Narayan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1858
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Narayan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1858
File number(s): SYG 132 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 11 August 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – whether the Tribunal reasoned illogically or unreasonably, failed to accord the applicant procedural fairness or misinterpreted the Migration Regulations considered – no jurisdictional error Legislation: Migration Act 1958 (Cth), s 359(2)
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 20
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
CSN15 v Minister for Immigration and Border Protection [2018] FCA 985
Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549
Number of paragraphs: 51 Date of hearing: 11 August 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondents: Mr V Murano Solicitors for the Respondents: Minter Ellison ORDERS
SYG 132 of 2020 BETWEEN: NILESH PRAKASH NARAYAN
First Applicant
VIKASHNI NARAYAN
Second Applicant
NISCHAL NIHAL NARAYAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.The application filed on 17 January 2020 is dismissed.
2.The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE DRIVER:
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 December 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 29 July 2021.
The first applicant, Mr Narayan, is a 39-year-old citizen of Fiji.[1]
[1] (Court Book) CB2.
On 10 November 2017, Mr Narayan applied for a visa. His wife (second applicant) and child (third applicant) were dependant applicants.[2]
[2] CB4 – CB6.
In support of the visa application, Mr Narayan submitted a document titled “Statement of Purpose” dated 10 November 2017 setting out reasons for his study in Australia.[3]
[3] CB36.
On 2 February 2018, the delegate refused each applicants’ visa application.[4] The delegate was “not satisfied that [Mr Narayan] genuinely intends to stay temporarily in Australia”[5] and, accordingly, found he did not satisfy clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth). On the basis that Mr Narayan did not satisfy the criteria for the grant of a visa, the delegate also refused the visa application made by Mr Narayan’s wife and child because neither of them satisfied clause 500.311 of Schedule 2.
[4] CB53 – CB62.
[5] CB59.
On 8 February 2018, the applicants applied to the Tribunal for review of the delegate’s decision.[6]
[6] CB63 – CB78.
By letter dated 10 October 2019, the Tribunal sent to the applicants an invitation to provide information.[7] The letter, among other things, informed the applicants that Mr Narayan needed to satisfy the Tribunal that he was “a genuine applicant for entry and stay as a student”. The letter enclosed a copy of “Ministerial Direction 69 – Assessing genuine temporary entrant criteria for Student visa and Student Guardian visa applications”.[8] (Direction 69).
[7] CB93 – CB102.
[8] CB98 – CB102.
Mr Narayan subsequently provided to the Tribunal:
(a)a document titled “GTE Statement” dated 23 October 2019, again setting out his reasons for studying in Australia;[9] and
(b)responses to a form titled “Request for Student Visa Information under s.359(2) of the Migration Act 1958 (Cth) (Migration Act).[10]
[9] CB108.
[10] CB117 – CB129.
By email dated 8 December 2019, Mr Narayan provided to the Tribunal a further document explaining things like why he decided to study in Australia, why he chose to study a course at PCT College and how that course will benefit his future.[11]
[11]CB161 – CB 162.
On 9 December 2019, the applicants appeared at a hearing before the Tribunal. At the hearing, the applicants were assisted by their representative.[12]
[12] CB164 – CB165.
On 19 December 2019, the Tribunal affirmed the delegate’s decision.[13] In making its decision, the Tribunal:
[13] CB176 – CB183.
(a)set out the relevant regulations and that Mr Narayan was required to satisfy the Tribunal that he intends genuinely to stay in Australia temporarily by reference to Direction 69;[14]
[14] [8]–[10].
(b)summarised the evidence before it;[15]
[15] [11]–[19].
(c)by reference to Direction 69:
(i)it accepted “[Mr Narayan] may have family ties to Fiji, however, given the time [Mr Narayan] has spent in Australia and the intended period of further stay in Australia” it was not satisfied “that there is a significant incentive for [Mr Narayan] to return to Fiji”;[16]
[16] [21].
(ii)it found that the length of Mr Narayan’s proposed stay in Australia created “serious concerns that [he] is studying for the purposes of staying in Australia”;[17]
(iii)it placed limited weight on the value of the proposed course (Diploma in Marketing and Communications) to Mr Narayan’s future;[18]
(iv)it found that Mr Narayan had not conducted himself as a genuine temporary entrant as his course plan (to study marketing and communications) was inconsistent with his work history (as a manager) and inconsistent with his plans when he first entered Australia (tourism);[19]
(v)in circumstances where Mr Narayan had worked as a manager for 12 years in Fiji, it was not satisfied that “the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds”;[20]
(vi)it found that “[g]iven the disparity in economic circumstances between Fiji and Australia” it could not be “satisfied that [Mr Narayan] has significant incentive to return to Fiji”;[21]
(vii)it found Mr Narayan “has not demonstrated that any clear and substantial improvements arising from [Mr Narayan’s] proposed study which will outweigh the significant time and monetary commitment this course will require”;[22]
(viii)it found Mr Narayan’s “incentive to return to Fiji to be minimal” in circumstances where since his arrival in Australia on 10 November 2017 he has “spent substantial time in Australia and approximately 48 days outside Australia”;[23]
(d)having regard to the above, was not satisfied that Mr Narayan intends genuinely to stay in Australia temporarily and did not meet clause 500.212. Accordingly, the Tribunal was not satisfied that Mr Narayan’s wife and child met clause 500.311;[24] and
(e)affirmed the delegate’s decision.[25]
[17] [22].
[18] [23].
[19] [24].
[20] [26].
[21] [29].
[22] [30].
[23] [31].
[24] [32]–[39].
[25] [40].
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 17 January 2020. The applicants continue to rely upon that application. There are four particularised grounds in it:
1.The First Respondent committed jurisdictional error by illogically and unreasonably taking into account the following:
Particulars
a) The time the Applicant has spent in Fiji at [21] and [31].
b) The Applicant’s past experience as a manager in Fiji at [26].
c) The improvements arising from the Applicant’s study in Australia at [30].
2.The Respondent committed jurisdictional error by unreasonably finding that there was no evidence of the economic circumstances of the Applicant.
Particulars
a) The Applicant did give evidence of his economic circumstances and was taken into account at [29].
b) The First Respondent made a finding that there was no evidence of the Applicants’ economic circumstances.
3.The Second Respondent made jurisdictional error by denying the Applicant procedural fairness as required under s.359A and 359AA of the Migration Act 1958.
Particulars
a) The Second Respondent failed to provide the Applicant with clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review.
b) At [12], [14] and [15], the Second Respondent did not invite the Applicant to comment or respond even though there was a finding made on the Applicant's elaboration. The Second Respondent should have reasonably ensured that the Applicant understood why the information is important for his review.
c) Further particulars will be provided upon receiving the hearing transcript.
4.The Second Respondent made jurisdictional error by misinterpreting clause 500.212 of the Migration Regulations 1994.
Particulars
a) The Second Respondent did not give any weight to:
i. the Applicant's circumstances and;
ii. the Applicant's migration history; and
iii. any other relevant matters.
b) Further particulars will be provided upon receiving the hearing transcript.
The applicants’ former solicitor, who was acting at the time of the filing of the application, filed a short affidavit which was not read.
The applicants’ solicitor withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) last month. In consequence, Mr Narayan sought an adjournment, ostensibly for the purpose of obtaining alternative legal representation, although he also told me that he could not afford a lawyer. I declined the adjournment application on the basis that the applicants had been legally represented for approximately 18 months, and that issues of substance had been put before the Court for resolution by those solicitors. I saw no productive purpose being served by delay.
I have before me as evidence the court book filed on 6 March 2020.
In addition, I received as evidence the affidavit of Anthony Robert Gardner made on 28 July 2021 which contains portions of the transcript of the hearing conducted by the Tribunal having a bearing upon an additional issue raised by the Minister.
I invited oral submissions from Mr Narayan this morning. He was not able to add anything to the grounds set out in the application. Those grounds are, however, comprehensively addressed in the Minister’s written submissions and those submissions were augmented orally by the Minister’s legal representative. I agree with the Minister’s submissions that there is, in essence, no substance in relation to the first, third and fourth grounds in the application.
I agree with and adopt the Minister’s submissions relating to those grounds.
Ground 1
By the first ground, the applicants allege that the Tribunal erred because it illogically or unreasonably took into account:
(a)the time Mr Narayan had spent in Fiji;[26]
(b)Mr Narayan’s past experience as a manager in Fiji;[27] and
(c)the improvements arising from Mr Narayan’s study in Australia.[28]
[26] [21] and [31].
[27] [26].
[28] [30].
In this case, the findings made by the Tribunal in no way involve the requisite “‘extreme’ illogicality or irrationality” necessary for a decision to be affected by jurisdictional error.[29] The findings addressed below, made by reference to Direction 69, were open based on probative evidence before the Tribunal, notwithstanding whether reasonable minds may have been able to draw different conclusions from the same evidence:[30]
[29] See CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ), endorsing the principles set out in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54]-[56] (Wigney J).
[30] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (Crennan and Bell JJ).
First, in respect of clause 9(b) of Direction 69, the Tribunal found:
(a)at [21], that “[Mr Narayan] has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return” and had “been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study”, but that “given the time [Mr Narayan] has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for [Mr Narayan] to return to Fiji” (emphasis added); and
(b)at [31], that it “does give weight to the evidence that since [Mr Narayan’s] arrival in Australia on 10 November 2017 [Mr Narayan] has spent substantial time in Australia and approximately 48 days outside Australia which indicates that [Mr Narayan] does not appear to have strong personal ties to Fiji” and “[b]ased on this evidence, the Tribunal assesses [Mr Narayan’s] incentive to return home to Fiji to be minimal” (emphasis added).
On a proper reading of those paragraphs, it is plain the Tribunal found that:
(a)Mr Narayan had “ties” to act as an incentive to return to Fiji; but
(b)those “ties” were not “a significant incentive for [Mr Narayan] to return to Fiji” and comprised an incentive to return to Fiji which is “minimal”.
This is also consistent with the Tribunal’s finding at [29] that Mr Narayan “has been unable to demonstrate substantial ties … which diminishes [Mr Narayan’s] incentive to return to Fiji”.
When read in context and as a whole, the reasons show the Tribunal did not engage in illogical reasoning in how it:
(a)assessed Mr Narayan against clause 9(b) of Direction 69, having regard to the evidence before it; and
(b)found Mr Narayan’s personal ties to Fiji was not a “significant incentive” to return to Fiji.
Secondly, in respect of Mr Narayan’s “past experience as a manager in Fiji”, the Tribunal made an assessment against clause 12 of Direction 69 and found at [26] that Mr Narayan:
… worked as a “Manager” in Fiji for 12 years. The Tribunal is not satisfied that [Mr Narayan] has established that study will provide him with significant benefits in his proposes career plan, considering the cost of the study and the fact that [Mr Narayan] already has experience as a “Manager”. The Tribunal therefore is not satisfied that [Mr Narayan] has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal did not engage in illogical reasoning in finding that Mr Narayan’s proposed course of study, being a Diploma in Marketing and Communications,[31] did not provide “significant value to his future beyond the qualifications he already holds” in circumstances where he already:
(a)held a Certificate IV in Marketing and Communications;[32] and
(b)had 12 years of experience as a manager. The finding was plainly open on the evidence.
[31] CB114, CB123; CB161, CB178, [13] and CB181, [24].
[32] CB112 – CB113.
Thirdly, when assessing Mr Narayan against clause 12 of Direction 69, the Tribunal found at [30] that he “has not demonstrated any clear and substantial improvements arising from [Mr Narayan’s] proposed study which will outweigh the significant time and monetary commitments this course will require”. This finding is to be read with the findings in [26] referred to above and is not illogical in the necessary sense. Read in context, the absence of “clear and substantial improvements” comprises the Tribunal expanding on its earlier finding that the proposed course did not provide a “significant value to [Mr Narayan’s] future”. In substance, the Tribunal ought to be construed to be saying that, by completing the proposed course, Mr Narayan would not be improving his employment prospects and earning capacity in a way which justified the time and money necessary to complete the course. It was for the Tribunal to assess the value of the proposed course to Mr Narayan’s future by weighing the evidence before it, including that the course was scheduled to end on 27 September 2020 and that the course cost $9,750.[33] Based on that evidence, there is no illogicality in the relevant sense in the Tribunal’s reasoning.
[33] CB114.
The second ground, which alleges that the Tribunal made unreasonable findings in relation to a lack of evidence about Mr Narayan’s economic circumstances is fairly arguable. The problem is that the Tribunal stated in its reasons at [34] that there was no evidence before it regarding certain factors indicated by Direction 69, including the economic circumstances of Mr Narayan. It is obvious that that statement was incorrect, because the Tribunal considered his economic circumstances at some length in other parts of its reasons and at [29] stated explicitly that it had taken into account Mr Narayan’s economic circumstances in Fiji relative to his potential circumstances in Australia.
Ground 3
By this ground, the applicants allege that the Tribunal erred by not complying with s 359A and s 359AA because at [12], [13] and [14], it “did not invite [Mr Narayan] to comment or respond even though there was a finding made on [Mr Narayan’s] elaboration” and the Tribunal “should have reasonably ensured that [Mr Narayan] understood why the information was important for his review”.
The ground may be construed as taking issue with the Tribunal stating:
(a)“He did not elaborate” once at [12] and three times in [15]; and
(b)“[Mr Narayan] was unresponsive” at [14].
In substance, the applicants seem to contend that by not asking Mr Narayan to elaborate on certain answers he gave to the Tribunal at the hearing, there was in some way a contravention of s 359A or s 359AA. However, such a contention misunderstands s 359A and s 359AA and must fail because the absence of an answer or elaboration by Mr Narayan to a question not asked by the Tribunal is not “information”. “Information” is only “information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision that is under review”. Such “information” “does not encompass the tribunal's subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.[34] Accordingly, the absence of elaboration is not information.
[34] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24] (Finn and Stone JJ)
To the extent that the applicants may be contending that the Tribunal did not comply with s 360 by not giving Mr Narayan an opportunity to give evidence on the matters where there was no elaboration, the ground must fail as the Tribunal was not required to:
(a)give Mr Narayan a “running commentary” by putting to him for comment at the hearing its thought processes and preliminary reasons in respect of whether it accepted his evidence;[35] or
(b)identify to Mr Narayan the significance of the questions it asked him where he did not elaborate.[36]
[35] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby J, Hayne J, Callinan J, Heydon J)
[36] Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89] (Emmett, Weinberg and Lander JJ).
Ground 4
By this ground, the applicants allege that the Tribunal erred because it misinterpreted clause 500.212 because it did not give any weight to Mr Narayan’s “circumstances”, “migration history” and “any other relevant matter”.
This ground must fail as the Tribunal did not misunderstand clause 500.212 and did consider Mr Narayan’s:
(a)circumstances, by which it is assumed Mr Narayan means circumstances in Fiji and circumstances in Australia (in accordance with clauses 9, 10 and 11 of Direction 69) at [21] and [22];
(b)migration history (in accordance with clauses 13 and 14 of Direction 69) at [31]; and
(c)other relevant matters (in accordance with clause 16 of Direction 69) at [27], but found that there were no such matters.
Any issue the applicants may have with the weight given to that evidence is not a complaint that is amenable to judicial review and does not result in jurisdictional error.[37]
[37] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
Ground 2
The second ground, which alleges that the Tribunal made unreasonable findings in relation to a lack of evidence about the applicant’s economic circumstances is fairly arguable. The problem is that the Tribunal stated in its reasons at [34] that there was no evidence before it regarding certain factors indicated by Ministerial Direction 69, including the economic circumstances of the applicant. It is obvious that that statement was incorrect, because the Tribunal considered the applicant’s economic circumstances at some length in other parts of its reasons and at [29] stated explicitly that it had taken into account the applicant’s economic circumstances in Fiji relative to his potential circumstances in Australia.
The Minister concedes that the Tribunal made an error in referring to Mr Narayan’s economic circumstances. While the error is unfortunate, I accept that it is an error of fact, not going to jurisdiction because, read fairly and as a whole, the Tribunal took account of Mr Narayan’s economic circumstances both here and in Fiji. In other respects, I agree with the Minister’s submissions relating to this ground.
The applicants allege that the Tribunal erred and made unreasonable findings by finding there was no evidence of the economic circumstances of Mr Narayan in circumstances where:
(a)Mr Narayan did give evidence of his economic circumstances and it did take them into account;[38] but
(b)the Tribunal found there was no evidence of Mr Narayan’s economic circumstances.
[38] [29].
It is the case that at [34] the Tribunal stated that there was no evidence:
(a)of the economic circumstances of Mr Narayan, when there was such evidence;[39]
(b)of the remuneration Mr Narayan could expect to receive in Fiji or a third country compared with in Australia, when there was such evidence;[40] and
(c)of circumstances in Fiji relative to in Australia, but had made an earlier finding that “[g]iven the disparity in economic circumstances between Australia and Fiji the Tribunal cannot be satisfied that [Mr Narayan] has significant incentive to return to Fiji”.[41]
[39] [12], [14], [15], [16] and [34].
[40] [14], [15] and [34].
[41] [29] and [34].
However, when the reasons are read fairly and as a whole, it is clear that:
(a)the Tribunal did consider the issues which it says in [34] that it did not consider, and that the statements in [34] are an unintended error;
(b)in its reasons at [28], found Mr Narayan “has not been able to satisfy it that [he] genuinely intends a temporary stay in Australia as a student”; accordingly, the Tribunal:
(i)made its critical finding at [28];
(ii)proceeded to explain some of the issues supporting that finding at [29]–[33] (in addition to the reasons given at [20]–[27]); and
(iii)made its erroneous finding after it had reached its determinative conclusion; and
(c)having regard to the above, the erroneous statement had no effect on the Tribunal’s reasoning process, such that the Tribunal did not:
(i)make any illogical finding in the relevant sense at [34] or, to the extent that it made any factual errors, the findings were not findings “on the way” to the Tribunal being satisfied in accordance with s 65[42] as to whether Mr Narayan intends genuinely to stay in Australia temporarily in accordance with clause 500.212(a); and
(ii)make any error of fact which resulted in jurisdictional error by reason of the Tribunal misunderstanding or misconstruing Mr Narayan’s evidence or claims.[43]
[42] SZMDS at [132] (Crennan and Bell JJ).
[43] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [113] (Robertson J).
A further issue
The Minister’s submissions also raise another issue not raised by the applicants. The issue is that the Tribunal was labouring under the misapprehension that Mr Narayan most recently arrived in Australia on 10 November 2017 and applied for the student visa on the same day.
In fact, Mr Narayan had arrived in Australia in August 2017 and applied for the visa as the Tribunal indicated, on 10 November 2017. In part that error might have worked in Mr Narayan’s favour, in that he had spent a longer period of time in Australia since his most recent arrival than the Tribunal understood. On the other hand, the Tribunal appeared to see some significance in the fact that Mr Narayan applied for the visa on the day of his arrival, most recently, which was factually incorrect. It appears that the Tribunal simply confused the date of arrival with the date of visa application. The partial transcript contained in Mr Gardner’s affidavit establishes that the Tribunal put the date to Mr Narayan at the Tribunal hearing, and he agreed with it.
That common misunderstanding continued until later in the hearing when Mr Narayan ventured to suggest that he might have arrived sometime in August. That made no sense to the Tribunal, although it should have if it had explored the matter more closely. In my view, the error made by the Tribunal did not bear in any determinative fashion upon the outcome of the review. The Tribunal was of the view, in substance, that Mr Narayan was seeking to use the student visa program to extend his stay in Australia, and that, although he came to Australia as a tourist, his real intention was to study in order to extend that stay. It is in my view highly likely that that view would have been sustained even if the Tribunal had corrected its understanding of the date of Mr Narayan’s most recent arrival.
The Tribunal clearly made a factual error in finding that Mr Narayan had most recently arrived in Australia on 10 November 2017 and applied for a student visa on the same day[44] in circumstances where the delegate’s decision record states that he arrived in Australia on 13 August 2017.[45]
[44] CB178; [12], CB181; [22], CB182; [31] and CB182 – CB183; [32].
[45] CB55 and CB56.
However, in the circumstances, the Tribunal permissibly proceeded on the basis of the evidence provided to it by Mr Narayan at the hearing which was his best evidence of what had occurred (even though it may have been incorrect).[46]
[46] see, eg CSN15 v Minister for Immigration and Border Protection [2018] FCA 985 at [68]–[75] (Greenwood ACJ); See, also affidavit affirmed by Anthony Robert Gardner on 28 July 2021.
In any event, even if the Tribunal made an error of fact, the error did not result in jurisdictional error as it did not result in the Tribunal misconstruing or misunderstanding the claims made by Mr Narayan.[47] At [32], the Tribunal states:
On balance, the Tribunal is not satisfied that [Mr Narayan] is a genuine temporary entrant for further stay as full-time student. Whilst [Mr Narayan] clearly wishes to stay and continue to study in Australia, it is noted that [Mr Narayan] was previously granted a visa specifically to enable him to achieve his articulated purpose of travelling to Australia, namely tourism. [Mr Narayan] lodged this application on the same day that he arrived in Australia as a tourist. It therefore appears to the Tribunal that [Mr Narayan] has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study …
(emphasis added)
[47] See SZRKT at [113] (Robertson J); Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28] (North and Lander JJ).
On a fair reading of the extracted passage, it is evident that what was important to the Tribunal’s assessment was that:
(a)Mr Narayan “commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study”; and
(b)Mr Narayan applying for the student visa in close proximity to arriving in Australia as the holder of a visitor visa undermined his genuineness as an applicant for a student visa. Whether he applied for a student visa on the day he arrived on 13 August 2017, or on 10 November 2017, would have made no difference to the Tribunal’s analysis. This is particularly the case in circumstances where the Tribunal noted at [12] that Mr Narayan had admitted, from his arrival in Australia on a visa permitting tourism, he “wanted to go to college”.
Put another way, any factual error was not material and no jurisdictional error arises as there is no realistic possibility the Tribunal might have reached a different outcome if not for the error.[48] Given how the Tribunal reasoned, whether Mr Narayan applied for a student visa on the day he arrived on 13 August 2017, or on 10 November 2017, was objectively insignificant.[49] In addition, any error was not material to the Tribunal’s ultimate conclusion that Mr Narayan did not intend genuinely to stay in Australia temporarily because the timing of the application for a student visa was only one of many factors which resulted in the Tribunal making that finding. At least eight other factors were relevant to the Tribunal’s assessment, they are set out above.
[48] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).
[49] Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at [72] (Bromwich and Wheelahan JJ); See, also Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 20 at [67]–[69].
CONCLUSION
I conclude that Mr Narayan is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It is, therefore, a privative clause decision. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Narayan felt that that amount was excessive, but the scale reflects an assessment of the value of work done in an ordinary matter in this jurisdiction which, in my view, this case is.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 August 2021
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