Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 177
Federal Circuit and Family Court of Australia
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 177
File number: SYG 145 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 March 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to properly assess the evidence before it – whether the Tribunal’s decision was “illogical” or “irrational” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 376 & 476
Migration Regulations 1994 (Cth), cl 500.212 in Schedule 2 and Condition 8202 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 107 Date of hearing: 2 March 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 145 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARTH GANDABHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
9 MARCH 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
Background
The applicant in this matter is a citizen of India (Court Book (“CB”) 2-4, 23 & 28-29). He first arrived in Australia in July 2017 as the holder of a Student (Subclass 500) (Class TU) visa (CB 51). Whilst the applicant held that visa, he was enrolled in a Master of Information Technology (which was cancelled), an Academic English course (which he completed) and a Master of Business Administration (which was also cancelled) (CB 95).
On 28 August 2019, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-22). He was represented by an agent (the “first representative”) (CB 6).
The applicant indicated in the visa application that he intended to study Certificates III and IV in Commercial Cookery (to be completed between 27 May 2019 and 20 November 2020) (the “courses”) (CB 10-11). Attached to the applicant’s visa application were copies of his identity documents, two Overseas Student Confirmation-of-Enrolment (“CoE”) forms, educational records, financial information and a Genuine Temporary Entrant statement (“GTE statement”) (CB 23-38).
On 15 January 2020, the Department of Home Affairs (the “Department”) wrote to the applicant and invited him to comment on information from the Provider Registration and International Student Management System (“PRISMS”) records which indicated that his enrolment in the courses had been “cancelled on 26 November 2019 due to non-payment of fees and non-commencement of studies” (CB 41-44). The letter also noted that the applicant’s previous enrolment in a “Master of Information Technology course had been cancelled on 4 April 2019 due to “unsatisfactory progress” and that the “last date of [his] study [was] recorded as 18 November 2018”. The letter further explained that there was a “study gap of five months from when [the applicant] finished the English course on 28 June 2019” and that he had not engaged in study since that date – resulting in a further seven months without study (and a total of 12 months cumulatively without undertaking any formal studies) (CB 42).
No response was received from or on behalf of the applicant.
On 19 February 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-54). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and found that he did not satisfy cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Further, the delegate determined that the applicant was not a genuine student, that he did not intend to stay in Australia temporarily for study purposes and that he was using the Student visa program as a means of maintaining residence in Australia.
On 24 February 2020, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 55-56). At that time, the applicant was represented by his first representative in relation to the review application (CB 56).
On 2 March 2020, a delegate of the Minister issued a Certificate pursuant to s 376 of the Migration Act 1958 (Cth) (the “Act”) (CB 107).
On 19 August 2021, the Tribunal invited the applicant (through his first representative) to provide information to satisfy the Tribunal that the applicant was “enrolled in a registered course of study” and that he was “a genuine applicant for entry and stay as a student” in Australia (CB 62-65). The applicant was also provided with a link and asked to complete a Request for Student Visa Information form (the “questionnaire”).
The applicant provided the completed questionnaire, course progress confirmation, statement of purpose and further CoEs (for Certificates III and IV in Commercial Cookery, a Diploma and an Advanced Diploma of Hospitality Management and a Graduate Diploma of Management (Learning)) to the Tribunal (CB 66-88).
On 1 September 2021, the applicant appointed a new representative (the “second representative”) (CB 89-93).
On 27 October 2021, the Tribunal wrote to the applicant (through his second representative) inviting him to attend a hearing before it on 11 January 2022 (CB 96-101).
On 6 January 2022, the Tribunal provided the applicant (through his second representative) with a copy of the Department’s s 376 Certificate (via email) (CB 106-107).
On 11 January 2022, the applicant attended the Tribunal hearing. His second representative did not attend at that hearing.
The Tribunal made an oral decision at the completion of the hearing (on 11 January 2022) affirming the delegate’s decision refusing to grant the applicant the visa (CB 115).
On 28 January 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision.
On 3 February 2022, the applicant’s second representative requested written reasons from the Tribunal (CB 116).
On 14 February 2022, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 123-133). A copy of those written reasons was provided to the applicant (through his second representative) via email on 15 February 2023 (CB 120-122).
The application for judicial review filed in this Court is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision in this matter is 11 pages in length and spans 114 paragraphs.
The Tribunal began by identifying the type of visa under review and noted that the applicant had applied for the visa on 28 August 2019 and that a delegate of the Minister had refused to grant the applicant the visa on 19 February 2020 because the applicant did not satisfy cl 500.212(a) in Schedule 2 of the Regulations. The Tribunal also confirmed that it had received the applicant’s review application on 24 February 2020 (at [1]-[2]).
The Tribunal then noted that the applicant was granted an initial student visa and had arrived in Australia as the holder of that visa in July 2017. The Tribunal also explained that, at the time of the visa application (the subject of the review before it), the applicant was enrolled in Certificates III and IV in Commercial Cookery. Further, PRISMS records for the applicant indicated that he had previously been enrolled in the following courses: a Masters of Information Technology, English for Academic Purposes and a Masters of Business Administration (at [3]-[5]).
The Tribunal then summarised the delegate’s decision (at [6]-[18]).
The Tribunal explained that it would make its own decision and, noting that the applicant had appeared at a hearing before it, determined that it was better placed to fully assess the applicant’s circumstances. Further, the Tribunal confirmed that it had considered all of the information that the applicant had provided to the Department and the Tribunal (including the oral evidence given by the applicant at the Tribunal hearing) (at [19]-[20]).
The Tribunal confirmed that it was satisfied that the applicant was currently enrolled in a registered course of study (noting that, “somewhat unusually”, he was enrolled until 2025). The Tribunal then identified that the only issue before it was whether the applicant was a “genuine applicant for entry and stay as a student” at the time of its Tribunal’s decision and explained that, in making that assessment, it would consider cl 500.212 in Schedule 2 of the Regulations as well as Ministerial Direction No. 69 (at [23]-[24]).
The Tribunal then explained as follows:
25.Together these require me to assess if you intend to genuinely stay in Australia temporarily as a student, if you intend to comply with visa conditions, and whether you are a genuine applicant for entry and stay as a student because of any other relevant matters.
26.In apply Ministerial Direction No 69 I have regard to your circumstances in India, your potential circumstances here in Australia, the value of the course, your immigration history, if you are a minor, well, clearly you are not, and any other relevant matter. That was the foundation, or that provides the foundation upon which I have to make this decision.
The Tribunal noted that, while the applicant was represented, his second representative was not present at the hearing and the applicant did not seek any adjournment to allow him to attend (at [27]).
The Tribunal set out the applicant’s visa and travel history as well as the applicant’s academic history. The Tribunal noted that, while the applicant had been enrolled in a number of courses, most had been cancelled. The Tribunal found that, since his arrival in 2017 (that is, in a period of four and a half years), the applicant had completed only a brief, two-month English for Academic Purposes course (from April to June 2019) and a 12-month Certificate III in Commercial Cookery (from 12 October 2020 to 10 October 2021) (at [28]-[37]).
The Tribunal continued:
38.That information in itself, subject to your responses, for me would be the reason or part of the reason for affirming the decision under review because it has a tendency to indicate that you have not fully applied yourself to your studies whilst living in Australia on Student Visas, or a Student Visa.
The Tribunal explained that it had received a response to its invitation to provide information (sent to the applicant, via his first representative, on 19 August 2021) and noted as follows in that regard (at [39]):
(a)the applicant had completed a Bachelor of Computer Applications from July 2011 to June 2014;
(b)no information had been provided about any work experience before the applicant arrived in Australia (at [40]);
(c)while there was no information in the response about travel, the Tribunal accepted the applicant’s evidence at the hearing that he had not travelled to any other countries (at [41]);
(d)while in Australia, the applicant has been on a student visa and a bridging visa (at [42]);
(e)the applicant had provided (and the Tribunal had considered) information about why the applicant chose education providers for the Australian courses, as well as information about whether there were similar courses in his home country (at [43]);
(f)the applicant had not provided any specific (only general) information about any research he had done in relation to particular courses and the applicant referenced being employed as a chef assistant since May 2021 (with no end date provided) (at [44]);
(g)the applicant had a brother and two parents living in India with whom “he has fairly constant contact” (at [45]);
(h)the applicant had a “close bond with [his] parents” and the applicant had provided information about his community ties (noting that he was “emotionally attached to cultures and festivals in India”) (at [46]);
(i)the applicant stated that he was not involved in community organisations in Australia because he wanted to focus on his studies, he had a previous history of stress and was separated from his wife (at [47]);
(j)the applicant had a motor vehicle valued at approximately $4,000 (being his only asset in Australia) and had provided limited information about future and employment plans. Specifically, the applicant referenced a hotel management position, an interest in the hotel industry and an interest in starting up an Indian food restaurant upon his return to India (at [48]-[50]); and
(k)the applicant had also confirmed that he had no military service commitments (at [51]).
The Tribunal continued:
52.So, I take all of that information into account. There was a six-page statement of purpose. You outline some of the difficult circumstances that you had faced. You suffered from depression or you have been suffering from depression. You are going through a separation from your wife, and that made life stressful.
The Tribunal confirmed that it had provided the applicant (through his second representative) with a copy of a s 376 Certificate and had discussed the information covered by that Certificate with the applicant. The Tribunal noted that the information covered by the Certificate was from an anonymous source who had alleged that the applicant had provided fake academic records, had been working more than his allowed hours and had been working in two separate places. The Tribunal placed no weight on the information and confirmed that it had no bearing on its decision (at [55]-[56]).
The Tribunal noted that the applicant had been involved in an arranged marriage in August 2018 but had had very little interaction with his wife (who lives in India and has never come to Australia). It was further noted that couple had no children. The Tribunal was satisfied that the applicant was now divorced from his wife, referencing a divorce certificate issued on 14 September 2021, and accepted that this was an “emotionally trying” situation for the applicant (at [57] & [60]).
The Tribunal confirmed that the applicant had studied in India, had a strong interest in computers and had worked as an IT developer in India for approximately two years (at [59]).
The Tribunal then noted that the applicant’s interest in coming to Australia arose from the fact that he had friends who had travelled overseas for work and study (referencing friends in Canada). Further, the applicant had chosen to move to Perth because he had a friend living in Perth and in his view, Australia is a “good developed country” (at [61]-[62]).
The Tribunal explained that the applicant had arrived on his own in Australia in July 2017 (noting that his friend was already living in Australia) and that he had been granted a student visa that was valid for two years. It was noted that the applicant’s enrolment in his first Masters in Information Technology course (which should have undertaken between July 2017 and June 2019) was cancelled. The Tribunal explained that the applicant claimed to have studied for a year and two months but changed courses because he was “having trouble progressing” due to his English language skills. The Tribunal noted, however, that the applicant had progressed through at least the first year of his study before commencing the English for Academic Purposes course (between April and June 2019) (at [63]-[65]).
The Tribunal continued:
66.There was a seven month or so period where you had not studied at all from about September 2018. You tell me that you had become depressed, you had been thinking about going back to India at that point in time. I inquired with you as to whether you had sought out any assistance to get you through that difficult period. You told me that you had not sought any medical help, nor any psychological help or counselling.
The Tribunal then discussed the applicant’s enrolment in a Masters of Business Administration course (between May 2019 and April 2021). It was noted that the course was ultimately cancelled because the applicant had not complied with the requirement to provide information or documents. The Tribunal noted further that the applicant had only completed two or three months of the course. The Tribunal explained that the applicant then studied a Certificate III in Commercial Cookery between May 2019 and May 2020 but noted that that course was also cancelled by the applicant (having only completed five months of that course) (at [67]-[68]).
The Tribunal continued:
69.It seems to me that your reason for failing, or not progressing, rather, was in your mind due to the college itself primarily, and not due to any issues with you. I note in relation to your psychological problems, the depression and stress, you did not seek out any assistance when you well could have. I am concerned with that. It seems to me you did not take responsibility for your own situation.
The Tribunal then discussed the cancellation of the applicant’s Certificate IV in Commercial Cookery (with a study period from May 2020 to November 2020), noting that it was cancelled for the same reason as the Certificate III (as discussed above) (at [70]).
The Tribunal confirmed that the applicant had successfully studied the Certificate III in Commercial Cookery between 12 October 2020 and 10 October 2021 and that, based on the applicant’s evidence, he had “gotten on top of [his] psychological issues arising from [his] divorce”. Further, the applicant had sufficiently recovered from his depression (at [71]).
The Tribunal acknowledged that, at the time of the Tribunal hearing, the applicant was studying a Certificate IV in Commercial Cookery and was attending classes two days a week (with the course taking place from 11 October 2021 to 10 April 2022). Further, because the applicant had only recently commenced the course, he did not have any marks or results at that time (at [73]-[74]).
The Tribunal confirmed that the applicant had been working in a breakfast café for nine or ten months and was earning $500-$600 per week, from which he was paying about $170 per week in rent. The Tribunal also noted that the applicant had a second-hand Toyota Camry and was receiving financial support from his father (who, it was noted, sends him money every four or five months or as needed). Further, the applicant owns no property and has “no money” or “anything else” in India (other than his family members) (at [75]-[79]).
The Tribunal explained that, when asked how the Graduate Diploma (for which he was enrolled between July 2023 and July 2025) would assist him with his future career, the applicant told the Tribunal that it would teach him new skills (particularly management skills) and that he would “learn how to run a business” (at [80]).
The Tribunal explained that it had given the applicant a further opportunity to comment on the fact that he had only completed two courses in the four and a half years since arriving in Australia (noting that one course was only two months long) and the applicant told the Tribunal that he “had already responded to that aspect of [his] life” (at [81]).
The Tribunal discussed the applicant’s plans to start his own business, a hotel or restaurant upon his return, noting that his answers focussed on starting a restaurant. The Tribunal found the applicant’s answers about how the courses would assist him with his goal of starting a business to be “quite limited”. The Tribunal considered that he had “not actually done any research” about what he would do upon his return. It was noted that the applicant had claimed that he would need 20 to 25 employees for the business but could not explain how he had arrived at that figure. Further, the Tribunal found it “curious” that the applicant would start looking for places to set up a business upon his return to India, noting that he had only one year of experience as a chef. The Tribunal did not find the applicant’s evidence to be “particularly reliable” in this regard (at [82]-[85]).
The Tribunal explained that the applicant had advised the Tribunal that he had not researched how the Graduate Diploma would assist him with his future plans but claimed that it would give him more information and some management skills (at [86]-[87]).
The Tribunal noted that the applicant had given evidence that he had no military service requirements in India and that his parents come from a peaceful area of India. Further, he was not in a relationship and had 10 or 15 friends in Australia (at [87]).
The Tribunal explained that it had discussed with the applicant why he could not study similar courses in India and the applicant had claimed that the training and class ratios in Australia are better. The Tribunal determined that that it was clear that the applicant had not considered further study in India but had acknowledged that there was a Hospitality Management course which was not far from his home area. The Tribunal did not find the applicant’s evidence persuasive and determined that the applicant had not applied himself to understanding what was required of him or how his chosen courses would fit into his future plans (at [88]-[90]).
The Tribunal continued:
91.So that was the sum total of all of your information. I took the information in the PRISMS report, being the information about your study history and your enrolment study, that was put to you under section 359AA of the Migration Act, because the information is information that would be part of the reason for affirming the decision under review. The reason being that looking at that information in the absence of hearing from you indicates a lack of application to your study here in Australia and that is why I gave you time to think about that. We adjourned for about 15 minutes, you came back, I asked for your response, you told me that the information put to you was true. You were given an opportunity to think about whether you needed more time to comment, and you told me that you did not need more time. I am satisfied that I have put that information to you properly under section 359AA of the Act.
The Tribunal considered it was “more likely than not” that there would be similar courses available to the applicant in India and that the applicant had not researched that possibility (at [92]).
The Tribunal accepted that the applicant had familial ties to India (being his parents and his brother, who was married with a child), that he remained emotionally connected to his family and that they would present a significant incentive for him to return. The Tribunal noted, however, that the applicant had no other significant ties or assets that would offer a significant incentive for the applicant to return to India. The Tribunal was satisfied that there were no military service requirements and no political or civil unrest that would “induce him” to seek to remain in Australia indefinitely. Further, the Tribunal did not assess the applicant as having strong personal or community ties to Australia (at [94]-[97]).
The Tribunal then determined as follows:
98.My assessment of all of the evidence considered individually and cumulatively is that the Student Visa program has and is being used by you to get around the intentions of the migration program. In my view, based upon all of the evidence, there is evidence that the Student Visa program is being used by you to maintain ongoing residence here in Australia.
The Tribunal was not persuaded by the applicant’s evidence in relation to his knowledge of his intended future courses or in relation to his future plans. Further, the Tribunal did not consider that the applicant had “really thought about the utility of the courses upon his return” (at [101]-[103]).
After considering all of the documents, information and oral evidence before it (noting, in particular, that it had given due consideration to the applicant’s claimed depression), the Tribunal was not persuaded that the applicant was a genuine student and found that he “would not intend to comply with [his] visa conditions in relation to study” (at [107]-[110]).
Ultimately, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and thus did not satisfy cl 500.212 in Schedule 2 of the Regulations. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [111]-[114]).
Application to this Court
The application for judicial review filed by the applicant on 28 January 2022 contains two “grounds of review” as follows (without alteration):
1.The decision of the tribunal dated 11/01/2022 is affected by jurisdictional error because the tribunal failed to take in to account a relevant consideration.
2.The Tribunal member failed to determine that the appellant does not meet the requirements of cl.500.212 of the schedule 2 to the Migration Regulations 1994.
An affidavit sworn by the first applicant on 27 January 2022 (in support of the application for judicial review) also contains further “complaints” about the Tribunal’s decision and provides (without alteration):
1.I applied to the Department of home affairs for student visa subclass 500 on 28/08/2019 and the delegate decided to refuse my application on 19/02/2020.
2.The delegate decided to refuse my application because the delegate believed that I did not satisfy the requirement of c.500.212 of the schedule 2 of the Migration Regulations.
3.I then applied for review of the decision made by the delegate to refuse to grant me student visa which was affirmed by the Tribunal member on 11/01/2022.
4. Since I am in Australia, I have always complied with my visa conditions.
5.The department officer refused my application without considering the factors which prevented me from completed my studies on time.
6.During the processing of AAT proceedings, I submitted a complete submission addressing the key issues such as break down of my marriage, which were not noticed by the tribunal member.
7.I explained them clearly that after my divorce, I am focusing on my career and progressing in my current studies at Keystone College in Perth.
8.At the tribunal hearing, I explained that my intention is to complete my studies and return back to my home country to remain with my family. The tribunal member paid no attention and believed that I do not meet the criterion without clear explanation.
9.For the reasons stated above, I claim that AAT has made jurisdictional error in deciding my visa application.
On 29 April 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant first appeared before this Court on 16 February 2023. He did so without legal representation. He had the assistance of an interpreter in the Gujrati language. The applicant advised the Court that he had not received a copy of the Court Book or the Minister’s written submissions. The Court was satisfied that, while the applicant had been validly served, he had not actually received the relevant materials. The Court advised the applicant that, in the circumstances, he could either proceed to hearing (with the materials being translated to him in court) or he could adjourn the matter for two weeks (during which time the Minister would be required to provide further copies of the materials to him. The applicant opted to have the matter adjourned. The Court re-listed the matter for hearing on 2 March 2023.
The applicant again appeared before this Court on 2 March 2023. He appeared without legal representation but was assisted by an interpreter in the Gujrati language. On this occasion, the applicant had copies of the Court Book and the Minister’s written submissions with him.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 28 January 2022 (taken as read and in evidence), a Court Book numbering 133 pages (marked as Exhibit 1), written submissions filed by the Minister on 20 January 2023, an affidavit of service of Ms Georgina Ellis affirmed and filed on 8 February 2023 (taken as read and in evidence) an affidavit of service of Benjamin Mayne affirmed and filed on 20 February 2023 (also taken as read an in evidence).
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure 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 to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort, they most commonly include 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 ignores relevant 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) 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 decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he was studying and moved from a Masters-level course to “lower level” courses. He emphasised that he hoped to be granted the visa because he “wanted to study here and then return to India” and that he had provided “all of the evidence about his studies to the Tribunal”.
Unfortunately, the applicant’s oral submissions do not raise any allegation of jurisdictional error or any issue of the sort that this Court can address. This leaves the Court to assess the grounds of review as articulated but without much clarity or assistance from the applicant. Noting, however, that the applicant prepared his application for judicial review (and supporting affidavit) without legal assistance, the Court will, in its duty to him as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Consideration
As outlined above, the application for judicial review filed by the applicant on 28 January 2022 contains two “grounds of review” as follows (without alteration):
1.The decision of the tribunal dated 11/01/2022 is affected by jurisdictional error because the tribunal failed to take in to account a relevant consideration.
2.The Tribunal member failed to determine that the appellant does not meet the requirements of cl.500.212 of the schedule 2 to the Migration Regulations 1994.
The “grounds” raised by the applicant refer to the Tribunal’s failure to take into account relevant considerations. No particulars are provided. The Court notes, however, that paragraphs 5 to 8 of the applicant’s affidavit expand on that complaint and, read broadly, arguably provide examples of “considerations” that the applicant believes were not addressed or considered by the Tribunal.
Failure to take into account relevant considerations
Paragraphs 5, 6 and 7 of the applicant’s affidavit
Paragraphs 5, 6 and 7 of the applicant’s affidavit state (without alteration):
5.The department officer refused my application without considering the factors which prevented me from completed my studies on time.
6.During the processing of AAT proceedings, I submitted a complete submission addressing the key issues such as break down of my marriage, which were not noticed by the tribunal member.
7.I explained them clearly that after my divorce, I am focusing on my career and progressing in my current studies at Keystone College in Perth.
To the extent that the applicant claims that the Tribunal failed to consider the breakdown of his marriage or his resultant stress and depression as reasons for his incomplete studies, the Court disagrees for the reasons that follow.
The Tribunal acknowledged that the applicant was divorced and accepted that the breakdown of the applicant’s marriage would be have been difficult for him, stating:
57.I am satisfied that you are divorced from your wife. It seems to me that you have really had very little direct interaction with her. It was an arranged marriage. The divorce certificate was issued on 14 September 2021, some four or five months ago. And I do accept that notwithstanding it was an arranged situation, that that would have been very emotionally trying for you.
Further, the Tribunal acknowledged that the applicant had provided information about his “difficult circumstances”, as follows:
47.You say that you are not involved in any community or organisations in Australia because you want to focus on your studies, and that you had a previous history of stress, and also that you were separated from your spouse.
…
52.So, I take all of that information into account. There was a six-page statement of purpose. You outline some of the difficult circumstances that you had faced. You suffered from depression or you have been suffering from depression. You are going through a separation from your wife, and that made life stressful.
…
69.It seems to me that your reason for failing, or not progressing, rather, was in your mind due to the college itself primarily, and not due to any issues with you. I note in relation to your psychological problems, the depression and stress, you did not seek out any assistance when you well could have. I am concerned with that. It seems to me you did not take responsibility for your own situation.
…
71.Eventually, to your credit, you studied the Certificate III again and you were successful between 12 October 2020 and 10 October 2021 just gone. It seems, from what you tell me, that you had gotten on top of your psychological issues arising from your divorce. You had recovered sufficiently from your depression, you were living with friends who were able to provide you with some stability and support.
72.In relation to your marriage, and as I said, it was an arranged marriage, but you had lived only seven days together as husband and wife. When I asked you what had happened to your marriage you said that it was basically because you were committed to your studies here in Australia and that meant limited opportunities for you to return to India to be with your new wife. It is pretty clear to me that was the reason for the breakdown of the relationship.
It is clear from the paragraphs set out above that the Tribunal considered the applicant’s evidence in relation to his wife, the breakdown of his marriage and the applicant’s mental health issues when assessing whether the applicant met the criteria for the grant of the visa and the applicant’s claims that he was unable to study as a result of those circumstances.
The Tribunal also acknowledged that the applicant had given evidence that his marriage had broken down due to his “commitment to his studies in Australia”.
Any claim that the Tribunal failed to consider this evidence fails on a factual level.
No error arises in this regard.
Paragraph 8 of the applicant’s affidavit
Paragraph 8 or the affidavit provides:
8.At the tribunal hearing, I explained that my intention is to complete my studies and return back to my home country to remain with my family. The tribunal member paid no attention and believed that I do not meet the criterion without clear explanation.
The Court has reviewed the Tribunal’s written reasons and again disagrees with the applicant’s concerns in this regard.
The Court notes the Tribunal’s comments at [82]-[90] of its written reasons, wherein the Tribunal discusses in detail the applicant’s future plans upon his return to India and how his studies would assist him in that regard.
Further, it is noted that the Tribunal accepted that the applicant had strong familial ties in India, providing him with an incentive to return. In particular, the Tribunal stated:
94.In relation to the extent of personal ties to your home country, you obviously do. You have your parents and you have your brother, who is married and has a child. There were no other significant ties. You have no particular assets of property in your home country that would offer as significant incentives for your return.
95.I do accept that you are still emotionally connected and linked to your home family. I accept that they would present as significant incentives for you to return back to India at some future point in time. Your economic circumstances are not strong, you have been propped up to an extent by your father whilst you have been living here in Australia. You have been working here in Australia, but it seems to me that your course fees have been paid to a significant extent by your father.
The Tribunal also assessed the applicant’s economic and community ties but ultimately determined that the applicant was using the student visa program to “maintain ongoing residence here in Australia” (at [98]).
No error arises in this regard.
Other – failure to assess evidence and illogicality
Paragraph 4 of the applicant’s affidavit provides (without alteration):
4. Since I am in Australia, I have always complied with my visa conditions.
Arguably (and read broadly) paragraph 4 asserts that the Tribunal failed to assess evidence that demonstrated that the applicant had, in fact, complied with his visa conditions. More broadly, the applicant might be seen to suggest that the Tribunal’s findings are illogical.
There is no evidence before the Court that the Tribunal failed to assess any relevant material.
Relevantly, the Court notes the Tribunal’s assessment of applicant’s academic history as follows:
18.You had not completed any further course of study other than English at time of decision. You were not currently enrolled in any course of study at time of decision. You were given an opportunity to provide an explanation regarding non-compliance of condition 8202, but you chose not to respond. There were other reasons, but they seem to me to be the main reasons.
It is noted that the Department wrote to the applicant on 15 January 2020 inviting him to comment on information (CB 41-44). In particular, that letter stated (emphasis added) (CB 42):
PRISMS records also indicate that you were previously enrolled in the following courses:
•English for Academic Purposes (Levels 1, 2 & 3) (Intermediate to Advanced) (1 to 30 weeks);
•Master of Information Technology.
The CoE for the Master of Information Technology course was cancelled on 4 April 2019 due to unsatisfactory progress. The last date of your study in this course is recorded as 18 November 2018.
There is a study gap of five months from when you ceased studying the Masters course and started the English course. PRISMS records indicate that you finished the English course on 28 June 2019 and that you have not engaged in any study from that date. This amounts to nearly another seven months without study. This totals to approximately 12 months cumulatively of being in Australia on a student and an associated bridging visa without undertaking any formal studies.
Department records also indicate that you have not departed Australia since your last entry on 29 August 2018.
Your poor study history, significant study gaps and course changes indicate that you are not a genuine student and therefore may not meet the Genuine Temporary Entrant (GTE) criteria under clause 500.212 of the Migration Regulations 1994 (Cth). I also note that the English course you enrolled in and completed was at a lower level compared to the higher education course you had been granted your initial student visa to undertake. This indicates that you were in breach of condition 8202 of the Student (Subclass 500) visa you were holding at the time. This further indicates that you may be unable to meet the GTE requirements, as it appears that you do not intend to comply with the conditions of a Student visa.
You are invited to comment on the above information.
Timeframe for response
You must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.
The applicant was given 28 days within which to respond to that invitation. However, no response was provided by or on behalf of the applicant and the delegate correctly noted that it had no received no explanation for the applicant’s failure to comply with Condition 8202 in Schedule 8 of the Regulations.
The Tribunal also considered the applicant’s failure to remain enrolled in courses of study and the numerous courses in which the applicant had been enrolled, but which were subsequently cancelled (see [29]-[37]).
The Tribunal then explained as follows:
37.What that indicates to me, and I will discuss your responses, but that indicates to me from 31 July, around the time of your entry in 2017 to the present, you completed or have completed a two-month basic English for academic course, and a 12 month course, being a Certificate III in Commercial Cookery, so that is in a period of four and-a-half years.
38.That information in itself, subject to your responses, for me would be the reason or part of the reason for affirming the decision under review because it has a tendency to indicate that you have not fully applied yourself to your studies whilst living in Australia on Student Visas, or a Student Visa.
The Tribunal again discussed the applicant’s various enrolments and cancellations in its written reasons (at [64]-[70]), noting relevant discussions with the applicant in that regard (at [64]-[70]). The Tribunal noted:
81.I gave you an opportunity to comment on the fact that in four and-a-half years since you have been here you have finished only two courses, and one being a very brief course of only two months. You said to me that you had already responded to that aspect of your life.
The Tribunal was, broadly, concerned with the applicant’s lack of course progression and the limited study undertaken and successfully completed within the time that the applicant had been in Australia. The Tribunal ultimately made the following findings in that regard:
108.I am not persuaded that you are a genuine student here in Australia. Your study history, and I have given due consideration of your claims that you had depression, but your study track record to date is not indicative of you being a genuine student in this country.
109.I find in relation to your intention that you do not intend to genuinely stay in Australia temporarily. I have concerns in relation to your intention to comply with the visa conditions.
110.It is my finding that you would not intend to comply with the visa conditions in relation to study. Your track record to date does not indicate that you applied yourself in the past to your requirements as to study.
Based on the evidence before it, the Court is satisfied that the Tribunal’s findings were based on the available evidence. Nothing was overlooked.
In so far as the applicant suggests that the Tribunal’s findings were illogical or irrational, the Court also disagrees.
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality.
The court also notes that in SZMDS, Crennan and Bell JJ further explained that:
135.A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Here, it cannot be said that the Tribunal’s ultimate finding – that the applicant would not intend to comply with the visa conditions in relation to his study – was not open to it on the evidence before the Tribunal.
As outlined above, a considered reading of the Tribunal’s decision shows that the Tribunal did assess all of the evidence that it had before it. That evidence included the applicant’s previous study history (enrolments, enrolment cancellations and completed courses) and the applicant’s evidence in relation to the breakdown of his marriage and his claimed depression as reasons for his incomplete studies.
The Tribunal was concerned, however, that in the four and a half years that the applicant had been in Australia, he had only completed two courses, one of which was “very brief” (running for only two months) and the other being a 12 month course (at [37] & [81]). For the Tribunal, this indicated that the applicant had not applied himself to his studies whilst he was in Australia as the holder of a student visa (at [38]).
After careful consideration of the evidence before it, the Tribunal ultimately found that the applicant’s study history did not indicate that he was a genuine student, did not indicate that he would apply himself to any future studies and did not indicate that he would be likely to comply with his visa conditions in the future (at [108]-[110]).
Those conclusions were open to the Tribunal on the evidence before it. While the applicant may disagree with the Tribunal’s finding, and while this Court may have decided differently, that is not the test upon review. The findings made were legally sound.
No error arises in this regard.
Conclusion
The application for judicial review and supporting affidavit filed by the applicant on 28 January 2022 have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 March 2023
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