Mazimbe v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1227
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mazimbe v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1227
File number: MLG 1072 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 22 December 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider that the applicant’s circumstances for breaching his visa condition were “out of his control” – whether the Tribunal overlooked relevant materials – whether the Tribunal asked itself the wrong question – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s finding that the applicant was not a genuine temporary entrant was unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cl 572.223 in Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Jia Legeng (2001) 178 ALR 421
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of hearing: 12 September 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms S Roberts Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1072 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MASIMBA MAZIMBE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.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 KENDALL:
BACKGROUND
The applicant is a citizen of Zimbabwe (Court Book (“CB”) 2 & 31). He arrived in Australia in February 2007 as the holder of a student visa. That visa was granted offshore on 12 January 2007 and was valid until 16 March 2007 (CB 106).
Since his arrival in Australia in 2007, the applicant has held three other student (subclass 573) visas, a temporary graduate (subclass 485) visa and various associated bridging visas (CB 106).
On 27 November 2015, the applicant applied for the Student (Class TU) (Subclass 572) visa (the “visa”) the subject of this proceeding (CB 1-22). He was assisted with that application by a registered migration agent (the “representative”) (CB 23-25). The applicant provided various supporting documents with his visa application, including Overseas Student Confirmation-of-Enrolment forms, identity documents, health cover information and educational records (CB 26-49).
On 8 December 2015, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant (through his representative) and asked for more information in relation to his visa application (CB 54-65). In particular, the Department asked for information addressing the genuine temporary entrant criterion, confirmation of financial capacity and a health examination (CB 58).
On 4 January 2016, the applicant’s representative provided additional information to the Department (via email), including a statement addressing the genuine temporary entrant criterion (a “GTE statement”) (CB 66-75).
On 21 January 2016, the applicant’s representative provided further information to the Department regarding the applicant’s financial capacity (via email) (CB 81-99).
On 14 September 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 104-109). The delegate was not satisfied that the applicant “genuinely intended to stay in Australia temporarily” and, as such, did not meet cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 108).
On 3 October 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 110-111). The applicant appointed the same registered migration agent as his representative (CB 111).
On 19 January 2018, the Tribunal invited the applicant (through his representative) to attend a hearing before it scheduled for 14 February 2018 (CB 121-134). That letter also asked the applicant to provide additional information, as follows (CB 124):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
No additional information was provided to the Tribunal.
On 14 February 2018, the Tribunal advised the applicant (via email, through his representative) that the hearing had been postponed (CB 149-151).
On 28 February 2018, the Tribunal notified the applicant that the hearing had been rescheduled and would now take place on 28 March 2018 (CB 152-156). The Tribunal’s correspondence again requested the same additional information from the applicant outlined above (CB 155).
On 28 March 2018, the applicant appeared at the scheduled hearing before the Tribunal to give evidence and present arguments (CB 157-159). He was assisted at the hearing by his representative (CB 157) and provided the Tribunal with a GTE statement, a business plan, financial information and other supporting materials (CB 160-249).
On 28 March 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 253-259).
On 12 April 2018, the applicant’s representative was provided with copy of the audio recording from the Tribunal hearing (CB 265-266).
On 23 April 2018, the applicant sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is seven pages long and spans 41 paragraphs.
The Tribunal began by outlining that the applicant had applied for a Class TU student visa (noting that, at the time of application, a Class TU visa contained a number of subclasses) on 27 November 2015. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa on 14 September 2016 because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 572.223 in Schedule 2 of the Regulations) (at [1]-[3]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 28 March 2018 to give evidence and present arguments and that the applicant was assisted in that regard by his representative (at [4]-[5]).
The Tribunal identified that, based on the applicant’s proposed course of study, the relevant subclass was Subclass 572 and that the issue in this matter was whether the applicant met the “time of decision” criterion set out in cl 572.223 in Schedule 2 of the Regulations. The Tribunal explained that, when considering whether the applicant satisfied that criterion, it was required to have regard to Ministerial Direction No. 53 (the “Direction”) but noted that the factors specified in the Direction were intended as a guide only (and should not be used as a checklist) (at [7]-[10]).
The Tribunal confirmed that it had regard to documents in the Departmental file, documents submitted to the Tribunal prior to the hearing and documents on the Tribunal file (including Movement Records and PRISMS records obtained by Tribunal case officers) (at [11]).
The Tribunal continued:
12. At hearing, the applicant provided the following documents:
12.1 Statement regarding genuine temporary entrant criteria.
12.2Internet printout titled “Ministry of Lands, Agriculture and Rural Settlement”, containing information regarding regions of farming land in Zimbabwe (contains highlighted paragraphs by applicant and / or his agent).
12.3 Internet printout titled “Zimbabwe Unemployment Rate”.
12.4Australian Government Publication titled “International Graduate Outcomes and Employer Perceptions” (contains highlighted paragraphs by applicant and / or his agent).
12.5Applicant’s Business Plan for proposed business “Happy Fruit and Veg” dated 7 March 2017.
12.6 Maternal and Paternal family tree (2 pages).
12.7Internet printout titled “Unrealistically Low Unemployment Rate” (contains highlighted paragraphs by applicant and / or his agent).
12.8Internet printout titled “Is Zimbabwe’s unemployment rate 4%, 60% or 95% Why the data is unreliable”
12.9Internet printout titled “Bulawayo 24 News” regarding the inequality of employment in Zimbabwe.
12.10Statutory Declaration, identification and financial documents from the applicant’s sponsor.
In considering the applicant’s “study history”, the Tribunal:
(a)outlined that the applicant’s evidence given at the hearing regarding his study in Australia was as follows (at [14]):
(i)Diploma of Commerce (February 2008 - February 2009);
(ii)Certificate IV in Service Coordination (Ageing and Disability) (April 2009 - July 2009);
(iii)Bachelor of Commerce (February 2010 - December 2013); and
(iv)Certificate IV in Marketing (December 2015 - June 2016);
(b)confirmed that the applicant had provided a certificate of enrolment in a Diploma of Project Management (at the hearing) which he commenced in February 2018 and which he estimated would be completed in February 2019 (at [15]);
(c)explained that, when asked why he had studied a short course in aged care (which was unrelated to any of his previous or future studies), the applicant explained that when he returned from a trip to Zimbabwe, he was told his grade average was not high enough to study the second year of his Bachelor of Commerce and, as it was too late in the academic year to apply to another university, the applicant opted to study the short course to ensure he did not breach his visa conditions (at [16]);
(d)noted that the applicant’s representative (in oral submissions) asked the Tribunal to give weight to the honesty of the applicant’s response and had explained that, whilst the “study seem[ed] irrelevant, it should be considered in a positive way” because the applicant was trying to avoid breaching his visa conditions (at [17]);
(e)agreed that no negative weight should be attached to studying a short, unrelated course. The Tribunal considered this to demonstrate that the applicant was aware of his obligations to undertake study while in Australia as the holder of a student visa (at [18]);
(f)acknowledged the submission made by the applicant’s representative that the applicant had progressed academically but noted that the applicant had told the Tribunal that he had not studied since the completion of his last course in June 2016 (at [19]);
(g)noted that the applicant had not been enrolled in or engaged in any study in almost two years and that, while the applicant had briefly mentioned that he was anxious during that time, no medical evidence was submitted in that regard. The Tribunal also noted that the applicant’s representative had told the Tribunal that the applicant had “taken stock of his life” during that time and was now on the right path, being enrolled in a course of study since February 2018 (at [20]);
(h)did not consider the applicant’s evidence to be a satisfactory explanation for almost two years without study – particularly given that the applicant had actively avoided breaching his visa obligations in the past and was aware of what was required of him (at [21]); and
(i)queried the applicant’s length of stay in Australia (of 11 years) and was concerned that the applicant appeared to be using his visa to maintain residence in Australia. The Tribunal noted that it had asked the applicant if he wished to say anything in that regard and that the applicant said that he did not (at [22]).
The Tribunal then turned to the applicant’s “future plan” and explained that:
(a)in his written submission and at the hearing, the applicant had indicated that he intended to complete a Diploma of Hospitality Management and return to Zimbabwe to “run a market garden business” which would “sell produce locally and internationally” (at [23]);
(b)the applicant had provided an internet printout attesting to the viability of agricultural conditions in the proposed region he planned to set up his business but noted that the applicant did not hold any land in that area and had not taken steps to obtain any land (at [24]); and
(c)it had had regard to the draft business plan submitted by the applicant (at [25]).
The Tribunal accepted that the applicant had given some thought to opening a small business in Zimbabwe (at [26]).
The Tribunal then considered the “value of [the] proposed study”, noting as follows:
(a)the applicant claimed that he needed a Diploma of Project Management to be able to set up “some market gardening projects” in Zimbabwe (at [27]);
(b)the Tribunal had queried why this qualification was needed in addition to the “multiple business and marketing qualifications” and his managerial experience (gained through part-time work at Coles and which his representative submitted was relevant) (at [28]);
(c)the applicant told the Tribunal that there were “specific skills that he had not yet gained” and that he needed additional education on top of the skills he had already gained (at [29]); and
(d)the applicant’s representative told the Tribunal that the applicant needed the additional Diploma because the completed project management studies focused on the Australian environment, whereas the proposed course focused on global project management (at [30]).
The Tribunal was not satisfied that the applicant had demonstrated the value of his particular course to his future studies or that he did not already possess the skills and qualifications necessary to pursue his future plans in Zimbabwe (at [31]).
The Tribunal then turned its attention to “issues of concern in Zimbabwe” and noted that:
(a)the applicant had told the Tribunal that he was worried about his father but had no other personal, social or political concerns (at [32]);
(b)after further consideration, the applicant stated that he had concerns regarding “political stability, high unemployment and the general wellbeing of his extended family in what are tough economic circumstances” (at [33]); and
(c)the applicant’s representative submitted that a high unemployment rate was a positive for the applicant given that he would be opening his own business (and thus would not be affected and he would generate jobs for others) (at [34]).
The Tribunal considered that the concerns were significant for the applicant and that they may act as an incentive for him “not to return to Zimbabwe” after completion of his studies (at [35]).
The Tribunal then considered the applicant’s “ties to Zimbabwe” and noted the applicant’s written and oral submissions, highlighting as follows (at [36]):
(a)his father and three siblings reside in Zimbabwe and the applicant feels “a sense of responsibility to his family”;
(b)he has extended family (evidenced by a family tree submitted to the Tribunal);
(c)his father “owns a family business with land” that could support his business venture; and
(d)he has no relationship keeping him “bound to Australia”.
The Tribunal determined that the applicant’s evidence in this regard was “not convincing” and noted that the applicant had not explained the significance of the claimed ties or why they “would act as any incentive for the applicant to return home after completing his studies”, particularly given that he had remained in Australia since 2016 without undertaking any study (at [37]).
The Tribunal found as follows:
38.On the basis of the above, the Tribunal finds that although the applicant has demonstrated he has given thought to opening a business in Zimbabwe, the Tribunal is not satisfied that the applicant has demonstrated that he is here to progress academically, having not undertaken any study in almost two years. In addition, the Tribunal is not satisfied that the applicant has been able to articulate why he needs to remain in Australia to complete his proposed course, or what value it will add to his business. The Tribunal is concerned that the applicant raised a number of significant concerns in Zimbabwe that might act as a disincentive for him to return after completing his proposed course. Further, the applicant was unable to provide an account of the significance of his ties to Zimbabwe such that the Tribunal could find that they would act as any incentive for the applicant to return home after completing his proposed course.
Having considered all of the applicant’s circumstances, immigration history and other relevant matters, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, on that basis, found that he did not meet cl 572.223(1)(a) in Schedule 2 of the Regulations. The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [39]-[41]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 23 April 2018) contains eight grounds of your review as follows (transcribed verbatim):
1.The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
2.Tribunal did not give consideration to the evidence provided so it has fall into “Jurisdiction error”.
3.The GTE should have been taken into serious consideration in its totality and the substance rather than the mere oversight on the part of the writer.
4.I have completed my studies to further my education and that the breaches of condition were as a result of matters outside of my control.
5.The Tribunal relied upon irrelevant considerations to conclude the genuineness of a student and failed to consider relevant considerations in deciding the GTE is not genuine solely hinges on the fate and outcome of the whole Hearing.
6. The Tribunal failed to exercise its decision making power unreasonably.
7.There was no evidence to support the decision that the GTE was not factually genuine.
8. The decision is based on mistaken presumptions and/or erroneous findings.
The applicant also included what appear to be further “submissions” expanding on those grounds of review in his judicial review application (with the “submissions” largely duplicated in the applicant’s supporting affidavit).
On 15 May 2019, procedural orders were made by Registrar Luxton (in the then Federal Circuit Court of Australia) giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. No further materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 23 April 2018 (the applicant’s affidavit being taken as read and in evidence at the hearing), a Court Book numbering 266 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 22 August 2023.
On 12 September 2023, the applicant appeared before this Court (via video link). He did so without legal representation. The Court confirmed that he had received copies of the Court Book and Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that at the time of his decision, he thought “it was a case of straight bias”. The applicant went on to explain that “perhaps the context in which he explained himself (during his Tribunal hearing) was not understood properly or was not clear enough”. The applicant explained further that he was “simply looking to apply for a Certificate IV and a Diploma in Marketing at that time” but it was “flagged” by the Department that he was not genuine and he felt as though he had “received a red card from the Tribunal with no caution to go with it”.
The applicant confirmed that he had assistance at the Tribunal and that his representative attended the Tribunal hearing with him. The applicant also confirmed that he had someone look over his application to this Court before it was submitted to “make sure” he “had not missed anything”.
The Court asked the applicant to clarify what evidence he thought the Tribunal had not properly addressed (referenced by the applicant in ground 2). The applicant explained that “the Department had not looked at his material which is why he then had to seek review in the Tribunal”.
The Court also asked the applicant to explain the circumstances which he claims were outside of his control (referenced by the applicant in ground 4). In that regard, the applicant explained that when he was obtaining his first qualification (being the Bachelor of Accounting), he had some difficulties and needed to get an extension of time for his visa which may have looked like he was just trying to get extra time in Australia. The applicant also said that he was concerned that by the time it came to the issues with his Diploma of Marketing, this may have had a “snowball effect”.
The applicant’s grounds of review, oral submissions and written “submissions” included in the applicant’s judicial review application and his supporting affidavit will be considered below.
CONSIDERATION
Having considered all of the materials before it (including the applicant’s grounds of review, additional information or “submissions” included in that application and replicated in his supporting affidavit and the applicant’s oral submissions to this Court) and noting that the applicant was unrepresented before this Court, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicant to raise the following core concerns:
(1)whether the Tribunal failed to consider that the applicant’s circumstances for breaching his visa condition were “out of his control”;
(2)whether the Tribunal overlooked relevant materials (in particular, the applicant’s GTE statement and the information contained therein);
(3)whether the Tribunal asked itself the wrong question (relevantly, by “superimposing as an essential criterion for the grant of the visa that the proposed course of study must be the sole or primary purpose”);
(4)whether the Tribunal’s decision was affected by bias; and
(5)whether the Tribunal’s finding that the applicant was not a genuine temporary entrant was unreasonable.
Whether the Tribunal failed to consider that the applicant’s circumstances for breaching his visa condition were “out of his control”
The applicant appears to raise concerns about the Tribunal failing to consider that he had breached his visa condition for reasons that were “outside of his control”.
As correctly submitted by the Minister (at [28] in written submissions filed in this Court on 22 August 2023), the Tribunal did not make an express finding that the applicant had “breached” his visa conditions.
To the contrary, the Tribunal acknowledged that the applicant had (initially) actively sought to avoid breaching his visa conditions, noting as follows (emphasis added):
16.The Tribunal queried why the applicant studied a course in aged care when it seemed unrelated to any of the other business courses he had studied previously and since that time. The applicant stated that it was not undertaken by him out of interest. Rather, he had visited Zimbabwe after completing his Diploma of Commerce and when he returned to Australia to study his second year of his Bachelor of Commerce, he was told that his grade average was not high enough. He stated that as it was late February at the time, and that it was too late in the academic year for him to apply to another university, so to ensure he did not breach any of his visa conditions, he decided to do the short course in aged care.
17.The applicant’s agent confirmed this in oral submissions and stated that the Tribunal should give weight to the honesty of his response and that although the study seems irrelevant, it should be considered in a positive way as the applicant was actively seeking to avoid breaching any of his student visa conditions.
18.Although the Tribunal agrees that negative weight not be attached to undertaking a short unrelated course, the Tribunal considers that this does demonstrate that the applicant was fully aware of his obligations to undertake study while in Australia on a student or associated bridging visa. So much so, that the applicant spent time and money completing a short course to avoid breaching his visa conditions.
The Tribunal went on to discuss gaps in the applicant’s study history and noted that the applicant had “briefly” mentioned being anxious. The Tribunal determined, however, that the applicant’s explanation was unsatisfactory in circumstances where he had actively tried to avoid breaching his visa conditions in the past. Relevantly, the Tribunal stated:
20.In almost two years, the applicant has not held a Certificate of Enrolment or engaged in any study. The applicant mentioned briefly that he was anxious during this time. The Tribunal notes that no medical evidence was submitted regarding this claim. In later submissions at hearing, the applicant’s agent stated that the applicant used this time to take stock of his life and tried to find direction. He submitted that the applicant then managed to obtain a Certificate of Enrolment for February 2018 and is now on the right path.
21.The Tribunal does not consider this a satisfactory explanation for almost two years without studying, particularly in circumstances where the applicant has actively avoided breaching his visa obligations in the past, demonstrating he is fully aware of what is required of him during his time in Australia.
In circumstances where the applicant provided limited evidence about why he had failed to maintain his enrolment, no error can occur by the Tribunal considering only the very limited evidence before it.
No jurisdictional error arises in this regard.
Whether the Tribunal overlooked relevant materials
Here, the Court will consider whether the Tribunal overlooked relevant material provided by the applicant – noting, in particular, the applicant’s GTE statement and the information contained therein and the supporting documents provided to the Tribunal on the day of the hearing.
In this regard, the Court notes that the Tribunal confirmed receipt of all of the documents provided by the applicant in its written reasons (including the applicant’s “statement regarding genuine temporary entrant criteria”) (at [12]) and confirmed that it had had regard to all of the documents in the making of its decision (at [13]).
The Tribunal had regard to that information throughout its decision. In particular, the Court notes that the Tribunal:
(a)referenced the applicant’s “written submissions” in relation to his future plan, noting the applicant’s intention to run a market gardening business (at [23]);
(b)had regard to the applicant’s written submissions when considering the “value of proposed study”, noting that the applicant had submitted that his proposed study was required to be able to set up “some market gardening projects” in Zimbabwe (at [27]);
(c)acknowledged the applicant’s “ties to Zimbabwe”, as set out in his written submissions (at [36]);
(d)noted the family tree (provided by the applicant at the hearing) evidenced his extended family in Zimbabwe (at [36.2]);
(e)confirmed that it had regard to the applicant’s draft business plan (at [25]); and
(f)referenced “internet printouts” provided by the applicant in relation to the applicant’s “future plan” (at [24]).
The Tribunal is not obliged to refer to every piece of evidence before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].
As outlined above, the Tribunal referenced information provided by the applicant in writing (as well as in oral submissions before the Tribunal) at multiple points throughout its written reasons. The Tribunal also set out a list of materials provided by the applicant on the day of the hearing and references supporting documents in its consideration of the Direction factors.
The Tribunal is entitled to accept or reject or give such weight to an applicant’s evidence as it thinks appropriate in all of the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. This is entirely a matter for the Tribunal as a part of its fact-finding function: Wu Shan Liang at 281-282.
Further, there is no evidence before the Court to suggest that the applicant (or his representative) sought additional time to provide further evidence to the Tribunal or that the Tribunal denied any such request.
For the reasons set out above, the Court is satisfied that the Tribunal considered all relevant information before it.
No jurisdictional error arises in this regard.
Whether the Tribunal asked itself the wrong question (relevantly, by “superimposing as an essential criterion for the grant of the visa that the proposed course of study must be the sole or primary purpose”)
The applicant here suggests that the Tribunal asked itself the wrong question in determining whether the applicant was a genuine temporary entrant.
This fails on a factual level.
The Tribunal identified that the applicant was required to meet the genuine temporary entrant criterion and set out the relevant legislative requirements (at [8]).
The Tribunal also acknowledged that, in determining whether the applicant met that criterion, it was required to have regard to the relevant Direction (at [9]) and explained how that Direction was to be utilised (that is, that a decision maker was required to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion) (at [10]).
At no point in its written reasons does the Tribunal suggest that the applicant’s proposed course of study ought to be the “sole” or the “primary” purpose or that that was a requirement for the grant of the visa.
The Tribunal’s ultimate finding is also made on the correct basis (in response to the correct question) – that is, whether the applicant genuinely intended to stay in Australia temporarily.
Relevantly, the Tribunal found as follows:
39.Having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
Overall, the Court is satisfied that the Tribunal asked itself the right question.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was affected by bias
In oral submissions before this Court, the applicant indicated that he thought the Tribunal’s decision was affected by bias as the Tribunal had, in effect, already “made up their mind” in relation to his matter. While the applicant later “retracted” those comments, the Court has addressed the concerns for completeness.
It is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the materials before this Court to suggest that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing, gave the applicant opportunities to provide additional documents (which he did, providing the Tribunal with further materials at the hearing) and considered that evidence. The Tribunal also asked questions of the applicant and assessed his responses when considering his circumstances and the relevant factors applicable to the matter under the Direction. The Tribunal also had regard to the submissions made by the applicant’s representative.
Ultimately, the Tribunal assessed the information before it (including the applicant’s circumstances, immigration history and other relevant matters). On balance, the Tribunal determined that the applicant should not be granted the visa.
The Court is satisfied that the Tribunal was not biased in its review.
Whether the Tribunal’s finding that the applicant was not a genuine temporary entrant was unreasonable
Insofar as the applicant claims that the Tribunal’s decision was unreasonable, the Court disagrees for the reasons that follow.
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, 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: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Here, the Tribunal’s determination that the applicant was not a genuine temporary entrant was, contextually, reasonable.
Relevantly, the Tribunal noted that the applicant:
(a)had not progressed academically (having failed to study for a period of nearly two years) (at [19], [21]-[22] and [38]);
(b)was unable to adequately articulate the value of the proposed course to his proposed business, particularly where he already possessed the skills and qualifications necessary to open such a business (at [28]-[31] & [38]); and
(c)was unable to provide an account of his ties to Zimbabwe such that the Tribunal could find that they would act as an incentive for the applicant to return to Zimbabwe after he completed his studies (at [37]-[38]).
It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking in a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 23 April 2018), the applicant’s affidavit (deposed and filed on 23 April 2018) and the applicant’s oral submissions have failed to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 22 December 2023
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