Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1119
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1119
File number(s): MLG 1227 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 4 December 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the primary applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – alleged failure of Tribunal to consider all relevant material – where Tribunal recorded separate and independent finding that primary applicant not able to satisfy enrolment criterion – consideration of factors in Ministerial Direction 69 – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 65.
Migration Regulations 1994 (Cth) Schedule 2, cll 500.2, 500.211, 500.212
Cases cited: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16.
Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297).Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 17 October 2023 Date of hearing: 17 October 2023 Place: Melbourne The Applicant: In person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1227 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHILA DHAVALKUMAR PATEL
First ApplicantDHAVALKUMAR DINESHBHAI PATEL
Second ApplicantTANISH PATEL
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 7 May 2018 be dismissed.
2.The applicants pay the first respondent’s costs, fixed in the amount of $5,000.
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 SYMONS:
INTRODUCTION
By an application filed on 7 May 2018, the applicants seek judicial review of a decision of the second respondent (Tribunal) made on 17 April 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Student (Temporary) (Class TU) (Subclass 500) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceeding.
BACKGROUND
The first applicant is a citizen of India who first arrived in Australia on 28 January 2008. On 12 July 2016, the first applicant made an application for the visa for the purpose of studying a Bachelor of Business (Management) (CB 1-22). The first applicant’s husband and son were included in the visa application as members of the first applicant’s family unit. They are identified in this application as the second and third applicant, respectively.
The first applicant was previously the holder of a series of student visas that were granted for the purpose of studying an English course and Diplomas in Hospitality and Business. The last substantive visa was valid until 22 July 2016.
Pursuant to cl 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), it was a condition for the grant of the visa that the first applicant satisfy a number of primary criteria, including what is referred to as the “genuine temporary entrant” (GTE) criterion which is contained in cl 500.212(a) and expressed as follows:
500.212
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) …
(c) …
In an accompanying statement addressing the GTE criterion (first GTE statement), the first applicant explained that she was applying for the visa to acquire a formal education in business and management fundamentals with a goal of opening an “international standard restaurant” in India and that she had chosen to study in Australia because of the high education standards as compared to India. The first applicant identified the purpose of applying for the visa as to facilitate the completion of her earlier proposed study (CB 23-24).
On 23 August 2016, the (then) Department of Immigration and Border Protection (the Department) wrote to the first applicant with a request for more information concerning her application for the visa (CB 68-76). The Department invited the applicant to comment (and provide evidence in support) on unfavourable information relating to the GTE criterion including that:
(a)the first applicant had breached condition 8516 that attached to her most recent student visa;
(b)there was an inconsistency between the first applicant stating in her GTE statement that her goal was to run an international standard restaurant in India and her nomination of the occupation “cook” only months prior in an extant application made by the first applicant for a UC-457 visa;
(c)since arrival on a student visa the first applicant had not completed any course in the higher education sector;
(d)the first applicant’s current enrolment would extend her stay in Australia to more than nine years and ten months, and it appeared as though she was using the student visa application as a means of maintaining ongoing residence in Australia.
The Department also requested evidence and/or information regarding the first applicant’s economic circumstances in India, as well as her ties to India that would demonstrate a significant incentive to return home at the end of her stay in Australia.
Following the invitation to comment, the applicant provided a second statement to the Department in which she sought to explain her genuine intention to stay in Australia on a student visa (second GTE statement) (CB 77-80).
On 17 November 2016, a delegate of the Minister refused to grant the applicants the visa. The refusal decision reflected the delegate’s lack of satisfaction that the first applicant intended to stay temporarily in Australia and therefore did not meet cl 500.212 of Schedule 2 to the Regulations (CB 88-94).
On 5 December 2016, the applicants applied to the Tribunal for review of the delegate’s decision with the assistance of a registered migration agent (CB 95-97).
On 14 March 2018, the Tribunal invited the applicants to attend a hearing before it, scheduled to occur on 17 April 2018 (CB 102-106).
On 16 April 2018, the applicant’s migration agent submitted documents to the Tribunal along with a completed “Response to hearing invitation” form which indicated that only the first applicant would take part in the hearing (CB 115).
Amongst the documents provided to the Tribunal was a further GTE statement from the first applicant which again addressed the concerns identified by the Department in its invitation to comment/respond (CB 151-154).
On 17 April 2018, the first applicant appeared before the Tribunal to give evidence and present arguments (CB 156-159).
THE DECISION OF THE TRIBUNAL
On 7 November 2018, the Tribunal affirmed the delegate’s decision to refuse the applicants the visa and published a written statement of decision and reasons (Reasons) (CB 172- 180).
The Tribunal identified the issue in the case as whether the first applicant met the GTE criterion.
The Tribunal noted that prior to the hearing, it had requested the first applicant provide certain information related to her study and enrolment in Australia and that the first applicant had produced a range of documents (which the Tribunal identified) by way of response to this request. The Tribunal recorded that it had reviewed all of this material.
The Tribunal noted that the first applicant had provided two statements to the Department addressing GTE criteria. The Tribunal described both statements as “convoluted and difficult to understand” (Reasons, [16]) and then provided a summary of each statement (Reasons, [17] and [18]).
The Tribunal identified what it described as “patterns of behaviour on the part of the [first] applicant from her arrival in Australia in 2008 until the present time” (Reasons, [21]) as follows:
•The applicant has held various visas whilst residing in Australia including 3 student visas and out of the current review application she seeks to attain a 4th student visa to continue residence in Australia until late 2019;
•The applicant was granted an initial 573 subclass visa with conditions attached and breached that condition for failure to maintain course attendance;
•The applicant has attained qualifications in the VET sector in both vocational fields of cooking and management;
•There is failure to study, progress or graduate from any course after June 2014;
•Constant enrolment and re-enrolment in a Bachelor of Business and subsequent cancellation of every enrolment. The applicant has not provided any proof of course progress or completion of her degree. There is no evidence before the Tribunal of any progress in this degree at all;
•The applicant has been continuously employed in various positions in all her time in Australia. She has held more responsible and senior positions over time. She has considerable experience in many parts of the hospitality industry. She has gained promotion over time. The applicant was such a valuable employee her then employer applied to nominate her for a 457 visa. The applicant’s VET level qualifications compliment her steady rise in her career in the hospitality industry in Australia;
•Little has interfered with the applicant’s ability to obtain employment, earn an income and progress in her career;
•The applicant has achieved little in her study endeavours since June 2014 and has not achieved any qualifications in the period since June 2014. In short there has been no progress in her studies (the reason for being in Australia) since June 2014.
Notwithstanding the Tribunal had identified the issue on the review as the satisfaction by the first applicant of the GTE criterion, the Tribunal, apparently responsive to evidence given by the first applicant at hearing, considered also whether the first applicant was able to satisfy the time of decision criterion contained in cl 500.211(a) that she be enrolled in a course of study.
The Tribunal found, based on information volunteered by the first applicant, that she did not have a current Confirmation of Enrolment, or “COE”, was not enrolled in an approved course at the time of the hearing and had not been enrolled in an approved course since 2016/2017. The Tribunal was not satisfied that at the time of decision, the first applicant was enrolled in a course of study and accordingly cl 500.211 was not met (Reasons, [27]-[28]).
The Tribunal also considered the ability of the first applicant to satisfy the GTE criterion and did so by reference to the following clauses taken from Ministerial Direction 69 (Direction 69).
In relation to clauses 6, 7 and 8 of Direction 69 the Tribunal recounted evidence provided by the first applicant which included that she “was of the view her circumstances were better and preferable in Australia rather than India” and that it was “the strong wish of her father she remain in Australia principally for reasons of safety”. The Tribunal found that the first applicant’s circumstances indicated the student visa was intended primarily for maintaining residence in Australia (Reasons, [32]-[33]).
In relation to clauses 9 and 10 of Direction 69 the Tribunal recounted evidence provided by the first applicant which included that she did not hold any business interests, property holdings or other assets in India and that she rarely returned home, maintaining contact with her parents and siblings through social media. The applicant (according to the Tribunal) did not outline any reason to return to India.
The Tribunal accepted that the first applicant would like to be closer to her father but noted that she had not raised any aspect of community involvement or engagement in her home town except to express concern that she would again be the subject of harassment as she had been in her younger years after high school in India. The Tribunal recorded the first applicant’s evidence that she received material and financial assistance from her son’s school in Australia. The Tribunal found that there were minimal ties to India and the circumstances identified did not present as a significant incentive for the first applicant to return to India (Reasons, [35]-[37]).
In relation to clause 11 of Direction 69 the Tribunal found that the first applicant had established a life for herself and her family in Australia over a period of ten years and in her first six years in Australia had proven herself a diligent and generally successful student. The Tribunal found, by reference to documents and statements provided by the first applicant, that she was a competent, hardworking and well regarded employee who had progressed to quite senior positions and had no difficulty in obtaining employment. The Tribunal found that the first applicant had strong ties in Australia that presented as a strong incentive to remain in Australia. The Tribunal was also inclined to the view that the first applicant was using the student visa program to maintain residence in Australia (Reasons, [39]-[40]).
In relation to clause 12 of Direction 69 the Tribunal noted that in respect of the period 2008-2014/2015, including as demonstrated by the provision of numerous certificates of achievement, the first applicant had qualified as a chef, worked as a chef to gain practical experience and to the extent that she was now capable of training other workers, and had completed a range of business and management diplomas. The Tribunal found that the first applicant was effectively living and working as a resident in Australia (Reasons, [42]).
The Tribunal noted that since 2016/2017, the first applicant had not done any study or sought enrolment in an alternate course when her last COE was cancelled in 2017. Further, the first applicant did not advise the Tribunal she had any intent to again enrol in a Bachelor of Business or outline any benefit that might be gained from further enrolment in that course (Reasons, [43]).
The Tribunal was unable to find any relevance of future enrolment in a Bachelor of Business including because it would not assist the first applicant to obtain employment in India or improve her employment prospects in that country. The Tribunal found that the first applicant was already well qualified to seek work in India either as a chef or at a managerial level in the hospitality industry (Reasons, [45]).
In relation to clause 14 of Direction 69 the Tribunal noted that the first applicant had been a continuous resident in Australia since 2008 and had effectively concluded her studies around 2015. Since that time the only evidence of enrolment was in a sequence of Bachelor degrees in business, all of which had been cancelled by the education provider. The Tribunal was of the view that the first applicant had been onshore for some time without successfully completing a qualification (Reasons, [48]).
The Tribunal, based on its earlier observations and findings, was not satisfied that the first applicant intended genuinely to stay in Australia temporarily and found that the first applicant did not meet cl 500.212 (Reasons, [50]).
As concerned the second and the third applicant, the Tribunal found that as members of the family unit of the first applicant, they were unable to satisfy cl 500.311 (Reasons, [53]).
These findings had the result that the criteria for the grant of the visa were not met by any of the applicants and the decision under review was affirmed (Reasons, [54]).
APPLICATION FOR JUDICIAL REVIEW
In their originating application seeking judicial review the applicants identify the following grounds of alleged jurisdictional error:
1.Jurisdictional Error Made by the AAT
2.Ground 1: The applicant provided 2 statements to the Department on 12 July 2016 and a later statement (undated but prior to 17 November 2016) addressing GTE criteria. Both statements were convoluted and difficult to understand.
If the statements were difficult to understand, how come they decided that they are not satisfied?
Ground 2: The applicant gave sworn evidence before the Tribunal did not you have a valid offer of enrolment in any course of study in Australia.
Informed tribunal member that I had miscarriage recently and I was planning on getting enrolments and I am looking for the enrolment and will be enrolled and completed if given a chance to stay until course completion.
Ground 3: The applicant did not refer to returning permanently to India.
On many occasions told that I am not seeking any permanent stay here.
On many other occasions the AAT made a jurisdictional error, please see below the circumstances.
The “circumstances” referred to by the applicants appears to be a reference to the first GTE statement (CB 23-24) and the second GTE statement (CB 77-80), both of which are reproduced (save for introductory passages) in the application document.
The applicants allege, by reference to these statements, that the Tribunal did not consider the whole situation and made a jurisdictional error by not considering all the factors raised.
Orders were first made in this proceeding on 13 June 2019. Amongst other things they provided for the filing of any amended application and written submissions by the applicants 28 days before the final hearing.
Given the significant passage of time between the filing of the application and its final hearing, a Registrar of this Court convened a telephone mention on 13 July 2023. The procedural timetable was maintained, and the first applicant confirmed that she had received a copy of the court book prepared by the Minister’s legal representative.
On 3 October 2023 the Minister filed written submissions. No material was filed by or on behalf of the applicants.
SUBMISSIONS OF THE PARTIES
The applicants
The first applicant appeared in person at the final hearing and made submissions to the effect that she could complete her studies and that she should be allowed to remain in Australia in order to do so.
Toward the end of the hearing, the first applicant made submissions which I understood as involving a request for an adjournment on the basis that the first applicant required further time to deal with the substantive nature of her judicial review application, because she had been unaware until now of the final nature of the hearing.
In circumstances where the application had been lodged over five years ago, I enquired with the applicant as to whether she had made any attempts to engage the assistance of a lawyer during that time. The applicant told the Court that she had not.
The Minister opposed any adjournment on the basis that the applicant had failed to take steps to obtain legal assistance and that the nature of the hearing had been communicated to the applicant at the call over on 13 July 2023.
I refused to grant the applicants an adjournment. My decision reflected my view that the applicants had been afforded ample time to obtain legal advice and/or to prepare for the final hearing. It also reflected my satisfaction that the final nature of the hearing had been communicated to the first applicant when she participated in the call over some three months earlier.
The Minister
The Minister characterises the applicants’ grounds of review as involving nothing more than disagreement with the Tribunal’s decision and an invitation to undertake impermissible merits review.
The Minister submits that it is apparent from the Reasons that the Tribunal had regard to both the written and oral evidence produced by the first applicant; the Tribunal listed the documents provided by the first applicant at the hearing (Reasons, [13]-[14]). The Tribunal specifically had regard to the first applicant’s two GTE statements which were provided to the Department, her curriculum vitae, evidence regarding her studies in Australia and India and her oral evidence at hearing (Reasons, [16]-[20], [22], [23], [27]).
The Minister submits that the Tribunal considered the evidence before it, assessed that evidence with reference to the relevant statutory framework and made findings that were open to it based on rational reasons that were arrived at on consideration of matters that were logically probative. This was particularly in circumstances where the Tribunal had evidence before it which supported the position that the first applicant had not been enrolled in a course of study since 2016/2017, that she had failed to study after June 2014, and that she had consistently been employed in Australia since her arrival in 2008. It was therefore open and reasonable for the Tribunal to conclude that the first applicant was not enrolled in a course of study and did not intend to stay in Australia temporarily pursuant to cls 500.211 and 500.212 respectively.
By reference to the decision of Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [108], the Minister submits that in its consideration of cl 500.212, the Tribunal made findings in relation to Direction 69 factors that were relevant on account of the first applicant’s claims and evidence and found ultimately that the factors when considered and weighed as a whole indicated that the first applicant appeared to have utilised the student visa to maintain ongoing residence. This included consideration of the first applicant’s circumstances in her home country (paragraph 9 of Direction 69), potential circumstances in Australia (paragraph 11 of Direction 69), the value of the proposed course to the first applicant’s future (paragraph 12 of Direction 69) and the first applicant’s immigration history (paragraphs 13 and 14 of Direction 69). The weight that the Tribunal chose to give to the evidence in the context of its analysis under Direction 69 was a matter for it alone (referring to Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]).
CONSIDERATION
While it might be tempting to dismiss the efficacy of the applicants’ grounds of judicial review on the basis that they invite merits review, some greater scrutiny is required in circumstances where the applicants appear without the benefit of legal representation in recognition of the possibility that the matters, albeit inelegantly expressed, might nonetheless expose jurisdictional error.
The applicants’ first complaint is that the Tribunal, despite describing the first applicant’s two GTE statements as “convoluted and difficult to understand”, still decided that it was not satisfied that the first applicant was able to satisfy the GTE criterion.
Had the Tribunal’s evaluation not proceeded beyond this point, the applicants’ ground may have aroused suspicion. However, as the Minister essentially submits, the Tribunal, despite what I consider was a lack of cohesion in the narrative and explanation provided by the first applicant, undertook a comprehensive evaluation of the material that was before it, including by producing a summary of the matters disclosed in the GTE statements and by distilling from the range of information that was before it, the essential characteristics of the first applicant’s experience of living, studying and working in Australia. I accept that the Tribunal’s conclusion was the product of its active engagement with this material and involved a consideration, to the extent that they were engaged by such material, of the factors identified in Direction 69. No error is disclosed by ground one.
By ground two, the applicants complain that although the first applicant gave evidence at hearing that she did not have a valid offer of enrolment in any course of study in Australia, the Tribunal failed to take account of her explanation which was to the effect that she had suffered a miscarriage recently and planned to obtain an enrolment in the event that she was granted a student visa.
The first point to note is that the failure of the first applicant to provide evidence of a current enrolment in a “course of study” (as defined) was principally relevant to the Tribunal’s finding that she was not able to satisfy the enrolment criterion contained in cl 500.211(a). The first applicant does not contend that the Tribunal misapprehended her evidence about the lack of an enrolment. The Tribunal had no discretion when faced with this objective fact and was bound to find that she was unable to satisfy this mandatory visa criterion.[1]
[1] Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046, [34].
Beyond the Reasons, there is no record before the Court of what precisely the first applicant told the Tribunal at the hearing, including by way of explanation for her failure to maintain enrolment in a course of study. However, even accepting that the first applicant offered an explanation for this situation, I do not consider that any failure on the part of the Tribunal to refer to it in the Reasons gives rise to jurisdiction error. The reason for this is two-fold.
First, as noted above in relation to ground one, the Tribunal recorded a separate and independent finding that the first applicant did not satisfy cl 500.211(2)(a). Based on this finding alone, the Tribunal was required to uphold the decision of the delegate refusing the applicants the visa.
The second reason reflects the course of reasoning adopted by the Tribunal, which was to the effect that even had the first applicant maintained an enrolment in the Bachelor of Business course, the pursuit of such a course would not have been relevant to her employment prospects in India, this being a factor identified for consideration by paragraph 12 of Direction 69. Any explanation did not bear on this analysis and was not material to the findings recorded by the Tribunal.
By ground three, the applicants challenge the Tribunal’s observation that the first applicant did not refer to returning permanently to India on the basis that she had disclaimed any intention to stay permanently in Australia. However, I am unable to discern any error in the approach taken by the Tribunal. By paragraphs 9 and 10 of Direction 69, the Tribunal was obliged to consider (to the extent raised by the first applicant’s material and circumstances) the strength of her connections to India, including the first applicant’s personal ties to her home country and whether they would serve as a significant incentive to return home there. Relevant to this inquiry were statements made (or not made) as to the first applicant’s future residency intentions in India. Statements made by the first applicant to the effect that she did not plan to stay permanently in Australia were not conclusive of her situation in India. The Tribunal was required to look at the first applicant’s circumstances as a whole when assessing the GTE criterion.
More generally, the applicants seek to impugn the decision of the Tribunal on the basis that it did not consider the whole of the first applicant’s situation and made a jurisdictional error by not considering all the factors raised in the two GTE statements.
I reject this challenge to the Tribunal’s decision. Instead, and as the Minister submits through its analysis of the Reasons set out at [46] to [48] above, the Tribunal provided a careful and comprehensive evaluation of the material that was before it. Contrary to the applicants’ assertion, the Reasons contained explicit reference to the GTE statements and a summary of both documents. The Tribunal stepped its way through Direction 69 and evaluated each of the relevant paragraphs by reference to the information that was before it.
I am not satisfied that the Tribunal decision involved jurisdictional error. It follows that the applicants’ application for review filed on 7 May 2018 must be dismissed and there be an order, in the usual course, that the applicants pay the Minister’s costs in a fixed amount.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 4 December 2023
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