Lestari v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 662
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lestari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 662
File number(s): SYG 678 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether Tribunal failed to consider relevant evidence – whether Tribunal applicant denied procedural fairness – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 359
Migration Regulations 1994 (Cth) sch 2 cl 200.212, 500.211
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Perera v Minister for Immigration (1999) 92 FCR 6
P119/2002 v Minister for Immigration [2003] FCAFC 230
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 25 July 2023 Date of hearing: 25 July 2023 Place: Parramatta Counsel for the Applicants: There was no appearance on the behalf of the Applicant. Solicitor for the Respondents: Mr Wilson appeared on behalf of the First Respondent. ORDERS
SYG 678 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NOVY AYU LESTARI
First Applicant
HANDY WIBOWO
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 July 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The matter will proceed in the absence of the Applicants’, pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The application is dismissed.
4.The First Applicant is to pay the First Respondent’s costs, fixed in the amount of $5000.00.
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 D HUMPHREYS
INTRODUCTION
The first applicant is a citizen of Indonesia. She arrived in Australia on 11 August 2012 as the holder of a Student Higher Education Sector (Class TU) (Subclass 573) visa. The second applicant is the spouse of the first applicant.
On 12 April 2018, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (“Student visa”). A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her Student visa on 24 May 2018.
The applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”) on 13 June 2018. The Tribunal affirmed the delegate’s decision not to grant the applicant her Student visa on 17 April 2020.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below the application should be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 3 and 4 of the Tribunal decision record outline the background to the applicant’s Student visa application. At paragraph 5, the Tribunal confirms that the applicant appeared before the Tribunal at a hearing with the assistance of an Interpreter in the languages of English and Indonesian. Although the issue before it was initially whether the applicant was a genuine temporary entrant, the issue then became whether the applicant met the enrolment requirements.
At paragraph 7, the Tribunal outlines the legislative requirements for the grant of a Student visa. Notably, the applicant is required to be registered in a course of study at the time of the decision.
The applicant responded to a request for information sent by the Tribunal and stated that she was not enrolled in a course of study. At the hearing, she was asked whether she was enrolled in a registered course of study and she informed the Tribunal that she was not. The applicant provided reasons as to why she was not enrolled in a course of study and the Tribunal informed her that the criteria for the grant of a Student visa required her to be enrolled in a registered course.
Based on the applicant’s evidence, the Tribunal found that the applicant was not enrolled in a course of study as at the time of its decision and she did not satisfy cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which is required for the grant of a Student visa.
As the primary applicant did not meet the criteria for the grant of the Student visa, the Tribunal found that the secondary applicant, being the second applicant to this application, did not satisfy cl 500.311 of Schedule 2 to the Regulations.
Given these findings, the Tribunal affirmed the delegate’s decision not to grant the applicants their Student visa.
THE GROUNDS OF JUDICIAL REVIEW
The applicants’ grounds of judicial review are contained within an Amended Initiating Application filed with the Court on 15 October 2020. The grounds are as follows as they appear in the Initiating Application:
1. The Tribunal did not comply with s 359(1) of the Migration Act 1968 (Cth). The Tribunal member failed to have regard to medical evidence that I submitted prior to the hearing. The failure by the Tribunal to consider the medical evidence constitutes jurisdictional error.
2. The Tribunal failed to take into account relevant information. The Tribunal failed to have regard to the list of assets in Indonesia which is a clear incentive for me to return to Indonesia. I submitted this list prior to the hearing.
3. The Tribunal drew conclusions without adequate basis. The Tribunal did not consider my expected remuneration from working in my occupation upon returning to Indonesia.
4. The Tribunal Hearing was done over the phone and I had trouble understanding and communicating with the Tribunal Member, especially when there is an interpreter involved.
THE APPLICANT’S SUBMISSIONS
The applicant did not appear before the Court. The applicant sent an email to chambers, stating that she was unwell and that she would provide a medical certificate. The applicant further stated that if the Court did not adjourn the matter, she would like to rely upon her written submissions. When the matter was called the applicant did not appear via the TEAMS link provided. An attempt to call her mobile telephone number went through to voicemail. In all of the circumstances the Court determined to conclude the matter based on the written submissions provided by the applicant.
The applicant provided detailed written submissions. She submitted that the Tribunal was to have regard to Direction No. 69, but that the factors specified, are not to be used as a checklist and only as a guide.
The applicant submitted that the Tribunal failed to have regard to her medical evidence that was provided prior to the Tribunal hearing. This material demonstrated that the applicant was unfit to study between May 2018 and November 2019 due to reasons of pregnancy, miscarriage and mental breakdown. It was submitted that the Tribunal could not ignore this information pursuant to s 359(1) of the Migration Act 1958 (Cth) (“the Act”).
The applicant submitted that the Tribunal also failed to take into account a list of assets provided to it prior to the Tribunal hearing which indicated that she had substantial assets in Indonesia and economic ties with an incentive to return.
The Tribunal also failed to take into account the applicant’s expected remuneration upon completion of her study and thereby undermined the value of her course. The applicant submitted that her expected income would be around AUD$2,000.00 per month which is high, relative to the standard of living in Indonesia.
The applicant stated that she had trouble understanding and communicating with the Tribunal member at the hearing because the sound was occasionally distorted and the Interpreters translations were confusing and hard to understand. The applicant attributes these issues to the Tribunal member’s microphone and the Interpreter. It was submitted that the Tribunal transcript shows that there were numerous comments where the audio was distorted and comments by the Interpreter that are confusing.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that grounds one, two and three of the applicants’ judicial review application contend that the Tribunal failed to consider medical evidence, a list of assets, and expected remuneration upon return to Indonesia. These considerations are not relevant to the Tribunal decision.
The issue before the Tribunal was whether the applicant satisfied cl 500.211 of Schedule 2 to the Regulations, not cl 200.212 which is relevant to the issue of genuine temporary entrants. Where the applicant, on her own evidence, states that she was incapable of satisfying one of the primary criteria of the Student visa, the Tribunal was not required to go on and consider other criteria.
In relation to ground four, that the applicant was denied a real and meaningful hearing, she must show either that the standard of interpretation was so inadequate that she was prevented from giving evidence, or that the errors made in interpretation were material to the Tribunal’s conclusions.
It was submitted that the transcript of the Tribunal hearing annexed to the applicant’s Affidavit is defective, in that, it does not clearly set out words used by the applicant and Tribunal, the interpretation of those words by the Interpreter, and the proper interpretation of those words in the Indonesian language.
In this case, the essential element conveyed by the applicant was that she was not, at the time of the decision, enrolled in a course of study. This was clearly communicated by the applicant at pages three to four of the transcript annexed to her Affidavit.
In regards to any error in the interpretation, this could not be material to the Tribunal’s conclusion as the issue of the applicant not being enrolled in a course of study is not a fact in dispute. The same can be said in regards to the allegation that the applicant had difficulty communicating due to the use of a telephone as the applicant was able to communicate that she was not enrolled in a course of study and this was determinative of the review.
The first respondent submitted that any difficulties arising from the quality of interpretation or the use of a telephone could not have deprived the applicant of a successful outcome as it is not in dispute that she failed to meet one of the primary criteria for the grant of the Student visa.
IS THE TRIBUNAL DECISION INFECTED BY JURSDICTIONAL ERROR?
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
[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, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
The dispositive issue in this matter was whether the applicant met the enrolment requirements of cl 500.211 of Schedule 2 of the Regulations. In this matter, the applicant conceded in the Tribunal hearing that she was not currently enrolled in a registered course of study. In these circumstances, given the enrolment criteria is a ‘time of decision’ criteria, the Tribunal had no option other than to affirm the decision not to grant the applicant a student visa.
Turning to the grounds of judicial review, ground one, two and three complain that the Tribunal did not take into account relevant information regarding the applicant’s medical status as a reason for her not studying, failed to have regard to her assets in Indonesia and her expected remuneration upon return to Indonesia. While these might have been relevant matters had the Tribunal been considering whether the applicant was a genuine temporary entrant for the purposes of study, they were irrelevant once the Tribunal found that the applicant was not enrolled in a registered course of study. That is a mandatory requirement. Given it was not met, there was no need to consider these other matters. Grounds one, two and three have no merit.
Ground four is a complaint that the applicant had trouble understanding the Tribunal member, especially when there was an interpreter involved. In order for there to be jurisdictional error there must be evidence before the Court that the standard of interpretation at the Tribunal heating was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or that the errors made in interpretation at the Tribunal were material to the conclusion of the Tribunal and adverse to the applicant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] – [17] and SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] – [30], citing with approval Perera v Minister for Immigration (1999) 92 FCR 6.
The Court accepts that there may have been some difficulty in the hearing given it was over the telephone and involved an Interpreter. On a fair reading of the transcript, the Court is not satisfied that the standard of interpretation was so deficient as to prevent the applicant having a fair hearing. Further, as set out above, the matters the applicant raised were not material to the outcome of the decision of the Tribunal. The applicant failed to meet a mandatory requirement for the grant of a visa of the type she sought, that being, she was not currently enrolled in a registered course of study.
Even if that were not the case, the Court is not satisfied that the issues the applicant identifies, deprived her of the capacity to have a fair hearing. In her submissions, the applicant candidly states that the ‘sound was occasionally distorted’. At pages 3 and 4 of the transcript provided by the applicant of the tribunal hearing, it is clear that the dispositive issue was identified early by the Tribunal member and clearly translated to the applicant. Thus at page 5 of the transcript the applicant was told “And the requirement is crystal clear, and that is you must be enrolled in a course at the time of this hearing”. This was then set out in some detail in the oral decision that followed.
In the circumstances of this case, ground four does not reveal any jurisdictional error. The Court is satisfied that the translation was sufficient for the applicant to put her case. She was not deprived of the right to a fair hearing and any errors were not material to the outcome. Ground four has no merit.
DISPOSITION
Accordingly, as none of the grounds of judicial review have any merit, the application must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 July 2023
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