Pathirannahalage v Minister for Immigration
[2020] FCCA 3116
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATHIRANNAHALAGE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3116 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal erred in failing to assess the applicant’s genuine intention to stay in Australia temporarily – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), s. 499(2A). Migration Regulations 1994 (Cth), sch 2, cl 570.223(1), 572.223(1). |
| Cases cited: Ghimire v Minister for Immigration and Border Protection [2014] FCA 899. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. |
| First Applicant: | JANAKA NUWAN PATHIRANA KAHANDAWA PATHIRANNAHALAGE |
| Second Applicant: | LEEWANI NUWANGI AMARASURIYA |
| Third Applicant: | NATASHA DILKI PATHIRANA KAHANDAWA PATHIRANNAHALAGE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1911 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 13 November 2020 |
| Date of Last Submission: | 13 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms Robertson – Mills Oakley Lawyers |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The first and second applicants’ to pay the first respondent’s costs fixed in the amount of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1911 of 2017
| JANAKA NUWAN PATHIRANA KAHANDAWA PATHIRANNAHALAGE |
First Applicant
| LEEWANI NUWANGI AMARASURIYA |
Second Applicant
| NATASHA DILKI PATHIRANA KAHANDAWA PATHIRANNAHALAGE |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant is a citizen of Sri Lanka. The second and third applicants’ are the first applicant’s wife and daughter. The first applicant’s daughter was born in Australia. The first applicant was granted an initial Student (Class TU subclass 573) visa offshore on 22 December 2004, valid until 17 February 2005. The first applicant arrived in Australia on 2 January 2005 and has been granted a number of further student visas and a Subclass 485 Temporary Graduate visa since that time.
On the 23 February 2016, the first applicant applied for a further Student (Subclass 570) visa. A delegate of the Minister for Immigration (“the delegate”) decided to refuse the applicants’ a further visa on 21 June 2016. The delegate was not satisfied that the first applicant met the requirements of cl 570.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 24 May 2017, the Tribunal affirmed the delegate’s decision not to grant the first applicant his Student (Temporary) (Class TU) visa.
The applicants’ now seek judicial review of the Tribunal’s decision
The Administrative Appeals Tribunal Decision
At paragraph 8 of its decision, the Tribunal confirmed that as at the date of the application, the first applicant was enrolled to undertake an English for Academic Purposes course from 29 February 2016 until 3 March 2017 at the Global English College. The first applicant also produced a further letter of offer to undertake another English course for academic purposes. The first applicant also produced a statement of attainment for the English course that he had just completed, indicating that he had a B average, explained as an 80 – 89 Grade of Very Good, Able to express/grasp ideas effectively relative to the class level.
The first applicant told the Tribunal that he intends to work as a consultant in Sri Lanka, returning once he completes his Masters of Business Administration (“MBA”). When the first applicant’s 485 visa ceased, he went to enrol for an MBA, but the English requirements are at a higher level. The first applicant stated to the Tribunal that he needs to reach that level prior to commencing his MBA.
At paragraph 16 of its decision, the Tribunal noted that it discussed with the first applicant his study history in Australia, and noted that he had completed a Bachelors university qualification that was conducted in the English language.
At paragraph 18 of the Tribunal’s decision, when discussing with the first applicant the amount of time he had spent in Australia and whether the student visa program may be being used primarily for maintaining ongoing residence, he stated “No”, and that he is going back, his father is overseas, and his brother wants to expand his business.
At paragraph 19 of its decision, the Tribunal put to the first applicant that as he was a graduate from Southern Cross University, he was able to apply and have this qualification recognised in order to be able to be enrolled in the MBA course. As the first applicant had not done so, the Tribunal was of the view that this was evidence of him using his studies in English to prolong his stay in Australia. It was put to the first applicant that he had not made an application for English requirements waiver. The first applicant stated that the English requirement was such that he could not achieve the required band of English. The first applicant said that he struggled with English when he was studying and that he had to repeat some subjects that required English language skills.
At paragraph 25 of its decision, the Tribunal noted that the applicant is a married man and that his wife and child live with him in Australia. The first applicant’s child was born in Australia. The first applicant’s father works overseas whilst the first applicant’s mother and brother live in Sri Lanka. The first applicant works in Australia, in the information technology (“IT”) sector and he has obtained experience in management additionally. There was no information before the Tribunal to suggest that the applicant had breached Australian migration laws. The first applicant has returned to Sri Lanka since his initial arrival.
At paragraph 28 onwards of its decision, the Tribunal notes that the first applicant has been studying and working in Australia for the past 12 years. The first applicant has successfully completed a bachelor’s degree from Southern Cross University that was conducted in the English language. Whilst the Tribunal accepted that the first applicant may have struggled and repeated some subjects, nevertheless he finished his degree and has been employed in Australia in the IT field. The Tribunal accepted material post hearing, that the first applicant has applied to the University of New South Wales to study an MBA online. The correspondence does not suggest that the first applicant has been accepted in to the course or that the university has provided an offer of enrolment.
At paragraph 31 of its decision, the Tribunal placed great weight on the first applicant not making an application to the University of New South Wales to have his prior studies in English at an Australian university recognised, in order to obtain entry to his chosen course, a course of action which had been available to him. The Tribunal concluded that the first applicant was studying English courses in Australia in order to prolong his stay in Australia.
At paragraph 32 of its decision, weighing up the applicant circumstances, the Tribunal was of the view that, on balance, that the applicant did not intend to genuinely stay in Australia temporarily. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the first applicant a further Student (Temporary) (Class TU) visa.
Grounds of Judicial Review
The single ground of judicial review is set out in the initiating application filed with the Court on 20 June 2017. It is as follows verbatim:
Ground One
The AAT reviewer erred in failing to assess the applicant’s genuine intention to stay in Australia temporarily.
Particulars:
Failure to consider the visa applicant’s personal circumstances.
The Applicants’ Submissions
The first applicant appeared before the Court unrepresented. The first applicant did not request the assistance of an Interpreter. The Court was satisfied that the applicant’s English language skills were sufficient for him to meaningfully participate in the proceedings.
Despite Court orders, no written submissions or other material was supplied to the Court by the first applicant to support his case. Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court Books and the first respondents written submissions.
The Court explained the difference between merits review and judicial review, which the Court was conducting. The procedure by which the hearing would be conducted was also explained to the first applicant.
The first applicant told the Court that he needed to undertake further English language studies in order to effectively participate in the MBA course. This included English writing skills. The first applicant felt that the Tribunal did not properly consider this.
Following the first respondent’s oral submissions, the first applicant was asked if he had anything further he wished tell the Court. The first applicant replied “No”.
The First Respondent’s Submissions
The legal representative for the first respondent, in written submissions, noted that the single ground of review relied upon by the applicant does not identify the “personal circumstances” that the Tribunal allegedly did not consider. In the absence of any particulars to make this ground meaningful, it was submitted that this ground should not succeed: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]).
Clause 572.223(1) of the Regulations, requires the Tribunal to be satisfied that the first applicant was a genuine temporary entrant. In considering whether the applicant met these requirements, the Tribunal was required by s 499(2A) of the Act to consider Direction No 53, which in turn requires the Tribunal to then consider the first applicant against a list of factors. Whilst they are not to be used as a checklist, they are intended to guide decision-makers to weigh up the first applicant’s circumstances as a whole: (see Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 at [3]).
The Tribunal comprehensively considered all the first applicant’s claims, including his claims to need additional English language skills, and gave clear reasons for its findings. Insofar as the first applicant alleges that the Tribunal should have reached a different conclusion based on his personal circumstances, this ground seeks impermissible merits review: (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Consideration
The first applicant has been in Australia on temporary Student visas and a Graduate 485 visa since 2005. The first applicant claims that he needs to undertake further English language courses in order to then undertake an MBA course at the University of New South Wales. The single ground of judicial review simply states that the Tribunal failed to consider the applicant’s personal circumstances. This is a bare assertion and without particulars does not disclose jurisdictional error: (see WZAVW).
A perusal of the Tribunal’s decision indicates that the Tribunal considered the first applicant’s circumstances at paragraph 25, his immigration history at paragraph 27 and his study history at paragraphs 28 through to 33 of its decision. The Tribunal correctly instructed itself as to the relevant law including having regard to Direction No 53, including that it should not be used as a checklist, but as a guide for decision-makers to weigh up the first applicant’s circumstances as a whole.
In the absence of any particulars as to what aspect of the first applicant’s personal circumstances the Tribunal failed to consider, the application must fail. There is no material before the Court to indicate that there were other matters put forward by the first applicant which were relevant, that were not considered.
The Tribunal specifically considered the first applicant’s claim that he needed additional English language skills to undertake an MBA course. The Tribunal considered and rejected this claim at paragraph 31 of its decision, finding that the first applicant was instead using English Language Courses to prolong his stay in Australia.
The Court is satisfied that the finding by the Tribunal is not illogical, irrational or unreasonable and was open to it based on the evidence it had before it. There is nothing to indicate that the Tribunal did anything other than respond to the case that the first applicant advanced. It is apparent that the first applicant had a meaningful opportunity to put his case to the Tribunal and to provide evidence and argument in support of the position he wished to advance. It was for the first applicant to advance the case that he was a genuine temporary entrant. The first applicant failed to convince the Tribunal that he was, with the Tribunal finding that he was using study to maintain residence in Australia.
As the first applicant was unrepresented, the Court perused the decision record of the Tribunal. No jurisdictional error was apparent on the face of the record, which was not articulated by the applicant. As there is no jurisdictional error in relation to the first applicant, the second and third applicants’ case must also fail. The second and third applicants’ visas are dependent upon the first applicant having a valid visa as they are part of a family unit.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 November 2020
CORRECTION NOTE:
Order 3 amended pursuant to the slip rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) to include: first and second applicants’.
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