Lam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 46
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 46
File number(s): BRG 680 of 2020 Judgment of: JUDGE EGAN Date of judgment: 16 September 2021 Catchwords: MIGRATION – Application for further Student Visa – whether Tribunal misinterpreted the meaning of “genuinely intends to stay in Australia only temporarily” – whether typographical and grammatical mistakes material to the Tribunal’s determinations – no jurisdictional error established on the part of the Tribunal – application dismissed. Legislation: Migration Regulations 1994 (Cth) sch 2, cl 500.212.
Ministerial Direction No. 69.
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Vidiyala v Minister for Home Affairs [2018] FCA 1973.
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 9 September 2021 Date of hearing: 9 September 2021 Solicitor for the Applicant: Ms D. Jebsen of Aus Law Partners Solicitor for the First Respondent: Mr D. McLaren of Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 680 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: PAK HEI LAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 12 August 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $5, 900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 EGAN:
Introduction
The applicant is a citizen of Hong Kong who arrived in Australia on 16 July 2011 on a Higher Education Student (Class TU) (Subclass 573) Visa.
The applicant was granted further Subclass 573 Student visas on 23 October 2015 and 14 March 2016. The applicant was granted a Skilled (Provisional) (Class VC) (Subclass 485) Visa on 25 November 2016. The applicant left Australia for a period of three (3) months after the expiration of that visa, before returning to Australia on 21 August 2018 as the holder of a Working Holiday (Class TZ) (Subclass 417) Visa. On 20 August 2019, the applicant lodged an application for a Student (Temporary) (Class TU) (Subclass 500) visa, that application being the subject of the Court’s present consideration.
On 24 September 2019, a delegate of the Minister refused to grant the applicant a Student visa on the basis that the delegate was not satisfied that the applicant genuinely intended to stay in Australia only temporarily, such that cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) was not met. Clause 500.212 relevantly provided as follows:
“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.”
On 18 October 2018, the applicant lodged an application for review of the delegate’s decision by the Administrative Appeals Tribunal (‘the Tribunal’).
The applicant appeared before the Tribunal on 9 December 2020 with the assistance of his legal representative.
On 11 December 2020, the Tribunal affirmed the decision of the delegate.
On 31 December 2020, the applicant lodged an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 12 August 2021, the grounds of which were as follows:
“3.The Tribunal member misconstrued cl.500.212 of the Migration Regulations 1994, failed to ask itself the correct statutory question, or apply the correct test.
Particulars:
(1) The Tribunal member misinterpreted the meaning of “intends genuinely to stay in Australia temporarily”; and
(2) The Tribunal member had failed to consider how long the applicant intended to stay in Australia when construing cl.500.212 (a).
4.By simply jumping into the conclusion, the Tribunal member had failed to reveal a rational and intelligible reasoning process to its conclusion, and therefore, the decision of the Tribunal was infected by jurisdictional error.
Particulars:
(1) The Tribunal had failed to make a finding that the applicant did not genuinely intend to stay as a student.
(2) The Tribunal member had failed to make a finding that the applicant intended to stay in Australia indefinitely.
5.The Tribunal member failed to exercise its jurisdiction and the applicant was not afforded procedure fairness.
Particulars:
(a) The Tribunal member’s decision was illogical and lacked sense.
(i) In the Tribunal’s decision record, at paragraph 13 b. it stated: “he does not like accounting, he was studying it to fulfil his parents ambitions for me to have an Australian university degree; but I actually failed at it because he failed to find work.” Further, in paragraph 13 e. “In Hong Kong he has parents, who are in retirement, and they receive income from rental properties in mainland China. They have told him that if he wats to pen my restaurant or food brand in Hong Kong, they will help him financially….”.
(ii) The applicant was not provided with settled reasons to allow him to contemplate sensibly and responsibly before an appeal.
(iii) By failing to provide the applicant with a settled and accurate written record of the decision, the applicant’s social and language disadvantages were not recognised.
(b) The Tribunal member took irrelevant factors into account when considering the applicant’s personal circumstances in his home country and weighted them against the applicant.
(i) Specifically, the Tribunal member took the factors of the applicant’s time and study history in Australia into account when applying “Direction 69, the applicant’s personal circumstances in his home country” and used the factors weights against him.”
Ground 3 of the Amended Application was a claim that the Tribunal member had misinterpreted the meaning of “intends genuinely to stay in Australia temporarily”. It was further claimed that the Tribunal member had failed to consider “how long” the applicant intended to stay in Australia when construing cl. 500.212(a) of Schedule 2 to the Regulations. There is no merit to such Ground.
As to the claim that the Tribunal had failed to consider how long the applicant intended to stay in Australia, and that the Tribunal did not make a finding that the applicant did not genuinely intend to stay as a student, the Court finds that the Tribunal appropriately addressed the matters required for consideration under cl. 500.212 of Schedule 2 to the Regulations.
Though the Tribunal was not under any mandatory statutory obligation to do so, the Tribunal also had regard to the matters which were said should be addressed under Ministerial Direction No. 69. It addressed the applicant’s circumstances in Hong Kong at [15] of its reasons, the applicant’s potential circumstances in Australia at [19] of its reasons, the value of the course to the applicant’s future at [21] of its reasons, and the applicant’s relevant immigration history at [18] and [22] of its reasons.
At [22] and [23] of its reasons, the Tribunal said as follows:
“[22]Direction 69 requires the Tribunal to consider the applicant’s immigration history. As described earlier in these reasons, the applicant has been in Australia for most of nine years, which at the age of 27, is more than a third of his life. His initial student visa, and his graduate visa, were sought with reasonable justification for someone who wished to attain a Bachelor degree and gain work experience in Australia as a graduate before returning to start a career in his home country. His return from Hong Kong, however, two months after he left Australia because his visa had expired, tends to suggest that the applicant’s real intent is to prolong his stay, as is canvassed earlier in these reasons. The Tribunal having considered the applicant’s immigration history, weighs his circumstances against him.
Overall Conclusion
[23]Having weighed the applicant’s circumstances and history separately and as a whole, and against the factors in Direction 69, the Tribunal concludes that the applicant is using the student visa program to extend his stay in Australia.”
The Court finds that there was no basis for the claim that the Tribunal had failed to consider how long the applicant intended to stay in Australia. Such consideration had clearly been set out in the Tribunal’s reasons. The Tribunal was not required to particularise in minute detail each and every aspect of its reasoning process before arriving at its decision in that regard. [1]
[1] See Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236
FCR 593 per French, Sackville and Healy JJ at [46] – [47].
Ground 4 of the Amended Application was a claim that the decision of the Tribunal was irrational and unintelligible, and thereby effected by jurisdictional error. There is no merit to such claim.
As to the claim that the Tribunal had failed to make a finding that the applicant did not genuinely intend to stay in Australia as a student, the Tribunal specifically found that it was not satisfied that the applicant intended genuinely to stay in Australia only temporarily at [24] of its reasons. There is no merit to such claim.
As to the claim that the Tribunal member had failed to make a finding that the applicant intended to stay in Australia indefinitely, such claim was not a claim which was required to be considered by the Tribunal. The Tribunal was required to make a determination as to whether cl. 500.212 of Schedule 2 to the Regulations had been met or not. The question of indefinite stay on the part of an applicant was not a consideration under cl. 500.212 of Schedule 2 to the Regulations. The claim is without merit.
At [23] of its reasons, having weighed up all of the evidence, including the applicant’s circumstances and visa history, the Tribunal found that the applicant was using the Student Visa program to prolong her stay in Australia. No question as to whether the applicant intended to prolong her stay indefinitely arose. The Tribunal merely had to find that only one (1) of the criteria in cl. 500.212 had not been satisfied. As was said by Perry J in Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [28]:
“[28]… It is apparent from the use of the word “and” at the end of subclauses (a) and (b) of clause 500.212 that the appellant had to satisfy the Tribunal that each of the criteria in (a), (b) and (c) were met. It follows that once the Tribunal found that the criterion in subclause (a) was not met, the Tribunal was required to dismiss the visa application irrespective of whether the criteria in subclauses (b) and (c) were met. It follows that the FCC correctly held that the Tribunal was not required to consider the criteria in clause 500.212(b) and (c) before it could lawfully decide to affirm the delegate’s decision to refuse the application.”
There is no merit to Ground 4 of the Amended Application for Review.
As to Ground 5 of the Amended Application for Review, it was submitted on behalf of the applicant that the Tribunal member’s decision was illogical and “lacked sense”. The applicant’s lawyer submitted that there were grammatical and spelling errors in the reasons of the Tribunal which robbed the decision of meaning, such that the applicant was not afforded procedural fairness. Specifically, the applicant’s lawyer pointed to the following as being examples of how the Tribunal member was said to have erroneously recorded what was said at the time of the hearing in exchanges between the Tribunal member and the applicant, referencing the transcript of the hearing filed on 28 July 2021, for the purpose of doing so:
(a)Paragraph 13(b) of reasons
It was submitted that the Tribunal member had incorrectly recorded what was said at the time of the hearing as relevantly recorded at Transcript p 4 at .7 - .33. True it was that the words used by the Tribunal member at 13(b) clumsily reflected what was actually said, but when reading that sub-paragraph in context with the transcript, the Court finds that there was no basis for any confusion. It was clear that the Tribunal member had correctly recorded the gist of what the applicant had said.
(b)Paragraph 13(e) of reasons
Again, the grammatical error recorded in that sub-paragraph was strictly not in accordance with what was said at the hearing as recorded at Transcript p 8 .1 - .6 in relation to the opening of a restaurant. Reference was made in the reasons to the word “my” instead of “a” when referring to the possibility of the applicant opening a restaurant in Hong Kong, but there was no basis for any confusion as a result of such error. The gist of what was said was correctly recorded.
(c)Paragraph 13(g) of reasons
This is another example of how what was said in the reasons of the Tribunal was effectively what was said at the time of the hearing as recorded at Transcript p 9 .44 – p 10 .5.
The applicant’s submissions in respect of Ground 5(a) were without merit, and made with an eye too keenly attuned to error. As was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ at [46] – [47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Further, for a claim of illogicality or irrationality to succeed, extreme illogicality or irrationality must be shown. Such was not found to be the case before the Court. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] and [55], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
There was no extreme illogicality or irrationality on the part of the Tribunal. The Tribunal carefully considered all of the evidence before arriving at its decision. The fact that there were typographical or grammatical errors in the reasons of the Tribunal does not necessarily constitute jurisdictional error. They were of no moment. There is no merit to such claim.
Though the claim in Ground 5(b) is framed in incomprehensible terms, the Court finds that the Tribunal did not err insofar as it considered the factors to be taken into account under Ministerial Direction No. 69. As found earlier, the Tribunal appropriately addressed the relevant criteria when considering whether the applicant intended to genuinely stay in Australia only temporarily. There is no merit to Ground 5 of the Amended Application for Review.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 September 2021
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