Magandram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1853

FEDERAL CIRCUIT COURT OF AUSTRALIA

Magandram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1853

File number(s):

ADG 377 of 2019

Judgment of:

JUDGE EGAN

Date of judgment:

11 August 2021

Catchwords:

 MIGRATION – Application for Student Visa – applicant arrived in Australia in 2007 – Tribunal entitled to find that the applicant did not genuinely intend to stay in Australia only temporarily – no error on the part of the Tribunal in the way in which it assessed criteria required to be satisfied for the grant of a visa – no jurisdictional error established – application dismissed.    

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl 802.221.

Ministerial Direction No 69.  

Cases cited:

Minister for Immigration and Border Protection v Gill [2019] FCAFC 9.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Number of paragraphs:

26

Date of last submission/s:

5 August 2021

Date of hearing:

5 August 2021

Place:

Brisbane

Solicitor for the Applicant:

RSG Lawyers

Counsel for the Applicant:

Mr A. White

Solicitor for the First Respondent: 

Mr S. Cummings of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs.

ORDERS

ADG 377 of 2019

BETWEEN:

PRASHANTH MAGANDRAM

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	11 AUGUST 2021

IT IS ORDERED THAT:

1.The Amended Application for Review filed on 21 February 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7, 000.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

Introduction

1. The applicant is a citizen of Malaysia who arrived in Australia in 2007 to complete the last two (2) years of his secondary schooling on a Student Visa. The applicant remained in Australia after secondary school to complete a Bachelor of Science in Biodiversity in Conservation [1] and a Master of Teaching English as a Second Language. [2]

   [1]           Court Book (‘CB’) p. 70.

   [2]           CB p. 80.

2. On 8 March 2017, the applicant applied for a further Student Visa based upon the applicant’s enrolment in a business leadership and management course. [3]

   [3]           CB p. 22.

3. On 9 June 2017, a delegate of the Minister refused the application.

4. On 28 June 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. The applicant provided a further statement, and the applicant’s representative provided further submissions to the Tribunal, in support of the applicant’s application. The applicant attended a hearing before the Tribunal on 17 September 2019, subsequent to which the applicant’s representative provided a further submission to the Tribunal on 19 September 2019.

5. On 27 September 2019, the Tribunal affirmed the decision of the delegate on the basis that the Tribunal was not satisfied that the applicant intended genuinely to only stay in Australia temporarily. The Tribunal found that the applicant did not meet the requisite criteria under cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 of Schedule 2 to the Regulations relevantly provided as follows:

   “500.212 

   The applicant is a genuine applicant for entry and stay as a student because:

   (a) the applicant intends genuinely to stay in Australia temporarily, 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; and

   (iv) any other relevant matter; and

   (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)       of any other relevant matter.”

   Grounds of Amended Application for Review.

6. At the hearing of this matter, the applicant relied upon an Amended Application for Review filed on 21 February 2020, the grounds of which were as follows:

   “1. The tribunal failed to complete its statutory task and/or denied the applicant procedural fairness by failing to assess if the applicant genuinely intended to stay in Australia temporarily.

   Particulars

   a. The tribunal’s statutory task pursuant to cl. 500.212 of the Migration Regulations 1994 (Cth) (regulations) was to determine if the applicant genuinely intended to remain in Australia temporarily.

   b.The applicant claimed that following the completion of his Masters of Professional Accounting (course) he would return to Malaysia to set up a biodiversity consultancy and/or a English Language School

   c.        The tribunal made findings that:

   i.The applicant did not “need” to take the course (Court Book (CB) 126 [66];

   ii.the applicant had not undertaken enough research or analysis in order to determine the viability of his business proposals, and how the course would benefit those proposed businesses (CB 130, [69]); and

   iii.the applicant would not obtain “significant benefit” from the course (CB 130 [70]).

   d.The tribunal failed, in these findings, to address the correct statutory question: whether the applicant’s plans to study a masters of accounting and return to Malaysia, albeit flawed, were genuine.

   e.The tribunal instead assessed whether the applicant’s plans to study the course and then return to Malaysia were sound and well researched.

   f.The tribunal’s error was material to the ultimate decision, the tribunal relied on those findings, in conjunction with the applicant’s immigration history to find the applicant did not genuinely intend to remain in Australia temporary (CB 130, [71]).

   2.The tribunal asked itself the wrong question by erroneously imposing a burden of proof on the applicant to satisfy the tribunal of the value of the course, additional to the visa criteria in the regulations

   Particulars

   a.The applicant repeats and relied on the particulars for ground 1.

   b.The Tribunal imposed a burden on the applicant to satisfy the tribunal that his plan to study the course and set up businesses in Malaysia were well researched, necessary, or sound.

   c.That burden of proof exceeded the visa criteria in the Migration regulations, that only required the tribunal to be satisfied that the applicant’s plans were genuine.

   d.Accordingly, the tribunal asked itself the wrong question and constructively failed to exercise its jurisdiction.”

7. Ground 1 of the Amended Application for Review asserted that the Tribunal had failed to complete its statutory task, or alternatively, that it had denied the applicant procedural fairness by failing to assess whether the applicant genuinely intended to stay in Australia temporarily or not. There is no merit to such ground.

8. Contrary to what was asserted in Ground 1(f) of the Amended Application for Review, and as was correctly submitted on behalf of the first respondent at [16] of its written submissions filed on 30 July 2021 as to a decision maker not being required to be positively satisfied of an inverse proposition, [4] the Tribunal, at [71] of its reasons, said as follows:

   “[71] … On the basis of the above, the Tribunal is not satisfied that the Applicant intends genuinely to stay in Australia temporarily. ...”

   [4]           Minister for Immigration and Border Protection v Gill [2019] FCAFC 9 at [16].

9. At [12] of its reasons, the Tribunal made specific reference to the requirement that the applicant satisfy the criteria as set out in cl. 500.212 of Schedule 2 to the Regulations.

10. At [68] of its reasons, the Tribunal made specific reference to the relevant parts of Ministerial Direction No. 69 to which it was required to have regard, and within the body of such paragraph of its reasons, the Tribunal recorded the claims relevant to each part of the direction, and, where relevant, its comments relevant thereto. [5] For example, when considering paragraph 9(c) of the Direction, the Tribunal recorded that it did not appear from the evidence before it that there were economic circumstances which presented as significant incentives for the applicant not to return to his home country. The Tribunal recorded that the applicant was not liable for military service in Malaysia, and that the applicant believed that Malaysia was a safe place where his personal safety was not at risk. When considering paragraph 10 of the Direction, the Tribunal recorded that there was nothing to suggest that the applicant’s circumstances in his home country, relative to the circumstances of others in that country, would provide a basis for him to wish to remain in Australia. It could not be said that the Tribunal was unmindful of matters supportive of a number of the applicant’s claims.

    [5]           CB pp 126 – 130 inclusive.

11. Of obvious significance to the Tribunal in its deliberations, however, was the fact that as at the date of the hearing, the applicant had lived in Australia for a period of more than twelve (12) years. Sub-paragraph 11(b) of [68] of the reasons of the Tribunal, reflecting its further  consideration of relevant matters under the Direction, was as follows:

    “The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.        …

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme; the Tribunal observed that the applicant has now lived in Australia for over 12 years without returning to Malaysia and that generally his family have accommodated the children in living in Australia so that there is no particular drive for him to return. The applicant said that be feels obliged to return to help his parents. The Tribunal noted that this had not prevented him from applying to study further courses although he indicated at the time of the application that he did not wish to stay more than one year. He said that he changed his mind when he decided that be needed accounting qualifications. The Tribunal is not convinced by this explanation given the applicant's lack of adequate enquiry into the grant system. The Tribunal is not satisfied that the biodiversity consultancy or English language school proposed by the applicant have been properly researched and can be shown to represent viable businesses. The Tribunal put it to the applicant that he had done no research into the distribution of grants he said that he had not researched them in "full detail". When asked what level of detail his research had achieved he said that it had revealed that councils and NGOs offer grants. The post hearing submissions suggest that the research went further than that but even if that is so the Tribunal is not satisfied that the applicant's research into the likelihood of obtaining grants justifies his further study.”

12. Similarly, when considering the value of the course to the applicant’s future under sub-paragraph 12 of [68] of the reasons of the Tribunal, the Tribunal expressed its reservations about the applicant’s claims, and was sceptical, as follows:

    “Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; the applicant is not seeking employment when he 1·eturns to Malaysia and says that he wishes to start his business straightaway. He believes that he will need to be able to give detail of how grant money will be spent and that his qualifications will help them do that and thereby get grants. The Tribunal finds this to be speculative. The applicant had not undertaken any enquiry into applying for grants. And

    b.relevance of the course to the student's past or proposed future employment either in their home country or a third country; the applicant asserted that the Masters of Professional Accounting will be important for him to pursue his business. The Tribunal finds this to be essentially unsupported. And

    c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. He said that he expects to earn about 50% more than he would have without his Masters in professional accounting but was unable to give a basis for that belief.”

13. The Tribunal, at [13] – [66] inclusive of its reasons, properly had regard to the matters required to be taken into account by it under cl. 500.212 of Schedule 2 to the Regulations.

14. At [69] – [71] of its reasons, after having considered all of the evidence before the Tribunal, the Tribunal made findings which were open to it, as follows:

    “[69]Having considered the above matters the tribunal is not satisfied that the applicant has undertaken adequate analysis of the benefit to him of the Masters in Professional Accounting that he is studying. The tribunal is not satisfied that the applicant has undertaken appropriate research into the procedure for making grants in relation to his stated ambitions to open a biodiversity consultancy and a not for profit English language teaching facility in Malaysia. The Tribunal is not satisfied that the applicant has undertaken enough research to establish the potential viability of his proposed businesses as a biodiversity consultant and an English language teaching facility.

    [70]The Tribunal is not satisfied that the applicant will enjoy any significant benefit in pursuing his stated objectives in Malaysia by obtaining a Masters in Professional Accounting.

    [71]The Tribunal notes that by the time the applicant has completed his Masters in Professional Accounting he will have been in Australia for over 12 years and have been undertaking tertiary study for more than 10 years. The applicant has not returned to Malaysia in this time and despite him saying that he wishes to return to take care of his parents, there is no evidence of any compelling need to do so. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).”

15. The Tribunal duly undertook its statutory task of weighing up all of the evidence, and then arriving at a conclusion as to whether or not the applicant had satisfied it that he intended genuinely to stay in Australia only temporarily. Relevant findings and matters considered and taken into account by the Tribunal, as set out in [68] of its reasons, were marked in bold text.

16. In assessing the applicant’s claims, the Tribunal was entitled to have regard to the vague and uncertain responses of the applicant in relation to how he sought to justify the value of a Masters of Professional Accounting Degree to him upon his return to Malaysia. It did so when considering the genuineness of the applicant’s stated intention to remain in Australia only temporarily. That question was addressed at [57] – [66] of the reasons of the Tribunal as follows:

    “[57]The Tribunal further observes that in the applicant's submissions dated September 2018 he addresses the question of his reasons for studying a Master of Professional Accounting.

    [58]He says that the first reason is because accounting is a "pivotal part of decision-making in any business arena." He says that his MPA will equip him with skills that play an important role for his consultancy and gives him valuable insight into operations, trends, and opportunities.

    [59]The Tribunal questioned the applicant about his understanding of the procedures involved in running a consultancy including applying for grants. The Tribunal is not satisfied that the applicant understands what skills will play an important role for his consultancy.

    [60]The applicant says that another reason for studying an MPA is that it would be a saving to his business as he would not require the services of a paid accountant. The tribunal observes that this may be so although the extent and benefit of such saving has not been established.

    [61]The second reason he gives for studying an MPA is because "accounting is considered the language of business." He says that an effective and robust accounting system in a new consultancy is important. He says that accounting skills are essential in a biodiversity conservation field. He does not explain why this is so.

    [62]The third reason he gives is the value of natural capital accounting to his consultancy and that the MPA gives him the knowledge to display financial dimensions such as the System of Environmental Economic Accounting (SEEA) and Wealth Accounting and the Valuation of Ecosystem Services (WAVES). The applicant does not explain how this is so and what value it has to his consultancy.

    [63]The fourth reason that he gives is that he has a general interest in accounting and financing and takes as role models some people who studied accounting, including his grandfather. He does not explain why this means that accounting skills will be valuable to its business.

    [64]The fifth reason he gives for studying is Masters of Professional Accounting at the University of SA is because of the ranking of that university makes it a desirable place to study particularly in association with his familiarity with the Australian educational system.

    [65]The tribunal has regard to the applicant's submissions but treats them with some caution in view of the applicant's own evidence that he has a limited grasp of the procedures related to obtaining grants and other funding and of what working in the accounting side of the biodiversity consultancy will involve.

    [66]The Tribunal finds the reasons set out by the applicant to be elusive and is not satisfied that the applicant has established firm reasons for needing to study his Masters of Professional Accounting.”

17. As to whether or not the Student Visa the subject of the application might be used primarily for the maintenance of ongoing residence by the applicant, the Tribunal, at sub-paragraph 14(b)(iii) of [68] of its reasons, said as follows:

    “14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.        …

    b.        Previous travels to Australia or other countries, including:

    i.        …

    ii.        …

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; the applicant has spent about 12 1/2 years in Australia on various student visas and bridging visas. The applicant has done some short and relatively inexpensive courses although this has not been an invariable feature of his Visa history. The applicant has completed qualifications where he has enrolled in them. The Tribunal is not satisfied that the applicant's ongoing study will be of benefit to him or that its purpose bas been properly considered. The Tribunal finds that there is a risk that the student visa may be used primarily for maintaining ongoing residence. ”

1. When reading the Tribunal’s reasons as a whole, the Court finds that the Tribunal was entitled to find that the applicant was disingenuous about his stated intention to return to Malaysia. The applicant had lived in Australia for approximately 12.5 years and had been engaged in study over a ten (10) year period. The applicant had not returned to Malaysia during that period of time. There is no merit to Ground 1 of the Amended Application for Review.

2. As to Ground 2 of the Amended Application for Review, it was submitted by Counsel on behalf of the applicant that it ought to be inferred that the Tribunal had imposed a burden on the applicant to satisfy the Tribunal that his plan to study and set up businesses in Malaysia were well researched, necessary or sound, and that the Tribunal had erred in doing so. There is no merit to such claim.

3. The Tribunal, at [69] – [72] inclusive of its reasons, directed its findings to the very issues required to be considered by it after having properly examined all of the evidence. The Tribunal did not ask itself the wrong question, or otherwise unfairly assess the applicant’s claims. To the extent that the applicant sought to impugn the performance of the Tribunal in the fulfilment of its statutory duty, the applicant has sought to scrutinise the reasons of the Tribunal with eyes too keenly attuned to error. In that regard, the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46] – [47]:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

4. The Tribunal properly addressed all of the issues under the Ministerial Direction, including paragraph 12 of the Direction, which specifically required consideration of the value of the course of study to the applicant’s future. The Tribunal was not required to record in detail each and every aspect of its considerations involving relevant issues. The Tribunal’s evaluation of the applicant’s intentions was necessarily intuitive based upon many factors, including the applicant’s presentation at the time of the Tribunal hearing. There is no merit to Ground 2 of the Amended Application for Review.

5. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

6. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

8. The Amended Application for Review is without merit and is dismissed.

9. The Court will hear to the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 August 2021