Mahakumbura v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 725
•12 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mahakumbura v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 725
File number(s): MLG 4031 of 2019 Judgment of: JUDGE LIVERIS Date of judgment: 12 August 2024 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – first applicant found not to be a genuine applicant for entry and stay as a student – whether Tribunal misunderstood and failed to consider the first applicant’s claims – no material error of fact made by the Tribunal Legislation: Migration Act 1958 (Cth) ss 359, 499
Migration Regulations 1994 (Cth)
Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
LPDT vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 13 May 2024 Place: Darwin Counsel for the Applicants: Mr Kikkert Solicitor for the Applicants: Ausri Lawyers Counsel for the Respondent: Mr Sypott Solicitor for the Respondent: The Australian Government Solicitor ORDERS
MLG 4031 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHANIKA PRASANDANI MAHAKUMBURA
First Applicant
NUWAN ANURADHA MAHAKUMBURA
Second Applicant
NUVAINYA EMILI KIRIWATHUDUWAGE DON PERERA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
12 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs; and
2.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 LIVERIS
The applicants are a family of Sri Lankan nationals. The first applicant arrived in Australia in July 2008, having been granted a student visa. She married the second applicant in 2010. In 2013, he moved to Australia to join her. Their daughter, the third applicant, was born in Australia in 2014.
The first applicant applied for a Student (Class TU) (subclass 500) visa (visa) on 28 September 2017. The second and third applicants were applicants as members of her family unit. To be granted the visa, the first applicant was required to establish that she was a genuine applicant for entry and stay as a student under cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth). Ministerial Direction 69 issued under s 499 of the Migration Act 1958 (Cth) applied to the assessment of the first applicant’s claims that she intended genuinely to stay in Australia temporarily.
The Delegate was not satisfied that the first applicant met cl 500.212(a). The Delegate was concerned that the first applicant’s intention to live in Australia was motivated by factors other than study. The Delegate found that the applicants were more likely seeking to maintain residency in Australia and on 7 December 2017 decided not to grant them the visa.
On 15 October 2019, the Administrative Appeals Tribunal decided to affirm the Delegate’s decision. The Tribunal was concerned that the first applicant was using the student visa program to maintain ongoing residence in Australia, finding it difficult to accept that her plans evolved through “a decade of study in a series of seemingly unrelated courses”.
On 19 November 2019, the applicants applied for judicial review of the Tribunal’s decision. The ground of review pressed by the applicants focusses on the Tribunal’s finding that the first applicant had completed an Advanced Diploma of Management at Danford College on 18 July 2018.
The applicants contend that this finding was wrong, and caused the Tribunal to misunderstand the first applicant’s claim that she completed an Advanced Diploma of Banking Services Management at Danford College on 8 July 2018. They say that the Tribunal went on to fail to consider the claim, deny the first applicant procedural fairness and fail to take into account relevant considerations.
An error made by the Tribunal will only amount to jurisdictional error if it “was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”[1].
[1] LPDT vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [7].
To that end, “unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)”[2].
Did the Tribunal make an error of fact when it found that the first applicant had completed an Advanced Diploma of Management at Danford College on 18 July 2018?
[2] LPDT at [16].
An applicant is required to satisfy the Tribunal that they meet the criteria for the grant of a visa. In early May 2019, the first applicant provided the Tribunal with information given under s 359(2) of the Act. This included a declaration made on 18 April 2019, setting out the details of her enrolment history in courses in Australia. She declared that she had completed:
(a)Diploma of Information Technology at the Holmes Institute between 27 April 2009 and 28 May 2010;
(b)Bachelor of Information Technology at Charles Darwin University between 15 July 2010 and 15 June 2012;
(c)Advanced Diploma of Management at Danford College between 11 November 2014 and 5 November 2015;
(d)Diploma of Banking Services at Danford College between January 2016 and 19 July 2017; and
(e)Advanced Diploma of Management at Danford College between 19 July 2017 and 8 July 2018.
The first applicant also provided the Tribunal with confirmation of her enrolment in a Diploma of Leadership and Management at Danford College, commencing on 12 August 2019.
The first applicant made no declaration that she had completed an Advanced Diploma of Banking Services Management, and nor did she otherwise provide the Tribunal with any documentation about her completion of the course.
However, the Delegate’s decision noted that the first applicant had applied to study an Advanced Diploma of Banking Services Management. The decision also referred to the first applicant’s academic registration history extracted from the Provider Registration and International Student Management System (PRISM), which showed that on 19 July 2017 the Applicant started an Advanced Diploma of Banking Services Management, which she was then currently studying, and which was set to end on 8 July 2018.
The applicants claim that the Tribunal overlooked this evidence. They also say the Tribunal should have understood the first applicant’s declaration that she completed an Advanced Diploma of Management on 8 July 2018 as being a declaration that she completed an Advanced Diploma of Banking Services Management, because the start and end dates of the course is the same as extract from the PRISM set out in the Delegate’s decision in December 2017.
The Tribunal must address and deal with how the claim was put to it[3]. The Tribunal's task cannot be lawfully undertaken without a consciousness and consideration of all submissions, evidence and material advanced by the visa applicant[4]. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, the Full Court of the Federal Court of Australia held that if the Tribunal misunderstands or misconstrues a claim, the error is tantamount to a failure to consider the claim and on that basis may constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by an applicant, and is misunderstood or misconstrued. Every case must be considered according to its own circumstances[5].
[3] Htun v Minister for Immigration and Multicultural Affairs [2024] HCA 12; (2001) 194 ALR 244 at [42].
[4] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].
[5] At [63].
Jurisdictional error will arise where there has been a failure to consider a substantial, clearly articulated argument relying on established facts[6]. It will also arise if the Tribunal fails to consider a claim which squarely arises on the material. Such a claim “will not depend for its exposure on constructive or creative activity by the Tribunal”[7].
[6] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42].
[7] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].
In my opinion, the Tribunal did not misunderstand or misconstrue the first applicant’s claims. The evidence about the course that the first applicant was studying at the time of the Delegate’s decision was different to the evidence about the course the first applicant had completed. I do not consider that the Tribunal erred in relying on the first applicant’s declaration of her completed courses of study on 18 April 2019, in accepting that she had completed an Advanced Diploma of Management.
The Tribunal’s reasons incorrectly cite the first applicant’s course completion date as 18 July 2018 and not 8 July 2018, however this is not the focus of the ground of review. The applicants contend that had the Tribunal found that the first applicant had completed an Advanced Diploma of Banking Services Management despite her declaration, it would have understood that she was building on the Diploma of Banking Services that she completed on 19 July 2017 and that it was not an unrelated course.
In my opinion, the Tribunal’s findings about the first applicant’s study are more nuanced than the applicants have suggested they are. The Tribunal’s conclusion that the first applicant had studied in a series of seemingly unrelated courses was a global assessment of the first applicant’s academic history in Australia, further to the Tribunal’s concern that she was using the student visa program to maintain ongoing residence in Australia. It was not a finding that an Advanced Diploma of Management is unrelated to a Diploma of Banking Services.
The Tribunal had regard to the development of the first applicant’s study history over a period of some 10 years. I accept the Minister’s submission that there was a logical and probative basis for the finding that the first applicant’s courses over this period were “seemingly unrelated”, as she had completed courses across fields of information technology, management and banking services management. The Tribunal’s finding was open to it on the first applicant’s declaration, regardless of whether she declared she had completed an Advanced Diploma of Management, or an Advanced Diploma of Banking Services Management in 2018.
Whilst there may have been conflicting evidence about the course that the first applicant completed in July 2018, I do not consider that the Tribunal erred in accepting the first applicant’s declaration of her completed study at the most contemporaneous point in time. The declaration was the only evidence before the Tribunal of the course the first applicant had completed that post-dated completion. The applicants have not established that the Tribunal misunderstood the first applicant’s claim.
Further, I do not consider that the first applicant made a substantial, clearly articulated claim that turned on her completion of the Advanced Diploma of Banking Services. I do not consider that any claim emerges clearly from the materials.
In the circumstances, the applicants have not established that the Tribunal failed to consider the first applicant’s claim, nor deny her procedural fairness or fail to take into account relevant considerations.
If the Tribunal made an error, was it material?
Despite my findings that the Tribunal did not make any error as alleged, even if the Tribunal erred in misconstruing the first applicant’s claims, I do not consider that any error is material.
A reviewing court “does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision”, or make assumptions about how the Tribunal would have undertaken the weighing exercise[8].
[8] LPDT at [29].
I do not consider there is a realistic possibility that the decision that was made could have been different if the Tribunal had found the first applicant completed an Advanced Diploma of Banking Services Management on 8 July 2018.
The Tribunal’s finding that the first applicant did not meet the genuine temporary entry requirement of clause 500.212(a) of the Regulations was based on a combination of factors. Apart from the findings that were made about the first applicant’s study history, the Tribunal took into account:
(a)The gap of time between the first applicant’s course finishing in July 2018, and her next course, the Diploma of Leadership and Management, not being due to commence until August 2019. The Tribunal considered it unlikely that the first applicant had been unable to study for a 12 month period, pending the determination of her review of the Delegate’s decision. The Tribunal found that “The first applicant elected not to study for a considerable period and the Tribunal considers this is not indicative of a genuine intention to study”;
(b)The first applicant’s family connections in Sri Lanka and her ability to maintain those relationships over many years despite the distance. The Tribunal found that the first applicant’s personal connections do not operate as a significant incentive for her to return to Sri Lanka; and
(c)The Tribunal did not consider that there was much value to the first applicant undertaking a Diploma of Leadership. The Tribunal observed that the first applicant holds at least 3 Diplomas or Advanced Diplomas, as well as a Bachelor’s degree, and found she will have options to work in her father’s businesses, have a good range of employment opportunities, and realise her goals whether or not she completes the Diploma of Leadership.
Notwithstanding my finding that the Tribunal did not make an error in finding that the first applicant had completed an Advanced Diploma of Management in 2018, I do not consider that any finding that she had completed an Advanced Diploma of Banking Services Management is of such a nature as to establish a realistic possibility that the decision could have been different. There were several bases upon which the Tribunal was not satisfied that the first applicant was a genuine applicant for entry and stay as a student.
Conclusion
The applicants have not established that the Tribunal’s decision is affected by jurisdictional error.
I will make orders:
(a)The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs; and
(b)The application be dismissed.
I will hear the parties as to costs if necessary.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 12 August 2024
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