Patabadige v Minister for Immigration

[2020] FCCA 2919

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATABADIGE v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2919

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – whether the Administrative Appeals Tribunal erred in law in exercising its discretion – whether the Administrative Appeals Tribunal erred in considering Direction No. 53 as a checklist – whether the Administrative Appeals Tribunal failed to adhere to section 359AA(1)(b) of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 359AA, 359A, 499.

Migration Regulations 1994 (Cth) cl. 572.223 of sch 2, sch 5A.

Cases cited:

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: SUPEM ANUSHKA FERNANDO COLOMBO PATABADIGE

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1945 of 2018

Judgment of: Judge Mercuri

Hearing date: 29 May 2020

Date of Last Submission: 29 May 2020

Delivered at: Melbourne

Delivered on: 30 October 2020

REPRESENTATION

Advocate for the applicant: Mr Bandara

Solicitors for the applicant: PLS Lawyers

Advocate for the respondents: Ms Sangha

Solicitors for the respondents: Mills Oakley Lawyers

ORDERS

1. The applicant’s application filed on 5 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1945 of 2018

SUPEM ANUSHKA FERNANDO COLOMBO PATABADIGE

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) dated 10 June 2018 affirming a decision of the delegate of the first respondent (“the delegate”) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”).[1]

   [1] Applicant’s application filed 5 July 2018.

Background

1. The applicant is a Sri Lankan citizen who arrived in Australia on 17 June 2007 on a Student (Class TU subclass 573) visa.[2]

   [2] Court book page 210.

2. The applicant applied for a Student (Class TU subclass 572) visa on 7 December 2015 based on his enrolment in a Certificate IV in Accounting/Diploma of Accounting.[3]

   [3] Court book pages 1 to 8.

3. The delegate refused to grant the applicant the visa on 11 February 2016.[4] In the decision record, the delegate stated that the applicant had failed to satisfy clause 572.223 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as “there was insufficient information provided at the time of lodgement to satisfy the case officer” that the applicant met the evidentiary requirements in schedule 5A of the Regulations.[5]  The delegate further stated the applicant had not provided a response to a request for further information made by the Department of Immigration and Border Protection (“the Department”) on 16 December 2015.[6]

   [4] Court book page 33.

   [5] Court book page 38.

   [6] Court book pages 14 to 26.

4. On 1 March 2016, the applicant applied for a review of the delegate’s decision.[7] On 18 January 2017, the tribunal decided that the applicant met clause 572.223(2)(a) of schedule 2 to the Regulations, and referred the application back to the first respondent for consideration of the remaining criteria of the application.[8] 

   [7] Court book pages 35 and 36.

   [8] Court book pages 144 to 146.

5. On 3 March 2017, the delegate again refused the applicant’s application for a visa on the basis that the applicant did not meet clause 572.223(1)(a) of schedule 2 of the Regulations.[9]  That clause provides that a criterion of granting the visa is that the applicant genuinely intended to stay in Australia on a temporary basis (“the genuine temporary entrant criterion”).

   [9] Court book pages 205 to 214.

6. On 15 March 2017, the applicant applied to the tribunal for a review of the delegate’s decision.[10]

   [10] Court book pages 215 and 216.

7. The tribunal wrote to the applicant’s representative on 29 January 2018 to invite the applicant to attend a hearing before it scheduled for 23 February 2018.[11]

   [11] Court book pages 227 to 229.

8. On 5 February 2018, the tribunal accessed the applicant’s records in the Provider Registration and International Student Management System (“PRISMS records”),[12] which showed that the applicant:

   [12] Court book pages 243 and 244.

   a)had completed twelve courses at certificate or diploma level in the fields of:

   i)hospitality;

   ii)community welfare;

   iii)business;

   iv)management;

   v)accounting; and

   b)was enrolled to study an Advanced Diploma of Accounting.

9. The tribunal hearing initially scheduled for 23 February 2018 was subsequently rescheduled to 9 March 2018.[13]  The applicant attended the hearing and was invited to comment on or respond to the information obtained from the PRISMS records.[14]

   [13] Court book pages 245 to 252.

   [14] Court book page 286 at paragraphs 16 to 18.

10. On 12 June 2018, the tribunal advised the applicant that it had affirmed the delegate’s decision.[15]  The reasons for the tribunal’s decision were enclosed with that correspondence.[16]

    [15] Court book page 279.

    [16] Court book pages 283 to 290.

The tribunal’s decision

1. In its reasons, the tribunal identified the key issue before it was whether the applicant met the genuine temporary entrant criterion.[17] The tribunal correctly noted that in considering whether the relevant criterion was satisfied, it was required to have regard to Direction No 53 made under section 499 of the Migration Act 1958 (Cth) (“the Act”).[18]  The tribunal further noted in its reasons that the applicant was advised at the hearing that a major issue on review was whether the applicant met the genuine temporary entrant criterion.[19]

   [17] Court book page 285 at paragraph 12.

   [18] Court book page 285 at paragraphs 13 and 14.

   [19] Court book page 285 at paragraph 15.

2. In its reasons for decision, the tribunal stated that, pursuant to section 359AA of the Act, it put the PRISMS records to the applicant and explained the relevance of the records. In particular, the tribunal explained to the applicant that the records ‘may lead it to believe that [the applicant] did not intend to stay in Australia temporarily…’[20]  It also explained that he could comment or respond to the PRISMS information or seek additional time.[21]

   [20] Court book page 286 at paragraph 16.

   [21] Court book page 286 at paragraph 17.

3. The tribunal noted that:

   The applicant confirmed that he understood the relevance of this information to the process.  He did not elect to seek additional time and agreed to discuss the PRISMS information during the course of the Hearing.[22]

   [22] Court book page 286 at paragraph 18.

4. The tribunal set out the applicant’s study history at paragraphs [19] to [23] of its decision record and found that:

   … the applicant’s rate of study has not been that of a genuine student seeking to progress academically and having a genuine intention to reside temporarily in Australia.[23]

   [23] Court book page 287 at paragraph 24.

5. The tribunal went on to provide more detail as to the reasons for this conclusion at paragraph [25].

6. The tribunal further considered the value of the course which the applicant had completed to his stated future goals at paragraphs [26] to [28] of its decision record.  It concluded that the applicant’s conduct, particularly in 2013 and 2015, ‘suggests that he … intends to stay on in Australia indefinitely.’[24]

   [24] Court book page 288 at paragraphs 29 to 32.

7. The tribunal then considered the applicant’s ties to Sri Lanka and his immigration history at paragraphs [33] to [39] of its decision record, none of which supported a conclusion that the applicant had a genuine desire to reside in Australia on a temporary basis.  Additionally, the tribunal noted that the applicant had recently married an Australian citizen and concluded that ‘the applicant’s potential circumstances in Australia outweigh any incentive he may have to depart permanently.’[25]

   [25] Court book page 289 at paragraph 42.

8. On the basis of these considerations, the tribunal concluded that the applicant did not meet the requirements of clause 572.223(1)(a) of the Regulations and therefore affirmed the delegate’s decision.[26]

   [26] Court book pages 289 and 290 at paragraphs 42 to 49.

Grounds of review

1. The applicant’s representative indicated at the hearing before me that the applicant was not pressing ground four and ground five.[27]

   [27] Transcript page 5 at lines 5 and 7; see applicant’s application filed on 5 July 2018 page 5.

2. I will deal with grounds one, two and three collectively, as this is how the applicant dealt with them before me.

Ground one

The Administrative Appeals Tribunal erred in law when in exercising its discretion not to grant Student (Class TU) visa in that it did not have regard to all the relevant circumstances including but not limited to matters identified in the department’s (sic) policy guidelines and as such the decision of the Administrative Appeals Tribunal was a denial of procedural fairness and breach of natural justice, relevantly including but not limited to the following:

(a)The purpose of the Applicant’s travel to and stay in Australia.  The Applicant was in Australia primarily for Subclass 573 (Higher Education Sector) studies in Australia and later he decided to change his studies as he wants engage family business of his mother and later establish textile business in Australia (sic).  He decided to undertake Certificate IV in accounting, Diploma of Accounting later Advanced Diploma of Accounting that will lead to enrolment in the Bachelor of Accounting.

(b)That the applicant had satisfied all the requirements to be granted a visa to study in Australia.

(c)The degree of hardship that may be caused to the Applicant and her (sic) family members.  The Applicant had invested a lot of money and time in coming to Australia to further her (sic) education.  She (sic) had not completed his Vocational education in Australia. He was entitled to be granted a visa to complete her (sic) education in Australia.

(d)The visa holders past and present behaviour towards the department (sic).  The Applicant had been and was and is a visa holder without issues with the Migration Department.  He complied at all times with all his visa conditions that he had.  He never breached any conditions of his visa deliberately or by his own acts or omissions.

(e)That the strong family ties and his future intensions (sic) to engage in his family business of textile in Sri Lanka.[28]

[28] Applicant’s application filed 5 July 2018 pages 4 and 5.

Ground two

The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when, despite the warnings it gave to itself, it considered the Direction the Minister made under s.499 of the Migration Act 1958 (Cth) which set out certain factors guiding decision makers in assessing whether an applicant for a Visa ‘intends genuinely to stay in Australia temporarily’ as a checklist and/or as a mandatory and/or binding checklist.[29]

Ground three

[29] Applicant’s application filed 5 July 2018 page 5.

The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359AA(1)(b) of the Migration Act 1958 (Cth) in that it did not:

(i)ensure, as far as is reasonably practicable, that the applicant understands why the applicant’s circumstances discussed in paragraphs 40, 41 and 45 and are 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.[30]

[30] Applicant’s application filed 5 July 2018 page 5.

1. The issue raised by these grounds is essentially whether the tribunal made a jurisdictional error in concluding that the applicant did not satisfy the genuine temporary entrant criterion.

2. The errors claimed by the applicant are that:

   a)the tribunal used the factors identified in Direction No 53 made under section 499 of the Act as a mandatory or binding checklist rather than simply as a guide in making its assessment on the basis of the circumstances as a whole;[31]

   b)the tribunal failed to consider that the applicant was in a serious relationship, having married an Australian citizen and indeed had made an application for a partner visa, which at the time of the hearing was pending;[32]

   c)the tribunal erred in concluding that the applicant’s marriage was an attempt to evade Australian migration law without considering the merits of the application for a partner’s visa made by the applicant and his sponsor;[33] and

   d)the tribunal failed to properly consider one of the applicant’s future goals was to establish a textile business in Australia and link it to the family textile business in Sri Lanka.[34]

   [31] Applicant’s outline of submissions filed 5 May 2020 at paragraphs 2, 3 and 5.

   [32] Applicant’s outline of submissions filed 5 May 2020 at paragraphs 4 and 6.

   [33] Applicant’s outline of submissions filed 5 May 2020 at paragraph 7.

   [34] Applicant’s outline of submissions filed 5 May 2020 at paragraph 8.

3. Those submissions appear in the applicant’s written submissions and were expanded upon in oral submissions by the applicant’s representative at the hearing before me.  The applicant’s representative made the following further oral submissions:

   a)whilst the applicant did undertake approximately ten courses over the period during which he was in Australia, those courses were not individual courses per se, rather they fell within ‘only three categories’,[35] namely hospitality, business management and accounting;

   [35] Transcript page 3 at line 12.

   b)moreover, the applicant:[36]

   [36] Transcript page 3 at lines 15 to 25.

   i)did not have an adverse immigration history;

   ii)met all of his visa requirements;

   iii)completed all of the courses in which he enrolled; and

   iv)undertook courses which were broadly consistent with his stated future plans, namely to become involved in his family business in Sri Lanka linked to a business in Australia;

   c)there was no evidentiary basis for the finding made by the tribunal that ‘his marriage to an Australian citizen to be yet another attempt to evade Australia’s migration laws and secure permanent residency...’[37]  It was submitted that:

   i)there was no evidence before the tribunal to support this finding;

   ii)this finding was a critical step in the tribunal’s ultimate conclusion;

   iii)therefore, the tribunal’s decision is affected by jurisdictional error;[38] and

   iv)without investigating the nature and state of the applicant’s relationship with his wife, there was no proper basis upon which to conclude that his marriage was simply an attempt to evade migration laws;[39] and

   d)the tribunal failed to advise the applicant of particulars of information which might be the reason or part of the reason for affirming the decision under review, as required by section 359AA of the Act; particularly in relation to the view the tribunal formed about the genuineness of his relationship. It was submitted that had this been put to the applicant, he would have had the opportunity to call his wife to give evidence as to the genuineness of their relationship.[40]

   [37] Court book page 289 at paragraph 45.

   [38] Transcript page 4 at lines 19 to 23.

   [39] Transcript page 5 at lines 19 to 22.

   [40] Transcript page 6 at lines 14 to 18 and page 7 at lines 3 to 5.

4. It was further submitted that the applicant had in fact met the criteria and in those circumstances, the decision maker had no discretion but to grant the visa.[41]

   [41] Transcript page 7 at lines 10 to 15.

5. In response, the first respondent addresses each of the applicant’s grounds of review in its written submissions.[42]

   [42] Respondents’ outline of submissions filed 30 March 2020.

6. It was submitted that ground one is not made out and in large part is little more than a request for this court to engage in impermissible merits review.  There is much force to this submission.

7. The tribunal had regard to the applicant’s stated reasons for his length of stay in Australia; accepted that some career pathways may require many years of study, but ultimately concluded the applicant did not fall into this category.[43]  The tribunal concluded that it found it ‘difficult to reconcile the applicant’s lengthy stay onshore with his claim that he is a genuine temporary resident’[44]  Its conclusions in this regard were clearly open on the evidence before it and do not disclose any jurisdictional error. 

   [43] Court book page 286 at paragraph 23; Respondents’ outline of submissions filed 30 March 2020 at paragraph 23.

   [44] Court book page 286 at paragraph 25.

8. Similar comments apply to the conclusion reached by the tribunal that the applicant had not satisfied all of the requirements for a study visa, on the basis that he had not satisfied the tribunal that he met the genuine temporary entrant criterion. 

9. To the extent that the applicant takes issue with the fact he claims to have spent a lot of money and time in coming to Australia and was entitled to a visa to complete his studies, the applicant did not make such a claim nor did one clearly arise on the materials.[45]  The tribunal was therefore not required to consider a claim not clearly articulated or which did not clearly arise from the materials before it.

   [45] Respondents’ outline of submissions filed 30 March 2020 at paragraph 23.

10. To the extent that the applicant claims in ground one that the tribunal failed to have regard to his migration history and that he had complied with the conditions of his previous visas, it is clear from a fair reading of the tribunal’s decision record that the tribunal had considered the applicant’s immigration history.

11. It is clear, when the tribunal’s reasons are read as a whole and in context, that the tribunal concluded the applicant’s overall objective was to continue his residence in Australia on a student visa until such time as his application for permanent residence was considered.  The tribunal noted:

    The Tribunal finds that the applicant’s rate of study has not been that of a genuine student seeking to progress academically and having a genuine intention to reside temporarily in Australia.

    Overall, the Tribunal finds it difficult to reconcile the applicant’s lengthy stay onshore with his claim that he is a genuine temporary resident…[46]

    [46] Court book page 287 at paragraphs 24 and 25.

12. These findings were reasonably open to the tribunal.  They do not disclose any jurisdictional error as claimed or otherwise.

13. Similarly, contrary to the claim made by the applicant in ground one, the tribunal considered the applicant’s family ties and future plans, but found that his stated claim to wish to return to Sri Lanka to work in the family business was not ‘a well-developed or genuinely held career or business goal.’[47]

    [47] Court book page 288 at paragraph 32.

14. I accept the submissions made for the first respondent that, when read fairly, the tribunal’s reasons for decision support that the tribunal:

    a)had regard to the applicant’s claims and the evidence before it; and

    b)provided sound reasoning for the conclusions it reached and findings it made.[48]

    [48] Respondents’ outline of submissions filed 30 March 2020 at paragraph 24.

1. For each of these reasons, the matters raised by ground one when considered individually, or cumulatively, do not disclose any jurisdictional error.

2. Ground two is also not made out for the following reasons.

3. Not only did the tribunal itself clearly identify the fact that the factors in Direction 53 are not a mandatory checklist,[49] it is clear that the factors contained in Direction 53 were not used by the tribunal in the manner alleged by the applicant. 

   [49] Court book page 285 at paragraph 14.

4. A fair reading of the tribunal’s reasons make it clear that the tribunal considered the genuine temporary entrant criterion, relevantly:[50]

   a)the applicant’s circumstances;

   b)the applicant’s immigration history; and

   c)any other relevant information.

   [50] Court book page 285 at paragraph 13.

5. These are the matters identified in clause 572.223(1)(a) of schedule 2 to the Regulations.

6. In considering the applicant’s circumstances, the tribunal appropriately had regard to:

   a)his study history[51] and reached the conclusions[52] set out earlier in these reasons;

   b)the value of the course to the applicant’s future;[53]

   c)the applicant’s stated future plans;[54]

   d)the applicant’s ties to Sri Lanka;[55]

   e)the applicant’s immigration history;[56] and

   f)the applicant’s ties to Australia.[57]

   [51] Court book pages 286 and 287 at paragraphs 19 to 23.

   [52] Court book page287 at paragraphs 24 and 25.

   [53] Court book pages 287 and 288 at paragraphs 26 to 29.

   [54] Court book page 288 at paragraphs 30 to 32.

   [55] Court book page 288 at paragraphs 33 to 36.

   [56] Court book pages 288 and 289 at paragraphs 37 to 39.

   [57] Court book page 295 at paragraphs 40 to 42.

7. Whilst these matters are addressed in Direction 53, they are all matters which are particularly relevant to the applicant’s application.  There is no evidence, beyond the use of headings, that the tribunal applied the criteria in Direction 53 in a formulaic manner. 

8. The mere use of headings which relate to matters identified in Direction 53, is not sufficient, of itself, to give rise to a jurisdictional error as claimed.  Rather, it is necessary to have regard to the tribunal’s reasons, read fairly and in their totality.

9. For these reasons, ground two is not made out.

10. Ground three relies on a claim that the tribunal failed to comply with section 359AA(1)(b) of the Act by failing to put ‘information’ to the applicant, where such information is likely to be considered the reason or part of the reason for the tribunal affirming the decision under review. 

11. Section 359AA(1) of the Act relevantly provides:

    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.

12. In support of this ground, the applicant asserted that the tribunal was required to put the applicant on notice of the matters contained in paragraphs [40], [41] and [45] of its decision record, and that its failure to do so amounted to a breach of the requirements in section 359AA of the Act.

13. The first respondent’s response to this was twofold.  First of all, it was said that the matters dealt with in paragraphs [40], [41] and [45] do not amount to ‘information’.[58]  As noted by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 in relation to section 424A of the Act (which is in equivalent terms to section 359A of the Act):

    ... if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). …

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[59]

    [58] Respondent’s outline of submissions filed 30 March 2020 at paragraph 29.

    [59] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

14. Applying this reasoning, it is difficult to see what ‘information’ is contained in paragraphs [40], [41] or [45] of the tribunal’s reasons.

15. In oral submissions made for the applicant, it was put that the conclusion reached in paragraph [41] of the tribunal’s reasons was not put to the applicant for his comment.  That paragraph related to the nature of the relationship between the applicant and his wife, and the purpose of the union; namely, to circumvent Australian immigration laws.  Similar comments relating to the reference to the applicant’s marriage appeared at paragraph [45] of the tribunal’s reasons.

16. I accept the submissions for the first respondent that these paragraphs do not contain ‘information’ in the sense of evidence, but rather contain an assessment of material provided by the applicant and conclusions by the tribunal member drawn from that material.[60]  Moreover, to the extent that those paragraphs contained factual information, it was information that was provided by the applicant.  For example, the fact the applicant had recently married an Australian citizen and had become a step-father to her four children.

    [60] Respondents’ outline of submissions filed 30 March 2020 at paragraphs 29 and 30.

17. As such, it falls within one of the exclusions contained in section 359A(4) of the Act, even if, contrary to the conclusion reached above, it could be said to be ‘information’.

18. Consequently, the failure of the tribunal member to put to the applicant the doubts he had as to the applicant’s genuine intention to leave Australia does not amount to a breach of section 359AA of the Act as claimed.

19. In so far as the applicant’s complaint in ground three is that the tribunal failed to provide the applicant with the opportunity to respond to its view that the applicant’s marriage was not genuine and was only a ploy to extend his stay in Australia, there is no suggestion that the tribunal made a finding on whether or not the applicant met the criteria for a partner visa.

20. Rather, the tribunal simply referred to the fact that the applicant had recently married an Australian citizen and concluded that that added weight to its conclusion that the applicant did not intend on leaving Australia at the conclusion of his studies. That finding was reasonably open to the tribunal, and for the reasons set out earlier, there was no obligation under section 359AA of the Act to put that thought process to the applicant for comment.

21. For each of these reasons, ground three is not made out.

Conclusion

1. As none of the grounds maintained by the applicant at final hearing have been made out, I order that:

   a)the applicant’s application filed on 5 July 2018 be dismissed; and

   b)the applicant pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date: 30 October 2020