Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 467
•23 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 467
File number(s): MLG 1310 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 May 2024 Catchwords: MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a genuine applicant for entry and stay as a student – where first applicant and second applicant have separated – where third applicant is Australian citizen – whether the Tribunal failed to consider information before it, took into account irrelevant considerations, made erroneous findings or acted on mistaken presumptions. Legislation: Australian Citizenship Act 2007 (Cth) s 12(1)(b)
Migration Act 1958 (Cth) ss 474, 476
Migration Regulations 1994 (Cth) reg 1.12(2) sch 2, cls 572.322, 572.223(1)(a), subdivision 572.21.
Ministerial Direction 53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 29 April 2024 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Mr Mak of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1310 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AADESHKUMAR PATEL
First Applicant
NEHABEN AADESHKUMAR PATEL
Second Applicant
NISH AADESHKUMAR GAMI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 MAY 2024
THE COURT ORDERS THAT:
1.The Application filed 14 May 2018 be dismissed.
2.The First and Second Applicant pay the First Respondent’s costs fixed in the amount of $6,000.
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 J YOUNG
INTRODUCTION
Before the Court is an Application filed on 14 May 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 19 April 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicants a Student (Class TU) (Subclass 572) visa (Visa).
BACKGROUND
The first applicant (Applicant) and second applicant are citizens of India. The second applicant is the former wife of the first applicant, and the third applicant is their child. The second applicant and the Applicant are divorced and they are no longer in a relationship. The Applicant resides in Victoria and the second applicant resides in New South Wales. The third applicant was born in Australia on 29 July 2012 and is an Australian citizen by birth, having been ordinarily resident in Australia for a period of 10 years from the date he was born.
On 18 August 2014, the Applicant lodged an application for the Visa.
On 28 November 2014, a delegate of the Minister refused to grant the applicants the Visa as the Applicant did not meet cl 572.223(1)(a) of sch 2 to the Migration Regulations 1994 (Cth) (Regulations) as the delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily.
On 2 December 2014, the applicants applied to the Migration Review Tribunal (MRT) for review of the delegate’s decision. On 29 June 2016, the MRT affirmed the delegate’s decision.
On 25 July 2016, the applicants applied for judicial review of the MRT’s decision. On 21 December 2016, orders were made by consent quashing the decision of the MRT’s decision and remitting the matter for determination. The basis for the remittal was that the MRT failed to consider the Applicant’s ‘Statement of Purpose’ which was submitted to the delegate on 22 August 2014, and which raised matters relevant to “Ministerial Direction 53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications” (Direction 53).
On 9 March 2018, the Tribunal invited the applicants to attend a hearing scheduled for 9.00am on 19 April 2018 to give evidence and present arguments. That invitation also invited the applicants to provide any further evidence in support of the application, and annexed a copy of Direction 53.
On 19 April 2018, the first and second applicants attended the hearing before the Tribunal. On the day of the hearing the applicant provided to the Tribunal a Certificate of Enrolment dated 18 April 2018 (COE) and a confirmation letter of the third applicant’s enrolment at a primary school. On the same day, the Tribunal affirmed the decision of the delegate not to grant the applicants the Visa.
TRIBUNAL DECISION
The Tribunal sent a copy of its statement of decision and reasons to the Applicant’s email address on 19 April 2018 (Tribunal Decision).
The Tribunal stated that it had considered a copy of the Applicant’s COE, the confirmation letter of the third applicant’s enrolment at a primary school, the Applicant’s Statement of Purpose, and all relevant material in the Department and Tribunal’s files.
In considering whether the applicant satisfied cl 572.223(1)(a) of sch 2 of the Regulations, the Tribunal had regard to Direction 53. The terms of Direction 53 required the Tribunal to have regard to factors including the Applicant’s circumstances in his home country, potential circumstances in Australia, the value of the Applicant’s course to his future, and his immigration history.
At paragraph [28] of the Tribunal Decision, the Tribunal sets out the information contained in the Applicant’s PRISMS record, which was put to the applicant at the hearing. The PRISMS record provides that the Applicant:
·has enrolled in 31 courses during the 11 years the Applicant has been resident in Australia;
·only two certificates of graduation have been provided to the Department or the Tribunal;
·23 of the Applicant’s enrolments have been cancelled by the course provider, generally for non-commencement of studies or non payment of fees;
·has not started, not completed or has had cancelled 29 out of the 31 courses he has enrolled in.
At paragraph [35]–[39] the Tribunal considered the Applicant’s circumstances in India and Australia, pursuant to paragraph 6 and 8 of Direction 53, including that the Applicant repeatedly advised the Tribunal that he wished to stay in Australia permanently and did not wish to return to India.
At paragraph [40]–[46] the Tribunal considered the Applicant’s circumstances in India, pursuant to paragraphs 9 and 10 of Direction 53, including the Applicant’s evidence that it had always been his intent to remain permanently as a resident in Australia and that the second applicant had the same purpose.
At paragraph [47]–[53] the Tribunal referred to paragraph 11 of Direction 53 and made inquiries into relation to each of sub-paragraphs (a)–(e) of paragraph 11. In relation to paragraph 11(b) and 11(c) of Direction 53, the Tribunal’s Decision records that the Applicant’s evidence was that he wished to remain in Australia on a permanent basis, that he was using the student visa program to achieve that purpose, he came to Australia to be a permanent resident, he had no interest in returning to India and he wished to secure his son’s future.
At paragraph [54]–[57] the Tribunal considered the value of the course to the Applicant’s future in accordance with paragraph [12] of Direction 53.
At paragraph [58]–[66] the Tribunal considered the Applicant’s immigration history in accordance with paragraph [13] and 14] of Direction 53.
At paragraph [66] the Tribunal considered the other factors identified in Direction 53.
At paragraph [67]–[71] of the Tribunal Decision, the Tribunal sets out its findings in relation to the Applicant. In summary, the Tribunal found that, having considered the Applicant’s lack of academic progress, his study and immigration history, his potential circumstances in Australia, and the lack of value of the courses to his future, the Applicant was using the Student visa program to stay in Australia permanently and was not a genuine temporary entrant and so did not satisfy cl 572.223(1)(a) of sch 2 of the Regulations.
At paragraph [72]–[74] the Tribunal found that as the Applicant had not satisfied the primary criteria in subdivision 572.21 and 572.22, the second and third applicants did not satisfy cl 572.322(b) of sch 2 of the Regulations.
Accordingly, the Tribunal affirmed the decision under review in relation to the applicants.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Tribunal Decision on 14 May 2018.
The Application contains the following grounds for judicial review (without amendment):
1.The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
2.Tribunal did not give consideration to the evidence provided so it has fall into “jurisdiction error”.
3.The GTE should have been taken into serious consideration in its totality and the substance rather than the mere oversight on the part of the writer.
4.I have completed my studies to further my education and that the breaches of condition were as a result of matters outside of my control.
5.The Tribunal relied upon irrelevant considerations to conclude the genuineness of a student and failed to consider relevant considerations in deciding the GTE is not genuine solely hinges on the fate and outcome of the whole Hearing;
6. The Tribunal failed to exercise its decision making power unreasonably;
7.There was no evidence to support the decision that the GTE was not factually genuine;
8. The decision is based on mistaken presumptions and/or erroneous findings;
Orders were made on 15 July 2019 appointing the Applicant as the litigation guardian for the third applicant.
A callover of the matter was held on 2 August 2023. A notation to the orders made at the callover noted that the Applicant and the second applicant have separated.
Orders were made on 14 February 2024 listing the matter for hearing and requiring the applicants to file and serve any Amended Application, written outline of submissions, and any additional evidence by 2 April 2024.
The second applicant filed a notice of address for service on 27 March 2024.
The applicants have not filed any material pursuant to the 14 February 2024 orders.
Hearing
The hearing took place on 29 April 2024.
The Applicant appeared in person at the hearing. The second applicant also appeared in person. An interpreter in the Gujarati and English languages was in attendance at the hearing but both the Applicant and the second applicant informed the Court that interpretation was not required.
At the hearing the Applicant confirmed that he wished to remain in Australia permanently. The second applicant also confirmed that she and the Applicant were divorced and that she resided in New South Wales.
The second applicant made no oral submissions in relation to the grounds contained in the Application and relied on the submissions made by the Applicant. The second applicant however submitted that she was depressed and upset and did not know what to do in relation to her visa status.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
By Ground 1 the applicants allege that the Tribunal failed to put enough weight on the “situation”, that the Tribunal failed to exercise its power to ask the applicants for further information/evidence, and that the Tribunal fell into jurisdictional error by disposing of the case “rather quickly”.
At the hearing, the Applicant said that the “situation” to which he referred was that the Tribunal failed to consider his COE, that he had paid his tuition fees and that his son was enrolled in primary school. He also said that Tribunal did not consider his reasons for failing to return to India when his cousin had blood cancer and his grandmother died. He further submitted that the hearing was very short and only went for about 15 minutes.
For the following reasons, those submissions must be rejected.
Firstly, it is clear that the Tribunal did have regard to the Applicant’s COE and that his son was enrolled in primary school. At paragraph [14] of its decision the Tribunal specifically identifies that on the day of the hearing the Applicant provided his COE and a letter confirming that his son was enrolled in primary school. Further:
(1)at paragraph [22] the Tribunal identifies that the Applicant did not enrol in a course of study until the day before the hearing;
(2)at paragraph [25] the Tribunal sets out the Applicant’s evidence to it at the hearing confirming that he had only enrolled in a course of study the day before the hearing; and
(3)at paragraph [48] the Tribunal refers to the Applicant’s evidence that his son has been in school for 4 months and that this was the most important consideration for the Applicant.
Further, as set out above, it is clear from the decision that the Tribunal had regard to the Applicant’s circumstances more generally. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
Secondly, there is no evidence before the Court that the Applicant raised his cousin’s blood cancer nor his grandmother’s death with the Tribunal nor his reasons for failing to return to India at that time. The transcript of the Tribunal hearing is not before the Court and these matters are not referred to in the Tribunal Decision nor in any other material before the Court. In addition, the Tribunal Decision is comprehensive and thorough. I consider it can be inferred that no such claims or matters were made or put before the Tribunal. Further, there is no statutory obligation on the Tribunal to make enquiries into the applicants’ claims or to investigate such claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43].
Thirdly, the fact that the Tribunal Decision was made on the same day as the hearing does not, in my view, in and of itself, establish that the Tribunal failed to properly consider the merits of the application or that its decision was affected by bias. Further, the hearing record indicates that the hearing commenced at 9.05 am and concluded at 10.27 am. The hearing was not, therefore, concluded in about 15 minutes as submitted by the Applicant. Additionally, at the hearing before the Tribunal, the Applicant said that there was nothing further that he had wanted to put to the Tribunal.
Fourthly, insofar as Ground 1 asserts that the Tribunal disposing of the case “rather quickly” amounts to apprehended bias, such an allegation must be distinctly and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. I do not consider there is anything before the Court which would lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the applicants’ case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.
Grounds 2, 3, 5 and 8
Grounds 2, 3, 5 and 8 collectively allege that the Tribunal failed to consider the information before it, took into account irrelevant considerations, made erroneous findings and acted on mistaken presumptions. It is convenient to address these grounds together.
For the following reasons, those submissions are rejected.
Firstly, these grounds are entirely unparticularised. This alone is a sufficient basis to dismiss these grounds: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24]. Further, at the hearing the Applicant was unable to further articulate these grounds, other than to submit in relation to Ground 2 that the Tribunal failed to consider his COE and his son’s school enrolment. For the reason set out above, that submission must be rejected.
Secondly, as set out above, the Tribunal expressly and extensively referred to the Applicant’s evidence given at hearing, the documentary evidence provided by the Applicant and the Department, and other material on the Tribunal file and Department file. The Tribunal referred to and relied on the evidence under the “Consideration of Claims and Evidence” section of the Tribunal Decision in paragraphs [14]–[66], as set out above.
Thirdly, the Applicant’s own evidence before the Tribunal was that he wished to remain in Australia on a permanent basis, that he was using the student visa program to achieve that purpose, he came to Australia to be a permanent resident, he had no interest in returning to India on a permanent basis and that he always intended to remain permanently as a resident in Australia. The Tribunal’s finding that the Applicant was not a genuine temporary entrant was therefore entirely open to it.
Accordingly, Grounds 2, 3, 5 and 8 disclose no jurisdictional error on the Tribunal’s behalf.
Ground 4
As to Ground 4, as set out above, the Applicant’s PRISMS records were before the Tribunal. As also set out above, at paragraph [28] of its decision the Tribunal identified that the Applicant had two certificates of graduation. Further, at paragraph [30] of its decision the Tribunal identified that the Applicant had graduated with a Certificate IV in Marketing in 2014 and a Diploma in Marketing in 2015. The Tribunal took those matters into consideration but found that in the context of the 11 years that the Applicant had been resident in Australia, the 31 courses he had enrolled in during that time and the cancellation, non-commencement or non-completion of 29 of those 31 courses, his “study record in Australia is best described as one of non-achievement”. That finding was open to the Tribunal on the evidence before it.
It follows that Ground 4 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 6
By Ground 6, the applicants assert that the Tribunal Decision was legally unreasonable. At the hearing the Applicant submitted that the unreasonableness arose from the jurisdictional error of the MRT decision.
Firstly, by consent the MRT decision was quashed and remitted to the Tribunal for determination. The basis for the remittal was that the MRT failed to consider the Applicant’s ‘Statement of Purpose’. At paragraph [16] of its decision the Tribunal summarises the contents of the ‘Statement of Purpose’. At paragraph [17]–[19] of its decision the Tribunal sets out the Applicant’s evidence in relation to the matters contained in in the Statement of Purpose and, as set out above, expressly and extensively considers the Applicant’s evidence in paragraphs [14]–[66] of its decision. At paragraph [69] the Tribunal found:
Overall, given his lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily.
That finding was open to the Tribunal on the evidence before it. Indeed, it is difficult to see what other finding could have been made in light of the Applicant’s own evidence as set out in paragraph [48] above. Accordingly, there is nothing before the Court to indicate that the jurisdictional error in the MRT decision in any way infected the Tribunal Decision.
Secondly, legal unreasonableness is concerned with the exercise of a discretionary power given by statute: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63]. I accept the Minister’s submission that, strictly speaking, the Tribunal Decision did not involve the exercise of a statutory discretion. Accordingly, the Tribunal Decision was not subject to an implication that it be made within the bounds of legal reasonableness. Further, and in any event, the Tribunal’ reasons disclose an evident and intelligible justification for its decision.
Accordingly, Ground 6 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 7
In light of all of the above, Ground 7 must be rejected. There was plainly evidence before the Tribunal upon which it could conclude that the Applicant was not a genuine temporary entrant, including the Applicant’s own evidence. The Tribunal’s finding was plainly open to it.
Accordingly, Ground 7 also discloses no jurisdictional error on the Tribunal’s behalf.
Other matters
The Minister submits that the Court should refuse to grant relief in respect of the second and third applicants.
With respect to the second applicant, the Minister submits that she cannot be granted the Visa as she and the Applicant have separated. I accept that submission.
As set out above, at the hearing the second applicant confirmed that she and the Applicant were divorced and that they resided separately. The second applicant must be a member of the Applicant’s family unit in order to be granted the Visa: cl 572.322 of sch 2 of the Regulations. A member of a “family unit” includes “a spouse or de facto partner of the applicant”: reg 1.12(2) of the Regulations. As the second applicant is now neither the spouse nor the de facto partner of the Applicant, she is no longer a member of the Applicant’s family unit for the purposes of the Visa.
As to the second applicant’s oral submissions at the hearing, while the Court has sympathy for the position the parties find themselves in, such matters do not give rise to jurisdictional error.
With respect to the third applicant, the Minister submits that he cannot be granted the Visa as he is an Australian citizen. I accept that submission. The evidence before the Court is that the third applicant was born in Australia on 29 July 2012 and is an Australian citizen, having been ordinarily resident in Australia for a period of 10 years from the date he was born (see: s 12(1)(b) of the Australian Citizenship Act 2007 (Cth)).
Accordingly, the relief sought by the second and third applicant’s cannot be granted.
For completeness, and in response to the second applicant’s oral submissions, the Court indicated at the hearing that the parties may be assisted by obtaining their own legal advice as to their current circumstances. The Court encourages the parties to do so.
DISPOSITION
As set out above, none of the Grounds advanced by the applicants give rise to jurisdictional error on behalf of the Tribunal.
It follows that the Application must be dismissed.
The Minister seeks that the first and second applicant pay its costs in the fixed amount of $6,000. I note this is below scale and shall order accordingly.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 May 2024
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