PAL v Minister for Immigration
[2020] FCCA 1806
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1806 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the Tribunal found that the applicant was not a genuine temporary entrant – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 Migration Act 1958 (Cth), ss.359, 359A, 359AA, 360, 476 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| Applicant: | BALVEER PAL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 253 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 2 July 2020 |
| Date of Last Submission: | 2 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms N Milutinovic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 253 of 2019
| BALVEER PAL |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on 26 October 2013 on a Higher Education Sector Student (Class TU subclass 573) visa (Court Book (“CB”) 53). On 30 August 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-17). The applicant indicated that he intended to study a Bachelor of Business.
On 2 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 47-56). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the delegate was not satisfied that the applicant was a “genuine temporary entrant”.
On 17 November 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 57-58).
On 27 March 2019, the Tribunal invited the applicant to provide further information (CB 65-71). The applicant provided a response on 10 April 2019 (CB 72-87).
On 17 May 2019, the applicant attended a hearing before the Tribunal (CB 93-95). A conditional letter of offer and acceptance in a number of courses was provided to the Tribunal at that hearing (CB 96-107). The Tribunal was provided a confirmation of enrolment subsequent to the hearing (CB 126-128).
On 5 June 2019, the Tribunal affirmed the decision to not grant the applicant the visa (CB 134-140).
On 10 July 2019, the applicant sought judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
The matter was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). To succeed, the applicant must satisfy the Court that he has “a reasonably arguable case” that the Tribunal fell into jurisdictional error when assessing his case. Whether a matter is “reasonably arguable” is an assessment to be made on “a reasonably impressionistic level”.
Tribunal’s Decision
The Tribunal’s decision is 7 pages long (excluding attachments). It is 33 paragraphs long. It is well written and detailed. The Minister’s submissions dated 15 June 2019 (at [10]-[16]) accurately summarise the Tribunal’s decision. The Court adopts those submissions as its own. With minor amendments, they provide as follows.
The Tribunal began by providing an overview of the background to the application (at [1]-[4]). The Tribunal then set out the legislative criterion in cl.500.212 of the Regulations and the factors to consider under Direction 69 (at [5]-[9]), as follows:
5. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl.500.212(a).
6. Clause 500.212 requires as follows:
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
(c) of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
7. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• 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.
8. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then summarised the evidence that was before it. This included matters from the delegate’s decision, the applicant’s statement accompanying his visa application and the various documents the applicant had provided during the course of the review at the Tribunal (at [9]-[21]).
The Tribunal explained that the applicant had confirmed that he had not completed any studies since March 2014 as his courses were cancelled. The Tribunal found that he did not provide a sufficient explanation (that being that his English was “not good enough” to pursue his studies) for why he had not progressed in his studies for over five years (at [23]).
At [24], the Tribunal stated:
The Tribunal discussed with the applicant his motives for his course selections. The applicant’s evidence to the Tribunal was that he selected his initial commerce pathway on the advice of an education agent in India. He stated that after he left secondary school he “did not have a wide vision” at that time, although he did wish to obtain an international degree. When pressed by the Tribunal as to what he envisaged his career might be in selecting a study pathway in commerce he stated “accounting”. When asked by the Tribunal what motivated him to change his study pathway to commercial cookery he stated that he had started attending the Sikh temple in Perth and that he had found some personal satisfaction in the communal preparation of food, particularly the not-for-profit aspect. He states that he met “a few guys” who were studying commercial cookery and that he decided to enter that pathway “after talking to them”. When asked by the Tribunal what career this study pathway would lead to he gave evidence that he “wants to open a restaurant” to “work for the community” and to “serve food as cheaply as possible”. He stated that his father is a farmer and that his family also own “town land”. He stated that he wished to establish a restaurant on that land. The applicant did not give any further details concerning his plans in this regard. His oral evidence on this issue stood in contrast to the lengthy written statement he provided to the department and submitted to the Tribunal concerning his motives for changing to commercial cookery. Overall, the Tribunal found the applicant’s written statement to be generic in its expression and his oral evidence on the issue to be vague and unconvincing. The Tribunal was not persuaded by his evidence that the applicant is following a well-considered study path with a clear career objective in mind. Despite further probing by the Tribunal, the applicant was unable to offer any further details to overcome the Tribunal’s concerns.
The Tribunal then determined that the applicant’s evidence about his attempts to follow a commercial cookery pathway were not consistent with a dedicated focus upon academic progress on his part. The Tribunal was not persuaded that the applicant’s efforts reflected those of a genuine student (at [25]).
The Tribunal found that there was no evidence of any military service or civil or political incidents that would act as an incentive for the applicant to remain in Australia. Further, it was determined that the applicant’s immigration history also did not raise concerns. There was also no evidence regarding the remuneration the applicant could expect to receive in India or a third country compared with Australia (save that the applicant worked as an Uber driver earning between $15,000 and $18,000 per year (at [26])). The Tribunal also accepted that the applicant had family ties to India which provided him with an incentive to return there (at [27]).
At [28]-[29], the Tribunal stated:
28. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has said he will return home on completion of his studies, has family ties in India and all the other matters he has raised. However, for the reasons outlined above, the Tribunal does not accept he is undertaking his current study or future study for the reasons he claims, but rather is using it as a pathway to maintain residence in Australia.
29. Overall, the Tribunal found the applicant’s evidence to be vague and unpersuasive. The Tribunal finds that he has had ample opportunity to progress academically in the time he has been in Australia, but he has failed to do so in a manner consistent with the motives of a genuine student. It is the Tribunal’s view that pursuing study so as to improve his employment or business opportunities in his home country is not his primary reason for seeking to remain in Australia. Rather the Tribunal considers that the applicant is using his student visa to maintain ongoing residence.
On the basis of the above, the Tribunal was not satisfied that the applicant “intended genuinely to stay in Australia temporarily” and found that he did not meet cl 500.212(a) of the Regulations (at [30]).
Accordingly, the Tribunal affirmed the decision to not grant the applicant the visa (at [31]-[33]).
Proceedings in this Court
In his judicial review application filed 10 July 2019, the applicant raised a single ground of review:
The Tribunal decision not according to law (JURISDICTIONAL ERROR)
Despite being given an opportunity to file an amended application, any affidavit evidence and an outline of submissions, no further materials were provided by the applicant. The materials before the Court thus comprise of the judicial review application, a Court Book numbering 145 pages (marked as Exhibit 1) and the outline of submissions filed by the Minister dated 15 June 2020.
Before this Court, the applicant appeared without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Notwithstanding r.44.13 of the Rules (which the Court notes can be dispensed with pursuant to r.1.06 of the Rules), the Court allowed the applicant to elaborate on, and further particularise, his grounds of review and to raise any concerns he had with the Tribunal’s decision. This is now the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]).
To assist the applicant, the Court explained that in the context of a show cause application he needed to satisfy the Court that he had “a reasonably arguable case” that the Tribunal had made a material error. The Court explained that in determining whether the applicant had an “arguable case”, the Court could only assess whether it is at least arguable that there was jurisdictional error in the Tribunal’s decision.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; 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 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.
The applicant was unable to assist the Court. He simply indicated that he did not know whether the Tribunal had done anything wrong. He stated that he just needed more time to study.
Unfortunately, the applicant’s oral submissions do not identify any jurisdictional error. They do, however, highlight a common misconception that the Court provides a forum for merits review. It does not.
The solicitor for the Minister then provided a forensic overview of the Minister’s written submission. Having heard from the Minister’s solicitor, the applicant then requested an adjournment to obtain legal advice.
The Court has refused this request for an adjournment for the following reasons:
a)the request was made informally without any notice. The applicant had waited until the Minister had made their oral submissions to the Court to request the adjournment. That is, the applicant waited until the “last minute” (and when the hearing was about to conclude) to request the adjournment. This does not accord well with principles of fairness and case management;
b)the applicant filed his application in this Court in July of 2019. He has had nearly 12 months to seek legal advice if he wished to do so;
c)while the hearing was originally listed in November 2020, the Court was able to move it forward to July 2020. The applicant was notified of this change two months prior to the new listing date and had the opportunity to consult lawyers if he wished to do so;
d)the only reason for the adjournment that the applicant provided was that he wished to obtain legal advice. There is no right to legal representation in migration proceedings: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265. Further, there is no guarantee that the applicant could obtain legal representation and there is no evidence that he has ever attempted to do so;
e)currently, matters in this Court are being listed in April 2021. The ability to bring the matter back on within a reasonable period is limited. Furthermore, the fact that the applicant waited until his hearing (and in the final moments of that hearing) to request an adjournment would have wasted the Court’s time and resources (resources which could have been used to attend to another matter); and
f)the Court, in its duty to the self-represented litigant (see, MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), will remain astute and aware to the possibility of legal error in the Tribunal’s decision. Where a reasonably arguable error arises, the Court (noting that the hearing was a show cause hearing) will order that the matter to proceed to final hearing. In those circumstances, the applicant will have an opportunity to retain a lawyer.
Consideration
The applicant’s sole ground of review is unparticularised. It places the Court and the Minister in a difficult position. In effect, the Court and the Minister are asked to advocate for the applicant. The Minister, in its role as a model litigant, made submissions which showed that the Minister had engaged with the materials attentively in order to determine whether any error arose.
Like the Minister, the Court has been unable to identify any error in the Tribunal’s decision.
In terms of procedural fairness:
a)the Tribunal invited the applicant to provide information pursuant to s.359 of the Act and had regard to the information that the applicant provided in response;
b)the applicant was invited to a hearing and attended a hearing: the Act, ss.360. His migration agent also attended. The applicant was on notice that the determinative issue was whether he met cl.500.212 as this was the same issue addressed in the delegate’s decision: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [37];
c)there was no obligation for the Tribunal to “put” anything to the applicant pursuant to s.359A or s.359AA of the Act. All of the information that was before the Tribunal was information that the applicant himself had provided;
d)the applicant did not request an interpreter and it appears from the Tribunal’s decision that the applicant had no difficulties when engaging with the Tribunal; and
e)there is nothing to indicate that the Tribunal displayed actual or apprehended bias. The Tribunal accepted parts of the applicant’s evidence and provided the applicant a further opportunity to provide any information following the hearing. This demonstrates an open mind and objectivity of the sort required.
There was no denial of procedural fairness.
Having reviewed the materials in the Court Book, the Court is satisfied that the Tribunal did not overlook any relevant information that had been provided. The Tribunal summarised the evidence and references this evidence when determining the issues before it.
The Tribunal identified the correct legislative criterion in issue. The Tribunal also correctly identified that the matters in Direction 69 were relevant to its overall assessment of the issue before it. While the Tribunal does not expressly refer to the matters in Direction 69 (or use headings as signposts), it is apparent from a reading of the Tribunal’s decision as a whole that the Tribunal has considered those factors.
The language used by the Tribunal indicates that the Tribunal was aware of the factors in Direction 69 and took those matters into consideration. For example, the Tribunal refers to there being a lack of evidence of any “military service or civil or political incidents”, that the applicant’s “immigration history” did not raise concern and that he has “family ties” in India. All of these are matters that are expressed in Direction 69.
In Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16, Justice Logan stated at [7]:
…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 appellant was a genuine student. They were sufficient unto the day...
As the Minister submits here, it is apparent from the Tribunal’s decision that the Tribunal considered the applicant’s poor study history (noting that he had only finished one course since 2015) and his lack of sufficient explanation regarding his previous study history and his current study pathway (noting that it was “vague and unpersuasive”) and formed the view that the applicant was using the visa process to maintain residence in Australia. This was sufficient for the Tribunal to determine that the applicant was not a genuine temporary entrant. The Tribunal’s reasons, having expressly noted that it had regard to Direction 69 and having referred to the materials and evidence before it, rationally explain why the Tribunal was not satisfied that the applicant was a genuine temporary entrant. Those reasons were entirely logical and open on the evidence.
No arguable error arises in this regard. The Court has otherwise reviewed the Tribunal’s decision and cannot identify any arguable error.
Conclusion
The Court is satisfied that no arguable error arises here. The application is, accordingly, dismissed pursuant to r.44.12 of the Rules.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 July 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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