Law v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 685
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Law v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 685
File number(s): MLG 1435 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 1 August 2024 Catchwords: MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – whether the Tribunal acted unreasonably in not granting the applicant an adjournment of the hearing – whether the Tribunal erred by not accepting the applicant’s claims as to his motivation for studying in Australia. Legislation: Migration Act 1958 (Cth) ss 65, 363(1)(b), 474, 476(1), 499
Migration Regulations 1994 (Cth) sch 2, cl 500.212.
Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’
Cases cited: Craig v South Australia (1995) 184 CLR 163
Dunsmuir v New Brunswick [2008] 1 SCR 190
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
LPDT v Miniter for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration, Citizenship and Mulitcultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Tran v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 11 June 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Stone of Australian Government Solicitor Second Respondent Submitting appearance save as to costs ORDERS
MLG 1435 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAW SOON MIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The Applicant has leave to amend the Application filed 24 May 2018 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
2.The Application filed 24 May 2018 be dismissed.
3.The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.
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 J YOUNG:
Before the Court is an Application filed on 24 May 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 9 May 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of Malaysia.
The applicant arrived in Australia on 21 June 2016 on an Electronic Travel Authority (Class UD subclass 601) visa.
On 21 September 2016 the applicant applied for the Visa.
On 6 February 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant.
On 9 February 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as his representative. In the application for review, the Applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.
On 13 April 2018, the Tribunal sent an email to the applicant via his representative’s email address enclosing an invitation for the applicants to attend a hearing on 9 May 2018 at 10.00am with an information sheet attached (13 April 2018 Letter). The Tribunal requested the Applicant provide the following documents, (amongst other things) within seven days of receipt of the 13 April 2018 Letter: a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he is a genuine applicant for entry and stay as a student. The 13 April 2018 Letter also included a ‘Response to hearing invitation – MR Division’ form (Response Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69).
On 3 May 2018, the applicant’s registered migration agent provided the Response Form to the Tribunal. No other documents were provided to the Tribunal prior to the hearing.
On 9 May 2018, the applicant appeared at a hearing before the Tribunal with the assistance of an interpreter in the Malay and English languages. The applicant’s representative did not attend the hearing.
On 9 May 2018, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the Visa (Tribunal Decision).
Tribunal Decision
On 11 May 2018, the Tribunal sent a copy of the decision record to the applicant via his representative’s email address. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of schedule 2 of the Regulations.
In considering whether the applicant satisfied cl 500.212 of schedule 2 of the Regulations, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the applicant’s course to his future, and his immigration history.
The Tribunal took into account the applicant’s oral evidence at the hearing that he did not hold a current COE; that he intended to enrol into a Certificate of Cookery; that after travelling to Australia he had decided he wanted to work and stay here; and that he did not want to return to Malaysia and wanted to stay in Australia. It also had regard to the applicant’s evidence about his family in Malaysia and his employment history in Malaysia and Australia. The Tribunal further took into account the applicant’s evidence that it is his aspiration to open a restaurant and for his children to come to Australia to study and live.
Having regard to the evidence of the applicant’s circumstances overall, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and as such, he was not a genuine applicant for entry and stay as a student.
Accordingly, the Tribunal found that the applicant did not satisfy cl 500.212 of schedule 2 of the Regulations and affirmed the decision under review.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 24 May 2018. The Application contained the following grounds for judicial review (without amendment):
1.I come from Malaysia and has worked and lived all my lifer there and came to Australia as visitor visa purpose. I decided to study improve my English and study in Australia so that I could obtain formal qualification and have better career outcome for myself.
2.I lodged an application for student visa onshore with help of a Migration Agent and application was refused and DIBP claimed that I am not a genuine student.
3.Application for review was lodged with AAT and I went for a hearing to present my matter before the Tribunal Member. My application has been refused and AAT has affirmed DIBP decision. I am aware of the fact that AAT has made few mistakes while making a decision to Affirmed decision.
4.I requested AAT to give me time to provide a copy of CoE and completion of studies letter and AAT refused to accept my request and affirmed decision. I believe that’s an unfair treatment by AAT. AAT has further made an error in law while interpreting definition of Genuine Student. I have clearly explained AAT the purpose of studying in Australia was to improve English and make career in desired occupation. However, AAT has refused to accept my claim and I would like to seek further review of this matter so that Jurisdictional errors made by AAT could be rectified and FCC set new orders and replace decision made by AAT.
5.I would like to present this matter before FCC so that I could have fair treatment and outcome on this matter.
6.I would like to request to FCC to set aside old orders and replace by new orders and accept my application for review as a valid application and decide on this matter at FCC.
An affidavit annexing a copy of the Tribunal Decision was also filed in support of the Application. No other material was filed by the applicant in support of the Application.
The Minister filed an Amended Response on 3 January 2024. The Amended Response sought orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister relied on written submissions and a list of authorities filed on 28 May 2024.
It is noted that the Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Application being amended for the applicant to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I will order accordingly.
The hearing
The hearing took place on 11 June 2024.
The applicant appeared in person at the hearing and was assisted where necessary by an interpreter in the Malay and English languages. Ms Stone, solicitor, appeared for the Minister.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
The Regulations and Direction 69
Clause 500.212 of schedule 2 of the Regulations provides as follows:
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 accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing cl 500.212(a) of schedule 2 of the Regulations for student visa applications.
CONSIDERATION
Grounds 1, 2, 3, 5, and 6
Grounds 1 and 2 provide a summary of the background to the Application and do not assert any jurisdictional error on behalf of the Tribunal.
Ground 3 further sets out the background to the Application and asserts that the Tribunal “made a few mistakes”. At the hearing, the applicant was invited to identify what mistakes the Tribunal made as asserted in Ground 3. The applicant said that the mistakes the Tribunal made were those referred to in Ground 4.
Grounds 5 and 6 ask the Court to review the Tribunal Decision so that the applicant may have “fair treatment and outcome” and for the Court to accept his “application for review as a valid application”. At the hearing the applicant said that he “wanted to stay here.” As set out above, and as I endeavoured to explain to the applicant at the hearing, the Court cannot make orders to grant a visa (see s 476 of the Act) or undertake merits review of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ
Ground 4
By Ground 4 the applicant asserts that:
·the Tribunal acted unreasonably in not granting the applicant an adjournment of the hearing to allow the applicant to enrol in a course; and
·the Tribunal erred by not accepting the applicant’s claims as to his motivation for studying in Australia and by concluding that he did not satisfy the genuine temporary entrant criterion.
Adjournment to provide a COE
At the hearing before the Tribunal, the applicant gave evidence that he was not currently enrolled in a course of study and that his representative was not in attendance as he was at an education provider inquiring about enrolment. The Tribunal Decision notes at paragraph [14] of its decision that on this basis the applicant requested the hearing be adjourned. Paragraph [14] of the Tribunal Decision provides that the Tribunal considered the request but declined to grant an adjournment on the basis that the application before the Tribunal had been on foot for some 18 months, which had given the applicant “considerable time to make arrangements to obtain a certificate of enrolment”.
Pursuant to s 363(1)(b) of the Act the Tribunal has a discretionary power to adjourn its hearing. It is uncontentious that the power is required to be exercised reasonably.
The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of extensive analysis by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] (Li) and the Federal Court of Australia Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Wigney J summarised the relevant principles as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
More recently, in Minister for Immigration, Citizenship and Mulitcultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
The Tribunal’s reasons for refusing the adjournment request are set out at paragraph [14] of its decision. As set out above, the Tribunal declined to grant an adjournment because the application had been on foot for 18 months, and accordingly the applicant had had a considerable period of time to obtain a COE. Those reasons disclose an evident, transparent and intelligible justification for the decision to refuse the adjournment request and were clearly open to the Tribunal on the evidence before it. It is not capricious or arbitrary and in my view falls within a range of possible, acceptable outcomes.
Further, I accept the Minister’s submission that this is not a case where an adjournment would have allowed the applicant to meet a visa criterion or where the failure to adjourn prevented the applicant from adequately presenting his case. The applicant sought an adjournment to allow him to enrol in a course of study and provide a COE. However, the basis for the Tribunal’s decision was not the absence of a COE; rather the Tribunal concluded that the applicant did not genuinely intend to stay in Australia temporarily and therefore did not satisfy cl 500.212 of schedule 2 of the Regulations. Therefore, even if the refusal of the adjournment was legally unreasonable, which I do not consider to be the case, such an error was not material. The decision could not realistically have been different even if the adjournment had been granted and the applicant had been able to provide a COE: LPDT v Miniter for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 at [7], [10], [14].
Applicant’s claims as to motivation for studying in Australia
As to the assertion that the Tribunal erred by not accepting the applicant’s claims as to his motivation for studying in Australia and by concluding that he did not satisfy the genuine temporary entrant criterion, that assertion must be rejected. By such a submission the applicant seeks impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight. This is even more particularly the case when the Tribunal is considering and applying a Ministerial Direction: Tran v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]. The weight to be given to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. In any event, the evidence of the applicant before the Tribunal was that he was not enrolled in a course of study and had no current COE.
Further, I consider that the Tribunal’s findings were reasonably open to it. The Tribunal Decision records that the applicant’s evidence, repeated on multiple occasions throughout the hearing, was that he did not want to return to Malaysia, that he wanted to stay in Australia and that he wanted his children to come to Australia to live and study. In those circumstances, I consider that it was plainly open to the Tribunal to conclude that the applicant did not genuinely intend to remain in Australia temporarily.
For completeness, I note that notwithstanding concluding that the applicant did not meet cl 500.212(a), the Tribunal went on to consider cl 5002.12(b) and (c). It was not necessary for it to do so: Dait v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 288 FCR 1. Accordingly, any error in the reasoning as to cl 500.212(b) or (c) (noting that none is asserted) would be immaterial and would not establish jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.
Accordingly, Ground 4 discloses no jurisdictional error on the Tribunal’s behalf.
DISPOSITION
For the reasons set out above, the Application must be dismissed.
The Minister seeks that the applicant pay its costs in the amount of $ 6,000. I shall order accordingly.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 1 August 2024
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