Martindale v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 364
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martindale v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 364
File number(s): SYG 2498 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 11 February 2025 Catchwords: MIGRATION – Whether student visa applicant was genuine temporary entrant Legislation: Migration Act 1958 (Cth) ss 65, 338, 359AA, 474, 476
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Division: General Federal Law Number of paragraphs: 41 Date of hearing: 11 February 2025 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr T Guihot, Sparke Helmore Lawyers ORDERS
SYG 2498 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROBERT PAUL MARTINDALE
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 27 September 2019 is dismissed.
3.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $5,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until he date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 27 September 2019, the applicant seeks judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal), made on 28 August 2019, affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Student Temporary Class TU (subclass 500) visa (visa).
BACKGROUND
The background to the matter is derived from the first respondent’s written submissions but does not appear to be in dispute.
On 7 June 2017, the applicant, a citizen of the United Kingdom, lodged an application for the visa (Court Book (CB) 1 to 20). On 12 August 2017, the delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 75 to 80).
On 1 September 2017, the applicant lodged an application in the Tribunal seeking merits review of the delegate’s decision (CB 81 to 82).
On 18 July 2019, the Tribunal invited the applicant to attend a hearing scheduled for 22 August 2019 (CB 87 to 91). On 21 August 2019, the applicant provided written submissions and supporting documentation (CB 105 to 119).
On 22 August 2019, the applicant appeared before the Tribunal to give evidence and present arguments (CB 120 to 122).
On 28 August 2019, the Tribunal affirmed the delegate’s decision (CB 126 to 135).
Tribunal decision
The Tribunal identified that the relevant issue in the review was whether the applicant genuinely intended to stay in Australia temporarily (CB 131 to 132 at [15] to [18]). The Tribunal was concerned that the applicant did not continue to study while awaiting the outcome of his review. The Tribunal found that, had the applicant adhered to his study plan, he would have completed a Certificate IV and Diploma in Marketing by May 2019. It also identified that the most recent Certificate of Enrolment (COE) submitted by the applicant was issued on 5 August 2019, and that the applicant had provided medical documents which were dated 19 August 2019 (post-dating the Tribunal’s 18 July 2019 hearing invitation) (CB 132 at [19] to [20]). Given that the applicant had not produced any evidence to demonstrate that he was unable to study, or that he had sought medical treatment before receiving the hearing invitation, the Tribunal attributed little weight to his claim that he did not continue to study because he did not “deal well” with the delegate’s decision (CB 132 at [20]).
The Tribunal recorded having put information to the applicant from his PRISMS records pursuant to s 359AA of the Act and provided him with a copy of those records. The Tribunal discussed with the applicant that:
(a)the PRISMS records indicated that his enrolment in previous courses had been cancelled by reason of unsatisfactory progress;
(b)this information was important because it showed that the applicant had not been studying for 16 months prior to his most recent enrolment; and
(c)this behaviour did not appear to be consistent with the conduct of a genuine student and the applicant’s claim to be in Australia to study (CB 132 to 133 at [21]).
The Tribunal noted the applicant’s response that he was not “making great life decisions”, and found that the applicant’s lack of study whilst awaiting review reflected poorly on his claims to be genuinely interested in his studies (CB 132 to 133 at [21]).
The Tribunal recorded the applicant’s evidence that he had not made any enquiries about similar courses in the UK was inconsistent with his written submissions that he had compared similar courses (CB 133 at [22]). The Tribunal was not satisfied that the applicant had a reasonable basis for failing to undertake similar study in his home country (CB 133 at [22]).
The Tribunal also considered evidence provided by the applicant at the hearing regarding his estrangement from his family, lack of assets, and the fact that he had not returned to the UK since 2012. It found that there was no evidence of personal and economic ties in the UK that would incentivise him to return (CB 133 at [23]). Further, it found that the length of time he had spent in Australia, as well as his personal and professional connections in the tattoo industry suggested that he saw Australia as a place to reside on an ongoing basis, rather than just a temporary study destination (CB 133 at [25]).
The Tribunal identified that the applicant’s current enrolment in a Certificate IV course was at a level below other courses he had already completed (at an Advanced Diploma level). The Tribunal concluded that the applicant was not progressing academically as a genuine student and that his current course was not relevant to his declared career goals or desired prospects (CB 133 to 134 at [26] to [27]).
PROCEEDINGS IN THIS COURT
The applicant commenced these proceedings on 27 September 2019. He has been unrepresented in the proceedings since their inception. The proceedings were initially docketed to another Judge of this Court (first primary Judge). On 24 October 2019, a Registrar of the Court made orders by consent for the preparation of the matter for hearing. By the Registrar's orders, the applicant was given the opportunity to file an amended application giving complete particulars of grounds of review by 6 December 2019. The applicant did not file an amended application in accordance with that grant of leave, or at all.
The proceedings were next to be stood over for callover before the first primary Judge on 18 November 2020, before being later placed in the central migration docket. On 28 June 2023, the parties appeared before a Registrar of the Court (by telephone) for a callover, on which occasion various orders were made with a view to the matter being adjourned to a final hearing on a date to be advised. The proceedings were docketed to me on 6 March 2024, on which date I made orders for the preparation of the matter for a final hearing, which was to be scheduled for 25 June 2024.
The applicant was again granted leave to file and serve any amended application, this time by 28 May 2024. The parties were ordered to file written submissions 14 and 7 days before the final hearing, respectively. The initial hearing date was later adjourned to today. In advance of the hearing, the first respondent filed written submissions on 18 June 2024, as ordered. The applicant has not filed any further documents in the proceedings.
On 12 February 2025, the parties appeared before me in person for the final hearing. The applicant was unrepresented. Being a citizen of the United Kingdom, and therefore a native English speaker, he does not require an interpreter. I explained to the parties the procedure that the Court would follow and also the limitations on the Court's jurisdiction in the context of an application for judicial review. The applicant indicated that he understood.
In terms of evidence before the Court, the applicant filed an Affidavit with his originating application. That Affidavit, made by him on 26 September 2019, was received by the Court as a written submission. The first respondent objected to the annexures to the Affidavit on the basis of relevance, noting that they now appear in the Court Book. The Court Book was tendered by the first respondent and marked as Exhibit “1R”.
Grounds of review
By his application, the applicant raises the following grounds (errors and formatting in original):
1.The first Respondent (department of Home Affairs) erred in its decision as
a) It committed ‘judicial error’ by not giving due consideration to Section 55 of the Migration Act which provides that the applicants may submit additional information in support of the application before the decision is made .
Particulars
The Applicant did provide all the relevant information before the decision for refusal was made including tie ups with home country, substantial tie-ups and relationships including mother and sister.
b) It committed jurisdictional error by ignoring relevant material, and or relied on irrelevant material.
Particulars
The Applicant did provide all the details of the benefits he would have after completion of the course however they were ignored. The applicant also provided information in relation to strong ties with the mother but that was not taken into consideration.
c) Due consideration was not given to the fact that the Applicant had a strong incentive to return back to her home country after completion of the course.
Particulars
The Applicant has complied with the conditions and had successfully completed his courses throughout his stay. A detailed information in relation to the strong incentive Applicant had after going back to his home country was provided however due consideration was given to the facts.
2.The Second Respondent failed to consider that fact that required documents were provided by the Applicant before the decision was made.
a) The Administrative Appeals Tribunal failed to consider the current circumstances of the applicant.
Particulars
When the Applicant appeared before the Tribunal Member, he had already commenced his Certificate IV in Marketing and Communication. Applicant provided evidence of his current studies which he is undertaking along with the benefits, but Tribunal failed to consider this evidence.
b) It committed ‘judicial error’ by determining the case on the basis that the Applicants intentions to remain in Australia did not satisfy genuine temporary entrant criteria however failed to consider all the evidence provided by him of the incentive to go back to his home country after completion of the course.
Ground 1
In respect of ground 1, it was explained to the applicant that the Court has no jurisdiction in respect of the delegate's decision. The delegate’s decision is a privative clause decision under s 474(2) and 3(b) of the Migration Act 1958 (Cth) (Act), because it is a decision made under s 65 to refuse to grant a visa. Furthermore, the decision was a Part 5-Reviewable decision under s 338(2) of the Act.
Sections 476(2) and (4) of the Act relevantly provide that:
Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)
…
(2) The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision;
…
(4) “primary decision” means a privative clause decision or purported privative clause decision:
(a) that is reviewable under by application under Part 5 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
The applicant was given the opportunity to speak to ground 1 and, in particular, to explain whether there was any aspect of the ground which sought to make allegations in relation to the Tribunal's decision and not the decision of the delegate. The applicant confirmed that there was not.
In circumstances where the Court does not have jurisdiction in respect of a primary decision, and the delegate's decision is a primary decision as defined by the Act, the Court has no power to issue writs in respect of any error on the part of the delegate even if there be one. None was advanced or demonstrated by the applicant in any event.
Accordingly, ground 1 cannot succeed.
Ground 2
Ground 2 contains two particulars.
Ground 2(a)
By particular (a) the applicant says in essence that it is related to what he describes as a “timing issue” in respect of the COE. At hearing before me, the applicant said that he was referring to the findings of the Tribunal about the timing of the COE for his Certificate IV course. At [20] (CB 132) the Tribunal noted that the new COE had been submitted by the applicant on 5 August 2019, which was after the date on which the applicant had been invited to attend a hearing of the Tribunal. The Tribunal explored this with the applicant.
In Court today, the applicant said he was trying to submit the COE, but he ran out of time. It is not entirely clear what the error is said to be. The Tribunal clearly had regard to the COE presented. It was not rejected on the basis that it was late. The Tribunal's reasons were open to it in circumstances where there was a suggestion that the applicant may have sought to obtain the certificate of enrolment in order to ensure that (as at the time of Tribunal hearing) he was enrolled in a course of study in circumstances where, for a considerable period prior to that, he had not been.
In relation to ground 2(a), the first respondent submitted that the Tribunal clearly considered the applicant’s present circumstances as raised in his written and oral evidence. The first respondent says the Tribunal noted that the applicant was presently enrolled in a Certificate IV, and had regard to the COE issued on 5 August 2019 (CB 132 at [20]). The Tribunal noted that the applicant was receiving some income from doing tattoos for his friends, that he was presently in a relationship in Australia, and found that he had personal and professional connections in Australia (CB 133 at [25]). The Tribunal recorded the applicant’s evidence regarding why he wanted to study the Certificate IV, and that he would consider himself to have failed if he returned home without completing the qualification (CB 133 to 134 at [26] to [27]). Having regard to the totality of the evidence regarding the applicant’s circumstances, the Tribunal found that the applicant:
(a)considered Australia to be a place to reside rather than a temporary destination (CB 133 at [25]);
(b)was not seeking a course consistent with his level of education or otherwise progressing academically (CB 134 at [26]); and
(c)that he had no immediate intentions to return to his home country (CB 134, [27]).
The applicant has not pointed to any of his circumstances which the Tribunal failed to consider.
I see no error as alleged by ground 2(a) as raised in the application, nor by reason of what has been said today by the applicant. The Tribunal’s reasoning was certainly open to it on the material before it. It did, in any event, consider the certificate of enrolment. Accordingly, ground 2(a) is not demonstrative of any jurisdictional error.
Ground 2(b)
In respect of ground 2(b), the applicant spoke to this ground at hearing and ultimately clarified that his issue was not so much that the Tribunal failed to consider any particular piece of evidence but rather that, overall, it did not accept his assertion that he had a significant incentive to return to his home country.
The first respondent says that, in circumstances where the applicant has so clarified ground 2(b) in this way, the ground should be taken as seeking to invite the Court to engage in what is described as impermissible merits review. As I explained to the applicant at the outset of today's hearing, it is no part of this Court's jurisdiction to decide for itself whether or not the applicant ought to be granted the visa. More specifically in this case, it is also not for the Court to consider whether the applicant is a genuine temporary entrant for stay, in order that he can conduct his studies.
Further, the first respondent submitted that the applicant has not pointed to any evidence of his incentives to return to his home country which the Tribunal failed to consider. The first respondent says the Tribunal considered the applicant’s evidence that he had no offers of employment in the UK, he did not own any assets, he had not returned to the UK since his arrival in 2012 and that he had been estranged from his family in the UK (CB 133 at [23]).
The Tribunal found that the applicant therefore had limited personal ties to the UK, and that there was no evidence of economic ties which would be an incentive for him to return (CB 133 at [23]). Further, and contrary to the contention that the applicant had incentives to return to the UK after completing his course, the Tribunal noted the applicant’s plans to enrol in a Diploma and a higher-level course of study in marketing once he had completed the Certificate IV (CB 134 at [27]).
I accept the first respondent’s submission that ground 2(b) (as clarified by the applicant today), does in fact seek to engage the Court in such merits review. The same can be said of the matters which are raised in the Affidavit document, which has now also been received as a written submission. It was open to the Tribunal to find, as it did and based on the material before it, that the applicant did not have sufficient incentive/s to return to his home country.
It cannot be said that any of the matters to which the applicant pointed before the Tribunal were not considered by it. As such there is no error as contended for by particular (b) to ground 2.
CONCLUSION
On all of the material before the Court neither of the grounds of the originating application have demonstrated jurisdictional error in this matter, and for that reason the application must be dismissed. I will so order.
COSTS
Consequent upon the dismissal of the application, the solicitor for the Minister seeks costs. Initially, costs were sought to be fixed in the sum of $6,500.
When asked to speak to the question of whether or not the applicant should be ordered to pay costs and, if so, in what amount, the applicant did not have any submissions to make about whether a costs should follow the event. There is nothing in this matter which would cause me to conclude that the usual rule should be departed from.
However, as to quantum, the applicant noted that by the first respondent’s written submissions,[1] he sought an order that costs be fixed in the sum of only $5,000. The solicitor for the first respondent sought to revise the application to only seek $5,000. Even if that concession had not been forthcoming, given that the Minister had advanced a position in writing and at a time when there was still to be at a final hearing, I can see no reason why there would have been additional costs incurred between June and today's hearing, particularly in circumstances where (for reasons that were traversed at the hearing), the first respondent also did not file the Affidavit of Service which was required of him by the orders that I made last year. The concession was appropriately made.
[1] Written submissions filed 18 June 2024 at [22.2]
Accordingly, I am satisfied that the appropriate amount, is the revised amount of $5,000. I will make an order to that effect also.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 March 2025
0
0
2