Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 99
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 99
File number(s): LNG 27 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 9 February 2024 Catchwords: MIGRATION – student (subclass 500) visa – application for judicial review – invitation to provide information to Tribunal pursuant to s 359 – failure to provide information within prescribed period – whether the Tribunal erred by failing to again request the information and make a decision without a hearing – loss of right to a hearing – requesting information again discretionary – jurisdictional error not established – application for review dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Ministerial Direction Number 69
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 13 December 2023 Place: Hobart For the Applicants: The First Applicant in person Solicitor for the Respondents: Mr Slevison ORDERS
LNG 27 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALJIT KAUR
First Applicant
HARMEET SINGH
Second Applicant
NAVTEZ SINGH (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for review filed 23 May 2022 is dismissed.
3.The First Applicant pay the First Respondent’s costs fixed in the sum of $3,900.
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:
On 23 May 2022, the first applicant filed an application in the Court for review of a decision of the Administrative Appeals Tribunal, Migration & Refugee Division (“the Tribunal”) dated 26 April 2022. That application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
All four applicants in this matter are non-citizens. The first applicant applied for a Student (subclass 500) Visa (“the visa”) under the Act on 8 September 2020. The second, third and fourth applicants are her husband and two children. They are accompanying members of her family unit for the purposes of her visa application and therefore reliant on her eligibility for a visa.
BACKGROUND
Prior to applying for the visa, the first applicant had studied numerous courses in Australia including a Certificate IV in Business, a Diploma of Management, a Diploma of Dental Technology, a Diploma of Business, a Certificate IV in Marketing, a Certificate III in Dental Assisting and an Advanced Diploma of Leadership and Management.
When applying for the visa in 2020, the first applicant provided a letter of offer evidencing her intention to study a Graduate Diploma of Management at the Australian School of Commerce.[1]
[1] Court Book, pp 54-58.
The first applicant’s visa application was refused by a delegate of the first respondent on 28 September 2021 and she then applied to the Tribunal for review of the delegate’s decision.[2]
[2] Court Book, pp 124-131.
On 9 March 2022, the applicants were invited to provide information to the Tribunal pursuant to s 359(2) of the Act and were specifically requested to complete the online Request For Student Visa Information form.[3] This request was sent to the applicants’ migration agent and expressly stated that the information requested was required to be received by 23 March 2022.[4] It also stated that a request for an extension of time for the provision of that information could be made.
[3] Court Book, p 143.
[4] Court Book, p 144.
On 27 March 2022, after the date required for the information to be received, the applicant’s migration agent provided a Genuine Temporary Entrant statement and confirmation of enrolment of study with the Australian School of Commerce.[5] The online Request For Student Visa Information form was not completed or provided and no extension of time was requested for its provision.
[5] Court Book, pp 150-154.
On 27 April 2022, the Tribunal affirmed the decision of the first respondent’s delegate to refuse to grant the visa.[6]
[6] Court Book, pp 159-174.
BASIS OF TRIBUNAL DECISION
In its written decision, the Tribunal set out the statutory requirements for eligibility for the student (subclass 500) visa.[7]
[7] Court Book, Tribunal decision dated 26 April 2022, pp 163-164 at [17]-[21].
The Tribunal then identified the evidence of the first applicant’s history of study in India and since coming to Australia, noting the successful completion of numerous courses. On that basis, it was satisfied that the first applicant was a genuine student and placed weight in her favour in this regard.[8]
[8] Court Book, Tribunal decision dated 26 April 2022, pp 165-166 at [27]-[30].
However, the Tribunal also observed that the first applicant had been in Australia for over 12 years, this length of time being difficult to reconcile with the meaning of “temporary” as required by the Migration Regulations 1994 (Cth) (“the Regulations”). It stated that this raised concerns as to whether the student visa migration program was being used as a means of maintaining residence in Australia.[9]
[9] Court Book, Tribunal decision dated 26 April 2022, p 166 at [31].
The Tribunal expressed further concerns about the first applicant being a genuine temporary entrant on the basis that she had spent many years studying vocational level courses in Australia, which was a downgrade from the Bachelor of Medical Science and Master of Science in Information Technology that she had achieved in India.[10]
[10] Court Book, Tribunal decision dated 26 April 2022, p 166 at [32].
In effect, it also considered that the first applicant’s genuine temporary entrant statement was vague and did not actually specify her intentions concerning future career and what employment opportunities would be available upon attaining the qualifications of the intended course of study.
The Tribunal observed that the information requested from the online questionnaire had not been provided. It also noted that during the 12 years of living in Australia, the first applicant had worked, studied and started a family, and that, collectively, this indicated a preference to remain in Australia.[11]
[11] Court Book, Tribunal decision dated 26 April 2022, p 166 at [34].
At [35] of its written reasons, the Tribunal identified evidence before it concerning the first applicant’s personal ties to India and her relatives, and how these may operate as an incentive to return. However, it then stated that it did not consider these ties capable of supporting a finding that she had a significant incentive to return to India.
At [36], the Tribunal recorded the first applicant’s evidence concerning her motivation to study in Australia, being related to the quality of teachers and courses, but said it found the submissions unpersuasive.
The Tribunal noted the absence of information about the first applicant’s employment income and financial circumstances in Australia and comparatively in India, stating the lack of information and failure to complete the questionnaire was troubling. This lead to the Tribunal stating that economic circumstances in Australia were a significant incentive to remain here. Despite this, the Tribunal made no adverse findings in relation to financial considerations.
The Tribunal then addressed whether it was satisfied that the first applicant was a genuine student and temporary entrant, concluding that the factors falling against this conclusion outweighed those favouring it. The Tribunal considered that the student visa application was being sought primarily to maintain residence in Australia.[12]
[12] Court Book, Tribunal decision dated 26 April 2022, p 167 at [42]-[43].
REVIEW HEARING
The first applicant appeared in person at the hearing on 13 December 2023. She told the Court that she had been unable to obtain legal representation due to the costs involved but stated that she was ready to proceed with her case.
The applicants had not filed any materials pursuant to the procedural orders made by a Registrar on 26 August 2022. The Court Book was received in evidence and marked as Exhibit R1.
The first applicant stated that her preference was to make her submissions after hearing from the first respondent’s legal representative.
First respondent’s case
Mr Slevison appeared for the first respondent. He relied upon written submissions dated 10 September 2023, which the first applicant confirmed she had received. The oral submissions made on behalf of the first respondent were consistent with the written submissions. In short, the first respondent contends that the grounds alleged by the first applicant are either not grounds of jurisdictional error at all or have not been demonstrated to be jurisdictional error.
In brief, the first respondent’s submissions were as follows:
(a)Ground 1 seeks impermissible merits review by the Court. It broadly alleges error in the Tribunal’s findings of fact but fails to disclose any specific jurisdictional error.
(b)At its highest, ground 2 could be interpreted as jurisdictional error based on legal unreasonableness or lack of procedural fairness. Any asserted error based on procedural unfairness is misconceived because the Tribunal merely applied regulation 4.17 of the Regulations and the failure to provide the requested information by 27 March 2022 meant that the applicants lost their entitlement to appear before the Tribunal at a hearing.[13] Further, as to possible alleged legal unreasonableness, the Tribunal identified the Department of Education’s Provider Registration and International Student Management System (“PRISMS”) information it considered and stated what evidence it gave weight to. The Tribunal’s reasons were said to be detailed, thoughtful and did not demonstrate illogicality or unreasonableness.
(c)Ground 3 of the application for review did not amount to a proper ground of jurisdictional error at all.
(d)Ground 4 relates to the same complaints already addressed in respect of ground 2. Further, there was no identification of what fact or issue the Tribunal was said to have failed to consider.
(e)The contentions in ground 5, that the Tribunal failed to consider her genuine intent to study and did not give weight to personal ties to India, are misconceived because the Tribunal did place weight on these factors. Particularly, it accepted that the first applicant was a committed and commendable student but considered her ties to India provided little incentive to return there.
(f)As to ground 6, it related to negative consequences on the first applicant’s mental health and were not relevant matters the Tribunal could take into account under the Act or the Regulations.
(g)Ground 7 amounts to a summary of the previous asserted grounds of jurisdictional error and not a separate or different ground.
[13] See ss 360(3) and 363A of the Act.
Applicants’ case
There are seven paragraphs of purported grounds of review in the application filed on 23 May 2022:
1.The applicant seeks judicial review of the decision of Administrative Appeal in this matter on the grounds that the Tribunal erred jurisdictionally in determining the application adversely and failed to find that applicant satisfied the relevant provisions of the Act and the Regulations.
2.That as an applicant I felt my application has not been dealt with rationally and decided unfairly and has affirmed the refusal under cl 500.212 of Subclass 500 of Student visa.
3.That cl 500.212 deals with the Genuine Temporary Entrant Criteria.
4.That the Tribunal has not reviewed file properly and has not given fair chance to represent my application in order to justify the Genuine Temporary Entrant criteria.
5.The Tribunal has made an error and did not consider genuine intention to study and has not given any weightage to my personal ties back home.
6.The Tribunal failed to consider that affirmation of Department of Home Affair’s decision has adversely affected me both financially and in context to loss time which has not only hampered my career progression but my mental health too.
7.That I submit that the Tribunal failed to consider a potential explanation and provision of Student 500 refusal. That the tribunal decision is made contrary to Natural justice by not giving me due chance to present my case and evidence in support of application. Also, by not considering my previous and current circumstances.
The first applicant’s submissions at the hearing were relatively brief. They focused on the failure of the Tribunal to proceed to determine the review without allowing more time and seeking the missing answers to the online questionnaire. She stated that they had relied on their migration agent to submit all the required information by the due date. She also claimed that the migration agent had not told her that the online questionnaire had to be completed and there had been a miscommunication.
The first applicant argued that she met all the visa requirements and had spent a considerable amount of money on all her studies. She added that there was no limitation on how long a person could stay and study in Australia, and that, had the Tribunal asked for more information, she could have explained that she needs to study all the courses she engaged in to be able to conduct her own business.
EVALUATION
Although there are seven numbered paragraphs in the applicants’ application for review purporting to be grounds of review, it is plain from the terms of grounds 1, 3 and 6 that they must fail because they are not grounds capable of constituting jurisdictional error.
Ground 1 asserts jurisdictional error by adversely determining whether the first applicant satisfied the relevant statutory provisions for eligibility for a temporary student visa. It is a direct attack on the merits of the decision of the Tribunal and fails to identify jurisdictional error.[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].
Ground 3 is merely a reference to the Regulations containing the Genuine Temporary Entrant criteria and it is plain from the written reasons for decision that the Tribunal was cognisant of those provisions and applied them.[15]
[15] Court Book, Tribunal decision dated 26 April 2022, pp 163-164 at [17]-[21].
Ground 6 alleges a failure by the Tribunal to consider the career and mental health effects of the decision by the Minister on the first applicant, but the matters said not to have been considered are irrelevant to the task the Tribunal had, being to determine afresh whether the first applicant satisfied the statutory criteria for a temporary student visa. That is, the career and mental health impacts of visa application processes are not criteria or factors relevant to eligibility.
Grounds 2, 4 and 5 can be dealt with collectively as each ultimately amount to an assertion that the Tribunal failed to undertake its statutory task of review by irrationally, unfairly, or improperly considering the first applicant’s application and evidence before it.
Each of grounds 2, 4 and 5 fail for the following reasons.
There is no dispute that the applicants submitted the materials requested by the Tribunal on 27 March 2022, after the fourteen days required.[16] Her migration agent was on notice as her authorised representative in the proceedings that the information was due by 23 March 2022.[17]
[16] See Court Book at pp 150-151, noting the requirements of s 359B of the Act and 4.17 of the Regulations.
[17] Court Book, pp 141-144.
The legal consequences of not providing the materials on time and not completing the questionnaire are governed by express provisions.[18] Although in this case, the delay in providing the information was short and there was a possible satisfactory explanation for the online questionnaire not having been completed, by virtue of s 360C(3) of the Act, the applicants were not entitled to a hearing.
[18] By s 359C of the Act.
As recorded at [9] of its reasons, in reference to Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, the Tribunal did not have power to then permit the first applicant to appear at a hearing.
While the Tribunal could have extended time for providing the missing answers to the online questionnaire before making its decision given s 359B(4) of the Act, there was no request for an extension of time and it is not reasonable to expect the Tribunal to infer that one was wanted. Accordingly, there was no practical injustice and no denial of procedural fairness in proceeding to make the decision.[19] I infer from the nature and content of the Tribunal’s reasons, which properly address relevant statutory considerations, that the Member was satisfied there was adequate evidence and information before it already to conduct the review.
[19] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [41]-[43] and Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [37].
Before the Court, the first applicant simply asserted that she could have provided the Tribunal with an explanation for why the various courses she studied in Australia were required for a future business. This was a generalised and vague submission and although orders had been made in these proceedings for her to file further evidence she relied upon, she did not do so.[20] The decision to finalise the review and not request further information or evidence has not been demonstrated to lack sense or intelligible justification.[21]
[20] Order 5, Orders made 26 August 2022.
[21] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76].
The first applicant’s submission about there being no limit to the length of time study could be undertaken in Australia also is flawed. The submission plainly ignores the statutory requirement that an applicant demonstrate a genuine intent to temporarily study in Australia. Although the statutory criteria does not expressly limit the length of study or number of courses a person may undertake on a student visa, cl 500.212 of the Regulations and Ministerial Direction Number 69 state expressly that there must be a demonstrated intent to stay in Australia temporarily. “Temporarily” in this context has its ordinary meaning and does not include study that is continuous, recurring indefinitely or permanent.
Ground 7 is plainly in the nature of a submission. It is not capable of constituting a distinct basis for jurisdictional error. To the extent that it summarises or repeats the notions referred to in the other grounds, they are without substance for the reasons already given above.
For the reasons given above at [32]-[39], the contentions contained in grounds 2, 4, 5 and 7 of the application, that the applicants were not afforded fairness or natural justice, fail. Similarly, the contention that the Tribunal proceeded in some legally unreasonable or illogical way is not made out. The Tribunal’s written reasons demonstrate on their face that the relevant statutory considerations were applied and given weight according to the findings made and no demonstrated error is shown.
The application for review is dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 9 February 2024
SCHEDULE OF PARTIES
LNG 27 of 2022 Applicants
Fourth Applicant:
SAHEZMEET SINGH
0
5
3