MA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 533
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 533
File number: LNG 78 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 5 July 2022 Catchwords: MIGRATION – Student (Temporary) (Class TU) Subclass 500 (Student) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by an error on the fact of the record – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misunderstood the relevant regulations and failed to consider relevant and material evidence.
Legislation: Migration Act 1958 (Cth) ss 116, 368, 474
Migration Regulations 1994 (Cth) sch 2 cl 500.317, sch 4 cl 4013
Cases cited: Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: General Division Number of paragraphs: 17 Date of hearing: 25 August 2021 Place: By video to Hobart Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Mr D. Wilson (Australian Government Solicitor) ORDERS
LNG 78 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIE MA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 JULY 2022
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 CAMERON
INTRODUCTION
The applicant is a citizen of China who on 29 November 2018 applied to the Department of Home Affairs for a class TU subclass 500 student visa. On 8 March 2019 the application was refused by a delegate (“Delegate”) of the first respondent (“Minister”) and on 13 March 2019 the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow the application will be dismissed.
RELEVANT LEGISLATION
Clause 500 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of sub-class 500 student visas. At all material times, cl.500.317 required an applicant to satisfy, relevantly, public interest criterion 4013. Public interest criterion is found in sch.4 to the Regulations and relevantly states:
4013
(1)If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):
…
(b) the Minister is satisfied that, in the particular case:
(i)compelling circumstances that affect the interests of Australia; or
(ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
…
(2)A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:
…
(b)if the visa was of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass; …
…
BACKGROUND FACTS
Since June 2011, the applicant has predominantly resided in Australia and has held three student visas in that time. The most recent of them, a Subclass 573 (Student) visa, was cancelled on 19 December 2018 under s.116(1)(b) of the Migration Act 1958 (Cth) (“Act”) for breach of condition 8202. This was based on the applicant’s failure after 31 December 2017 to be enrolled in a registered course of study.
The applicant’s most recent visa application, the subject of this proceeding, was made on the basis that he was a member of the family unit of a person holding a Subclass 500 (Student) visa, namely his partner. The applicant’s partner was a student at the University of Tasmania.
The Tribunal’s decision and reasons
On 11 November 2020 the Tribunal affirmed the decision of the Delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal found that the information provided by the applicant was insufficient to demonstrate that he met Public Interest Criterion 4013 and it was therefore not satisfied that he met the requirements of cl.500.317. The Tribunal relied on the following documents to make its decision:
(a)a statement of the applicant dated 22 February 2019; and
(b)the Delegate’s decision of 8 March 2019.
The Tribunal relevantly reasoned as follows:
21.… the applicant is affected by a risk factor for the purposes of Subclause 4013(1). He must therefore satisfy subclause 4013(1)(a) or (b) to satisfy pic 4013.
…
24.To satisfy subclause 4013(1)(b) the Minister (or on review, the Tribunal standing in place of the Minister) must be satisfied that, in the particular case;
i.Compelling circumstances that affect the interests of Australia; or
ii.Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
Justify the granting the visa within 3 years after the cancellation.
…
26.He was asked if he is working or if he intends to work. He replied that his whole purpose in seeking to regain his visa is to support his partner who is trying to finish her studies and that he does not intend to work so that he can devote himself to that.
27.He explained that she will finish her study in July 2021 and that she is studying Information and Technology Systems at the University of Tasmania.
28.He said that there has been some delay with her study because of the Covid-19 pandemic and that she is having to study online.
29.He further explained that she was not in Australia at the time of the hearing and that she is doing her study online from China.
…
32.The applicant did not seek to suggest that there are any compelling circumstances affecting the interests of Australia that justify the grant of his visa.
…
38.The Tribunal is not satisfied that there are any compelling circumstances affecting the interests of Australia that justify the granting of the subject visa.
39.Therefore the Tribunal finds that the applicant does not meet pic 4013 (1)(b)(i).
…
41.The applicant gave evidence that he has a relationship with 4 Australian citizens, his uncle, his aunt and 2 cousins.
42.He lives with them in Melbourne and believes that he has bonded with them. He believes that they would be sad if he returned to China. He did not provide any corroborative evidence of that.
43.The Tribunal observed that the visa he has applied for is a temporary visa and that he will need to return to China anyway, even if it is granted. The applicant said that by next July they will be used to the idea of his departure and will be less distressed.
44.He said that he pays them $500.00 per month in rent but they do not rely on that money and have other income.
45.He said he also has friends who are Australian citizens and permanent residents and they will also be sad if he leaves.
46.The Tribunal observed that if the international travel situation eases and his partner returns from China, the couple will move to Hobart from Melbourne to pursue her study. The applicant was asked whether that means that the sadness he suspects his friends may feel if he has to return to China would be something they will experience anyway when the applicant moves to Hobart.
47.He replied that his friends travel a lot and have been to Hobart so they may come and visit. This is less likely if he moves to China.
48.The applicant was unable to indicate any other circumstances that would affect the interests of any Australian citizens or permanent residence or eligible New Zealand citizens if his visa is refused.
49.The Tribunal finds that the circumstances he has described are not relevant compassionate or compelling circumstances for the purposes of pic 4013(1)(b)(ii).
50.The Tribunal has had regard to the statement prepared by the applicant dated 22 February 2019 which relates to his relationship with his partner, his intention to obey his visa conditions if his visa is granted and his plan to return to China. There is nothing in the statement that satisfies the Tribunal that the applicant meets pic 4013.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant made the following allegations:
1.The second respondent made a decision dated 11 Nov 2020 on the applicant's application for reviewing the decision made by the first respondent. The decision made by the second respondent was made on an error of law on the face of record and a misinterpretation of relevant migration regulations.
2.The first respondent stated that the applicant's presence in Australia is evidently not critical to the applicant's partner's study ability but failed to consider the importance of emotional support and physical companionship from a partner to the mental health and academic performance of a student who studying in a totally new environment.
3.Both the first and second respondent failed to consider the benefit that the applicant could contribute to Australia's economic regarding the spending aspects. The second respondent only focused on whether the applicant has intention to work when assessing whether the subclause 4013 (1)(b)(i) was met. However, the applicant would benefit the Australia's economic in forms of spendings. If the appliant is granted the student subsequent entrant visa, he will stay in Australia to company his partner while the partner is studying. That means the applicant will spend a lot on his living costs, such as rents, unitility bills, food spending and etc. Apart from that, the applicant and his partner will contribute to the development of Australian hospitality industry. The applicant and his partner plan to travel over Australia together during the student visa period, which will incur travelling costs and hotel bookings. The above mentioned spendings would be significant and only incurred if the applicant is allowed to accompany his partner's study in Australia.
4.The second respondent gave significant weight on the applicant's no intention to work during the Tribunal. Under this influence, the applicant's attention was driven to paid works, but forget to bring up his volunteering works that has contributed to the benefit of Australian society and Australian citizens or permanent residents.
5.The applicant has been actively participating in volunteering activities and intends to continuously participates those volunteering activities if the applicant's visa is granted. The applicant assisted an old couple who lives on their own and teaching mandarin to a few local children in the community. The second respondent did not take into account the social and development interest and the wellbeing of the Australian citizens that the applicant could contribute to by doing volunteering works.
6.The second respondent was not satisfied that applicant's uncle and aunt who are Australian citizens are having distress and sadness to the applicant's visa refusal and possible recent departure is a compassionate or compelling circumstance that affect the interests of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen. The tribunal failed to consider that the possible health threats of the COVID-19 to international travellers intensify the concerns and stress that the applicant's uncle and aunt have on applicant's possible recent departure if the visa is not granted, and these concerns and stress would be eased if the applicant is granted the visa and allowed be stay till next July when the COVID-19 situation is predicted to be well contained.
CONSIDERATION
Ground 1
One of the allegations pleaded in the first ground of the applicant’s application was that there was an error on the face of the record. No attempt was made to identify what material constituted the record in this case, but at the very least it includes the application for review, and the Delegate’s decision record that was submitted as part of it, and the record of the Tribunal’s decision. Although the Tribunal’s decision did not incorporate, by reference, the evidence it considered or its reasons for decision, subject to presently irrelevant exceptions s.368 of the Act requires the Tribunal when making a decision on a review to make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Although s.368 does not, in terms, incorporate the evidence and reasons into the decision, it does require the decision to be in a document which rehearses those matters to the extent that they fall within its requirements. In the circumstances, I would conclude that the record of the review includes the Tribunal’s reasons and the evidence to which it refers in those reasons: see Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 568 [59].
However, a writ of certiorari for an error on the face of the record in not available in this case because it is excluded by s.474 of the Act, which relevantly provides:
474Decisions under Act are final
(1)A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
…
The Tribunal’s decision is a privative clause decision: s.474(2) and (3)(i) of the Act. A provision such as s.474, which states that a decision may not be quashed, clearly excludes the availability of certiorari: Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 93. Although a statute cannot exclude the jurisdiction of the High Court and the State Supreme Courts to grant relief for jurisdictional error because the right to such judicial review is entrenched by the Commonwealth Constitution: Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 at 512 [98]; Kirk v Industrial Court (NSW) at 580-581 [98]; the same cannot be said for review based on error on the face of the record. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, in a discussion of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, Mason CJ said:
What emerges from the decisions of this Court applying the Hickman principle to privative clauses, especially to s 60 (and its predecessor s 31) of the Conciliation and Arbitration Act 1904 (Cth), is that they are effective to protect an award or order from challenge on the ground of a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order. (at 180)
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, the High Court said:
… Error of law on the face of the record constitutes a separate and distinct basis on which the Supreme Court can make an order in the nature of certiorari to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power under a State statute. That basis for the Supreme Court making an order in the nature of certiorari is not entrenched by the Commonwealth Constitution; its application can be excluded by statute. … (at 492 [26]) (references omitted)
That is the situation in this case. The privative clause found in s.474 of the Act precludes the Court from considering whether there is an error on the face of the record of the Tribunal’s review of the applicant’s case.
However, as foreshadowed earlier, that limitation does not apply to the second part of the first ground of the application, namely the allegation being made in relation to the “misinterpretation of relevant migration regulations”, which appears to be an allegation that the Tribunal’s decision is affected by jurisdictional error. It is not clear whether that is indeed the allegation but, assuming it is, the argument goes nowhere because it is not particularised. In the absence of some particulars of the alleged misconstruction of the Regulations, the allegation lacks meaningful substance and does not identify any error on the part of the Tribunal. In any event, it is not apparent that the Tribunal did misunderstand the relevant regulations.
Ground 2
The second ground of the application alleged that the Minister, that is to say the Delegate, failed to consider a relevant consideration. The Court’s jurisdiction is limited to reviewing the Tribunal’s decision and it has no power to review the Delegate’s decision. This ground discloses no basis on which the Tribunal’s decision might be set aside.
Ground 3
The implication of the third ground of the application was that the applicant’s spending in Australia was a compelling circumstance affecting the interests of Australia and that the Tribunal should have had regard to it for that reason, but did not. The applicant did not claim to have advanced that contention to the Tribunal, it is not apparent that he did in any appreciable way and it was not the Tribunal’s task to consider claims not made: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 20 [62]. At least as far as a contribution to the Australian economy was concerned, the Tribunal did not err when it observed that the applicant had not sought to suggest that there were any compelling circumstances affecting the interests of Australia justifying the grant to him of the visa he sought. The third ground of the application did not identify jurisdictional error on the part of the Tribunal.
Grounds 4 and 5
Again the applicant alleges that the Tribunal failed to consider claims that there is no evidence of him having made, namely that he had engaged and could in the future engage in volunteer work, and that that work was of such benefit to Australia that there existed as a consequence compelling circumstances affecting the interests of Australia that justified the grant to him of a visa. The Tribunal did not err by not considering a claim not made in any appreciable way.
Ground 6
The burden of the final ground of the application was that the applicant’s uncle and aunt, Australian citizens he was living with in Melbourne who would be concerned and stressed if he were to be required to return to China, would feel those emotions more keenly if he had to return during the COVID-19 pandemic. The implication was that these were compassionate or compelling circumstances affecting the interests of Australian citizens which justified the grant of the visa the applicant sought. The applicant had alleged to the Tribunal that his uncle and aunt would be sad if he had to return to China, but did not suggest that their sadness, or concerns and stress, would be intensified if he had to do so during the pandemic. Although, as might be expected it is not apparent that the Tribunal considered the latter issue, it did expressly consider the former one when it said:
49.The Tribunal finds that the circumstances he has described are not relevant compassionate or compelling circumstances for the purposes of pic 4013(1)(b)(ii).
For the reasons already given in relation to earlier allegations, the fact that the Tribunal did not consider a claim that had not been made is not demonstrative of error.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 July 2022
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