Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 325
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 325
File number: MLG 2829 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 10 May 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision –whether the Tribunal constructively failed to review the delegate’s decision – whether the applicant was denied procedural fairness – whether the Tribunal made an error of law - whether Tribunal decision was affected by actual or apprehended bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, 359AA, 360, 360A, 476, 477, Div 5 of Pt 5
Migration Regulations 1994 (Cth), cl 572.223
Cases cited: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 5 May 2022 Place: Perth Applicant: The applicant appeared in person. Counsel for the First Respondent: Ms I Ward Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2829 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 23 November 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (student visa).
The applicant’s main allegation of jurisdictional error in the Tribunal decision set out in his written application is that the Tribunal denied him procedural fairness. In his oral submissions, he raised a concern that the Tribunal had misunderstood his oral evidence at the hearing. For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicant is a non-citizen who arrived in Australia in 2009 as the holder of a student visa. He applied for the student visa the subject of this application on 23 September 2015.
On 8 June 2016 a delegate of the Minister refused to grant the applicant the student visa. The delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily and therefore found that he did not meet the criteria in cl 572.223(1)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 9 June 2016 the applicant lodged an application to the Tribunal for review of the delegate’s decision.
On 9 October 2017 the Tribunal sent to the applicant an invitation to attend a hearing on 16 November 2017. This invitation requested that the applicant provide particular evidence to the Tribunal, advised that the Tribunal would assess whether he intended genuinely to stay in Australia temporarily, and enclosed a copy of Ministerial Direction No 53. The applicant provided a statement and a number of academic and supporting documents to the Tribunal on 15 November 2017.
On 23 November 2017 the Tribunal affirmed the decision under review.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant was a genuine applicant for entry and stay as a student for the purposes of cl 572.223(1)(a) of Schedule 2 to the Regulations. The Tribunal acknowledged that it was required to have regard to the factors listed in Ministerial Direction No 53 in assessing the applicant’s circumstances as a whole.
In considering the factors listed in Ministerial Direction No 53, the Tribunal found:
(a)the applicant arrived in Australia in July 2009 and had not departed since that time;
(b)the applicant provided conferment certificates for a Diploma of Management, a Diploma of Business, a Certificate IV in Business, a statement of attainment for two subjects in a Diploma of Marketing and Communication, a Diploma of Marketing and a statement of attainment for six subjects in an Advanced Diploma of Marketing, and a Certificate III in Automotive Mechanical Technology;
(c)the applicant provided a certificate of enrolment for an Advanced Diploma of Marketing and Communication for the period 16 October 2017 to 21 January 2018;
(d)the applicant did not pursue any studies in the period August 2014 to March 2015, but suffered a medical condition during this time which necessitated a period of recovery and which may have prevented enrolment and study in a course for a limited time;
(e)the applicant did not give consideration to pursuing study in India;
(f)the applicant lacked a willingness to return to India and work, the Tribunal was unable to discern any real commitment to opening a business in India, and the applicant did not offer the detail of any real incentive to return to India;
(g)the applicant has a comfortable life in Australia, with the company of family, a home life funded largely by his sister, regular significant remittances from India, the option of part-time work, the pursuit of study and occasional visits from his parents;
(h)the applicant was unable to advance any sound reasons for not undertaking substantially the same courses in India;
(i)the applicant has strong ties of family in Australia and ongoing significant financial support from India;
(j)there was no evidence before the Tribunal to suggest that the applicant had not fully complied with visa conditions in Australia or any other country, that he had ever sought to travel to other countries, or that he had ever held a visa that was cancelled or considered for cancellation; and
(k)the applicant had largely enrolled in short inexpensive courses and spent sustained periods in Australia without successfully completing a qualification.
The Tribunal considered that the applicant was applying for the student visa primarily to maintain ongoing residence in Australia.
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and therefore, did not meet cl 572.223(1)(a) of the Regulations.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 22 December 2017, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant raised four grounds of review in his written application, reproduced below without alteration.
1.I had my application for my Student (temporary)(Class TU) visa refused by the First and Second Respondents.
2.The Second Respondent constructively failed to review the First Respondent's decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to provide further evidence.
3.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant's credibility was an important factor in the Second Respondent's decision that he was not a genuine student.
4.The Applicant strongly believes that he is a genuine student and wishes to appeal the decision in the context of natural justice.
On 19 September 2018 a Registrar of the Court made an Order which, amongst other things, required the applicant to file any amended application, any affidavits, any supplementary court book and written submissions 28 days before the hearing. The applicant has not filed any documents in accordance with the Order. The Minister filed written submissions on
21 April 2022.
The day before the hearing, the applicant sent to my associate an email attaching an audio recording of the Tribunal hearing. Notwithstanding that:
(a)the Order made on 19 September 2018 required that evidence of the contents of any sound recording be presented as a transcript verified by affidavit; and
(b)the applicant provided the audio recording to the Court and the Minister’s lawyer the day before the hearing in circumstances where it appeared to have been provided to him by the Tribunal several months earlier,
I agreed to play in Court those parts of the audio recording that the applicant considered were relevant to his allegation of error in the Tribunal decision.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit of the applicant affirmed on 22 December 2017, annexing a copy of the Tribunal decision;
(c)an affidavit of Jeremy Hutton affirmed on 21 April 2022 and filed on behalf of the Minister, annexing a copy of the applicant’s Provider Registration and International Student Management System (PRISMS) record; and
(d)those parts of the audio recording of the Tribunal hearing which were played in Court.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81]. There might be jurisdictional error in a Tribunal decision if the Tribunal fails to conduct the review in accordance with the provisions in Division 5 of Part 5 of the Migration Act. There might also be jurisdictional error if the Tribunal decision is affected by actual or apprehended bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [112].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Grounds 1 and 4
Grounds 1 and 4 do not assert any jurisdictional error in the Tribunal decision. Ground 1 simply states the fact that the applicant’s application for a student visa was refused by a delegate of the Minister and the Tribunal. Ground 4 simply states the applicant’s belief that he is a genuine student and his desire to seek review of the Tribunal decision. Given that these grounds do not assert jurisdictional error, they do not need to be considered further.
Grounds 2 and 3
By grounds 2 and 3, the applicant asserts that the Tribunal denied him procedural fairness, or alternatively constructively failed to review the delegate’s decision or made an error of law, on the basis that:
(a)the Tribunal failed to sufficiently raise critical matters with him;
(b)the Tribunal failed to extend to him a real opportunity to provide further evidence; and/or
(c)credibility was an important factor in the Tribunal’s decision.
The Minister submitted that these grounds are insufficiently particularised to be the subject of a meaningful response and should be rejected. While I accept that the grounds could be better particularised, I do not dismiss the grounds solely on the basis that they are not properly particularised. The applicant is self-represented and I consider it to be appropriate to endeavour to understand the applicant’s grounds even if they are not particularised. Unfortunately, the applicant did not make any submissions orally at the hearing which explained the grounds as pleaded.
I do, however, accept the Minister’s alternative submission that the Tribunal complied with its procedural fairness obligations, including those in Division 5 of Part 5 of the Migration Act.
The applicant’s first complaint is that the Tribunal failed to raise critical matters with him. The dispositive issue before the Tribunal was the same as the dispositive issue before the delegate, namely, that the applicant did not genuinely intend to stay in Australia temporarily. The applicant, by his migration agent, provided a copy of the delegate’s decision to the Tribunal on 14 June 2016. The applicant was again put on notice that the Tribunal would assess whether he intended genuinely to stay in Australia temporarily, and that Ministerial Direction No 53 would be relevant to this assessment, in the correspondence from the Tribunal dated 9 October 2017.
I am satisfied that the applicant was properly on notice of the issues before the Tribunal.
The information on which the Tribunal relied in making its decision was information that was provided by the applicant to the Department or to the Tribunal. The Tribunal was not required to put the applicant on notice of its thought processes or any concerns that it had about this information: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9]. There was no information before the Tribunal which required the Tribunal to invoke its procedures in ss 359A or 359AA of the Migration Act to give the applicant clear particulars of information that would be the reason or part of the reason for affirming the delegate’s decision: see in particular s 359A(4)(ba) and (b) of the Migration Act.
It is also clear from a review of the Tribunal decision that the Tribunal asked a number of questions of the applicant at the hearing and, in the course of the hearing, the applicant had the opportunity to provide oral evidence to the Tribunal about critical matters. I therefore do not accept that the Tribunal denied the applicant procedural fairness by failing to raise critical matters with him.
The applicant’s second complaint is that the Tribunal did not give him a real opportunity to provide further evidence. The correspondence sent to the applicant on 9 October 2017 requested that the applicant provide evidence to the Tribunal at least seven days before the hearing. The applicant provided documentary evidence to the Tribunal on 15 November 2017, one day before the hearing. This evidence comprised a written statement by the applicant and a number of educational certificates. The applicant provided at the hearing a completed student visa and student history form. The Tribunal had regard to each of these documents.
The Tribunal was required under s 360 of the Migration Act to invite the applicant to a hearing. I am satisfied that the Tribunal did invite the applicant to attend a hearing and that the invitation to attend a hearing complied with the formal requirements in s 360A of the Migration Act. The hearing record shows that the hearing lasted for over one hour. There is no evidence before the Court to suggest that the applicant at any stage asked the Tribunal for more time to provide evidence. I am satisfied that the applicant had a proper opportunity to provide evidence to the Tribunal and to make submissions to the Tribunal.
The applicant’s third complaint is that the Tribunal made adverse credibility findings. It is not clear the basis on which this is said to be an error. In reaching its findings that the applicant applied for the student visa to maintain ongoing residence in Australia, and that he did not genuinely intend to stay in Australia temporarily, the Tribunal had regard to evidence provided by the applicant in relation to his circumstances and considered the factors set out in Ministerial Direction No 53. I am satisfied that the findings made by the Tribunal, including its adverse credibility findings, were open to it on the evidence before it.
Grounds 2 and 3 of the written application do not establish jurisdictional error.
Issues raised by the applicant in oral submissions
The applicant submitted that he provided the audio recording of the Tribunal hearing to the Court to show that, at the time of the hearing before the Tribunal, his health condition was not good, he could barely speak at the hearing and the Tribunal member had difficulty hearing and understanding him.
As mentioned above, I allowed the applicant at the hearing to identify those parts of the audio recording that he relied on to support his submissions to the Court, and those parts of the recording were played in open court. Although at times the applicant’s voice was relatively quiet, there was nothing in the audio recording nor any medical evidence before the Court to suggest that he was unable to effectively participate in the Tribunal hearing. To the extent that there was medical evidence before the Tribunal, this related to a condition which had caused the applicant to be hospitalised for a few days some three years prior to the Tribunal hearing. The Tribunal had regard to this evidence and found that the applicant’s medical condition at the time of his hospitalisation and the need to recover from that condition justified a nine-month break in his studies. I am satisfied that the Tribunal understood the evidence given by the applicant about his medical condition.
The applicant identified a number of other parts of his evidence that he claimed that the Tribunal misunderstood.
The applicant said that he has been consistent in his statement throughout that he intended to study in Australia and then return to India. He submitted that he said many times that he wanted to complete a bachelor’s degree in Australia and then return to India to start a business. Having listened to the parts of the audio recordings played in Court and reviewed the Tribunal decision, I am satisfied that the Tribunal properly understood the applicant’s evidence. For example, at [26]-[28] of its reasons, the Tribunal said:
26.The applicant’s statements and evidence stressed a desire to study in Australia, to achieve a bachelor of business, ‘start a huge project’, after achieving his desired qualifications to pursue ‘opportunities knocking on his door back home’ and ‘embark upon a career of his choice, which is business in his home country’.
27. The Tribunal examined the applicant and asked why he had not returned to India in 2011 after graduation from his IT programs, or in 2014 when he had additional formal qualifications in Business, Management and Automotive Mechanical Technology or in June 2016 when he had earnt a further formal Diploma in Marketing or in June 2017 where he had substantially earnt an Advanced Diploma in Marketing.
28.The applicant advised these qualifications were not sufficient, that he needed further education, and that he needed additional time to be fully prepared as he ‘had promised his parents he would return with the necessary skill set and international exposure to start business and take it to great heights’.
These paragraphs reflect an accurate understanding of the applicant’s written and oral evidence. The Tribunal simply did not believe that the applicant genuinely intended to stay in Australia for a temporary period. The Tribunal was not required to uncritically accept the applicant’s statements that when he had finished the next degree that he wanted to complete, he would return to India. The Tribunal took into account a range of considerations identified under Ministerial Direction No 53 in reaching its conclusion that the applicant wished to stay in Australia indefinitely. Having regard to the Tribunal’s reasons as a whole, the Tribunal’s conclusion and process of reasoning were open to it on the evidence before it and do not evidence any illogicality, irrationality or unreasonableness.
The applicant alleged that the Tribunal misunderstood his evidence in relation to the funding that he received from his parents. The Tribunal recorded that the applicant received $6,000 a year from his parents. The applicant submitted to the Court that he did not say per year and instead referred to receiving payments monthly or every few months. He also said the yearly amount was $16,000, not $6,000. The part of the audio recording in which the applicant discussed the support he got from his parents was played in Court. Although the evidence is at times unclear, there was a point where the figure of $6,000 a year was mentioned by the Tribunal and confirmed by the applicant. It was open to the Tribunal to find that the applicant’s parents sent him $6,000 per year. Further, and in any event, even if there was a mistake in the Tribunal’s understanding of how much money the applicant’s parents sent him, it would be an error within jurisdiction.
The Tribunal relevantly said:
33.The applicant advised he lived with his sister and her family and they support him whilst in Australia, supplemented by remittances from his parents in India of approximately $6,000 per year. The applicant advised he had a number of cousins and their families living nearby. On occasion the applicant’s parents visit Australia.
…
35.The applicant has a comfortable life in Australia. He has the company of family, a home life provided and funded largely by his sister, regular significant remittances from India, the option of part time work, the pursuit of study and occasional visits from his parents. The Tribunal gives weight to the applicant’s circumstances as outlined above as they ‘indicate that the Student visa is intended primarily for maintaining residence in Australia’.
If, contrary to the Tribunal’s understanding that the applicant’s parents sent him approximately $6,000 per year, the applicant actually received a higher amount, this would be an error of fact that would not be significant in the overall context of the Tribunal decision. It would appear that, if the applicant received a higher amount from his parents and $6,000 a year, this would simply reinforce the Tribunal’s finding that he had a comfortable life in Australia.
The applicant also said that he felt that the Tribunal member was becoming aggressive and personal towards him during the Tribunal hearing. This might generously be interpreted as an allegation of bias. Any allegation of bias must be distinctly raised and clearly proved: Jia Legeng at [69]. To establish that the Tribunal was biased, the onus is on the applicant to prove that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]; Jia Legeng at [35].
Nothing in those parts of the audio recording that were played in Court reveal any aggressiveness or bias on the part of the Tribunal member. The Tribunal member asked the applicant a lot of questions and did not uncritically accept the applicant’s answers. However, this is part of the Tribunal’s inquisitorial function and does not represent any personal attack on the applicant. To the extent that the applicant appears to be alleging bias, no jurisdictional error is revealed.
Nothing raised by the applicant in his oral submissions to the Court discloses jurisdictional error.
CONCLUSION
I have found that the applicant has not identified jurisdictional error in the Tribunal decision. It follows that the application to this Court must be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 May 2022
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