Marshuk v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs
[2023] FedCFamC2G 401
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marshuk v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2023] FedCFamC2G 401
File number(s): MLG 3317 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 16 May 2023 Catchwords: MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a genuine applicant for entry and stay as a student – where applicant seeks two grounds for judicial review – found first ground seeks impermissible merits review – found second ground discloses no jurisdictional error of the Administrative Appeal Tribunal. Legislation: Migration Act 1958 (Cth) ss 359AA, 474, 476, 65
Migration Regulations 1994 (Cth) sch 2, pt 500, cl 500.212
Ministerial Direction No 69
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 3 May 2023 Place: Melbourne Counsel for the Applicant: Ms Warnakulasuriya of Warna Legal Counsel for the First Respondent: Mr Barrington Solicitor for the Applicant: Warna Legal Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 3317 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RASHNI JINAN MOHAMED MARSHUK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
16 May 2023
THE COURT ORDERS THAT:
1.The first respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application filed 2 November 2018 be dismissed.
3.The applicant pay the first respondent’s costs in these proceedings in a sum to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 2 November 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 8 October 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
FACTUAL CONTEXT
The applicant is a citizen of Sri Lanka.
The applicant arrived in Australia in October 2009 on a 421 Sport visa (TE). The applicant was subsequently granted two further sport visas (TE) and two 401 Temporary Work (Long Stay Activity) visas.
On 30 March 2017, the applicant applied for the Visa.
On 19 July 2017, the delegate, on the basis that the applicant did not satisfy cl 500.212 of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), refused the Visa application. Clause 500.212 of Schedule 2 of the Regulations requires the delegate to be satisfied the applicant was a genuine temporary entrant.
On 30 July 2017 the applicant applied to the Tribunal for review of the delegate’s decision.
On 8 October 2018, the applicant appeared before the Tribunal. On the day of the hearing, the Tribunal orally affirmed the delegate’s decision to refuse the Visa.
On 24 October 2018, the Tribunal provided a written statement of its decision and reasons.
Proceedings before this Court
As noted above, the Application for judicial review was filed on 2 November 2018.
The matter was listed for trial pursuant to Orders made on 3 August 2020. Those Orders also provided for the parties to file their relevant material for the hearing.
The applicant filed the following relevant documents:
(1)Application filed 2 November 2018;
(2)affidavit of Rashni Jinan Mohamed Marshuk filed 2 November 2018 (2 November affidavit), annexing the Tribunal’s decision;
(3)Outline of Submissions filed 28 November 2022 (filed as “Contentions of Fact and Law”); and
(4)affidavit of Rashni Jinan Mohamed Marshuk filed 6 December 2022 (6 December affidavit), annexing:
(a)educational documents of the applicant;
(b)cricket career documents of the applicant;
(c)evidence of job offers in Sri Lanka; and
(d)evidence of “family bindings” in Sri Lanka.
The applicant’s solicitor also made oral submissions at the hearing but did not read either the 2 November affidavit or the 6 December affidavit.
The Minister filed the following relevant documents:
(1)Response filed 27 November 2018;
(2)court book filed 2 September 2020;
(3)Outline of Submissions filed 19 April 2023;
(4)affidavit of Shauna Leigh Roger filed 19 April 2023; and
(5)List of Authorities filed 2 May 2023.
The affidavit of Ms Roger contained two confidential exhibits, which were provided to chambers by way of post, in sealed envelopes.
The Minister’s counsel also made oral submissions at the hearing.
The Tribunal’s decision
In summary, the Tribunal found that the applicant’s primary purpose of remaining in Australia is to earn money and that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.[1] Accordingly, the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore did not meet the requirements of cl 500.211.2(a) of schedule 2 of the Regulations.[2] The Tribunal was therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 of schedule 2 of the Regulations.[3]
[1] Tribunal decision at [41]
[2] Tribunal decision at [43]
[3] Tribunal decision at [44]
In reaching this conclusion the Tribunal considered the applicant’s background and immigration history,[4] the applicant’s circumstances in his home country,[5] the applicant’s potential circumstances in Australia,[6] the value of the course to the applicant’s future[7] and s 359AA information provided to the Tribunal (Dob-in documents).
[4] Tribunal decision at [14]-[17]
[5] Tribunal decision at [18]-[21]
[6] Tribunal decision at [22] –[28]
[7] Tribunal decision at [29]-[30]
JUDICIAL REVIEW
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
STATUTORY FRAMEWORK
Part 500 of Schedule 2 of the Regulations sets out the criteria for a Subclass 500 (Student) visa. The primary criteria for a Subclass 500 (Student) visa are set out at cls 500.211 to 500.218.
Relevantly, cl 500.212 requires the applicant to have been a “genuine applicant for entry and stay as a student”.
In determining whether an applicant satisfies cl 500.212, the Tribunal must have regard to Ministerial Direction No 69 (Direction). The Direction requires the Tribunal to consider the following relevant factors:
(a)the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
(b)the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
(c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(d)any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Section 359AA(1) of the Act is as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)The tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under the review; and
(b)if the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonable practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to information – adjourn the review, if the Tribunal considers that the applicant reasonable needs additional time to comment on or respond to the information.
GROUNDS OF REVIEW
The Application seeks an order quashing the decision of the Tribunal.
The applicant articulates the grounds of review in the following terms (without alteration):
1.I have been deprived of my rightful entitlement under the Principals of Natural Justice.
2.I have been unjustly decided upon by the Tribunal and wish to apply for judicial review for a legitimate decision.
3.The decision of the Tribunal dated 24th October 2018 is affected by Jurisdictional error.
4.The Tribunal has not considered all relevant facts and documents submitted by me prior to arriving at that decision.
At the hearing the applicant agreed that the Application, fairly read, raised the following two grounds:
(a)The Tribunal did not consider all the relevant facts and evidence, specifically the Tribunal failed to consider:
(i)that the Diploma of Hospitality Management was beneficial to the applicant’s future;
(ii)the applicant’s “unblemished immigration history”;
(iii)the applicant’s familial connections with Sri Lanka and that the applicant intended to go back to Sri Lanka at the conclusion of his studies (collectively, Ground 1).
(b)The Tribunal erred because it did not grant the applicant a 3 week adjournment as requested to respond to information put to him under s 359AA of the Act (Ground 2).
Ground 1
In relation to Ground 1, in large part both the Application and the applicant’s submissions as to Ground 1 simply express disagreement with the Tribunal’s decision. The applicant says that the Tribunal has “failed to consider his application on its true merits” and that “the applicant disagrees on the Tribunal’s impression and decision that his diploma course and the student visa program is being used to circumvent intentions of the migration program.”
The Minister submits that the applicant seeks impermissible merits review.
In relation to the contention that the Tribunal failed to consider that the Diploma of Hospitality Management was beneficial to the applicant’s future, that contention must be rejected. The decision at paragraph [29] provides as follows:
The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The value of the current course to the applicant's future plans is to get a good job back in Sri Lanka and one day in the future he would like to open his own restaurant. The applicant also stated that he plans to return to Sri Lanka where he will gain some work experience and that one day in the future the applicant would like to return to Australia and complete a bachelor's degree. The Tribunal accepts that the current course is the next stage in package of hospitality courses, however the Tribunal is concerned that the applicant's future plans do not lie outside of Australia. The economic circumstances of staying in Australia outweigh the incentive to return home.
Accordingly, the Tribunal clearly considered the value of the course to the applicant’s future. The Tribunal accepted that the course was the next stage in a package of hospitality courses, but considered that applicant was seeking to remain in Australia.
In relation to the remaining contentions of Ground 1 that the Tribunal failed to consider the applicant’s “unblemished immigration history” and the applicant’s familial connections with Sri Lanka, the applicant conceded at the hearing that the Tribunal did in fact consider these matters. Further, these matters are clearly considered by the Tribunal at paragraphs [15], [17] and [20], respectively, of the Tribunal’s decision.
The applicant submitted, however, that the Tribunal did not consider these matters “fully” in that the Tribunal nonetheless concluded that the applicant had not met the criteria for the Visa. By this submission, the applicant seeks that this Court remake the factual findings that were made by the Tribunal. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
Accordingly, Ground 1 discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 2
In relation to Ground 2, the applicant submits that “he was deprived of his natural justice rights by not giving requested and enough time period for the answering to”. I understand this to be a submission that the Tribunal exercised its power to adjourn proceedings unreasonably.
The applicant submits that given the significance of the matter in issue he ought have been provided with a three week adjournment as requested. At the hearing, the applicant submitted that the adjournment request was to enable him to answer questions in relation to the Dob-in documents and also to seek information from his migration agent about his confirmation of enrolment and receipt for payment of his diploma course. I reject that submission and for the following reasons find that the adjournment was sought only to enable the applicant to seek advice as to how to respond to the Tribunal’s questions regarding the Dob-in documents. Firstly, the confirmation of enrolment for a Diploma of Hospitality Management before the Tribunal. It was provided to the Tribunal by the applicant’s solicitor by email on 27 August 2018. Secondly, the Tribunal expressly refers to the confirmation of enrolment at paragraph [27] of its decision. Thirdly, these matters are separate and distinct from those in relation to matters to which s 359AA applies and are addressed as separate and distinct matters in the Tribunal’s decision. Fourthly, in his application, the applicant submits that he requested a period of three weeks to “answer the queries raised by the tribunal regarding two third party complaints received regarding my employment however I was only allowed 20 minutes of adjournment time to ascertain and answer the allegations.” The applicant’s oral submissions which seek to expand on the basis upon which the adjournment was sought are therefore inconsistent with his prior written submissions.
The Minister submits that the Tribunal acted reasonably in concluding that a 20 minute adjournment was the additional time the applicant reasonably needed to comment on or respond to the information. The Minister further submits that the Tribunal’s reasons disclose an evident and intelligible justification for the granting of a 20 minute adjournment.
The Minister submitted that pursuant to s 359AA, the Tribunal:
(1)provided clear particulars of the adverse information to the applicant. It informed the applicant that the Tribunal had been informed by three people that he was continuing to be enrolled in courses to stay in Australia for the purpose of earning money, which would be the reason, or part of the reason, for affirming the decision under the review. The Tribunal was not required to disclose the identity of the authors of that information. Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448;
(2)ensured that the applicant understood why the information was relevant and the consequences of the Tribunal relying on the information;
(3)advised the applicant he could seek additional time to comment on or respond to the information;
(4)invited the applicant to comment or respond to the information; and
(5)adjourned the review for 20 minutes, as it considered that 20 minutes was the period of time the applicant reasonably needed to consider his response and make contact with his migration agent.
Paragraphs [31]-[41] of the Tribunal’s decision are included under the heading “s.359AA Information”. The Tribunal’s reasons for refusing the applicant’s request for a 3 week adjournment and providing the applicant with a 20 minute adjournment are set out in paragraph [37] of the Tribunal’s decision as follows:
The applicant sought additional time and requested a period of 3 weeks. The Tribunal carefully considered the applicant's request. The Tribunal refused the applicant's request of 3 weeks for additional time and granted him an adjournment of 20 minutes to consider his response and to make contact with his registered migration agent. Considering the information that had been submitted to the Tribunal and the Department about the applicant and the length of time the applicant has been in Australia the Tribunal did not see that it was appropriate to grant the applicant the requested additional time of 3 weeks. The Tribunal believed that it was appropriate for the applicant to be granted an adjournment of 20 minutes to consider his response and to allow him time to make contact with his migration agent. The Tribunal in making its decision to grant the applicant only 20 minutes was due to the consistent information provided in the submissions about the applicant working excessive hours for the Mermaid Cleaning Company and Malvern Tram Depot and that he was not a genuine student.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Gageler J at [105] said that where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process. The intelligible justification must lie within the reasons given by the decision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47].
I am not persuaded that the Tribunal exercised its adjournment power unreasonably. The reasons for the Tribunal’s decision to grant a 20 minute adjournment, as set out above, disclose an evident and intelligible justification. The Tribunal gave consideration to the nature of the relevant information to which the applicant was to respond, being a relatively confined issue and simple factual propositions, the consistency of the information in the Dob-in documents and the period of time the applicant had remained in Australia and made an evaluative judgment as to the time required to respond. In my view, the time given was within the bounds of reasonableness in the circumstances. Further, the applicant admitted the matters contained in the Dob-in documents.[8] He also confirmed that he had no further information to provide and did not request more time.[9]
[8] Tribunal decision at [38]
[9] Tribunal decision at [40]
Accordingly, Ground 2 discloses no reasonably arguable jurisdictional error by the Tribunal.
It follows that the Application cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister. I will order that the applicant pay the Minister’s costs in a sum to be fixed if not agreed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 16 May 2023
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