Liyanage v Minister for Immigration

[2017] FCCA 1922

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIYANAGE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1922

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA(aa), 499

Migration Regulations 1994, cl.572.223(1)(a)

Applicant: SURANI SATHSARA WEIHENA LIYANAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1176 of 2016

Judgment of: Judge Riethmuller

Hearing date: 17 July 2017

Date of Last Submission: 17 July 2017

Delivered at: Melbourne

Delivered on: 17 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: PLS Lawyers

Counsel for the First Respondent: Ms Mitchell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $8,206.00 (being a sum inclusive of the previous costs order).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1176 of 2016

SURANI SATHSARA WEIHENA LIYANAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 12 May 2016 with respect to a student visa application by the applicant. 

2. The applicant first came to Australia in July 2008 on a student visa in order to undertake a Bachelor’s degree course.  The applicant did not ultimately undertake that course.  She has, since being in Australia, undertaken a number of lower level courses as set out by the Tribunal in para.34 of their decision: a Certificate III in Food Processing; Certificates III and IV in Commercial Cookery; a Diploma of Business; and a Diploma of Business Management.

3. In the intervening period, the applicant obtained a temporary residency permit.  However, this was not able to be converted to a permanent residency visa by her. It was following this decision that she again applied for a student visa. 

4. The Tribunal considered the applicant’s circumstances, using headings drawn from the guidelines provided in Direction No.53 under s.499 of the Migration Act 1958, in order to consider holistically her circumstances and her history of studies in Australia. The Tribunal ultimately concluded that it did not accept that she intended genuinely to stay in Australia temporarily, and therefore it did not accept that she met the visa criteria in cl.572.223(1)(a) (see para.39 of the Tribunal decision).

5. The applicant argued two substantive grounds before me in the judicial review proceedings. 

Ground One

1. Ground 1 alleged that the Tribunal failed to look at all of the relevant matters.  The applicant did not pursue ground 1 of the amended application, which is not surprising given that ground 2 relies upon a claim that the Tribunal utilised the guideline as a checklist, mechanically going through each of the items, rather than applying it holistically.  I turn, then, to consider ground 2. 

Ground Two

1. Ground 2 of the amended application is in the following terms:

   2. The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when, despite the warnings it gave to itself, it considered the Direction the Minister made under s 499 of the Migration Act 1958 (Cth) which set out certain factors guiding decision makers in assessing whether an applicant for a Visa “intends genuinely to stay in Australia temporarily” as a checklist and/or as a mandatory and/or binding checklist.

2. In this case, the applicant says that the Tribunal misunderstood the guidelines and treated the matters set out in the guidelines as a checklist rather than a guideline.  This would have been contrary to cl.1 of p.2 of the guideline, which says that:

   Decision makers should not use the factors specified in this direction as a checklist.  Rather, they are intended to guide decision makers to weight up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

3. The Tribunal, in its decision, adopted the headings from the guidelines before discussing under each heading, in narrative form, the relevant facts and circumstances of the applicant’s case, and making observations and findings with respect to the inferences that the Tribunal was prepared to draw from those facts and circumstances.  For example, the Tribunal considered the economic situation in Sri Lanka, where the applicant had come from, and concluded that the economic situation in and of itself was not a significant disincentive for the applicant to return to Sri Lanka.

4. Similarly, they considered whether or not she had family ties in Sri Lanka, and noted that she had only returned to Sri Lanka three times for around three weeks on each occasion over the last eight or nine years which, not surprisingly, indicated to the Tribunal that her ties to family in Sri Lanka were not particularly strong.  The Tribunal does not appear to have reached any specific binary conclusion with respect to each of the factors in the guidelines.  Rather, they have discussed how those factors bear upon the applicant’s circumstances and what inferences could be drawn from her circumstances.

5. I am not persuaded that the terms of the decision show that the Tribunal have adopted the guidelines as a checklist rather than properly considering the applicant’s circumstances and utilising the guidelines as an aid to ensure that they did consider the true breadth of her own circumstances before making a decision. In these circumstances, I am not persuaded that the applicant has made out the second ground of her application.

Ground Three

1. I turn, then, to consider ground 3 of the application, which is the second ground argued by the applicant.  It is as follows:

   3.  The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359AA (1)(b) of the Migration Act 1958 (Cth) in that it did not

   (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;

2. In substance, the applicant argues that the Tribunal failed to ensure that it put to her information that may have been reason or part of the reason for refusing the decision, and invited her to respond to it.  There are three difficulties with this argument for the applicant.

3. First, it is apparent from the terms of the Tribunal’s decision – for example, in paras.20 and 21 – that the Tribunal did, in fact, discuss various items with the applicant and her agent at the hearing and obtained her views.  Paras.20 and 21 provide as follows:

   20. The Tribunal observed that the applicant would have remained in Australia for approximately 8 years if she stayed until the completion of the Diploma of Hospitality in October 2016, which made it hard for it to accept that the applicant's intentions to remain in Australia were temporary.  The applicant responded that she would have completed courses earlier but for the fact that her subclass 485 visa was delayed due to the difficulties getting her IELTS results and the fact that the appeal to the Tribunal on this took 12 months to be finalised.  Once this issue was resolved, she could plan and move on, and that is why she enrolled in the Commercial Cookery/Hospitality courses. The applicant added that she had initially wanted to study Hospitality when she ceased her Bachelor of Business but her then education agent suggested the Certificate III in Food Processing instead because at that time, pastry cooks were on the Skilled Occupations List (SOL).

   21. In relation to why she did not undertake a course in Commercial Cookery/Hospitality in Sri Lanka, the applicant and her agent said that in Sri Lanka, the only way to do so until recently was to enter a hotel school as an apprentice straight from school.  There were some private cooking schools but they generally offered short courses only and were not as well regarded as Australian courses or Sri Lankan hotel schools.

4. Secondly, much of the information, if not almost all of the information that the Tribunal relied upon, was information that came from the applicant. For example, the information about her family’s living arrangements, the information about what she had done by way of courses, and her reasons for undertaking various courses. This information would not fall within s.359AA(aa) as it is information from the applicant.

5. Thirdly, to the extent that the applicant suggests that the information is the conclusions or inferences the Tribunal draws from the evidence:  this is not information, but rather reasons or conclusions of the Tribunal.  Thus, for example, at para.25 when the Tribunal concludes that, on an assessment of the evidence relating to how many times she has returned to Sri Lanka since coming to Australia, they are of the view that this indicates she does not have particularly strong family ties: this is a conclusion drawn by the Tribunal from the evidence and it would not be information within the meaning of the section.  In these circumstances, I am not persuaded that the applicant is able to make out this ground for judicial review. 

Ground Four

1. The fourth ground in the applicant’s application was a general one framed as follows:

   4. Such other grounds that may become evident at and/or during the hearing of the application.

2. In substance, the applicant’s counsel pressed an argument that the Tribunal’s decision was so unreasonable that a reasonable decision maker could not come to that decision, or that it was so unreasonable that it would pass the test for being legally unreasonable and should be set aside.  When reading the decision as a whole, it is difficult to sustain that argument.

3. The applicant has been in Australia for many years, having come in July 2008.  During that time, she has only undertaken relatively small amounts of study in areas of Certificates and Diplomas at a relatively low level.  It seems to me that it was clearly open to the Tribunal to reach the conclusion that it did with respect to whether or not she genuinely intended to return to Sri Lanka, and that in these circumstances it could not be said that the decisions was legally unreasonable.  I therefore find that the applicant has not made out this ground. 

4. As the applicant has not established any of the grounds in the application, I therefore dismiss the application.

   [Further argument ensued]

5. Costs in proceedings of this type ordinarily follow the event, and there is nothing about this proceeding that would indicate a different result should follow.  The applicant should therefore pay the Minister’s costs.  The Minister seeks costs in the scale amount which, having regard to the matter, appears to me to be reasonable.  The costs thrown away from a previous event should be added to that.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2017