Kurucz v Minister for Immigration
[2020] FCCA 1928
•16 July, 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KURUCZ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1928 |
| Catchwords: MIGRATION – judicial review – no jurisdictional error – dismissed – costs |
| Legislation: Migration Act 1958 (Cth), ss.359AA Migration Regulations 1994 (Cth) reg.500.212(a) |
| Cases cited: Minister for Home Affairs v Buadromo [2018] FCAFC [2003] FCAFC 151 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | ZENO KURUCZ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1010 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 29 May, 2020 |
| Date of Last Submission: | 29 May, 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 July, 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Irish Bentley Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 26 November, 2019 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1010 of 2019
| ZENO KURUCZ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 26 November, 2019 the applicant seeks judicial review of a decision of the second respondent made on 3 November, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance. The first respondent has filed written submissions in accordance with the directions made for the programming of the application to a final hearing. The applicant has filed no written submissions. At the hearing before me, a solicitor appeared on his behalf and made oral submissions.
When the application came before me for hearing, the applicant appeared by a solicitor and sought an adjournment of the hearing so that he could undergo a psychiatric appointment. The evidence before me was to the effect that the appointment was part of the ongoing treatment or monitoring of a mental health condition from which the applicant suffers, as I have set out below. For the reasons I gave at that time, I refused the adjournment application.
Background
The applicant and his representative did not take any issue with the recitation of the background facts set out by the first respondent in his written submissions. I have drawn upon that background in these reasons.
The applicant is a 26 year old Hungarian citizen. He arrived in Australia on 3 October, 2007 when he was 13 years of age. At that stage he was dependent on his mother’s Student (Class TU) (Subclass 572) visa. He has not left Australia since his arrival. On 9 September, 2010 he was granted another dependent visa.
On 22 October, 2012 after he completed secondary school, he applied for a Student (Class TU) (Subclass 572) visa in his own right. That application was granted on 9 April, 2014. He was then granted two further student visas in his own right on 19 November, 2014 and 13 March, 2018.
On 9 November, 2017 the applicant was granted a Medical Treatment (Class UB) (Subclass 602) visa, following a diagnosis of bipolar disorder.
On 29 January, 2018 two days before his extant visa expired, the applicant applied for the visa that is the subject of these proceedings.
In his visa application the applicant asserted that he was applying for the visa to enable him to undertake a Certificate III in Light Vehicle Technology and a Certificate IV in Automotive Performance Enhancement at a TAFE. On three separate occasions in the application and supporting documents, he asserted that the two certificates would “equip [him] with skills and knowledge that will be very beneficial for him when he returns to Hungary at the end of his course.”
The confirmations of enrolment provided with the application stated that the Certificate III would be completed on 6 September, 2019 and the Certificate IV would be completed on 29 November, 2019. The applicant has completed the Certificate III and he was undertaking the Certificate IV at the time of the Tribunal’s decision in 3 November, 2019.
When asked by the Tribunal at the hearing when he planned to leave Australia, he said that he was “thinking of applying for a Graduate Visa and then applying for permanent residency” and that “if he can apply for permanent residency, he will”. He said that he disclosed those intentions because “he just wants to be honest”.
On 6 March, 2018 a delegate of the first respondent requested further information from the applicant, including in relation to whether he was a genuine temporary entrant. On 17 April, 2018 the applicant’s agent provided submissions and further evidence in response to the delegate’s request.
On 10 May, 2018 the delegate refused to grant the applicant the visa for which he had applied. The delegate was not satisfied that the applicant intended to stay in Australia temporarily and therefore found that he did not meet reg.500.212(a) of the Migration Regulations 1994 (Cth).
On 24 May, 2018 the applicant applied to the second respondent for review of the delegate’s decision. On 11 June, 2019 the second respondent invited the applicant to provide information relating to the factors in Direction 69. On 9 July, 2019 the applicant’s agent provided submissions in response to the invitation. On 27 August, 2019 the second respondent invited the applicant to attend a hearing scheduled for 13 September, 2019. On 11 September, 2019 the applicant’s agent provided further evidence and submissions. On 13 September, 2019 the applicant appeared before the second respondent to give evidence and present arguments at a hearing.
At the hearing, the second respondent put the applicant’s Provider Registration International Student Management System records to him pursuant to s.359AA of the Act. The applicant elected to comment on the information at the hearing.
The second respondent identified the issue in the review as being whether the applicant met reg.500.212(a) and noted that it must have regard to Direction 69 in determining whether the applicant met that criterion. The second respondent made these findings in relation to the factors in Direction 69:
a)the applicant’s family ties constituted a strong incentive to remain in Australia;
b)the evidence before it demonstrated a pattern of distinct changes in study which was a clear trend that went beyond the reasonable changes in study contemplated by Direction 69;
c)the second respondent did not consider the applicant’s academic progress to be that of a genuine student because of these factors:
i)the amount of time he has spent in Australia (12 years);
ii)the fact he has only completed courses in the vocational, education and training sector;
iii)the fact that he has swapped the focus of his studies a number of times;
iv)the fact that he told the second respondent he now intended to remain in Australia permanently;
d)those same factors led the second respondent to conclude that it was not satisfied that the applicant was not proposing further short inexpensive courses in order to maintain ongoing residence in Australia;
e)it accepted that the applicant was not concerned about military service commitments or political or civil unrest in Hungary;
f)the applicant’s inability to read and write in Hungarian was a valid reason for him not to have undertaken the proposed courses in Hungary;
g)a student visa is not the appropriate option if the applicant wants to remain in Australia to undergo further medical treatment;
h)the presence of some of the applicant’s family in Hungary did not constitute an incentive for him to return to Hungary;
i)the second respondent accepted that the applicant had no property in his name in Hungary; and
j)the intentions of any parent, legal guardian or spouse were not relevant because the applicant was an adult.
The second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily. It therefore affirmed the delegate’s decision on the basis that the applicant did not meet reg.500.212(a) of the Regulations. On 3 November, 2019 the second respondent affirmed the delegate’s decision.
Grounds of review
The application for review contains three grounds. I will deal with each of them separately. Ground one is in the following terms (faithfully reproduced):
The Decision of the Tribunal is affected by a jurisdictional error in that, the Tribunal:
(a) Ignored relevant material in the way that affected the exercise of the power;
(b) Took an irrelevant consideration into account in the exercise of the power;
(c) Exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(d) Exercised a power that is so unreasonable that no reasonable person could have so exercised the power; and
therefore, constructively failed to exercise its jurisdiction and the statutory task with which it is charged.
Particulars
(a) The Tribunal failed to consider the Applicants mental health capacity to attend the hearing and rely on his evidence in making the Decision.
(b) The Tribunal ignored the evidence as to the Applicant was diagnosed with Bipolar Disorder (Type II) and received on going treatments, thus lacked capacity to give evidence.
(c) The Tribunal failed to consider relevant material as to the Applicants mothers temporary visa status and her role as his primary carer, to assess the Applicants genuine temporary intention to study in Australia.
(d) The Tribunal failed to take consideration of the Applicants Migration Agents submission.
(e) The Tribunal ignored the evidence regarding the impact of the Decision on the future.
(f) The Tribunal relied on irrelevant material that was given by the Applicant whose mental condition was not considered.
(g) The Tribunal made a decision in accordance with a rule or policy without regard to the merits of Applicants personal circumstances.
(h) The Tribunals decision was so unreasonable as it failed to consider the Applicants mental capacity and give weight to his evidence, that no reasonable person could have so exercised the power.
This ground of review is formulaic although some content is given to the general assertions in the ground by the particulars. The particulars, for the most part, focus this ground upon the mental health condition from which the second respondent accepted the applicant suffered. He had been diagnosed with bipolar disorder and he was the subject of a medical treatment visa in respect of that condition as I have set out above.
In the course of his hearing with the second respondent, the applicant disavowed some of the representations that had been made on his behalf. Specifically, the second respondent recorded:
12. The applicant told the Tribunal that his migration agent had submitted some information to the Tribunal on the 9 July 2019. The applicant indicated that some of the information in the material submitted by his migration agent was incorrect. Specifically, the applicant told the Tribunal that he does not have any interest in European cars or in seeking employment in Europe and the applicant also does not have any contact with his father in Hungary. The Tribunal accepts this evidence of the applicant. The applicant submitted his own statement to the Tribunal on 10 September 2019. The applicant confirmed that all the information in this statement is correct.
The second respondent also recorded that:
22. The applicant's current course is scheduled to conclude on 29 November 2019. When the applicant was asked when he is planning to leave Australia, the applicant told the Tribunal that he is thinking of applying for a Graduate Visa and then applying for permanent residency. The applicant said that if this is not possible he plans to leave Australia to work in the United States to work on American muscle cars there. The applicant said that he just wants to be honest and if he can apply for permanent residency he will, but if he is not successful in gaining permanent residency he can always go.
The applicant now argues that by reason of his mental health issues he was not competent to give evidence and the second respondent ought not to have relied upon the things that the applicant said in the hearing. No doubt, if the Tribunal, when determining an application for review, is satisfied that an applicant is so affected by a mental health condition that the statements made by the applicant are unreliable, it may choose to give those statements no weight. But that, of course, will depend upon evidence available for the Tribunal about the applicant’s ability to give reliable evidence. There was no such evidence here before the Tribunal. As the first respondent submits, there was no evidence before the second respondent, or before this Court, to suggest that the applicant lacked the appropriate capacity to give evidence at the second respondent’s hearing.
Moreover, the applicant was represented throughout the review process by a lawyer and that person did not identify any lack of capacity on the applicant’s part as an issue with which the second respondent had to deal. The lawyer did not appear before the second respondent, but I have no doubt that if concerns were held about the applicant’s capacity, they would have been made known to the second respondent.
Contrary to the applicant’s argument, there was evidence before the second respondent that suggested that the applicant’s mental health condition was well managed and of little impact upon him. As the first respondent submits, that evidence included:
a)a letter from the applicant’s treating psychologist dated 1 April, 2018 which described the applicant’s mental health as “stable”;
b)the applicant’s statement to the delegate in which he said that he had been “feeling like never before”, made in the context that suggested that he was feeling better than he ever had in the past;
c)a statement by the applicant’s mother to the delegate that the applicant was “better” and that his “medical team was impressed with his progress”;
d)an assertion that the applicant was “successfully handling his mental illness” in the applicant’s agent’s submissions to the second respondent;
e)the applicant’s submissions to the second respondent on 11 September, 2019 that his mental health “treatment plan has worked well on [his] condition”; and
f)the applicant’s answer of “no” when asked in the second respondent’s response to hearing invitation form whether there were any issues that may affect his ability to take part in the hearing such as a health problem or disability.
These are all matters which support the proposition that the applicant was able to give reliable evidence to the second respondent. They are matters to which the second respondent could have regard in assessing the reliability of the applicant’s statements.
The factual assertions set out in the second respondent’s reasons for decision were not challenged by the applicant in the hearing before me. Those reasons demonstrate that the applicant gave detailed responses to questions from the second respondent that covered a range of different topics. There is nothing in any of that material, recorded in the second respondent’s reasons, to give cause for concern about the applicant’s capacity to give evidence to the second respondent.
This ground also alleges that the second respondent did not take into account relevant matters and in particular, his mother’s status as a temporary visa holder and the fact that she is his primary carer. I am not entirely sure what is meant by the phrase “primary carer”, but given the applicant’s age it could not be said that his mother had a legal obligation to support him. However, the second respondent recorded that the applicant lived with his mother and his two sisters. It also accepted his evidence that he received “family support” from his mother in Australia which included “emotional support for [his] mental illness”. It also recorded that he knew that she was on some form of temporary visa although he was not sure what type. These are matters that the second respondent took into account when concluding that the applicant's family ties with Australia constituted a strong incentive for him to remain in Australia.
The applicant alleges that the second respondent erred by failing to consider the applicant’s agent’s submissions to the second respondent. However, the second respondent’s reasons for decision demonstrate that that is simply not so. There was no attempt made to advance this particular in support of this ground of review in oral submissions. As the first respondent submits, the second respondent was under no obligation to explicitly set out and then resolve each submission made on the applicant’s behalf, nor was it obliged to give reasons for rejecting or accepting particular pieces of evidence or a line by line refutation of the evidence before it: Minister for Home Affairs v Buadromo [2018] FCAFC [2003] FCAFC 151 at [48]-[49].
To the extent that the applicant argues that the second respondent “ignored the evidence regarding the impact of the decision on the applicant’s future.” The submission assumes that there was some evidence about the impact of the decision on the applicant’s future. None was identified in submissions before me by the applicant. In any event, as the first respondent submits, the negative consequences that would flow from an adverse decision by the second respondent were not mandated for consideration by reg.500.212(a) or Direction 69. An error on the basis of a decision-maker’s failure to take into account a “relevant consideration” can only arise if that consideration was a “mandatory consideration”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
Moreover, and again as the first respondent submits, given that the second respondent’s task was to determine whether the applicant was a genuine applicant for entry and stay as a student, material before the second respondent that tended to suggest that the applicant would not or could not return to his home country at the conclusion of his study, such as negative consequences or impacts upon his mental health of having to do so, were matters which would work against a conclusion in favour of the applicant. Even if the second respondent has committed an error by failing to consider evidence about the impact of the decision on the applicant’s future, a consideration of that evidence would not have assisted the applicant, given the second respondent’s task in this case.
The applicant also argues that the second respondent made a decision in accordance with a rule or policy without regard to the merits of applicant’s personal circumstances. However, on any reading of the second respondent’s reasons for decision, this argument cannot be sustained. The circumstances of the applicant relevant to the second respondent’s evaluation of whether the applicant met reg.500.212(a) were those set out in Direction 69, as the second respondent recorded in its reasons. It is clear from the second respondent’s decision record that it took those circumstances into account.
Nor is the second respondent’s decision demonstrably unreasonable in the legally accepted sense.
Ground one does not reveal any jurisdictional error.
The second ground of review advanced by the applicant is in the following terms:
2. Further, the Decision of the Tribunal failed to comply with the rules of natural justice and therefore afford procedural fairness to the Applicant, such that the denial of natural justice resulted in a jurisdictional error by the Tribunal.
Particulars
(a) The Tribunal failed to consider the Applicants mental health capacity to attend the hearing and rely on his evidence in making the Decision.
(b) The Tribunal failed to consider the Applicants Migration Agents material facts in her submission.
For the reasons I have already outlined above, this ground does not demonstrate jurisdictional error on the part of the second respondent. There was no evidence before the second respondent to suggest that the applicant lacked mental capacity to give evidence at the second respondent’s hearing.
The third ground of review is in the following terms:
3. Further and in the alternative, the Decision of the Tribunal was contrary to public policy.
Particulars
(a) The Applicant repeats the particulars set out in relation to grounds 1 and 2 above and will provide further particulars prior to the hearing of this Application.
This ground was not explored in oral submissions by the applicant. The relevant public policy that has allegedly been breached by the second respondent has not been identified. To the extent that it relies upon the matters in grounds 1 and 2, it does not demonstrate any jurisdictional error on the part of the second respondent.
In addition, the first respondent’s submissions direct my attention to Reynolds v Minister for Immigration & Anor [2010] FMCA 6 at [116]-[121] and the observations that an allegation that an administrative decision is “contrary to public policy” does not invoke a form of jurisdictional error that is known to the law of Australia. That is because the second respondent cannot exceed its jurisdiction by acting in breach of public policy: VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 at [24]. I accept those submissions.
This ground does not reveal jurisdictional error.
Conclusion
The grounds of review pressed by the applicant do not reveal any jurisdictional error and the application must be dismissed on that basis, with costs in the amount claimed by the first respondent.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 July, 2020.
Associate:
Date: 16 July 2020
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