Leka v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 123

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123

File number(s): ADG 272 of 2021
Judgment of: JUDGE GERRARD
Date of judgment: 7 February 2025
Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal –– whether Administrative Appeals tribunal breached s 359A or s 359AA of the Migration Act – whether obligation to put information to applicant – whether Tribunal could rely upon common knowledge or common sense – irrationality – no jurisdictional error established – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 359AA, 359A, 359A(1), 359A(4)(a)

Migration Regulations 1994 (Cth) cll 500.212, 500.212(a), 500.311

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130

Minister for Immigration and Citizenship v MZYCE [2010] FCA 767

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297

SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 436 FCR 549

Webb v Minister for Home Affairs (2020) 170 ALD 511
Division: Division 2 General Federal Law
Number of paragraphs: 109
Date of last submission/s: 4 September 2024
Date of hearing: 30 October 2024
Place: Adelaide
Counsel for the Applicants: Oliver Morris
Solicitor for the Applicants: MSM Legal
Counsel for the First Respondent: Alex Chan
Solicitor for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 272 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

VIOLETA LEKA

First Applicant

ARBEN LEKA

Second Applicant

ALISIA LEKA (and another named in the Schedule)

Third Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GERRARD:

INTRODUCTION

  1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Student (Class TU) (Subclass 500) visas (the visas). For the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error (Plaintiff…

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AGLC
Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123
Case
[2025] FedCFamC2G 123
Decision Date

CaseChat Overview and Summary

The case of Leka v Minister for Immigration and Multicultural Affairs involves an application by Ms Leka, a citizen of both Italy and Albania, and her family, for a review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse their student visas. The applicants had applied for a Student (Temporary) (Class TU) visa, subclass 500, to study in Australia. The Tribunal found that the applicants did not meet the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994. The applicants sought a review of the Tribunal’s decision, arguing that the Tribunal had committed jurisdictional error in failing to put adverse information to the applicants as required by ss 359AA and 359A of the Administrative Appeals Act 1975.

The central issue in this case was whether the Tribunal had breached ss 359AA and 359A of the Administrative Appeals Act 1975 by not putting certain adverse information to the applicants. The applicants argued that the Tribunal failed to put adverse information to them, which would have given them an opportunity to respond and potentially address the concerns raised by the Tribunal. The Tribunal, on the other hand, found that it had adequately considered all relevant information and had provided the applicants with an opportunity to respond. The court had to determine if the Tribunal’s decision to affirm the delegate’s refusal of the student visas was free from jurisdictional error.

The court held that the Tribunal did not commit jurisdictional error in its decision. It found that the Tribunal had properly considered all relevant information and had given the applicants an opportunity to respond. The court noted that the Tribunal had invited the applicants to provide further information about their courses and entry into Australia, and had considered all the information provided. The court also found that the Tribunal had adequately explained the reasons for affirming the delegate’s decision. The court concluded that there was no jurisdictional error in the Tribunal’s decision, and thus the application for review was dismissed.

In conclusion, the court dismissed the application for judicial review, finding that the Tribunal had not committed any jurisdictional error in its decision. The Tribunal’s decision to affirm the delegate’s refusal of the student visas was upheld.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed. BACKGROUND Ms Leka (the applicant) is a citizen of both Italy and Albania, having been born in Albania (CB 3). Mr Leka is a citizen of Italy and is the applicant’s husband (CB 5-6). The third and fourth applicants are the children of the first and second applicants, and were born in Italy in 2015 and 2012, respectively (CB 7-10). They first arrived in Australia on 15 August 2018 on visitor visas (CB 169, 265). On 8 November 2018, the applicants applied for the visas (CB 1-30). In that visa application, the applicant indicated that she intended to study a general English Language Intensive Course for Overseas Students (ELICOS) course, which she completed in November 2019 (CB 2, 172). She included the second, third and fourth applicants as members of her family unit (CB 5-12). The applicants appointed a migration agent as their authorised recipient (CB 14). On 22 November 2018, a delegate of the first respondent (the Minister) wrote to the applicants’ migration agent requesting further information from the first, second and fourth applicants (CB 99-106). On 21 December 2018, the applicants provided the delegate with a ‘Change of Address Details’ form (CB 107-110), ‘Notification of incorrect answer(s)’ form (CB 111) and other information from the first, second and fourth applicants (CB 112-129). On 18 February 2019, the delegate refused to grant the applicants the visas (CB 130-146). The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 138, 141). That criterion provides:The applicant is a genuine applicant for entry and stay as a student:(a) 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… On 4 March 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 147-149). On 15 January 2021, the Tribunal wrote to the applicants’ migration agent, inviting them to provide further information in a ‘Request for Student Visa Information’ form (the Information form) by 29 January 2021 (CB 157-160). The Tribunal also provided the applicants with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 161-165). In January 2021, the applicants’ migration agent provided a completed Information form (CB 166-180), which attached other supporting documentation (CB 181-230). In that form, the applicant advised that she was enrolled in a Certificate III in Commercial Cookery, and that she intended to study a further Certificate IV in Commercial Cookery and Diploma in Hospitality Management (CB 172).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 6 August 2021, the Tribunal notified the applicants of its decision (CB 260-262), affirming the delegate’s decision not to grant the applicants visas (CB 263-277). THE TRIBUNAL’S DECISION To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail. The Tribunal’s reasons began by identifying the visa under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 8 November 2018 (at [2]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant satisfied the requirements of cl 500.212 of Schedule 2 to the Regulations (at [3]). Consequently, the delegate found that the secondary applicants, her husband and children, did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and did not meet the criteria for the grant of a student visa (at [4]). The Tribunal confirmed that the applicants appeared before the Tribunal on 15 April 2021 to give evidence and present arguments, with the assistance of an Italian interpreter (at [5]). The Tribunal also confirmed that the applicants were assisted in relation to the review by their migration agent (at [6]). The Tribunal found that the issue before it was whether the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Regulations (at [9]). The Tribunal set out cl 500.212 in that regard (at [10]). The Tribunal explained that, in considering whether the applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction 69. The Tribunal set out a number of factors it was required to consider, including the applicant’s circumstances in their home country, their immigration history, the intentions of a parent or legal guardian for an applicant who is a minor, and any other relevant information (at [11]). It emphasised that the factors specified should not be used as a checklist, but rather are intended to guide decision makers when considering the applicant’s circumstances as a whole (at [12]). Against this background, the Tribunal made the following findings. The Tribunal outlined that the applicant first came to Australia on 15 August 2018 with her husband and two children on a visitor visa (at [13]). The Tribunal confirmed that prior to the hearing, on 29 January 2021, the applicant filed a response pursuant to an invitation to supply student visa information about her courses, as well as information about her entry and stay in Australia. She also filed various supporting documentation in support of this invitation (at [16]).

Ratio Decidendi

Legal Principle Established

At the hearing of this matter, counsel for the applicant advised that the applicant no longer pressed any error arising from impugned finding 5.CONSIDERATIONGround one – Did the Tribunal breach sections 359AA and 359A? Sections 359AA and 359A require the Tribunal to put certain adverse information to an applicant which would be the reason or part of the reason for affirming the decision under review. Those provisions relevantly state:359AA Information and invitation given orally by Tribunal while applicant appearing(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii) orally invite the applicant to comment on or respond to the information; and(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).359A Information and invitation given in writing by Tribunal(1) Subject to subsections (2) and (3), the Tribunal must:(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and(c) invite the applicant to comment on or respond to it.(2) The information and invitation must be given to the applicant:(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.(4) This section does not apply to information:(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or(b) that the applicant gave for the purpose of the application for review; or(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or(c) that is non‑disclosable information.(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).