Khalak v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 792
Federal Circuit and Family Court of Australia
(DIVISION 2)
Khalak v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 792
File number(s): SYG 2116 of 2018 Judgment of: JUDGE LAING Date of judgment: 28 September 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal’s decision was irrational and illogical – whether the Tribunal denied the applicant procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 369A, 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister forImmigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 20 September 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared in person. Solicitor for the First Respondent Mr M. Gao (HWL Ebsworth) appeared in person on behalf of the First Respondent. ORDERS
SYG 2116 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAKILAHEMAD GULAMMAHAMMED KHALAK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
28 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application 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 LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a national of India. On 24 January 2017, he applied for a student visa.
The Delegate refused the applicant’s visa application on 15 March 2017. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 21 March 2017, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 15 May 2018.
On 4 July 2018, the Tribunal affirmed the Delegate’s decision.
ReLEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
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 considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). That Direction required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
The Direction indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
TRIBUNAL’S DECISION
At [1]-[24] of its decision, the Tribunal summarised the background to the matter as well as the material that was before it. This included the evidence given by the applicant during the hearing before the Tribunal. It also included reference to a s 359A letter that was sent by the Tribunal to the applicant after the hearing and the applicant’s response to that letter. This will be considered further below.
The Tribunal set out the relevant criterion in issue and the effect of Direction No. 69 at [25]-[28]. At [29], the Tribunal stated its conclusion that the applicant did not satisfy the genuine temporary entrant criterion. This was having regard to:
(a)The applicant’s migration history. The Tribunal observed that the applicant arrived in Australia in May 2008. He secured employment shortly afterwards. Whilst he went on to complete a number of courses, he discontinued a course he was undertaking when his employer offered him full time employment and agreed to sponsor him for a Subclass 457 visa (at [33]).
(b)The applicant’s employment in Australia. The Tribunal considered that the applicant’s stable pattern of employment and relative potential earning capacity in India appeared to provide a strong incentive for him to maintain residency in Australia. Although the applicant claimed to have ceased paid employment in December 2016, the Tribunal noted with concern that he had not provided records from his bank accounts in Australia which might have supported this claim (at [34]).
(c)The limited time the applicant had spent in his home country since May 2008. This was considered to give rise to a concern that the applicant had not maintained ties to his home country. Whilst he had strong familial ties including his wife, children and parents in India, his wife and children were included as secondary applicants to his visa application. His wife and parents had previously spent time with him in Australia and his brother was an Australian citizen (at [35]). The applicant had not provided evidence that his parents were dependent upon his support in India, given his absence from India for lengthy periods since 2008 (at [41]).
(d)The applicant’s study history. The Tribunal observed that the applicant had not completed a number of courses in which he was enrolled since he arrived in Australia. The Tribunal considered that he had not adequately explained all of the instances in which this appeared to have occurred. The Tribunal was also concerned that the applicant’s study history appeared to display an overall lack of academic progression and raise concerns that he had enrolled in relatively brief, inexpensive courses, some of which did not have clear relevance to his other studies or stated goals (at [36]). The Tribunal considered it unclear why the applicant’s proposed courses were necessary for him to pursue a career in hospitality in his home country, in circumstances where he had significant working experience and had already studied courses with apparent relevance to this area (at [37]).
(e)The applicant’s stated plans. The Tribunal observed that the applicant did not appear to have made specific plans for future employment in his home country beyond wishing to seek work in good hotels or restaurants. The Tribunal considered that this indicated the applicant’s focus on his circumstances in Australia (at [38]). The Tribunal observed that completion of the applicant’s intended studies would result in him having lived in Australia for over 11½ years on temporary visas (at [39]).
(f)The situation in India. The Tribunal accepted that the applicant had no military commitments in India, or concerns about civil unrest or the political situation, which might provide an incentive for him not to return (at [40]).
The Tribunal considered at [42]:
42.In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including the applicant’s immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69. The Tribunal notes the applicant is currently enrolled in a commercial cookery course and that he has family ties in both India and Australia. The Tribunal notes he has successfully completed seven of the courses he has enrolled in while on the student visas and all the other matters he has raised. However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
Based upon the above, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. Instead, the Tribunal formed the view that the applicant was only using the student program to maintain ongoing residence (at [43]). The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant was unable to meet cl 500.212(a) and affirmed the Delegate’s decision (at [44]-[48]).
Proceedings before this court
The applicant commenced the proceedings before this Court through an application filed on 31 July 2018. An amended application filed on 31 October 2018 stated the following under the heading “Grounds of application” (reproduced verbatim):
1. The decision of Tribunal is irrational and illogical.
2. The tribunal reasoned , at [35] of its decision :
‘The lack of time the applicant has spent in his home country over the period since May 2008 gives rise to concern he has not maintained ties to his home country’
3.The tribunal failed to provide evidence that how a person living away has not ties with his home countries, families, relatives and friends. The average overseas trips for a normal person in Australia in last 10 years would not have been more than 200 days for holidays as the normal person has approved leave of 4 weeks in 365 days of his/her employment time [200-280 days over a 10 year period] . Tribunal also failed to accept that the visa holder is abide by the conditions and if he will be overseas for many months, his visa can be cancelled (eg failure to meet attendance record at college).
4. The tribunal states at [14] of it’s decision:
The Tribunal provided the applicant the opportunity to provide further documentary evidence in support of his claims following the hearing, including records from bank accounts he has opened in Australia covering the period since December 2016, which the Tribunal considered relevant to his claims regarding his employment earnings. The Tribunal also advised the applicant it would seek his comments and response to certain information which would be put to him in a letter, pursuant to s. 359A of the Act.
5.The tribunal failed to request the bank statement in writing as confirmed at the time of hearing in conjunction with other requested information. The tribunal made the decision prior to request the bank statement as stated at the time of hearing while I was waiting such request for mys submission. Please refer the attached transcript Q 47 and Q 49 of assurance of request of the bank statement under s359A of the Migration Act.
Grounds 1 to 3
Ground 1 contended that the Tribunal’s decision was irrational and illogical. No particulars were provided under the numbered ground. However, the applicant’s submissions made clear that the applicant’s complaint in this regard related to the matters raised under grounds 2 and 3. Those grounds took issue with the Tribunal’s reasoning at [35] of its decision, where the Tribunal stated: “The lack of time the applicant has spent in his home country over the period since May 2008 gives rise to concern he has not maintained ties to his home country”.
The applicant submitted that a person living away from home can still maintain ties with their home country, family and friends. The applicant observed that others in Australia would not spend greater time overseas as they would be limited by their employment in Australia. The applicant submitted that he had maintained ties with his family and friends overseas including at times by travelling to India. The applicant complained that the Tribunal had not provided evidence as to how he had failed to maintain ties and had failed to consider that if he was overseas for too long his visa might be cancelled due to his failure to attend college.
Grounds such as illogicality, irrationality and unreasonableness have high thresholds. Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). Illogicality or unreasonableness may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464 at [43]). However, such tests have been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ). They are not met where reasonable minds could have come to different conclusions (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ).
I do not accept that the high thresholds posed by such grounds have been met in the present case. The Tribunal had regard to and accepted that the applicant had strong familial ties to India in the form of his wife, children and parents (at [35] and [41]). However, the Tribunal considered that the effect of this evidence was limited by his inclusion of his wife and children as secondary applicants in his application for the visa and by his family’s other ties to Australia.
It was open to the Tribunal to consider that the limited time the applicant had spent in India since 2008 may limit the ties he had maintained with that country. The Tribunal was obliged to have regard to the applicant’s circumstances in India by Direction No. 69. Whilst the Tribunal could have taken into account time spent by others in Australia overseas, it was not obliged to do so. Simply because another decision maker may have reasoned differently did not make it illogical, irrational or unreasonable for this Tribunal member not to have done so. It is understandable why the Tribunal member in this case may not have considered it necessary to reason in such a manner. The focus of its decision was upon what the applicant did and intended and not upon others in Australia.
The applicant does not appear to have raised to the Tribunal that specific conditions of his visas precluded greater travel to India. The Tribunal set out at [24] the applicant’s evidence that he had visited his family every year because he was studying in Australia and could only visit them during vacations. However, it remained open to the Tribunal to hold concerns about the limited time he had spent in India, particularly in circumstances where there appeared to be periods of time in which the applicant had not studied.
The Tribunal was not obliged to reason that the applicant’s limited time spent in India was attributable to conditions on his visas. Clearly enough, the Tribunal was aware that the applicant had been on student visas at various times and had studied at various times over the course of his residence in Australia.
As I do not accept that it was closed to the Tribunal to have regard to the limited time spent by the applicant in India in the manner that it did, grounds 1 to 3 are unable to succeed.
Grounds 3 and 4
In relation to grounds 3 and 4, the applicant contended that the Tribunal denied him procedural fairness by misleading him into not providing his bank account statements and then holding their non-provision against him.
The applicant submitted that at the hearing before the Tribunal, the Tribunal had told him that it would seek those and other documents from him in writing. The letter subsequently sent by the Tribunal did not request his bank statements and therefore the applicant did not provide them. The Tribunal nonetheless took issue with this at [14] and [34] of its decision as follows:
14.The Tribunal provided the applicant the opportunity to provide further documentary evidence in support of his claims following the hearing, including records from bank accounts he has opened in Australia covering the period since December 2016, which the Tribunal considered relevant to his claims regarding his employment earnings. The Tribunal also advised the applicant it would seek his comments and response to certain information which would be put to him in a letter, pursuant to s.359A of the Act…
34.He claims he ceased working in paid employment in December 2016. However, the Tribunal notes with concern that he failed to produce records from accounts he has operated in Australia which could have supported this claim.
In support of these grounds, the applicant provided evidence in the form of a transcript of the Tribunal hearing. That transcript indicates at Q42 that the Tribunal had informed the applicant it was going to put certain information to him pursuant to s 359AA of the Act. It then put to him certain information from the Provider Registration and International Student Management System (PRISMS) in relation to his study history. The Tribunal advised the applicant that he was able to seek more time in which to respond to the information. The applicant sought further time to do so in writing. This was the context in which the statements by the Tribunal at Q47 of the transcript appear to have occurred:
Q47 O.K. We'll finish here and I'll put the information to you actually in a letter pursuant to 359A of the Migration Act. I'll also require you to provide account statements for the two bank accounts you operate in Australia since December 2016. That will just be to see if they support your claims of your economic circumstances since December 2016 in Australia. O.K. That will be the end of the hearing. And I'll take submissions from you in a written form, Mr ..... O.K.
At Q49, the Tribunal further stated:
Q49I will be providing, obviously the section 359A letter that I'll be providing two weeks' notice.
At Q51, the Tribunal stated:
Q51I'm not going to grant four weeks to provide a response to that, to you getting the transcript. What I'm saying is, I will agree to send you the particular information in a letter form, that's under a different part of the Migration law, that provides a two week time to respond from the time when you get the letter, and I won't make a decision before that time has passed. If you wish for the time to consider, if you want to, if you want to ask for further time to make any written arguments to the Tribunal you can put that request to the Tribunal. I'm not going to say what, what response I would make to that request.
For the Minister, Mr Gao submitted that on a fair reading of the above passages, the Tribunal did not undertake to invite the applicant to provide his bank statements in writing. Rather, the Tribunal told the applicant and his representative that it would put the matters it had expressed as having been put according to s 359AA of the Act (i.e. the PRISMS information) in writing. This is the material that ultimately formed the subject of the s 359A letter that was sent. Whilst the Tribunal had additionally stated that it would require the applicant’s bank statements, this was a separate request.
Mr Gao’s submissions accord with my reading of the transcript. Whilst there may have been some misunderstanding on the part of the applicant and his representative, I do not find that this understanding followed from a natural interpretation of what the Tribunal said. Upon my reading of the transcript, the Tribunal identified that the letter it proposed to send concerned the information it had identified as having been put to the applicant pursuant to s 359AA.
Noting that the applicant was unrepresented, Mr Gao additionally raised that the Tribunal’s request for the bank statements was made pursuant to s 359 of the Act. Mr Gao observed that this provision gives the Tribunal a discretion to invite information orally or in writing. That discretion must be exercised reasonably.
However, Mr Gao submitted that it was not unreasonable for the Tribunal not to have requested the bank statements in writing in circumstances where:
(a)The Tribunal had informed the applicant of the reasons it required the bank statements (at Q47);
(b)The statements had been requested orally at the hearing;
(c)The applicant was assisted by both an interpreter and a migration agent at the hearing; and
(d)No step was taken by the applicant’s representative subsequent to the hearing to query whether the statements were still required by the Tribunal when responding to the Tribunal’s s 359A letter.
Mr Gao further noted that the Tribunal’s decision was not made until 4 July 2018, more than a month after the statements had been requested. Mr Gao therefore submitted that the Tribunal had given the applicant ample time in which to provide the statements.
I accept that in the above circumstances, the Tribunal’s approach in not further requesting the statements in writing had an “evident and intelligible justification”: Minister forImmigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]. Even accepting that there may have been some misunderstanding on the part of the applicant or his agent, it does not follow that the Tribunal’s procedure was unreasonable in the relevant, legal sense.
For these reasons, I do not accept that grounds 2 or 4 are able to succeed.
Other matters
At the hearing, the applicant additionally submitted that he had completed a substantial part of his course. He submitted that he wished to finish it and wished to contribute to Australia. The applicant submitted that he had now spent some time away from his family, including his children, and that he wanted a favourable decision in this matter so that they could be reunited.
I am not unsympathetic to these submissions. However, as I explained at the hearing, this Court does not have the power simply to remake the Tribunal’s decision or to decide whether or not the applicant should be granted a visa. The role of this Court is limited to determining whether a material legally recognised error is apparent in either the procedure or the decision of the Tribunal. Upon my own review of the materials, I have not identified such an error in the present case.
conclusion
For the above reasons, the application before the Court must be dismissed.
I will hear the parties in relation to costs.
38 I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 28 September 2022
0
4
0