Nezi v Minister for Home Affairs
[2019] FCCA 3501
•5 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEZI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3501 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 573) visa – decision of the Administrative Appeals Tribunal – whether Tribunal properly considered relevant matters – whether Tribunal misunderstood evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476, 499 Migration Regulations 1994 (Cth), cl.573.223 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | LUKE NEZI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 366 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 28 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 5 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr P J Hannan |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant have leave to rely on his affidavit affirmed 15 November 2019.
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 366 of 2018
| LUKE NEZI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 5 July 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 7 June 2018.
The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 573) visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
This proceeding is brought pursuant to s 476(1) of the Act. To obtain assistance from this Court, the applicant must establish that the Tribunal has fallen into jurisdictional error
In preparing this judgment the Court has referenced a 124 page Court Book (“CB”) (marked as Exhibit 1), the applicant’s judicial review application, a set of written submissions filed by the Minister on 18 February 2019, an affidavit of the applicant affirmed 15 November 2019, written submissions of the applicant filed 15 November 2019 and a further outline of written submissions from the Minister filed 28 November 2019.
The applicant appeared in this Court without legal representation. The Court confirmed that he had received a copy of the Court Book and that he had had time to review the Minister’s submissions.
Background
The factual background of the matter can be summarised as follows.
The applicant is a citizen of Zimbabwe. He first arrived in Australia on 11 July 2008 as the holder of a Student (class TU) (subclass 572) visa (CB 93, 114 and 118).
On 20 May 2015, the applicant applied for the visa the subject of this application for judicial review (CB 1-8).
On 22 May 2015, the then Department of Immigration and Border Protection (the “Department”) requested that the applicant provide information on various matters, including the Genuine Temporary Entrant Criterion (CB 11-16). The applicant provided some documents in response to this request but none of these documents appear to have addressed the Genuine Temporary Entrant Criterion (CB 22-32).
On 10 July 2015, the applicant sent an email to the Department enclosing a letter that discussed deferring his studies and changing his visa from a subclass 573 to a subclass 572 visa (CB 22).
On 23 July 2015, the Department again requested that the applicant provide information on various matters, including the Genuine Temporary Entrant Criterion (CB 33-41). The applicant responded with a statement that addressed the Genuine Temporary Entrant Criterion (CB 46-48).
On 6 October 2015, a Ministerial delegate refused to grant the visa. The delegate was not satisfied that the applicant met the Genuine Temporary Entrant Criterion (CB 49-55).
On 27 October 2015, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 56-57). The applicant was represented by a migration agent.
On 1 October 2017, the applicant’s migration agent sent written submissions to the Tribunal (CB 91-100).
The applicant and his migration agent appeared (via telephone) before the Tribunal on 3 October 2017 to give evidence and present arguments (CB 106-108).
On 7 June 2018, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 112-119).
Tribunal’s Decision
The Tribunal’s Decision is eight pages long and spans 67 paragraphs.
The Tribunal identified that the issue before it was whether the applicant met cl.573.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 113 at [8]).
The Tribunal also noted that when considering this criterion the Tribunal is to have regard to the factors specified in Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications (“Direction 53”) (CB 113-114 at [9]-[10]).
At [11]-[12], the Tribunal summarised the applicant’s agent’s written submissions.
At [13]-[40], the Tribunal summarised the evidence the applicant had provided at the Tribunal hearing, including the responses to questions the Tribunal had asked of him during the hearing.
At [41]-[51], the Tribunal summarised the various notices the applicant had been given – all of which indicated that the genuine temporary entrant criterion was a relevant issue. The Tribunal noted that the submissions that the applicant’s agent had provided did not address the matters in Direction 53.
The Tribunal then reasoned as follows:
a)the failure to respond to the request for evidence supporting the application was not the behaviour of a genuine applicant keen to be granted a visa (CB 117 at [52]);
b)the applicant provided no satisfactory response as to why there were significant study gaps in his visa history. The expectation is that student visa holders will remain enrolled. The applicant had failed to do so and, by his own admission, had not studied since October 2015, despite having full study rights (CB 118 at [53]-[57]);
c)the course the applicant wished to study (and was thus required complete) is a course which comprised of units he had already completed. The Tribunal did not accept that it was satisfactory that the applicant wanted to complete this course because, as the applicant claimed, he would get no recognition of prior learning (CB 118 at [58]). Further, the proposed course did not provide any value to the applicant’s future career greater than the studies he had already completed and his many years’ experience as a pastor (CB 118 at [58]-[59]);
d)it did not believe the applicant was following a predetermined academic pathway. Rather, he was selecting courses with the intention of maintaining residence in Australia (CB 118 at [59]);
e)having been here since July 2008, if granted the visa the applicant would remain in Australia until October 2018. This would have the effect of bringing his total time in Australia on temporary visas to more than 10 years (CB 118 at [61]);
f)it was difficult to reconcile the applicant’s extensive proposed stay in Australia with his claim that he is a genuine temporary resident (CB 118 at [62]);
g)while the applicant’s mother and brother are in Zimbabwe, which may provide some incentive to return, the applicant appears settled in Australia, has a long and strong history of work and resides with his de-facto and their son and repeatedly stated his main priority is to look after his immediate family (CB 118 at [63]); and
h)while the applicant said he intends to return home, the Tribunal believed his current circumstances present as a strong incentive to remain in Australia (CB 118 at [63]-[64]).
The Tribunal affirmed the decision not to grant the visa (CB 118 at [66]).
Clause 573.223
Clause 573.223 of the Regulations reads as follows:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
…
The Tribunal noted that by virtue of s.499 of the Act it was required to have regard to the matters in Direction 53. The Tribunal summarised those matters (at [9]) as follows:
- the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
- the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
- if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
- any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Proceedings in this Court
The applicant’s judicial review application contains 6 grounds of review as follows:
1. The Tribunal said I had a 7 month study gap but I provided a letter from the school which stated I was enrolled.
2. The Tribunal said I should have completed my two units from prior studies which was impossible as I was doing other full time studies.
3. I mentioned that I tried to get prior recognition of studies but the course units were changed and replaced so had to do the whole course again.
4. The AAT did not take into consideration that different church denomination follow and believe differently in different church doctrines. Money Tithing being one of them.
5. The Tribunal stated I had many yrs as a pastor which makes me experiences in running a parish and makes my studies in business irrelevant. I have never ran a church or parish, hence my studies in business will be very relevant to my career path.
6. The Tribunal misinterpreted my response saying I cannot imagine living my life without my partner and son to have no intention of returning to my home country. Even if I was anywhere in the world I would work hard to take care of them hence the need to complete my studies.
The applicant was provided an opportunity by a Registrar of this Court to file any amended application, affidavit evidence and an outline of submissions. Unfortunately, nothing was filed by the applicant.
The applicant’s grounds of review are, arguably, more specific than those seen in other applications filed in this Court. Nonetheless, noting recent remarks in the Federal Court (in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] (“Bala”)) that an unrepresented applicant should be given an opportunity to expand upon their grounds of review and raise any other concerns that they might have in relation to the Tribunal’s decision, the Court offered the applicant an opportunity to make further oral submissions and address any concerns he might have with the Tribunal’s decision.
In this context, the Court explained to the applicant that the Court can only look at the issue of jurisdictional error. It was explained that for migration decisions of this sort, the categories of jurisdictional error most commonly include (but are not limited to):
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 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: 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 he now 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 at 272.
Against that background the Court asked the applicant to explain what he thought the Tribunal “did wrong”. The applicant’s oral submissions were clear. Unfortunately, the submissions made orally to the Court went no further than to address the merits of the Tribunal’s decision and the applicant’s disagreement with it – in particular, the finding that he was not a genuine temporary entrant or student. Regrettably, this Court cannot assist the applicant in relation to concerns of that sort.
As noted above, the Court received written submissions from the Minister. Those submissions outlined an additional issue that will be discussed below under the heading “Additional Issue”.
Following the hearing on 23 September 2019, the Court became concerned with an aspect of the Tribunal’s decision and called a directions hearing. That issue appears to have been initially identified by the applicant in his ground 5. At the directions hearing on 26 September 2019 the Court discussed this issue with the parties and allowed the applicant an opportunity to provide an affidavit annexing a transcript of the Tribunal’s hearing and any written submissions he wished to make. The Minister filed written submissions in response. The contents of any submission made in this regard will be discussed below in relation to ground 5.
The Court notes that the applicant’s affidavit sworn 15 November 2019 was filed one day outside the time limit in which the applicant was granted to file this evidence. The Court was made aware that the applicant had issues obtaining the transcript which caused the short delay. The Minister took no issue with the late filing in the written submissions. For completeness, there will be an order that the applicant have leave to rely on the affidavit affirmed 15 November 2019.
Consideration
Ground 1
1. The Tribunal said I had a 7 month study gap but I provided a letter from the school which stated I was enrolled.
The Court notes the Ministers submissions at [54]-[58] as follows:
54. JRA Ground 1 seems to be based on the AAT’s Decision at CB 115 [23] – [25] & 118 [53] - [54] and the certificate of enrolment at CB 32.
55. The important findings of fact are at CB 118 [54] – [55]. The AAT found that for significant periods of time, the Applicant did not study, regardless of whether or not he was enrolled. See CB 118 [55]. Further, the finding at CB 118 [54] referred to “significant study gaps including” the 7 month gap. Note the word “including” at CB 115 [25]. Thus, the AAT’s finding concerning “study gaps” was not solely based on the 7 month period about which the Applicant complains.
56. The AAT’s reasons at CB 115 [23] – [26] appear under the heading “The Hearing”. See CB 114 [13]. The AAT Member was recounting what happened at the AAT hearing on 3 October 2017. Note para 17 above. That “transcript summary” supports the AAT’s findings of fact. See also CB 16, 28 & 44. The certificate at CB 32 refers only to enrollment.
57. The ability to impugn factual findings made by an administrative decision maker is within a narrow compass, even when made under the rubric of unreasonableness. See El Saghir v Minister for Immigration and Border Protection [2016] FCA 1430 at [17] & [23] – [25]. The “no evidence” ground of review is not available “when even a skerrick of evidence appears”. See CJT15 v Minister for Immigration and Border Protection [2018] FCA 618 at [52]; SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 at [69] – [71]. As to credibility findings, see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [36] – [38].
58. Where the impugned finding of fact is but one of a number of findings that independently may have led to the decision-maker’s ultimate conclusion, jurisdictional error will generally not be made out. See Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [55].
(Without alteration, emphasis in original)
In relation to the seven month gap in the applicant’s study, the applicant’s evidence was that he was enrolled in a Diploma of Management from September 2013 to March 2014 and that the next course he commenced was on 27 October 2014. That evidence was consistent with the applicant’s PRISMS records that indicated that the applicant completed the Diploma of Management in March 2014. He was enrolled to commence the Advanced Diploma of Business from May 2014, but that enrolment was cancelled. The applicant was re-enrolled in October 2014 (consistent with his evidence).
The applicant gave the Tribunal a document from the Technical College of Western Australia indicating that he had been enrolled in a Diploma of Management and Advanced Diploma of Business from September 2013 until November 2015. This is the document the applicant appears to be referring to in ground 1.
When reading the Tribunal’s reasons as a whole, the Court is not satisfied that the Tribunal’s finding that there was a seven month gap was a critical finding or one that was not open to be made. As suggested, there was material (in the form of departmental records) that indicated that the applicant was not enrolled for a period of seven months and the applicant himself indicated that there was a seven month break between his studies. The applicant did not seek to explain that gap (and simply stated that he must have missed something). This is problematic. It is for the applicant to provide the evidence and arguments he wishes to rely on in in support of his case. Here, the applicant was on notice that there was a gap, including one of seven months duration, which he did not explain. Nor did he seek additional time within which to explain or clarify the gap in question.
Further, the Tribunal expressed concerns over the study “gaps” (plural). The relevant paragraphs of the Tribunal’s decision are as follows:
53. He was asked to provide a range of information including evidence of past studies, evidence of current enrolment and an explanation of any gaps in studies.
54. He failed to do so and when at the hearing it was put to him that the evidence indicated he had significant study gaps including one of seven months, he provided no satisfactory response.
55. Student visas are granted with the expectation the visa holder will remain enrolled and studying. He has failed to do so.
56. Despite his claim that he came here to study, he has maintained full study rights but told the Tribunal he has done no study since October 2015.
(Emphasis added)
It is not the case here that one seven month delay alone was of concern the Tribunal. Rather, what was an issue were the applicant’s “substantial study gaps including this gap of seven months” and his behaviour (including his not completing the courses he had commenced and not studying for over two years, despite having full study rights). The Tribunal found all this, collectively, to be inconsistent with a person who would be considered to be a “genuine student”.
Reading the Tribunal’s decision as a whole, the conclusion that the applicant had a significant gap of seven months without enrolment and without explanation was a finding that was open to be made. Even if incorrect, that finding was one which was one of many that informed the Tribunal’s ultimate conclusion that the behaviour of the applicant was not consistent with that of a genuine student.
No error arises in relation to ground one.
Ground 2
2. The Tribunal said I should have completed my two units from prior studies which was impossible as I was doing other full time studies.
The Court understands the applicant to be referring to [19]-[20] in the Tribunal’s decision, which read:
19. Mr Nezi told the Tribunal that to date he had not completed the two units required to be granted the bachelor’s degree. When the Tribunal asked why, he said that when his enrolment was cancelled he was unable to enrol to complete to 2 units until they were available in a later semester.
20. The Tribunal told Mr Nezi the fact it was more than four years since his enrolment was cancelled would indicate there had been multiple opportunities to complete the two units but he had failed to do so. He responded saying that during the time he was waiting he realised that if he was going to work with people as a pastor, studying business related qualifications would help his theology and enable him to work to supplement the meagre income paid to a pastor. He said that pastors do not earn much money as it is like a voluntary job.
At [28], the Tribunal further noted:
28. The Tribunal told Mr Nezi his study history provided concerns in that he had failed to complete the two units required to be granted a Bachelor of Ministry and had then studied an Advanced Diploma of Business which he stopped shortly before it was scheduled for completion because his visa application was refused. Despite having full study rights he had not completed that course. The Tribunal said it had difficulty reconciling this behaviour from someone who claimed they were in Australia because they wanted to study.
No error arises from this ground for two reasons:
a)the Tribunal did not say that the applicant should have completed the two remaining units. Rather, it asked him to explain why he had not completed the two units; and
b)the applicant never put to the Tribunal for consideration that the reason he had not completed the two units was that he was engaged in other full-time studies. To the extent that the applicant made oral submissions to this Court about why this was the case, the Court cannot consider this evidence.
It was entirely reasonable for the Tribunal to place weight on the fact the applicant had not completed the two units and reference this as an indicator that he was not a genuine student. The Tribunal did not determine that the visa should not be granted because the applicant did not complete two units. The Tribunal determined that this was yet another indicator that the applicant was not a genuine student as he had had the opportunity to complete those units and had not done so. The applicant now purports to provide an additional reason to this Court as to why he had not completed the two units. Unfortunately, that is not a matter this Court can consider as it does not go to jurisdictional error.
No jurisdictional error arises in relation to ground 2.
Ground 3
3. I mentioned that I tried to get prior recognition of studies but the course units were changed and replaced so had to do the whole course again.
The Tribunal expressly acknowledged the applicant’s statement in this regard at [39] and [58].
At [58] the Tribunal stated:
58. He claims he wishes to stay to study a Diploma of Leadership and Management, a course that recently replaced the Diploma of Management which he has previously completed. He provided no satisfactory response when asked why he would study a course comprised of units he had already completed but for which he claimed he would get no recognition of prior learning.
The Tribunal did not reject the applicant’s assertion that he could not get prior recognition of his studies. The Tribunal’s concern was that the applicant was undertaking a course which included a number of units he had already completed. Hence, the proposed course was not of value to his future and would not provide value greater than the units he had already studied.
The Tribunal did not overlook what the applicant had “mentioned”. Rather, the Tribunal was of the view that the fact that the applicant was unable to respond directly to a question about why he was going to study the Diploma of Leadership (a course which included many of the units that the applicant had already completed in the Diploma of Management) indicated that he was not a genuine student or that the studies would not contribute to his future career. It was open for the Tribunal to reason as it did.
Ground 3, accordingly, is dismissed.
Ground 4
4. The AAT did not take into consideration that different church denomination follow and believe differently in different church doctrines. Money Tithing being one of them.
This ground appears to take issue with [33]-[35] of the Tribunal’s decision, which provide:
33. The Tribunal observed that while Mr Nezi claimed his non-religious studies were to enable him to work and supplement his pastor’s salary of approximately $30,000 he had also provided his de facto’s tax summary which showed she earned $65,000 a year. The Tribunal suggested their combined family income approaching $100,000 was surely enough to conduct his ministry.
34. Mr Nezi responded that the church could not support him as he would be working as a junior Pastor or a Minister under a main Minister. He said that as a young youth minister you don’t have your own church and don’t have much of an income.
35. He said his parish church comprised approximately 80 parishioners. The Tribunal observed his claim that his studies were to enable him to run the administration and finances of the business. He had stated he was keen to introduced tithing which the Tribunal observed meant giving 10% of your income to your church. The Tribunal observed tithing 80 parishioners would provide the church with an income equal to the average of eight parishioners. Mr Nezi responded that not everyone follows the word of God by the book and tithes and some people were not in a position to tithe.
The Tribunal made no finding about whether the applicant would be supported by his parish or receive income from “tithing” generally. It simply summarised the applicant’s evidence. This assessment went to the core issue of whether the applicant was a genuine temporary entrant and student.
The Tribunal was not required to consider the different denominations and doctrines of the Church. The issue for the Tribunal was whether the applicant was a genuine temporary student and entrant to Australia. The Tribunal addressed this issue. Ultimately, the Tribunal rejected the argument that the proposed course (which was intended to enable the applicant to supplement his income) was not of any value to the applicant.
Ground 4 is, accordingly, dismissed.
Ground 5
5. The Tribunal stated I had many yrs as a pastor which makes me experiences in running a parish and makes my studies in business irrelevant. I have never ran a church or parish, hence my studies in business will be very relevant to my career path.
The applicant appears to take issue with the Tribunal’s statement that he had “many years experience as a pastor”. He stressed that he had not, in fact, had any experience as a pastor. Rather, he was involved in the provision of “ministry”. He seems to claim that this is important because pastors are engaged with church management etc and he has not, in fact, acted as a pastor – hence, he has no management experience of the sort relevant to his studies in Australia and of the sort the Tribunal seems to focus on when it refers to him as a pastor.
Following the hearing of this matter, the Court called a directions hearing. The Court highlighted the need for submissions in relation to the “Minister/Pastor” distinction raised by the applicant and offered the applicant an opportunity to provide a transcript of the Tribunal hearing. The Court’s concern was that, if the Tribunal misunderstood the applicant’s evidence or failed to understand the difference between a “Minister” and a “Pastor”, this misunderstanding might amount to jurisdictional error. This is an issue because the Tribunal’s reasoning is that the proposed course was of no value as the applicant had “many years experience as a pastor”. The applicant says he was not working as a pastor. He says further that he was offering ministry and told the Tribunal this.
The applicant filed submissions on 14 November 2019 and an affidavit annexing portions of the Tribunal’s transcript on 15 November 2019. The Minister filed submissions on 28 November 2019.
Although not entirely clear, the applicant seems to suggest that the Tribunal made “wrong assumptions” – namely, that the applicant had experience in running a parish. The applicant says he has no experience “leading” a Church. Rather, he will work with people and eventually manage finances and projects – which is why he chose to study the course the subject of the Tribunal’s findings.
At [60], the Tribunal finds that the applicant’s proposed course is of no value to his future (a matter specifically referred to in Direction No 53). It makes this finding based on its view that the applicant had already completed courses that would assist him in the future and that he already had “many years experience as a pastor”. The applicant places emphasis on the fact that he never stated be had “many years experience as a pastor”.
Having reviewed the Tribunal Transcript and the decision as a whole, it appears that the use of the terms “Minister” and “Pastor” are used interchangeably and are, in fact, interchangeable within the context of this case.
Critically, the applicant himself used the terms interchangeably before the Tribunal. The following exchange is of note:
TRIBUNAL: I see the situation is that one of the things you say is that the reason that you studied management, business and whatever is, so that you can get involved in a business that will supplement the income that you would have as a Pastor or Priest which is only about $30,000 a year and I guess that makes sense... But you also provided your defacto’s tax summary showing that she earns $65,000 a year. Surely if we add that to the Pastor’s salary of $31,000 what we’ve got is a family income of $100,000. I would have thought that’d be more than adequate to be a Minister wouldn’t it?
APPLICANT: As a minister to be honest with you, it depends purely with the kind of nomination and the congregation at the Church that you work in. So the Church that I am is not a Church that I can be able to really really support me financially, because I would be working as a Pastor under somebody, and he’s classed, so they are already Pastors in the Church and I’ll be a Minister who is coming in the Church and I’ll be not the main Minister of the Church but I would not be one of the Ministers who would be giving, so I wouldn’t expect myself to be any… when you are coming as a youth Minister, as a young youth Minister you don’t have your own Church but you are working in somebody else’s Church and you are somebody who’s mostly on volunteer for them.
While there may well be a distinction between the role of a Pastor and the role of a Minister, the applicant did not distinguish between the two during the hearing with any sufficient clarity. The applicant interchangeably referred to himself as working as a Minister or Pastor on return. It would thus be open to the Tribunal to conclude that the skills of either were interchangeable. That is, the applicant’s evidence appears to suggest that the courses he was wanting to take would enable him to return to Zimbabwe to be a Pastor or a Minister.
In Taivei v Minister for Home Affairs [2018] FCA 1129 at [29], Justice Flick stated:
In some cases, a practical and common sense reading of reasons of an administrative decision-maker may expose an interchangeability of terminology or “instance[s] of ‘looseness in language’ or ‘unhappy phrasing’” (cf. Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [41], (2016) 237 FCR 305 at 314 per Tracey, Flick and Katzmann JJ (“SZUSU”)) such that no meaningful distinction should be drawn between the way two terms are used; in other cases, a practical and common sense reading of such reasons may expose a careful distinction being made by the decision-maker.
Here, the Court has undertaken “a practical and common sense reading” of the decision. Read in context, the Court accepts that no meaningful distinction should be drawn between the way the words Minister and Pastor are used. Rather, the use of the terms appears to be in the wider context of “Ministry” and experience in the church environment generally.
Hence, while the Tribunal may have referred to the applicant having “many years experience as a pastor”, the Court is prepared to infer that the Tribunal was indicating that the applicant had many years experience “working in a church environment” (see, CB 47). Specifically, the Court considers the Tribunal’s statement at [60] as referring back to the evidence it referred to at [13] – i.e., that the applicant had indicated that he was a Minister for some time prior to coming to Australia.
The Court is satisfied that there is no error when the Tribunal finds that the course was of no value to the applicant’s future because of his previous experience working in a Church environment. It is not, as the applicant submits, the case that the Tribunal found that the applicant had many years “running a parish”. Read as a whole, it is clear that the Tribunal’s finding was based upon its view that the applicant’s previous experience in the church environment, or in the “Ministry” (as the Minister suggests), together with the courses he had already completed was such that the course would be of little, if any, value.
The reference to “pastor” in [60] is but an example of loose language and imprecision that arose from the applicant’s own evidence and submissions (for example, as seen in submissions to the Tribunal which use the term “priest” and without any reference to Minister or Pastor): Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 at [48].
To the extent that the applicant is arguing that the Tribunal failed to consider the relevance of the proposed course (and focussed on his “experience”), this argument must also be dismissed.
At [60], the Tribunal relevantly states:
60. The Tribunal does not believe that his proposed course provides any value to his future career greater than studies already completed and his many years experience as a pastor.
When read in context, the Tribunal seems to be concluding that there is no value to the applicant in pursuing the course. This is so because many of the units in the proposed course had already been completed by the applicant in previous courses. The Tribunal thus considered the relevance of the course – not just the applicant’s previous experience.
Further, it was not the Tribunal’s role to make inquiries or investigate how the course would be relevant to the applicant’s future career. There is no obligation on the Tribunal to investigate or make inquiries to discover whether a course is relevant or not or how it could be relevant: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]. That was a matter for the applicant. That the Tribunal was not satisfied with the applicant’s explanations was a matter for the Tribunal. It was open for the Tribunal to do so.
Ground 5, accordingly, is dismissed.
Ground 6
6. The Tribunal misinterpreted my response saying I cannot imagine living my life without my partner and son to have no intention of returning to my home country. Even if I was anywhere in the world I would work hard to take care of them hence the need to complete my studies.
The relevant portions of the Tribunal’s decision are as follows:
30. The Tribunal read from the prehearing submission which stated “He cannot imagine life without his partner and child, it will be so hard for him to return to Botswana alone and leave his family behind. It will be harder for his de facto partner of two years and his one year- old son to be with him in Zimbabwe or Botswana where life will be harder for them”.
31. The Tribunal told Mr Nezi it interpreted this statement as indicating it was not his intention to return home and asked him to comment. He gave a rambling response saying they planned to return but at the moment his wife was working and they wished to be together as a family and they did not want to be separated. He said he wished to see their son grow and to be the father to guide him. He said that when he completed his studies they may return to Botswana or go to New Zealand, Jayne’s home country. When asked what studies he was referring to he said Ministry and Management.
As is apparent from the above extracts, the applicant was given an opportunity to comment on how the Tribunal had interpreted his statement. The applicant did so. Based on that response, the Tribunal proceeded to find as follows:
62. The Tribunal finds it difficult to reconcile his extensive proposed stay in Australia with his claim he is a genuine temporary resident but rather believes he is seeking to use the student visa program to remain resident in Australia.
63. While I acknowledge his mother and brother are back home, which may provide some incentive to return, he appears settled in Australia. He has a long and strong history of work and is here with his de-facto and their son and repeatedly stated his main priority is to look after his immediate family. While he says it is his intention to return home, Having been here for 10 years he now seeks to remain longer.
64. His words and his actions seem to be different. The Tribunal believes his current circumstances present as a strong incentive to remain in Australia and does not believe he has provided evidence of any incentive to return which outweighs the issues we have discussed and his immigration history.
Here, the applicant is disagreeing with the Tribunal’s assessment of his evidence, or the findings of fact it made based on the evidence and materials that were before it.
It was entirely open to the Tribunal to conclude as it did here, particularly in circumstances where the Tribunal had put the applicant on notice of how it had interpreted his evidence. The applicant’s clarification did not alter or dissuade the Tribunal in this regard. This is no more than the Tribunal exercising its fact-finding function.
Ground 6, accordingly, is dismissed.
Additional Issue
The Minister drew the Court’s attention to Singh v Minister for Immigration [2018] FCCA 3423 (“Singh”) and the decision in Bala.
In Singh, it was concluded that where Direction 53 applies, the Tribunal is required to consider each of the criteria in Direction 53.
In Bala, Justice Anastassiou found it unnecessary to determine whether the criteria prescribed by Direction 53 were “mandatory” considerations. His Honour was satisfied that the Tribunal in that case had considered Direction 53.
The Minister asked the Court to contrast [45] of Singh, with [17]-[18] of Bala.
At [45], of Singh it was stated:
It may be the case that the applicant had no military service commitments in India, and that there was no relevant civil or political unrest in India, which would operate as disincentives for the applicant to return there. However, in those circumstances, Direction No. 53 required the Tribunal to consider whether to weigh those matters in the balance in support of the applicant being a genuine temporary entrant. That is, the fact that the applicant was not required to undertake military service in India, and the fact that there was no relevant civil or political unrest in India, tended to suggest that the applicant was not attempting to stay in Australia to avoid those things. The Tribunal did not consider whether to weigh them in the balance, contrary to Direction No. 53, and thereby fell into jurisdictional error.
At [17]-[18] of Bala, it is stated:
17.The first respondent acknowledged that the Tribunal’s decision did not expressly refer to the matters in paragraphs 9(d) and (e), 11(d) and 15 of Direction 53. However, it does not follow that the factors were not considered: He at 58 [79]. Having regard to the express acknowledgement of Direction 53 and the express reference to a number of the criteria, in my view it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.
18.For example, paragraph 9(d) of Direction 53 refers to any disincentive to return due to military service commitments. There was no evidence before the Tribunal that this factor was of relevance. The matters referred to in paragraphs 9(e), 11(d) and 15 are similarly of no apparent relevance to the appellant’s application. In these circumstances, I infer that the Tribunal did not consider it necessary to refer to those factors explicitly in the Decision Record.
There is some disparity between the reasoning in Bala and the reasoning in Singh. However, as was the case in Bala, the Court here is not tasked with determining if a failure to take into account a matter in Direction 53 amounts to jurisdictional error. This is so because the Court here is satisfied that the Tribunal has, in fact, considered Direction 53.
Adopting the reasoning in Bala that a matter not expressly mentioned does not mean it was not considered (but, rather, that an inference can be drawn that it was not deemed relevant), the Court is satisfied that Singh is distinguishable.
Here, while the Tribunal has not explicitly referred to every criteria, the Tribunal did expressly acknowledge Direction 53 (on a number of occasions). Specifically, the Tribunal noted that the applicant’s submissions failed to address the matters in Direction 53. The Court also notes that the language used by the Tribunal is in terms similar to the language in Direction 53. Overall, in the circumstances of this case, the Court is satisfied that the Tribunal did consider Direction 53.
Mr Hannan of Counsel directed the applicant to Direction 53. The Court then asked the applicant if there were particular matters in Direction 53 that he believes might not have been considered. The applicant did not identify any matter that was not considered. Rather, he disagreed with the Tribunal’s reasoning on the specific matters.
Here, the Court is satisfied that the Tribunal did consider the matters in Direction 53. Specifically:
a)the Tribunal expressly referred to Direction 53 and stated that it would have regard to the matters prescribed (at [9]-[10] and [47]-[51];
b)the Tribunal noted that it had provided Direction 53 to the applicant in advance of the hearing for comment and that the applicant’s agent had failed to address the issues in Direction 53 (at [51]);
c)the Tribunal considered expressly, or by inference, and made findings as necessary on, the matters in Direction 53. For example, the matters in:
i)paragraph 6 of Direction 53 are evident from the Tribunal’s decision as a whole and also more pointedly at [63]-[64];
ii)paragraph 7 of Direction 53 are evident at [60];
iii)paragraph 8 of Direction 53 are addressed at [59] and [61]-[63];
iv)paragraph 9 of Direction 53 are observable at [60]-[64];
v)paragraph 11 of Direction 53 are apparent at [54] – [64];
vi)paragraph 12 of Direction 53 are evident at [59] – [62], and in particular the finding at [60]
vii)paragraph 14 of Direction 53 at are noted in [61] – [62], the critical finding at [62]; and
viii)paragraph 16 of Direction 53 are seen in the tribunal’s exposition of the applicant’s evidence and the findings it makes at [63]-[64]
d)while not every sub-paragraph in Direction 53 is expressly referred to, it can be inferred that those sub-paragraphs (such as 9(d)-(e), 10, 14(a) and 15 of Direction 53) did not warrant express mention, separately or collectively, as they were of no relevance: Bala at [17]-[18].
The additional issue raised by the Minister also fails to disclose jurisdictional error on the part of the Tribunal.
Conclusion
The applicant’s grounds of review, as expressed in his application and in oral submissions fail to identify jurisdictional error. Nor does the additional issue raised by the Minister point to any error on the part of the Tribunal. The Court is otherwise satisfied that the Tribunal’s decision is unaffected by jurisdictional error.
The application, accordingly, is dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 December 2019
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