Pabla v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 800
Federal Circuit and Family Court of Australia
(DIVISION 2)
Pabla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 800
File number(s): ADG 317 of 2018 Judgment of: JUDGE BROWN Date of judgment: 30 September 2022 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – student (Temporary) (Class TU) visa – delegate of Minister declined visa application – whether applicant was genuine temporary student applicant – finding by Tribunal that applicant had been enrolled in 7 different courses over 8 year period – no jurisdictional error established – procedural fairness – applicant invited to make comment – application dismissed with costs Legislation: Migration Act 1958 (Cth), s 359AA, 360, 474
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 cl 500.2, 500.212 in Schedule 2
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 139 FCR 344
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 21 September 2022 Place: Adelaide Solicitor for the Applicant: Appeared in person Counsel for the First Respondent: Mr Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
ADG 317 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARBHAJAN KAU PABLA
First Applicant
PARMINDER SAINI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
30 September 2022
THE COURT ORDERS THAT:
1.The application filed 22 August 2018 is dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
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 BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 9 August 2018. The decision confirmed an earlier decision of a Delegate of the Minister for Immigration and Border Protection not to grant the applicant Harbhajan Kaur Pabla, a Student (Temporary) (Class TU) Visa,[2] pursuant to the provisions of the Migration Act 1958 (Cth).[3]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the student visa” or “the visa”.
[3] Hereinafter referred to as “the Act”.
Ms Pabla was born in India on 3 October 1981. Ms Pabla is the primary visa applicant, which supports an application by her husband, Parminder Saini, who was born on 9 September 1982, also in India. Both applicants are citizens of India.
The applicant was granted an initial student visa, whilst she was offshore in India on 20 April 2009. This authorised her entry, to Australia, on 24 May 2009. Thereafter, she has applied for and received a number of other student visas, which have enabled her to complete various vocational and tertiary courses of study in Australia.
The applicant applied for the current visa, on 9 March 2017, with the intent of enabling her to study a Bachelor of Commerce degree, in Australia. On 12 April 2017, a Delegate of the Minister refused to grant the visa.
At the time of this decision, the Delegate had available to him the Provider Registration and International Student Management System[4] records of the applicant in respect of the various courses of study, which she had undertaken since her initial arrival in Australia. The PRISMS record indicated that she had been enrolled to undertake the following courses:
·Certificate III, IV and Diploma of Hairdressing;
·Certificate IV in Business;
·Diploma of Management;
·Certificate IV and Diploma of Project Management;
·Diploma of Business; and
·Diploma and Advanced Diploma of Marketing.
[4] Hereinafter referred to as “PRISMS”.
In this context, the Delegate noted that over the past 8 years, whilst Ms Pabla had been resident in Australia, as the holder of various student visas, she had been enrolled to undertake seven different courses. This led the Delegate to reach the following conclusions, which he addressed to Ms Pabla in the relevant decision record:
According to your study history, you do not seem to have made significant progression or achieved a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.
Even though a person may seek a change in career, I note that you have changed courses several times and that the courses chosen are typically of a short duration, relatively low cost and not relevant.[5]
[5] See Court Book at page 60.
The conditions, which must be satisfied before the relevant visa can be granted, are specified in clause 500.212 in Schedule 2 of the Migration Regulations 1994.[6] The criteria are as follows:
[6] Hereinafter referred to as “the Regulations”.
The applicant is a genuine applicant for entry and stay as a student because:
(a)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
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(iii) of any other relevant matter.
It is also to be noted that this clause is prefaced, in the Regulations, by the heading provided by clause 500.2 of Primary Criteria, which indicates that all the conditions relevant in clause 500.212 must be satisfied at the time a decision is made on the application. Accordingly, it was necessary for Ms Pabla to satisfy the Tribunal, when her application for review was determined, that she satisfied the relevant criteria definitional of her being a genuine temporary student entrant.
In general terms, before the relevant student visa can be granted, the Minister (and then by extension the AAT at the de novo review hearing stage) must be satisfied that the relevant applicant is only intending to remain in Australia, on a temporary basis, whilst he or she completes the proposed course of either tertiary or vocational education training.
The relevant Minister has provided directions[7] regarding how the regulatory regime set out above is to be administered. These matters, which any administrative decision maker is required to consider, in making any student visa determination, can be summarised as follows:
·The applicant’s circumstances in his/her home country, including the economic reasons for pursuing study in Australia;
·The degree of personal ties that the applicant has to their home country;
·The existence of sound reasons for not studying in the relevant home country;
·Factors that would provide a significant incentive for the applicant not to return to their own country;
·The applicant’s potential circumstances in Australia, including evidence that the applicant concerned may be using the student visa program as a mechanism to circumvent Australia’s migration program;
·The value of the proposed course to the applicant’s future, including whether the course would assist the applicant to gain employment in their home country and the relevance of any past or future employment in this regard; and
·The applicant’s migration history.
[7] See Ministerial Direction No 69, which is referred to as such hereafter.
In the present time, after considering the various criteria specified in clause 500.212, the Ministerial Delegate concluded that Ms Pabla was utilising the student visa program as a means of maintaining her ongoing residence in Australia rather than to complete a course in this country, whilst she was temporarily resident in this country. As a consequence of this reasoning, the application for the visa was declined.
Given this determination, on 24 April 2017, the applicant applied to the Tribunal for a review of the Delegate’s decision. Following on from this, the applicant was invited, on 10 July 2018, to attend a hearing before the Tribunal, which was scheduled for 7 August 2018. This invitation was proffered pursuant to the provisions of section 360(1) of the Act
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Accordingly, it is mandatory for the Tribunal to provide such an invitation to each applicant. Significantly, in the letter inviting her to attend this hearing, the applicant was provided with a clear delineation of what issues the hearing to which she had been invited would canvas.
In particular, she was requested to bring her current Certificate of Enrolment and other documents relevant to her past studies in Australia. In addition, she was formally provided with a copy of Ministerial Direction No. 69. In this context, she was provided with the following notice:
We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.[8]
[8] See Court Book at page 71.
In my view, it cannot be said that the Tribunal did not discharge its obligations arising under section 360 of the Act.
THE HEARING BEFORE THE AAT
The AAT hearing is to be characterised as a merits hearing, in contrast to the current proceedings, which are directed towards judicial review of the AAT proceedings. In the former, the AAT is able to gather evidence, whilst the latter involves a review of the legal basis for the decision in question and whether or not it is vitiated by jurisdictional error.
The Tribunal summarised the application before it as being concerned with whether the applicant satisfied the requirements of clause 500.212 in respect of whether she could establish she was genuinely intending to stay in Australia temporarily, whilst she undertook a further course of study.
Under the heading Background the Tribunal had access to Ms Pabla’s PRISMS record and noted that she had begun her Bachelor of Commerce in February 2017, which was due for completion on 25 August 2019.[9]Thereafter, the Tribunal set out and analysed the evidence available to it under a number of headings, which generally correlated with the criteria delineated in Ministerial Direction No 69.
[9] See Court Book at page 138 at page 136.
Under the heading Circumstances in home country, the Tribunal noted its concern regarding the lack of explanation, proffered by the applicant, as to why she had wanted to come to Australia to study hairdressing, almost 10 years beforehand, but was apparently still wishing to study here in an unrelated field.
At a later stage of the proceedings, under the heading Circumstances and study in Australia and the value of the proposed course to the applicant’s future, after which the Tribunal had formally raised Ms Pabla’s PRISMS record with her, the Tribunal questioned Ms Pabla about the connection between her initial studies in hairdressing and her subsequent project management, business and marketing courses. After considering the evidence provided by the applicant in this context, the Tribunal found as follows:
The Tribunal is concerned by this evidence as the applicant was unable to explain why, after having studied several hairdressing courses, she then went on to study seven other generic management, business, and marketing courses in the eight years since she had actually finished her hairdressing qualifications. The applicant was unable to explain why she was doing these courses other than to say that she "needed more knowledge in business and management to open a hairdressing salon”:
The Tribunal finds that the applicant was unable to give any specific coherent response or set of reasons to explain nearly 8 years of study here in Australia. The Tribunal finds that this is evidence that the applicant is using the student visa system to maintain residence in Australia.[10]
[10] See Court Book at page 138 at [26]-[27].
The Tribunal was not persuaded that there was any correlation between Ms Pabla’s stated goal of opening a hairdressing business, in India, with her current course of study relating to a Bachelor of Commerce degree. As a consequence, the Tribunal found that the applicant was using the student visa system to circumvent the migration program and did not genuinely intend to stay in Australia temporarily.[11]
[11] See Court Book at page 138 at [28].
In addition, in the context of another aspect of the ministerial directions, under the heading Circumstances in home country, the Tribunal considered that Ms Pabla was able to maintain her relationship with her family, in India, whilst she remained in Australia, and her family situation was not, of itself, indicative of any intention to return to India.[12]
[12] See Court Book at page 137 at [15].
In the context of Ms Pabla’s circumstances in Australia, the Tribunal noted that she had obtained part time employment earning approximately $1,000.00 per fortnight and her husband, Mr Saini, had also been able to obtain a position as a storeman. In these circumstances, the Tribunal noted its concerns that the applicant’s financial circumstances in Australia represented a significant disincentive for her and Mr Saini to return to India.[13]
[13] See Court Book at page 137 at [18].
These various factors, when combined with what the Tribunal characterised as the applicant’s lack of any coherent explanation as to why she had had adopted the study plan, which she had, led the Tribunal to reach the conclusion that she had not satisfied the various criteria specified in clause 500.212. As such, it was not satisfied that Ms Pabla was a genuine applicant for entry and stay, as a student, in Australia, on a temporary basis as required by the relevant clause.
GROUNDS FOR REVIEW
Given this decision, on 22 August 2018, the applicant commenced proceedings in this court seeking a judicial review of the decision. She seeks an order that the decision of the AAT be quashed and remitted back to the Tribunal for re-hearing. The applicant has prepared her own grounds of review, which are as follows:
1.Member failed to consider that the Department of immigration and border protection did not accord to the applicant procedural fairness and natural justice.
2.Member failed to put my verbal evidences into consideration and hence my matter must be looked after again and proper hearing must be conducted.
3.The decision of the member have jurisdiction error and was not determined according to law as the circumstances at the time of application was not considered and this must be overlooked again according to law.
4.The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
A. the applicant's circumstances; and
B. the applicant's immigration history; and
C. if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
I have applied for my student visa providing all the required documents. So I satisfy the point A of the clause.
My immigration history is also clear and I followed all the visa conditions on my visa .So I satisfy point B of the clause.
Point C does not apply to the applicant.
My intentions to study and overall assessment of the clause was met by me and the Tribunal failed to consider this relevant matter suggested in part D of the clause.
5.Tribunal Member did not paid any heed towards the evidences and references of the cases provided by me and argued on the questions that were irrelevant and not in question by the Department Of Home Affairs.
6.The Member erred in dismissing the applicant's review application by relying on hearsay evidences obtained by department of immigration which was not tested and put to the applicant.
7.Member also paid no heed towards my circumstances at the time of application and only considered the current circumstances and this depicts the error in the decision.
8.The Member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group.
9.The member erred in coming to the conclusion and no opportunity was given to provide the evidences.
10.Member erred in dismissing the applicant's application without providing extra time without any basis in law and fact.
11. The appellant's application clearly raises an arguable case.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness. Which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in her application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from her application.
In determining whether the reasoning utilised by the AAT is illogical or irrational in nature, the reviewing court must look to the applicable statutory framework applicable to its decision as well as the decision itself. In so doing the court should not subject the AAT’s reasoning to any degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[14]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.[15]
[14] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[15] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272.
The High Court also emphasised the following passage from Attorney-General (NSW) v Quin[16]
The duty and jurisdiction of the court to review administrative
action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[17][16] Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[17] See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at page 35-36.
In essence, this court, in conducting a judicial review, has no authority to substitute its own judgment, in respect of factual issues, for that of the Tribunal or to exercise any discretion residing in it in a manner of its own election. Rather this court’s authority is to intervene only if it is satisfied that the Tribunal has exercised the jurisdiction conferred upon it erroneously or in a legally unreasonable manner.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[18] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[18] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at page 137 [148].
It is not for this court to conduct a re-hearing on the merits and determine whether it considers that Ms Pabla was or was not genuine in her intentions regarding the temporary or otherwise basis of her stay in Australia. That factual issues was for the Tribunal alone.
DISCUSSION
In Ground 1, the applicant asserts that the AAT did not consider whether she had been accorded procedural fairness by the Ministerial Delegate. In my view, this contention is misconceived as the hearing before the AAT was a de novo merits review. As such, whether or not the Delegate was procedurally unfair to the applicant, in a manner which she has not, in any event, specified, is immaterial. Any defect in the mode of hearing, within the Department itself, was cured on the subsequent merits review conducted by the AAT.
Essentially, Ms Pabla was given an opportunity to present her case and make whatever submissions, which she wished to make to the Tribunal. The hearing before the Tribunal was not confined in any way by what had occurred before the Delegate, although the issue was the same.
In particular, in the relevant letter inviting her to the hearing before the AAT, the applicant was given formal notice of the issue which was central to the Tribunal’s decision making jurisdiction, namely whether she could be considered a genuine and temporary entrant to Australia for the purposes of study. In the context of this issue, she was provided with the relevant Ministerial Direction for her consideration.
This was an issue which was authoritatively discussed and determined by the Full Court of the Federal Court of Australia in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs.[19] If there was any defect in the Delegate’s decision, which is neither conceded by the Minister nor identified by the applicant, the AAT was able to cure any such decision in the de novo hearing before it. The Full Court determined as follows:
…there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it…where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may...have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker…the review process applicable to the Tribunal is a full merits review...in that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective...[20]
[19] See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 139 FCR 344.
[20] See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 139 FCR 344 at [28].
Ground 2 asserts that the Tribunal failed to consider Ms Pabla’s oral evidence provided by her to it. She has not provided a transcript of the proceedings nor identified what aspect of her evidence was either overlooked or misconstrued by the Tribunal. In my view, a fair reading of the decision indicates that the Tribunal did consider the submissions made by Ms Pabla to it and given the non-specificity of Ms Pabla’s complaint, it is impossible for this court to discern any such jurisdictional error.
Ground 3 is a simple assertion that the relevant decision was vitiated by some unspecified species of jurisdictional error. In the absence of any errors being attributed to the Tribunal, such a ground cannot attract the jurisdiction of this court, in its role of supervisory judicial review.
In Ground 4, the applicant reiterates some of the criteria applicable to the grant of the relevant visa in her case and some of the matters, which are to inform them, as delineated in Ministerial Direction No. 69. Essentially, the applicant contends that the Tribunal did not properly consider these considerations and therefore its decision is jurisdictionally erroneous.
In my view, there is no evidence to indicate that the Tribunal did not consider the applicant’s circumstances or her immigration history. Rather, in the context of her various courses of study, undertaken over very many years, which it viewed as lacking an overall sense of coherence, the Tribunal reached the conclusion that Ms Pabla had utilised the student visa scheme to remain in Australia for reasons other than her temporary study.
In my view, this was a finding of fact, which was reasonably open to the Tribunal in all the circumstances. This court, in judicial review function, is prohibited from submitting its own finding of fact for that of the Tribunal. Accordingly, this ground of review is not made out.
Ground 5, in my view, is also an amorphous assertion that the Tribunal did not consider Ms Pabla’s evidence or any submissions made by her. She has not specified what aspect of her evidence has been so disregarded.
I acknowledge that Ms Pabla is not legally qualified. However, the formulaic and generalised manner in which she has articulated her grounds of review, make it difficult, if not impossible for the court to discern any actual jurisdictional errors attributable to the Tribunal, which could potentially attract the jurisdiction of this court. This, of itself, provides ground for the dismissal of the application concerned.[21]
[21] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
Ground 6 asserts that the Tribunal considered some form of inadmissible evidence, provided to it by the Department, which had not been tested and was therefore unfairly put to her. Once again, Ms Pabla has not provided any particulars of what this evidence is. Nor, apart from indicating her disagreement with the relevant decision, she has not specified why it is legally wrong. Rather, Ms Pabla has asserted an error but has not articulated it. Again, this lack of articulation is ground for the dismissal of the ground.
Ground 7 asserts that the AAT did not consider the applicant’s circumstances at the time of the application but rather only considered her situation at the time of hearing. Again, in my view, this ground is misconceived given clause 500.2 of the Regulations indicates the requirement that all specified criteria, relevant to the grant of the visa, must be satisfied at the date of decision.
In any event, a comprehensive and fair reading of the AAT’s decision indicates that it gave consideration to the applicant’s situation during the entirety of her time in Australia. This much is implicit in the Tribunal’s reference to the applicant’s PRISMS record, which delineated her engagement with various courses of study over a period of a little under a decade.
Ground 8 asserts that the AAT approached her case in some non-idiosyncratic way and rather applied a generic group based approach to it. There is no evidence to indicate anything other than the AAT only considered Ms Pabla’s circumstances when it formed the view that she was not a genuine temporary entry student.
It reached this conclusion on the basis of her PRISMS record which it considered showed no coherent study plan, on Ms Pabla’s part, which supported her assertion that she intended to return to India, particularly when viewed against the economic advantages available to her from remaining in Australia and the fact that she could retain her familial ties, whilst in this country. In my view, these are obviously factors germane to Ms Pabla personally. Further, in my view it cannot be said that they were conclusions which were not reasonably open to the Tribunal to reach. This ground has no merit.
Ground 9 asserts that the applicant was not given an opportunity to present evidence to the Tribunal. Given the contents of the letter sent to Ms Pabla on 10 July 2018, which delineated the issue which the AAT was directed towards determining, particularly its invitation to address the considerations delineated in Ministerial Direction No 69, this ground has no evidentiary foundation. Ms Pabla was given a fair opportunity to provide evidence to the AAT and indeed did so.
As previously indicated, I am satisfied that the Tribunal discharged its jurisdictional responsibilities arising under section 360 of the Act in the manner in which it elected to invite Ms Pabla to the hearing and the opportunity which she was given to provide whatever evidence she wished or make whatever submission she wanted.
In the context of the invitation letter and the issues raised in ground 10, section 359AA of the Act is relevant. It provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The reasons of the Tribunal indicate that it did exercise the discretion conferred upon by section 359AA to ask Ms Pabla to provide further particulars of what her PRISMS record ostensibly indicated, namely she had commenced many courses of study, which appeared unrelated. In seeking this information, the Tribunal member elected to read out a formal statement to her as follows:
I'd like to talk to you about your study history and to do that I'm going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.
I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.
This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It could list many courses that weren't started, or that were started and shortly thereafter cancelled.
The consequence of this information being relied on by.me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.
You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.[22]
[22] See Court Book at page 137 at [20]-[24].
Thereafter, the AAT recorded that Ms Pabla indicated she did not require any further time and was able to discuss her study history with it at this point. The applicant has not provided any evidence to indicate that this statement of fact was erroneous in some way.
Accordingly, in my view, the applicant is not in a position to assert that the manner in which the Tribunal elected to exercise its discretion under section 359AA was in some way procedurally unfair to such a degree, if at all, as to amount to some form of legal unreasonableness. This ground of review is not made out.
Ground 11 asserts that the applicant has an arguable case. Such an assertion does not ground any species of jurisdictional error. It does not delineate any situation relating the Tribunal misconstruing the legislative task prescribed for it or indicate that its discretion has miscarried to such a degree that its decision must be regarded as an affront to reason or logic.
Rather, in my view, an overall reading of the Tribunal’s reasons indicates its decision that the applicant, as at the date of its decision, was not a genuine, temporary entrant to Australia for the purposes of study, given the length of time she had been in this country and the number of changes in direction of her study during that period.
In this context, counsel for the Minister relies on the following observations of Logan J in Kumar v Minister for Immigration and Border Protection as being an appropriate description of the proceedings before the AAT in the current matter, namely that it can be described as being:
A routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the [applicant] had put [his] claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the [applicant] was a genuine student. They were sufficient unto the day.[23]
[23] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].
I agree. The AAT in this case provided the applicant with such a routine and fair merits based rehearing of her visa application. Its conclusion was logical and its reasons adequate. The AAT was entitled to conclude that Ms Pabla, at the time of its decision, was not a genuine student for the purposes of the Act and the Regulations made under it.
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 30 September 2022
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