Marasi v Minister for Home Affairs
[2019] FCCA 3378
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARASI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3378 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of a delegate of the Minster for Home Affairs not to grant Student (Temporary) (Class TU) (Subclass 500) Vocational Education and Training Sector visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student – claim that requests by the Administrative Appeals Tribunal of the applicant to provide a copy of the Decision Record of the delegate were made for an improper purpose and not authorised by s.359 of the Migration Act 1958 (Cth) – no improper purpose established and requests authorised by the general power granted to the Administrative Appeals Tribunal by s.359 to get information – no jurisdictional error established by the applicant – application for judicial review dismissed. |
| Legislation: Civil Procedure Act 2005 (NSW), s.70 Migration Act 1958 (Cth), ss.352, 359, 359A, 424A Migration Regulations 1994 (Cth) |
| Cases cited: Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2008) 256 ALR 644 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552 |
| Applicant: | KAMELEON MARASI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1701 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 12 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr M. J. Smith of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed on 20 September 2019 is dismissed.
The Applicant is ordered to pay the First Respondent’s costs of the proceeding in the sum of $7,328.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 19 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1701 of 2018
| KAMELEON MARASI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Greece aged 29 years, having been born on 5 May 1990.
By Amended Application filed in this Court on 20 September 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 19 July 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 3 March 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) Vocational Education and Training Sector visa (Student visa).
Background
The Applicant arrived in Australia on a Visitor visa on 6 August 2016 which was valid until 6 November 2016. It would appear on the evidence that on his entry passenger card he stated that the purpose of his visit in Australia was tourism, for a period of 17 days. He then applied for the Student visa on 2 November 2016. In his Student visa application form the Applicant stated that the employment he would be seeking at the completion of the study courses he proposed to study in Australia was as follows:
Manage my own business in Greece and deal with investors from different countries. Please refer to the G(enuine) T(emporary) E(ntrant) statement attached.
His proposed courses of study were English, a Certificate of Business and an Advanced Diploma of Business extending over an intended period of 32 months.
Relevant Statutory Requirements for the Grant of the Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which required, inter alia, that he be what is known as a “genuine applicant for entry and stay as a student”.
Clause 500.212 at the time of decision 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.
In the Applicant’s genuine temporary entry statement, which is undated but was certainly given to the Department of the Minister (Department) prior to the decision of the Delegate, the Applicant stated as follows:
Your reasons for choosing to undertake the course(s) of studies specified in your application:
My family has property and land in Greece and my plan is to use this land as an agritourism destination in the future and for this reason English and business studies are the best tools for my future plans and where best to study both than in an English speaking country like Australia.
…
Your reasons for choosing to study in Australia and the relevance of the courses of study to your future career:
Australia will offer me the opportunity to learn English quickly and speak very well by the time I finish my studies. In Greece I want to get involved in tourism and utilize our properties so as soon as I finish my studies I will be fully involved in business and I will not have many chances anymore to travel, especially as far as this side of the world so I want to make the best of my study years and live in a foreign country that offers me everything I want.
…
The relevance of the course(s) of study to your future career and/or educational plans:
I am pretty sure and confident that my skills that I will accumulate here in English and business will keep me when I go to Greece to manage my own business as I have a lot of land there and want to further develop the land into something big and as I will be dealing with investors from different countries and clients from all over Europe where the common language for all is English.
The Applicant also submitted an affidavit of a Greek farmer dated 1 December 2016, who gave evidence in the following terms:
I am involved with farming in the region of the Municipal Division of the City of Pyrgos in the Prefecture of Ileia in Greece and KAMELEON MARASI worked for me in 2015. I know that Kameleon Marasi is currently studying in Australia and that following completion of his studies, he will return to Greece. Upon his return he will always have a job in my business if required in agricultural work because I was very pleased with his performance and he has proven to be a valuable employee. For any additional information, please contact me on the above telephone number.
Then by email dated 5 December 2016, the Applicant’s registered migration agent forwarded to the Department various supporting documents and stated relevantly as follows:
In regards to his ties to his home country Greece, Kameleon has the most important reason to return as he has not fulfilled his army duty as yet (he has got a deferral from the army for three years for his studies). Once his studies are finished, he has no choice but to return to fulfil his army duties otherwise he will become a fugitive…
Decision of Delegate
In her Decision Record the Delegate set out cl.500.212 of the Regulations and summarised Ministerial Direction No. 69, which was mandatory for her to consider as factors to be taken into account in assessing the genuine temporary entrant criterion, including the Applicant’s general circumstances in his home country of Greece. That summary relevantly included the following:
·the applicant’s circumstances in their home country, including the applicant’s economic situation, political and civil unrest in the applicant’s home country, the extent of the applicant’s personal ties to their home country, whether the applicant has sound reasons for not studying in their home country if a similar course is available, and military service commitments that would present as a significant incentive for the applicant not to return to their home country.
(emphasis added)
The Delegate then proceeded to set out the Applicant’s travel records and the circumstances of his coming and entering into Australia and concluded in substance as follows:
Department records show that you were granted a visitor visa on 02/08/2016 valid to 06/11/2016.
You arrived in Australia on 06/08/2016 and applied for the student visa on 02/11/2016, four (4) days before your tourist visa was due to cease. In your passenger card, you stated that your purpose of visit was for tourism for seventeen (17) days.
You remained in Australia and lodged this application for a Student visa on 02/11/2016 with the intention to study English, Certificate of Business and Advanced Diploma of Business for approximately thirty two (32) months.
(emphasis added)
…
I have considered the entire submission and noted the points stated in your GTE statement. I am not satisfied that a person travelling as a tourist, leaving their country of usual residence, would make such a significant change from their initial intentions to visit for tourism. I believe the stated intent in this application would have included a greater level of planning and preparation before arriving in Australia. I cannot reconcile that the cost of 32 months education and living expenses in Australia for you is fully justified for the purpose of pursuing the tourist industry where similar opportunities would be available in your country of usual residence.
These factors indicate that you are not a genuine student. Rather, you appear to be using the Student visa program as a means of maintaining ongoing residence in Australia and you do not genuinely intend to stay in Australia temporarily as a full time student.
Accordingly the Delegate was not satisfied that the Applicant met cl.500.212 for the grant of the Student visa and refused his application.
Decision of Tribunal
The Applicant lodged an application for merits review of the decision of the Delegate with the Tribunal on 21 March 2017 and did not give a copy of the decision of the Delegate to the Tribunal at that time. By email dated 5 April 2017 the Tribunal asked the Applicant’s migration agent to email to it a copy of the Delegate’s notification of refusal letter and Decision Record as soon as possible. That email was not responded to.
On 2 May 2018 the Tribunal appointed a hearing date before it for 24 May 2018 and invited the submission of evidence and a statement to the Tribunal. By further letter dated 16 May 2018 the Tribunal asked the Applicant’s migration agent to provide a copy of the Decision Record of the Delegate, and the migration agent sent a copy of the Decision Record to the Tribunal by email the following day.
On 23 May 2018 the Applicant’s migration agent forwarded a Written Submission (Written Submission) to the Tribunal, which stated in connection with his career objectives in Greece as follows:
7. Career Objectives in Greece
On completion of his Studies in Australia, the applicant will be returning to Greece to develop agriculturally based operations and activities to attract visitors to the farmlands. Mr Marasi understands business conditions in Southern Europe. He is keen to develop his ideas by attracting visitors from all over Europe to this robust yet niche agritourism sector which is a growth industry and complimentary to Greece’s largest industry being the tourist industry.
Eventually, the applicant intends to start his own vineyard in Greece which will attract visitors from all over the world to tap into the growing wine culture and industry.
The Applicant appeared before the Tribunal at a hearing on 24 May 2018 to give evidence and present arguments, together with his migration agent.
From [4] – [8] of its Decision Record the Tribunal set out the Applicant’s claims and circumstances and summarised the issues for determination in relation to the genuine temporary entrant criterion and Ministerial Direction No. 69.
At [10] of its Decision Record the Tribunal stated:
[10] You did respond to that request for information and today you told the Tribunal you had read and understood the primary decision and we discussed the delegate's finding in some detail. The delegate made a finding that you arrived in Australia on 6 August 2016 and applied for a student visa on 2 November 2016, four days before your tourist visa was due to cease. In your passenger card the delegate stated you advised the purpose of your visa was for tourism for 17 days.
From [11] to [22] of its Decision Record the Tribunal summarised the evidence and the submissions of the Applicant. At [13], with reference to the migration agent’s email of 5 December 2016, the Tribunal recorded in its last sentence as follows:
[13]…You said that you had to carry out army training sometime in the future and currently were on deferment from that obligation in Greece.
Further, at [22] of its Decision Record the Tribunal recorded as follows:
[22] The Tribunal has considered all of the above including delegate findings, the GTE statements, written submission of 23 May 2018 and the relevant supporting documentation. The Tribunal has considered all of the above in the context of Ministerial Direction No. 69.
Then, in short, from [23] – [27] of its Decision Record the Tribunal expressed its view that:
a)it had not been presented with evidence of a business plan related to studies, financial documentation, or a pattern of studies dedicated to a particular outcome of a job or a company or enterprise in Greece: see [23]; and
b)the Applicant’s responses had been necessarily general and lacked particularity, specificity and generally could be characterised as assertions, unsupported by evidence or information: see [25].
The Tribunal concluded at [28] of its Decision Record, as follows:
[28] The Tribunal, having considered your circumstances as a whole, including the issues in Direction No.69, is not satisfied that you are a genuine student who intends to stay temporarily in Australia.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
Mr Dobbie, who appeared for the Applicant at the hearing, relied on only Grounds 3 and 4 of the Amended Application and towards the end of the hearing gave up the second set of particulars to Ground 4. Further, with respect to Ground 3 Mr Dobbie indicated that he did not press the Ground on the basis of bad faith. At the hearing, Mr Smith of Counsel appeared for the Minister.
Mr Dobbie has, by an undisputed Notice to Admit Facts in connection with Ground 3, obtained the following admission:
That the AAT had before it before 16 May 2018 a copy of the Decision Record of a decision made by the Delegate of the Minister for Home Affairs to refuse to grant the applicant a class TU visa (which was the decision to which the Tribunal’s review was subject).
The Amended Grounds which are pressed are as follows:
3.The Second Respondent did not carry out the review required by the Act because it engaged in conduct not contemplated and or not permitted by the Act
and or acted in bad faithand failed to comply with s359A of the Act, thereby committing jurisdictional error.Particulars:
(i)The Tribunal engaged in conduct not contemplated and or not permitted by the Act
or acted in bad faithby requesting the Applicant, by way of a letter dated 16 May 2018, to provide a copy of the Delegate's decision record in which the reasons for refusal of the visa application were recorded.(a) The Tribunal had before it the Department's file in relation to the decision under review. The only motivation for the Tribunal to make a formal request for the decision record eight days before its schedule hearing pursuant to s360 of the Act, when it already had that decision record, was for the purposes of subverting the provisions of s359A of the Act. That conduct was either not contemplated by the Act and or was not permitted by the Act
and or was conduct undertaken in bad faith.(b) By provision of the delegate's decision record, in response to the Tribunal's letter dated 16 May 2018, the purported result was that s359A did not apply to information contained in the decision record. The decision record contained information about the Applicant's purpose for travel and duration of his proposed stay in Australia on his passenger card, given to the Department when he entered Australia on 6 August 2016.
(A) The information on the passenger card was that he was entering Australia, for tourism purposes, for a period of 17 days ('the information').
(B) The information was contrary to the amount of time he had spent in Australia at the time the visa application was made, and contrary to the purpose of the visa application itself, being tourism as opposed to study.
(C) The delegate made adverse findings having regard to the information.
(D) The Tribunal considered the information and the delegate's adverse findings in making its decision.
(E) The Tribunal did not comply with s359A of the Act in relation to the information, nor did it comply with 359AA of the Act in relation to the information. But for the Applicant providing the decision record to the Tribunal, the Tribunal would have committed jurisdictional error because of noncompliance with s359A of the Act.
(c) The Tribunal therefore committed jurisdictional error, by virtue of it making a formal request for the delegate's decision record, in the circumstances set out above.
4. The Second Respondent did not carry out the review required by the Act because it failed to give proper consideration of a claim or misconstrued a claim, made by the Applicant; or took into account an irrelevant consideration.
Particulars:
(i) The Applicant made a claim in support of why he should be found to be a Genuine Temporary Entrant (material for the purposes of clause 500.212 of the Regulations). That claim was that he had a deferral from army duties for three years for his studies, and that once his studies were finished, that he had no choice but to return to fulfil his army duties or he would otherwise become a fugitive.
(a) The Tribunal failed to give proper consideration of that claim or misconstrued that claim, as being that he “had to carry [out] army training sometime in the future and currently were on deferment from that obligation in Greece” (CB 133 [at 13]) when the thrust of the claim was that his returning to Greece after his studies (three years) would otherwise result in him becoming a fugitive, which was not addressed by the Tribunal in its reasons, and was relevant to Ministerial Direction 69 and the finding made by the Tribunal that the Applicant did not satisfy clause 500.212 of the Regulations.
Consideration
Ground 3
Mr Dobbie submitted that in making the second request for the copy of the Decision Record of the Delegate on 16 May 2018 (see [14] above) the Tribunal was acting pursuant to an improper purpose, being the purpose of subverting the requirement of the Tribunal to give particulars of information comprised in s.359A(1) of the Migration Act 1958 (Cth) (the Act), and that thereby jurisdictional error was committed.
At the hearing Mr Dobbie somewhat widened his attack by also attacking the Tribunal’s unanswered written request of 5 April 2017 (see [13] above) for production to it of the Decision Record of the Delegate.
Further, Mr Dobbie also attacked as having an improper purpose the request made to all applicants (and necessarily of the Applicant in this case) when electronically filling out application forms to the Tribunal for merits review in migration cases (in Part 3: Document Upload), which it was agreed as common ground at the hearing is as follows:
Please now upload the following documents.
The notification letter from the department.
The decision record received from the department.
At the hearing Mr Dobbie submitted that the three requests for a copy of the Decision Record of the Delegate referred to in [27] – [29] above were not justified or authorised by the general power granted to the Tribunal under s.359(1) of the Act to “get any information that it considers relevant”. Section 359(2) empowers the Tribunal to invite, without limiting s.359(1) and either orally or in writing, a person to give information. Mr Dobbie pointed out that if an application for review is made to the Tribunal from a decision of a Delegate, the associated Decision Record must, pursuant to s.352, be given to the Tribunal by the Secretary within 10 working days and that this obviously happened in the present case: see the admission at [25] above.
Mr Dobbie went on to contend that the power of the Tribunal under s.359(2) of the Act to invite a person to give information to it, such as in this instance the Applicant, was confined to seeking information which was additional to information the Tribunal already held and he cited for authority for this proposition the decision of the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 (SZKTI) at 492 [4] concerning s.424, the analogue to s.359, where the following was stated:
[4] In conducting the review the RRT is given a general power to “get any information that it considers relevant” under s 424(1) of the Act. Section 424(2) provides that “[w]ithout limiting subsection (1), the Tribunal may invite a person to give additional information”. As pointed out by Gleeson CJ in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 299 [4], this must be additional to information obtained under s 418, which provides for the supply of the file of the Secretary to the Minister’s department (the Secretary)…
However, after this submission the Court and Counsel during the hearing collaboratively ascertained that in fact ss.359(2) and 424(2) of the Act were amended on 15 March 2009 by Sch.1 to the Migration Legislation Amendment Act (No. 1) 2009 (No.10, 2009), whereby the word “additional” was omitted and thus the above reasoning in SZKTI does not apply to the text of s.359(2) applicable in this proceeding.
In my view, Ground 1 is not made out for the following reasons:
a)I consider that s.359(1) of the Act expressly authorises the Tribunal to “get any information that it considers relevant” and this general power authorised the Tribunal to invite the Applicant to give the Decision Record of the Delegate to it: SZKTI at 501 – 502 [37] and, in its form relevant to this proceeding, an argument that the general power is qualified by s.359(2) as not being applicable to information already held by the Tribunal cannot succeed;
b)there was no compulsion on the Applicant or his migration agent to accede to the Tribunal’s request in this regard. However, the evidence establishes that the migration agent willingly, if late, provided the Decision Record of the Delegate to the Tribunal without any complaint at the time or at the subsequent Tribunal hearing at which the migration agent appeared; and
c)I do not accept that there is any evidence which would establish that any subjective reason of the Tribunal in requesting a copy of the Decision Record of the Delegate from the Applicant was made for an improper purpose: see in this connection Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2008) 256 ALR 644 at 656 – 657 [64] – [67].
There was debate at the hearing as to what was the purpose of the Tribunal in requesting provision of a copy of the Delegate’s decision from the Applicant. Mr Smith submitted that I did not need to make, and perhaps should not make, a finding about purpose because on any basis no purpose, whatever it might be, could be regarded as improper, particularly if the request was authorised by s.359 of the Act. However, I do not think that one can consider whether there was an improper purpose unless one first comes to a view on what the purpose was in the first instance.
I would infer that the Tribunal asked for a copy of the Decision Record for administrative convenience and to be able to discuss the Delegate’s decision with the Applicant at the Tribunal hearing, as it did “in some detail” (see [18] above), without making applicable the requirement to give particulars under s.359A(1) of the Act. However, I do not consider that such a purpose could be described as improper, or that the Tribunal was in some way precluded by law or by the relevant scheme of review established by the Act from asking the Applicant for a copy with that purpose in mind. The Applicant always had the right and ability to decline to provide a copy and certain migration agents refuse to do so. However, the legislature has provided in s.359A(4) exceptions in relation to the provision of information which render inapplicable the Tribunal’s obligation under s.359A(1) and I cannot discern any legal impediment to the Tribunal itself from inviting the Applicant to give to it a copy of the Decision Record of the Delegate, such that it becomes information given to the Tribunal and within the purview of s.359A(4)(b).
The Decision Record of a Delegate, after all, is not some unknown third party document but the very decision which an applicant has received and is asking the Tribunal to review and it is open to such an applicant to controvert any findings of the Delegate at the Tribunal level, or simply not to comply with the Tribunal’s request. Courts of law have the power to require a party to make admissions with respect to questions of fact and documents but the party need not do so, although if the admission is not made adverse costs orders may follow: for example see s.70(1)(c) and (d) of the Civil Procedure Act 2005 (NSW). Parties to litigation may request and obtain the making of admissions, as Mr Dobbie did in this case by the notice to admit facts procedure applicable in all courts in this country.
It might be possible to postulate that in certain special factual situations some sort of unfairness could be pointed to by the Tribunal making such a request. However, in this particular factual context the Applicant is well conversant with the English language and was represented by a migration agent who, on the second occasion that he was asked, acceded to the request to provide a copy of the Decision Record of the Delegate to the Tribunal.
Accordingly, in my view this Ground is not made out by either:
a)Mr Dobbie’s argument about the confined nature of the information that the Tribunal could get under s.359 of the Act; or
b)any improper purpose in making the request.
This Ground fails on another basis. Let it be assumed for the purposes of the argument that there was an improper purpose and so the Tribunal was not entitled to make the request that it did. The request, therefore, should be disregarded as never having been made and the Decision Record of the Delegate as never having been given to the Tribunal for the purposes of s.359A(4)(b) of the Act. Even in that scenario the Tribunal, in my view, was not under any obligation under s.359A(1)(a) to give “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming…” the decision of the Delegate. The simple fact of the matter is that the only information that was in the Delegate’s decision but which had not been given to the Tribunal by the Schedule of Critical Events forming part of the Written Submission, was the finding in the Delegate’s decision that on his incoming passenger card the Applicant had stated that the purpose of his visit to Australia was for tourism for 17 days. However, the fact that he may have said on his passenger card that he intended to be in Australia for 17 days as a tourist was not information which contained a rejection, denial or undermining of his claims or of “dispositive relevance”.
The information rather seems to me to be on all fours with the information about an applicant’s travel arrangements to Australia which Yates J in Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552 at 559 [30] – [31] regarded as information that did not have to be given by the Tribunal to an applicant under the analogue s.424A(1)(a) of the Act. See also SZRSU v Minister for Immigration and Border Protection [2019] FCA 1919 at [33] where Abraham J held that the fact that the applicant in that case held five passports did not constitute a rejection, denial or undermining of the protection claims. So even on the assumption that Mr Dobbie’s arguments were correct the Tribunal did not breach s.359A(1).
Finally, even if I was wrong in the above respects, in my view no breach of procedural fairness has been shown to be material such that if the Tribunal had not asked for and obtained the Decision Record of the Delegate the decision of the Tribunal would have been different: Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at 611 [45] – [47].
Accordingly, in my view Ground 3 is not made out.
Ground 4
Under this Ground Mr Dobbie first contends that the Tribunal did not give proper consideration to the Applicant’s claim made in the migration agent’s email of 5 December 2016 concerning his deferred army duty in Greece: see [9] above. He submits that the Tribunal did not consider that the Applicant would become a “fugitive” if he did not return to Greece to fulfil his army duties.
This argument also fails. There is a distinction made in the authorities between a claim made by an applicant and an applicant’s evidence in support of a claim, although there is no “bright line distinction” between the two: see in particular Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 119 [69] and 130 [111]. In my view, the Applicant’s claim was that he was a genuine temporary entrant for the purposes of study in Australia and the reference to the necessity of his outstanding army duty in Greece constituted an evidential assertion which addressed and was relevant to cl.9(d) of Ministerial Direction No. 69 which required the Tribunal to have regard to “military service commitments that would present as a significant incentive for the applicant not to return to”, in this case, Greece.
I am of the view that the Tribunal did meaningfully consider this issue whether regarded as a claim or as evidence. It was specifically referred to as a relevant issue in in the last sentence of [5] of its Decision Record in the following terms:
[5]…and military service commitments that would present as a significant incentive for you not to return to your home country.
The Applicant’s claim that he “had to carry out army training sometime in the future” was then specifically noted in the last sentence of [13] of Tribunal’s Decision Record (see: [19] above). Mr Dobbie points out that the Tribunal did not include the reference to the word “fugitive” which appeared in the email of 5 December 2016, but the use of that word has never been explained and, in my view, must be regarded as a rhetorical flourish. It is clear that the Tribunal was fully alive to the Applicant’s claim or contention to the effect that in accordance with Greek law he had to return to Greece to discharge his military duties. The rhetorical reference to the word “fugitive” added nothing to that evidence or claim.
At [22] of its Decision Record the Tribunal stated that it had considered “all of the above” material appearing in the Decision Record and in the context of Ministerial Direction No. 69. There is no reason to regard this statement of the Tribunal as formulaic or insincere. Then at [28] the Tribunal expressed its conclusion that in all the circumstances as a whole it was not satisfied that the Applicant satisfied the genuine temporary student criterion. In coming to this view the Tribunal did not take into account, adversely to the Applicant, that his army service in Greece “would present as a significant incentive” for him not to return to Greece, but rather focused on the vagueness and indefiniteness of how his studies in Australia would assist him in Greece. In other words, the Tribunal did not regard his issues with the Greek military as a materially relevant reason for him not to wish to return to Greece, or indeed to return to Greece.
I further note, in any event, that even when a matter is not mentioned in a Decision Record of a Tribunal such does not necessarily mean that it was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605 – 606 [31] – [32], per French CJ and Kiefel J with Heydon and Crennan JJ agreeing. Further, it is clear that decisions of administrative decision-makers are not to be parsed and analysed with a fine-tooth comb and must be read as a whole and, in my view, this Ground is not made out because meaningful consideration has been given to the Applicant’s claim or evidence in relation to his future army service in Greece.
In my view the Tribunal did not constructively fail to carry out a review of the Applicant’s claim in relation to potential military service in Greece and did not misconstrue it, but rather gave it proper and meaningful consideration.
Accordingly Ground 4 is also not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. Mr Dobbie has put everything that reasonably could be put in support of the Grounds, but unfortunately for the Applicant they are not made out and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 21 November 2019
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