Li v Minister for Immigration
[2019] FCCA 3329
•25 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3329 |
| Catchwords: PRATICE & PROCEDURE – Application in a Case seeking reinstatment – whether there is a reasonable explanation for non-attendance – whether the Minister would be prejudiced – whether the application has reasonable prospects of success – no satisfactory explanation for non-attendance – no reasonable prospects of success – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.368, 476, 499 Migration Regulations 1994 (Cth), sch.2, cl.572.223 |
| Cases cited: Autodesk Inc v Dyason (No.2) [1993] HCA 6; (1993) 176 CLR 300; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| First Applicant: | XIAOKUN LI |
| Second Applicant: | XIAOLEI YANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1206 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 November 2019 |
| Date of Last Submission: | 8 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2019 |
REPRESENTATION
| Applicants: | In person |
| Representative for the Respondents: | Ms Donald |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application in a Case made on 30 September 2019 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $1200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1206 of 2017
| XIAOKUN LI |
First Applicant
| XIAOLEI YANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application in a case (“AIC”) made on 30 September 2019 seeking re-instatement of an application made on 21 April 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 March 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the grant of student visas to the applicants.
The evidence before the Court is contained in a bundle of relevant documents filed, and tendered, by the Minister (the Court Book – “CB” – “RE1”) (in the substantive application), and an affidavit filed by the first applicant on 30 September 2019.
The Application in a Case
On 2 September 2019 I dismissed the substantive application due to the applicants’ non-attendance before the Court on that date.
Although the AIC makes no reference to it, I understood the AIC to rely on rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). That is, given that the orders of 2 September 2019 (dismissing the substantive application) were made in the applicants’ absence, the Court may set aside this order.
The relief sought now by the applicants is discretionary. Such exercise of discretion must be done reasonably, and with some caution, given the competing interests. On the one hand sits the public interest in the finality of litigation. On the other the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc v Dyason (No.2) [1993] HCA 6 per Gaudron J at [1] and [18]).
The principles relevant to the current consideration require focus, at least, (but not exhaustively) on the following three factors as explained in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7]:
(1)Whether there is a reasonable explanation for the failure to attend before the Court.
(2)The prejudice which may flow to the other party (in this case the Minister) and how this may be alleviated.
(3)Whether the application which is the subject of the application to reinstate has reasonable prospects of success.
Background
The first applicant (“the applicant”) is a citizen of the People’s Republic of China (CB 1). He first arrived in Australia on 6 July 2001 as the bearer of a temporary student visa. Since his arrival in Australia the applicant has held a number of student, graduate, and bridging visas. All of them were temporary visas (CB 41.10).
The applicant applied for another student visa on 4 November 2015 (CB 1–CB 9). The second applicant applied as a member of his family unit (CB 2–CB 3).
The delegate refused the grant of the visas on 19 May 2016 (CB 34–CB 48). The delegate found that the applicant did not genuinely intend a temporary stay in Australia (CB 47.5). He therefore did not meet cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which was a requisite condition for the grant of the visa. The second applicant’s application was also refused as a consequence of this.
The Tribunal
The applicants applied for review to the Tribunal on 3 June 2016. They were assisted by a registered migration agent (CB 49–CB 50).
On 9 March 2017 the Tribunal invited the applicants to a hearing (CB 56 –CB 59). The invitation also included a request that the applicant provide further information. The Tribunal drew the applicants’ attention to Ministerial Direction No 53 (“MD 53”) (attached at CB 60–CB 64), and asked that the applicant provide a “…written statement addressing the issue” of whether he was a genuine temporary entrant.
MD 53 makes clear that, consistent with reference to the criteria in the Regulations, “The genuine temporary entrant criteria must be satisfied…” by all applicants for the visa for which the applicant had applied (CB 60.8).
The applicant responded through his migration agent by emails sent on 23 and 24 March 2017. The response included a statement from the applicant, (CB 78–CB 80) with attachments to the email (CB 65–CB 94). The statement was directed to his educational experiences, his interest in study in Australia, and evidence of some previous enrolments.
The applicant attended a hearing before the Tribunal on 30 March 2017 (CB 98–CB 100). It is not clear whether the second applicant attended (CB 98 and [4] at CB 105).
The Tribunal affirmed the delegate’s decision on 30 March 2017. The Minister’s written submissions contain a fair summary of the Tribunal’s reasoning and findings (at [9]–[16]):
“9. The Tribunal identified that the issue upon review was whether the applicant met the time of decision criterion that he genuinely intended to stay in Australia temporarily: cl 572.223(1)(a) (CB 105, [3], [7]-[8]).
10. The Tribunal identified that it must have regard to the considerations specified in Direction No.53 made under s 499 of the Act. It further identified that the factors specified should not be used as a checklist. Rather, the factors were intended to guide decision makers to weigh up an applicant’s circumstances as a whole (CB 105-106 [9]-[10]).
11. The Tribunal referred to the applicant’s submission addressing his genuineness as a student. It identified that at the hearing the applicant had insisted that he intended to return to China because he wished to enter into a tourism business with friends there, that he was married and was an only child, and that his mother was a widow and wished for him to return to China. The Tribunal noted the applicant’s acknowledgment that he had been in Australia continuously since 2001 and his claim that he was initially uncertain about his professional career and needed to master English (CB 106, [11]).
12. The Tribunal also referred to the applicant’s claims that he was attracted to study in Australia because Chinese courses were longer in duration, and that he had first pursued business courses in Australia and now wanted to undertake study in marketing in order to successfully work in the Australian-Chinese tourism industry (CB 106, [11]).
13. The Tribunal then considered the applicant’s evidence at the hearing that he had not been studying since March 2016 as he was “panicked” by his visa refusal and that he had been working part-time in a restaurant. The Tribunal noted that during this time he had helped to arrange travel itineraries for friends (CB 106, [12]).
14. The Tribunal found that the applicant had spent practically half of his life in Australia under various visa categories and during this time had completed just seven vocational level courses. It further found that he had utilised student visas to stay in Australia, one course (hairdressing- salon management) was unrelated to his career path, and many of the proposed courses had been cancelled (CB 106, [13]).
15. The Tribunal identified that although the applicant had claimed to want to start a travel business in China, he had remained in Australia for 16 years. The Tribunal found that the applicant was using the student visa program to maintain ongoing residence in Australia and that his stay in Australia was ‘self-evidently’ not temporary, as required by cl 572.223(1)(a) (CB 106, [13]).
16. The Tribunal, having considered the applicants circumstances, immigration history and other matters it considered to be relevant, was not satisfied that he genuinely intended to stay in Australia temporarily and found that he did not meet cl 572.223(1)(a). Accordingly, the Tribunal affirmed the decision under review (CB 106-107 [14]-[16]).”
Before the Court
As set out above the substantive application to the Court was made on 21 April 2017. A Registrar of the Court made orders on 18 May 2017 giving the applicants the opportunity to file any amended application, and evidence by way of affidavit.
The Registrar made orders, by consent, on 10 May 2018 setting the matter down for final hearing on 2 September 2019 at 2:15pm. The address of the courtroom was given as a part of the order.
On 2 September 2019 neither of the applicants appeared, nor did anyone appear on their behalf. The Court was satisfied on the evidence that the applicants had had reasonable notice of the Court event. The Minister tendered into evidence correspondence sent to the address for service reminding the applicants of the date, time and place of the final hearing, and the possible consequences of not attending.
Nothing had been heard from the applicants. There had been no application for an adjournment. Nor did the applicants otherwise communicate any difficulty in attending on that date. As set out above the application was dismissed pursuant to rule 13.03C(1)(c) of the Rules.
On 30 September 2019 the applicants filed the AIC. The grounds of the application to reinstate the substantive application are in the following terms:
“1. I would like to file my application again in case to reinstate
2. I missed the Court hearing since the Court recent email were sent to my junk email which I never open it. I did not receive any correspondence from my mail box either. I finally found out through vevo as my visa was nearly due.
3. I sincerely hope the Court can provide me with an other hearing at your earliest convenience.”
At the hearing of the AIC the applicants appeared in person. The applicant confirmed that they did not need the services of an interpreter (it is to be remembered that the applicant has been in Australia since 2001). The applicant advised that he would also speak for the second applicant.
The Court explained to the applicants the nature of the proceedings they had initiated and the issues for consideration (see [6] above).
When asked if he wanted to rely on the affidavit he had filed with the AIC the applicant said he did. The affidavit is in the following terms:
“AAT member have strong prejudice on my review application simply because I changed some of the course which did not suit me. The member ignored the fact that I have good attendance and genuine intention for study here.”
The affidavit is in identical terms to what is set out in the affidavit which accompanied the substantive application.
The Minister objected to the affidavit being read into evidence on the basis of relevance. Given that the applicants were legally unrepresented I granted leave for the affidavit to be read, subject to the relevance being explained by them. It subsequently became clear that what was in the affidavit did not rise above a request for impermissible merits review.
Consideration
What is immediately apparent is that the affidavit provides no evidence whatsoever to support the grounds in the AIC, nor to otherwise explain why the applicants did not attend at the final hearing.
In the absence of any evidence, I find that the applicants have not provided any, let alone a reasonable or satisfactory explanation for not attending at the final hearing.
Before the Court, the applicant submitted that he did not receive notice of the final hearing because his email address had been “hacked”.
This was not put before the Court in any evidentiary context. However, what is apparent is that this “explanation” is different to what he had put in the grounds of the AIC less than six weeks earlier.
The “explanation” (this was never explained by the applicant) in the grounds of the AIC is that the email was “sent” to his junk mail and he did not “open” it.
It appears, given the context, that the applicant was referring to the email sent by the Minister on (26 August 2019) and which was in evidence before the Court at the time of the dismissal of the substantive application for non-attendance.
What was also in evidence at that time was that the Minister had also sent this “reminder” by post to the postal address for service provided by the applicants in their substantive application to the Court.
The applicants made no submission that they did not receive this correspondence from the Minister. This was even after this point was raised by the Minister’s solicitor in submissions to the Court. There was no submission that they did not receive this particular correspondence. Although the AIC states that the applicant did not receive the letter by post, despite opportunity, the applicant made no such claim in his affidavit to the Court.
The Court also drew to the applicants’ attention that at best, one of them must have been present before the Registrar on 10 May 2018 when the substantive application was set down for hearing. The Registrar’s order was made by consent of the parties.
The applicant confirmed (from the bar table) that he had been present in Court on that day, and had consented to the orders. His submission was that it was so long ago that he had forgotten.
I do not accept that submission. From what the applicant submitted to the Court (see below at [43]) it is clear that it is important to the applicants that they remain in Australia. The applicant’s submissions left no doubt that this was very important to them.
In that light, I do not accept, given the importance of the final hearing to the applicants’ prospect of extending their stay in Australia, that the applicant would simply have forgotten.
In all the circumstances the grounds of the AIC, and the applicants oral submissions, provide no indication that the applicants had any reasonable or satisfactory explanation for not attending at the earlier Court event when the substantive application was dismissed.
The Minister submitted that he was not pressing prejudice if the substantive application were to be reinstated. However, this of itself is not a sufficient reason to reinstate the substantive application.
Importantly, the grounds of the substantive application lack merit such as to call for the reinstatement. It is not in the interests of justice to grant the reinstatement given that no reasonable legal argument is indicated, let alone reasonably arguable, from those grounds.
The grounds of the substantive application to the Court are in the following terms:
“Final orders sought by applicant/s
[Box ‘ticked’] An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.
…
1, I disagree with Immigration and AAT’s decision. They did not consider that I have a genuine intention to apply for a student visa and have been obeying student visa conditions since my arrival in Australia.
2, Immigration and AAT should granted my visa for student visa and allow me for further study in Australia.
3. I tried my best to find suitable course for me for my future career, however I found some of the course did not suite me, then I tried to enrol with other course and never intend to breach the student visa condition.
Grounds of application
1, I am a Chinese citizen and would like to apply for further student visa in Australia. I have always obeyed my visa condition and never breached it.
2, AAT member have strong prejudice on my review application simply because I changed some of the course which did not suit me. The member ignored the fact that I have good attendance and genuine intention for study here.
3. AAT did not well consider my situation beyond my control and did not provide me a chance for further study which is not fair for me.”
[Errors in the Original.]
Before the Court, the applicants’ submissions repeated some of the assertions in the grounds. For example, that the applicant had never breached any of the conditions attaching to the visas he had held in the past, and that the Tribunal did not consider that he had a good record of attendance at his various places of study. These are dealt with below in addressing the grounds of the substantive application.
The applicant also submitted that the Tribunal did not consider his “situation”. That is, that he came from a Chinese background where all his family, had an expectation that he would obtain a university degree. He submitted it would be difficult for him to go back to China. Further, that he had not yet found his “learning goal”. The following stands in answer to the applicants’ submissions.
One, there is no evidence before the Court that the applicant ever claimed to the Tribunal (or for that matter the delegate) that he wanted the student visa because of family pressure, and expectation about his achieving a university qualification.
In that light, this submission does not raise any argument that the Tribunal fell into error because it failed to consider a claim made by the applicant.
Two, the submission now that he had not yet found his learning goal is contrary to what he told the Tribunal. The applicant has not, despite opportunity, put a transcript of the Tribunal hearing in evidence before the Court.
The Tribunal’s account reveals that the applicant told the Tribunal that his “career objective” was “to run his own travel service in China” ([13] at CB106). He submitted to the Tribunal at the hearing that he wanted to study a marketing course to achieve that goal.
It was reasonably open to the Tribunal to find that the applicant had at the time of the Tribunal hearing been in Australia for almost 16 years. In the circumstances it was also reasonably open for the Tribunal to also find that the applicant “…is patently using the Student visa program to maintain on-going residence in Australia. His stay in Australia is self-evidently not temporary as required by the regulation clause 572.223(1)(a)” ([13] at CB 106). The applicant’s submission does not raise any argument of merit.
Three, in its invitation to the hearing the Tribunal asked the applicant to: “…provide a written statement addressing the issue of whether you are a genuine temporary entrant…”. This was to be provided in the context of MD 53 (CB 58.6).
The applicant provided a written statement (CB 78–CB 80). There is nothing in that statement to indicate that the applicant raised the claim now made in his submissions to the Court. On the evidence the Tribunal considered the matters raised in the applicants written statement ([11]– [13] at CB 106).
In all, the applicants submissions before the Court provide no basis on which to say that a reasonably arguable issue at law is indicated such as to argue for the reinstatement of the substantive application.
Nor do the matters raised in the grounds of the substantive application, or the “final” orders, sought raise any such argument of merit.
As set out above, in the substantive application to the Court the applicant, in essence, made six statements which he confirmed represented the grounds of the application to the Court. I will refer to the second set of grounds as grounds 4, 5, and 6 respectively. There are two preliminary points that need to be immediately made.
One, to the extent that the applicant seeks to complain about “Immigration” I understood this to be a reference to the delegate’s decision. Such a ground cannot assist the applicants given that in the circumstances presented, the delegate’s decision is a “primary decision” (s.476(4) of the Act) and this Court has no jurisdiction to review such a decision (s.476(2)).
Two, the applicant appears to not understand, or to not want to understand, that the underlying requirement for the grant of the visa for which he applied as expressed in the relevant Regulations, and emphasised by MD 53 made pursuant to s.499 of the Act, is that persons who wish to study in Australia, and apply for a temporary student visa to do so, must be genuine in their intention, in that they must satisfy the decision maker that they intend to stay for the purposes of study, and the stay in Australia is temporary.
Implicit in the relevant regulatory scheme is that once the study has ceased, in whatever fashion, the person should depart Australia.
Unless that person is otherwise eligible for the grant of some other substantive permanent visa. The critical and central element of the Tribunal’s decision, and for that matter the delegate’s decision, is that at the time of making the application for the student visa, the applicant had been in Australia for over 14 years. At the time of the Tribunal hearing he had been in Australia for almost 16 years.
As the Tribunal described it the “…applicant has spent practically half of his entire life studying and remaining in Australia under various visa categories” ([13] at CB 106).
Ground one asserts that the Tribunal did not consider that the applicant had a genuine intention to apply for the student visa, and had complied with all of the visa conditions since his arrival in Australia.
The applicant may indeed have had a genuine intention to apply for the visa. This however, is not relevant to the regulatory requirements, nor the Tribunal’s consideration.
As is clear from the terms of the relevant regulatory criterion, and MD 53, the focus of the genuine intention is on staying in Australia temporarily.
If what the applicant means by ground one is that the Tribunal failed to consider his genuine intention to remain temporarily in Australia, then this, as the Minister correctly submits, fails at the factual level.
The Tribunal considered the applicant’s evidence and submissions in this regard. That is, why he said his stay was genuinely temporary. It gave reasons probative of that material as to why it did not accept this claim (see [11]–[13] at CB 106).
The applicant’s claim of a failure to consider, can only in the circumstances be properly understood as a complaint that the Tribunal did not accept his claim in this regard. This ground does not rise above a disagreement with the Tribunal’s key finding. The ground really in this sense seeks impermissible merits review, and no arguable legal error is indicated.
The other matter raised in ground 1 is that the Tribunal did not consider his previous record of having complied with conditions attaching to his various visas. The applicant made the same submission before the Court.
As set out above the Tribunal specifically set out that it was required to have regard to MD 53, and the matters set out there ([9] at CB 105–CB 106):
“9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
· the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.”
Although it is not clear from what the applicant told the Court, it may be that he seeks to argue that his compliance with previous visa conditions was a part of his migration history, or other relevant information he provided.
The applicant did claim in his submissions to the Tribunal: “…I did not break any visa conditions while I am studying and living in Australia” (CB 79.9 see also CB 96.9)
As the Minister concedes there is no express reference to this in the Tribunal’s reasons. However, MD 53 does not provide that the Tribunal must have regard to everything that an applicant puts to it, or every single aspect of his or her migration history.
What was required in the current case was that the Tribunal have regard to the applicant’s immigration history, including previous visa applications, and other information “relevant” to the disposition of the review.
The Tribunal did have regard to a number of matters. These included the applicant’s immigration history and the various types of visas he had held (see further below). It also took into account the applicant’s circumstances in, or ties to, China (he was an only child and his mother was a widow), and that he had no military obligations.
Further, the Tribunal considered other relevant information provided by the applicant. That is, his evidence that educational courses in China take longer to complete, that he wanted to concentrate on marketing courses instead of business, and that he took an unrelated course in hairdressing salon management, and that he only completed seven courses since 2001.
All of these matters relate in various ways to the matters set out at cl.572.223(1)(a) of Schedule 2 to the Regulations, and as these are further explained in MD 53. In that sense the Tribunal did have regard to each of the relevant and mandatory considerations set out in the Regulations and MD 53 (the reference to “minor” (cl.572.223(1)(a)(iii)) plainly did not apply to the applicant).
What remains therefore, from the applicant’s ground is whether the applicant’s reference to his complying with his visa conditions was a mandatory, and relevant consideration as required by the Regulations and MD 53, and if so whether the Tribunal failed to consider it in circumstances which may lead to jurisdictional error.
In his submissions the Minister referred to Bala v Minister for Immigration and Border Protection [2019] FCA 600 per Anastassiou, J (“Bala”) at [17]:
“17. The first respondent acknowledged that the Tribunal’s decision did not expressly refer to the matters in paragraphs 9(d) and (e), 11(d) and 15 of Direction 53. However, it does not follow that the factors were not considered: He at 58 [79]. Having regard to the express acknowledgement of Direction 53 and the express reference to a number of the criteria, in my view it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.”
The Minister also referred to Singh v Minister for Immigration and Border Protection [2019] FCA 428 at [24] essentially for the proposition that from an examination of the Tribunal’s decision record (where it acknowledged the relevant regulation and MD 53) it should not be readily inferred that the Tribunal overlooked the applicant’s statement, but rather the applicant’s compliance with visa conditions in the past was not considered to warrant specific mention.
The Minister submitted that in the current case where the Tribunal specifically acknowledged MD 53 and did have regard to a number of the regulatory criteria, that the Court should infer that any matter not specifically mentioned in the decision record, was in fact considered, but was found by the Tribunal not to warrant specific mention.
That leads to the following. The question that arises is whether the applicant’s statement that he complied with his visa conditions was a matter relevant to his migration history for the purposes of the Tribunal’s consideration.
The other requirement mentioned in the Regulations and MD 53 is, as set out above, the relevant requirements flowing from the regulation and MD 53 to consider other information provided by the applicant. The statement that he complied with all of his visa conditions was information provided by the applicant. The question however is, was it relevant to the Tribunal’s specific task.
Following the delegate’s decision the issue in the review was whether the applicant met the criteria for the grant of the visa that required that he genuinely intended a temporary, and not permanent, stay in Australia.
In its decision record, made pursuant to s.368(1) of the Act, the Tribunal must set out its decision, the reasons for the decision, findings on material questions of fact, and the evidence on which they are based.
As set out above the reason why the Tribunal affirmed the delegate’s decision, was that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily ([14] at CB 106–CB 107).
The key finding made by the Tribunal which was determinative of the review, that is the key to its decision, was this finding. A finding which was reasonably open to the Tribunal on what was before it, and for the reasons it gave.
In short, it was that the applicant did not genuinely intend a temporary stay in Australia because he had been continuously in Australia for so many years since 2001, enrolling in different, and diverse, courses of study.
In all therefore as the Minister submits, and in this context, it does not necessarily mean that the assertion by the applicant that he complied with his visa conditions, which could be said to be a part of his immigration history, was not considered.
It is to be remembered that this statement was made to the Tribunal by the applicant in response to the Tribunal’s specific request in its letter of invitation to hearing: “Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction” [That is, MD 53] (CB 58).
In the current case, as set out above, the Tribunal did have specific regard to the Regulations, MD 53, and the applicant’s written statement and his oral evidence at the hearing.
In these circumstances it is reasonable to infer that the Tribunal did not specifically mention the applicant’s statement that he had complied with all previous visa conditions in its decision record, because it was not considered, to respectfully use the words from Bala, “…sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively”.
After all whether the applicant complied with all of the conditions attaching to the many visas he had been granted in the past, or not, said nothing about his intention to remain temporarily, or permanently, in relation to the visa which was the subject of the Tribunal’s review.
What the Tribunal found “germane”, or relevant, was the large number of visas for which the applicant had applied (and been granted) over a period of many years and which had enabled him to remain in Australia for about 16 years (at the time of its decision). Not whether he complied with all visa conditions.
This is also the case in circumstances where, on the evidence, and as the Minister submits, the applicant contrary to his assertion, then (and now), had not complied with all of his visa conditions.
As the delegate set out, the conditions for a student visa include enrolment in a course of study. The applicant’s enrolment history revealed that he enrolled in 13 courses during his years in Australia. He finished seven, but six were “Cancelled” (see CB 42). Further, on the applicant’s own evidence to the Tribunal he had not been studying since March 2016 ([12] at CB 106).
In all, ground one does not raise an arguable case such as to support the reinstatement of the substantive application.
In ground two the applicant asserts that he should have been granted a student visa to allow him “further study” in Australia.
At best, and without more, this ground seeks impermissible merits review as it is really an expression of disagreement with the Tribunal’s decision. No arguable case is indicated here. This also does not call for the reinstatement of the substantive application.
Ground three is a statement by the applicant as to why he changed courses on so many occasions. That is, he tried “to find suitable course for me”.
The Tribunal did consider the applicant’s reasons for his change in study courses (see at [13], CB 106). This also is an invitation for the Court to engage in impermissible merits review. Ground three also is without requisite merit.
Ground four is again a mere statement by the applicant that he wants to apply for a further student visa, and that he always obeyed his visa conditions.
This does not indicate any jurisdictional error on the part of the Tribunal. If the applicant is asking the Court to grant the visa, as set out above, the Court has no power to do so.
If the ground seeks to argue that the Court should find for him, and return his matter to the Tribunal, so that he can be granted a student visa in the future, then this misunderstands the nature of the consideration of the substantive application, which is, in effect, to consider whether the Tribunal’s decision is affected by jurisdictional error.
Ground 5 asserts that the Tribunal member had a “strong prejudice” against the applicant because he had “changed” some of the courses for which he had been enrolled. Before the Court, the applicant pressed that the Tribunal member did not bring an open mind to the proceeding.
The applicant confirmed that this was an assertion of bias on the part of the Tribunal member. However such an allegation must be distinctly made and clearly proven. (Minister for Immigration v Jia Legeng [2001] HCA 17). As the Minister submits, it would be rare for a Court to find that bias has been shown simply on the decision record alone. (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361).
In the current case, there is nothing in the Tribunal’s decision record or otherwise in the evidence before the Court, to indicate that the Tribunal member did not bring an open mind to the review.
The Tribunal’s letter of invitation to a hearing, amongst other things, put the applicant on further notice of the issue in the review arising from the delegate’s decision. That is, the genuineness of the applicant’s intention to remain temporarily in Australia. This does not reveal a closed mind. Rather, given that it was put in the letter of invitation to the hearing, it reinforced for the applicant, and put him on notice, that this issue would be discussed at the hearing (at CB 58).
Specifically on the matter of the changes in courses, the Tribunal considered the applicant’s explanation (see [11] and [13] at CB 106). However, it was reasonably open to the Tribunal to find that the applicant was using the student visa program simply to remain in Australia. No jurisdictional error is indicated.
Ground 6 asserts that the Tribunal did: “…not well consider my situation beyond my control and did not provide me a chance for further study which is not fair for me”.
Before the Court, the applicant did not satisfactorily explain what he meant by circumstances beyond his control. Nothing in the material before the Court can be readily seen to fit this description. On the evidence before the Court his inability to complete a number of courses for which he had enrolled was certainly within his control.
If this is a reference to his changes in courses of study, then these appear to have been within his control, and subject to his own reasons for changing courses.
The reference to “not fair” is in the circumstances, no more than an expression of disagreement with the Tribunal’s decision. As set out above the applicant was put on notice of the determinative issue in the review by the delegate’s decision. It was plainly not “unfair” for the Tribunal to invite him to a hearing and put him on further notice that this was what was critical in the review. No jurisdictional error is indicated here.
Conclusion
The applicants have not provided any satisfactory explanation for their non-attendance before the Court when the substantive application was dismissed. Importantly, neither the grounds of the substantive application, nor the applicant’s submissions before the Court, indicate that any reasonably, arguable legal issue arises in the circumstances presented.
It is appropriate to dismiss the AIC. I will make that order.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Standing
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