving reasons as a Court.[28]
[28] Solimon v University of Technology Sydney [2012] FCAFC 146.
Ground 5
As expressed, this ground is not capable of being understood, other than as a catch all or alternate framing of grounds 1 and 2. It is expressed so broadly and vaguely that I cannot decipher any other meaning intended.
Further, the ground conveys by its abstract nature a general complaint about the Tribunal not taking a favourable view of the evidence. This is plainly not a complaint capable of constituting jurisdictional error if the Tribunal’s findings and conclusion were reasonably open on the evidence, which I have determined they were.
Ground 5 fails.
Purported grounds 6, 7 and 8
To the extent that grounds 6, 7 and 8 of the application for review are submissions made in support of other grounds, they are without substance and do not demonstrate jurisdictional error by the Tribunal.
In particular, the facts of this case are distinguishable from the authority cited, Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379, because the Tribunal relied on the evidence of the applicant herself about why she was undertaking Vocational Education and Training courses which it considered were not connected to her occupational goal, to make the finding about her intent to use the student visa system to remain in Australia.[29]
[29] First respondent’s written submissions dated 27 March 2024 at [24], and Court Book, pp 109-110 at [39]-[40] and [46].
The contentions at grounds 7 and 8 of the application for review are misconceived. The Tribunal was required to have regard to the considerations in the Ministerial Direction No 53 (“the Ministerial Direction”) by virtue of s 499 of the Act. The Tribunal considered the Ministerial Direction in the usual and customary way when determining if the applicant satisfied cl 572.223(1)(a) of Schedule 2 of the Regulations. It is self-evident from the reasons that the Tribunal made findings about the considerations identified in the Ministerial Direction, assigned weight to those considerations and then formed its conclusion about whether it was satisfied the applicant satisfied the genuine temporary entrant criteria.
CONCLUSION AND DETERMINATION
For the reasons given above, the grounds of review are not made out. The application for review is dismissed.
In the written submissions of the first respondent, an order for costs is sought against the applicant in the event of dismissal of her application for review.
Ordinarily, I would make the order sought by the first respondent as the usual rule is that costs should follow the event. However, the first respondent has not particularised the fixed sum it seeks by way of costs and the applicant should be given an opportunity to be heard about the order sought.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 7 June 2024
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