Pena v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 637
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pena v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 637
File number(s): PEG 333 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 12 August 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (class TU) subclass 500 – whether temporary stay criteria properly applied – whether failure to consider submission made – whether jurisdictional error – writs issued Legislation: Migration (LIN 19/047: Specification of Occupations—Subclass 187 Visa) Instrument 2019
Migration (LIN 19/048: Specification of Occupations—Subclass 482 Visa) Instrument 2019
Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019
Migration (LIN 19/219: Occupations for Subclass 494 Visas) Instrument 2019
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2, cll 494.225; 500.212
Ministerial Direction 69 Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications para 12
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Saini v Minister for Immigration and Border Protection [2016] FCA 858; (2016) 245 FCR 238; (2016) 153 ALD 276
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 6 October 2021 Date of hearing: 6 October 2021 Place: Perth Counsel for the Applicants: Ms S Frankel Solicitor for the Applicants: Estrin Saul Lawyers Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 333 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIANA YANETH PEDRAZA PENA
First Applicant
EDINZON SALDARIAGGA PASCUAS
Second Applicant
SARA LOREN SALDARIAGGA PEDRAZA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on
7 October 2020.3.A writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 12 June 2019 and determine it according to law.
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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicants, Ms Diana Yaneth Pedraza Pena (“Ms Pena”), Ms Sara Lorena Saldarriaga Pedraza (“Ms Pedraza”) and Mr Edinzon Saldarriaga Pascuas (“Mr Pascuas”) on 26 November 2020 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 7 October 2020. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant the applicants a Student (Temporary) (class TU) subclass 500 visa (“Student Visa”).
The Judicial Review Application sets out two grounds of review which appear at [11] (ground 1) and [25] (ground 2) below.
At hearing:
(a)the Court Book (“CB”) was marked as Exhibit 1;
(b)a copy of the ANZSCO Classification of Occupations for Unit Group 1341 (“ANZSCO Classification of Occupations”) was marked as Exhibit 2; and
(c)two affidavits of the applicants’ lawyer Ms Frankel were read.
BACKGROUND PRIOR TO THE TRIBUNAL DECISION
The background to this matter prior to the Tribunal Decision is as follows:
(a)Ms Pena is a citizen of Colombia who first arrived in Australia on a visitor (Class FA) (subclass 600) visa on 3 December 2018 (“Tourist Visa”). Ms Pena was joined by her teenage daughter, Ms Pedraza;
(b)Ms Pena’s husband, Mr Pascuas, had been granted a Student Visa on 22 June 2018 and subsequently arrived in Australia to commence studying;
(c)on 28 February 2019 Ms Pena, Ms Pedraza and Mr Pascuas lodged a combined application for the Student Visa;
(d)on 12 April 2019 the Delegate contacted the applicants’ lawyer requesting further information (“Request”) in relation to the genuine temporary entrant criterion for the Student Visa, requesting a response within 28 days;
(e)on 9 May 2019 Ms Pena responded to the Request, supplying supporting documents and a statement addressing the genuine temporary entrant criterion;
(f)on 28 May 2019 the Delegate’s Decision was to refuse the applicants’ Student Visa application. Mr Pascuas and Ms Pedraza were refused on the basis that they failed to meet the secondary criteria for grant of a Student Visa as their Student Visa status was reliant upon the Student Visa status of Ms Pena;
(g)on 12 June 2019 the applicants applied to the Tribunal for review of the Delegate’s Decision (“Tribunal Application”): CB 121-123;
(h)on 5 December 2019 the applicants provided information and documents to the Tribunal, including a confirmation of enrolment, in support of the Tribunal Application: CB 136-148;
(i)on 1 July 2020 the applicants provided further documents and submissions to the Tribunal in support of the Tribunal Application; and
(j)on 9 July 2020 Ms Pena and Mr Pascuas attended a hearing before the Tribunal (“Tribunal Hearing”), at which they were assisted by a Spanish interpreter: CB 233 at [6].
TRIBUNAL DECISION
On 7 October 2020 the Tribunal Decision affirmed the Delegate’s Decision: CB 232-237.
In the Tribunal Decision the Tribunal:
(a)summarised the applicants’ migration history: CB 235-236 at [27]-[28] and [33];
(b)identified the material before it, including the Delegate’s Decision and other documents, such as current certificates of enrolment, passports and enrolment status documents: CB 233 at [5];
(c)set out the background to the matter and the applicants’ submissions as set out in their written evidence and as stated in their sworn evidence to the Tribunal: CB 235 at [18] and [22];
(d)provided a detailed summary of the applicants’ evidence given during the Tribunal Hearing: CB 235-236 at [23]-[38];
(e)provided a summary of the country information which it had considered: CB 236 at [39]-[40];
(f)found that:
(i)the fact that Ms Pena’s immediate family, Mr Pascuas, Ms Pedraza and Ms Pena’s brother are all residing in Australia serves as a significant incentive for her to wish to remain living in Australia;
(ii)the fact that Ms Pena’s parents remain in Colombia might serve as an incentive for her to go back to Colombia; and
(iii)found that the family members who are presently in Australia are the closest to her, and therefore placed significant weight on that fact as evidence of a concern that the applicants may not wish to depart Australia at the end of their stay: CB 234-235 at [17];
(g)noted that Ms Pena had purchased an apartment in Colombia around seven years ago, and considered the fact that she does have some financial ties to Colombia and weighed those facts in favour of the applicants’ case: CB 235 at [20];
(h)found that Ms Pena had studied at university level and had obtained a Bachelor’s degree in Spanish and in English but was now seeking to study at a vocational level: CB 235 at [21];
(i)found that Ms Pena had experience in the workforce as explained in her written evidence, largely in an assistant role and that this work experience was in a field inconsistent with her current studies: CB 235 at [22];
(j)found that Ms Pena had considerable work experience and was earning a reasonable income in Colombia when she gave up her long-standing employment in Colombia and decided to study in Australia whilst on a Tourist visa, and therefore further found that she may not have had the right intention when applying for a Tourist visa and that this caused the Tribunal some concern: CB 235 at [22];
(k)noted that the fact Mr Pascuas was already in Australia on a Student Visa caused it some concern about the sincerity of Ms Pena’s application to study in Australia: CB 235 at [23];
(l)noted that Ms Pena was travelling with Mr Pascuas on a Visitor visa when Ms Pedraza was at an age where she would be impacted by the loss of her friendship groups by being uprooted from her school, and observed that it seemed odd to the Tribunal that a decision was made to stay in Australia and to not allow Ms Pedraza to finish her schooling in Colombia: CB 235 at [24];
(m)observed that it seemed that there must have been a pre-conceived plan for the family to move to Australia, and that it seemed odd that the applicants would give up their jobs, lifestyle and friends to travel to a foreign country just to allow Ms Pena to study on a temporary visa: CB 235 at [24];
(n)noted that when Ms Pena was asked whether Ms Pedraza was pleased with the change requiring Ms Pedraza to leave all her friends behind, Ms Pena said that “she was ok with that” and that Ms Pedraza was looking forward to the opportunity to meet new friends: CB 235 at [25];
(o)said that it expected there must have been a plan before travelling to Australia as the applicants did not return to Colombia to sort out their financial affairs after they arrived in Australia: CB 235 at [26];
(p)found that all the parties were inconvenienced by the change of plan and the cost involved in settling down in Australia: CB 235 at [27];
(q)found that the application for a Student Visa was made in February 2019 just prior to the time that the Visitor Visa would have expired on 4 May 2019: CB 235 at [28];
(r)did not accept the evidence of the applicants that they travelled to Australia and that Ms Pena decided she would study to improve her work prospects as Ms Pena was in a long-standing occupation with a steady job of seven years: CB 236 at [29];
(s)that Ms Pena was “now proposing to study a Diploma in Child Care”: CB 236 at [30];
(t)having regard to Ms Pena’s circumstances and where she is at in her career, was not satisfied that the study proposed would assist her in the future to improve her employment prospects in her home country or a third country. The Tribunal considered the vocational course proposed to be of marginal value to someone with Ms Pena’s many years of experience: CB 236 at [31];
(u)found there was a lack of evidence provided to the Tribunal and no adequate explanation about the reality of opening a child care centre in Colombia, and that if Ms Pena was seriously contemplating opening a child care centre in Bogota she would have had a more defined plan, and did not accept that the course were going to add value to Ms Pena’s prospects of getting employment in the future in Colombia as Ms Pena had not provided any convincing evidence to the Tribunal as to how she planned to implement the plan: CB 236 at [32];
(v)Ms Pena had travelled elsewhere internationally and stated she had not been refused a visa from any other country, a fact to which the Tribunal attached some weight in her favour on the basis that she had complied with the migration laws of other countries: CB 236 at [33];
(w)noted that Ms Pena had said that in spite of the fact that she studied English in Colombia she did not feel confident with her English skills in Australia as the previous studies were taught by Colombians and it was quite difficult for her to improve her skills, her accent and to practice English, and the Tribunal found that it could not make a finding about whether Ms Pena’s career will improve in Colombia by reason of the fact that she has studied in English in Australia: CB 236 at [35];
(x)took into consideration that Ms Pena did study English at a university in Colombia and that she had a prior interest in the subject, so that it was plausible that she would wish to update her skills in Australia and immerse herself in speaking English on a daily basis, and placed some weight in favour of her case based on these facts: CB 236 at [36];
(y)did not accept as fact Ms Pena’s statement that she planned to return to Colombia as she had everything in her own country and that she did not plan to stay in Australia as she has her friends, her culture and a job to go back to, because the applicants have not returned to Colombia since their arrival in Australia: CB 236 at [38]; and
(z)found it was not satisfied that Ms Pena intended to genuinely stay in Australia temporarily and that she did not meet cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 237 at [42], and that the criteria for the grant of the Student Visa was therefore not met: CB 237 at [43], and therefore affirmed the Delegate’s Decision: CB 237 at [44].
CONSIDERATION
The requirement for jurisdictional error
If the Tribunal Decision is affected by jurisdictional error, it may be set aside by this Court upon judicial review: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon the applicants to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1.The Second Respondent misconstrued or misapplied cl.500.212(a) of Schedule 2 to the Migration Regulations (Cth) (Regulations).
Particulars
a. The Second Respondent found that the First Applicant had an incentive to remain in Australia to be with her brother, husband and daughter, who all held temporary visas.
b. The Second Respondent made no finding that the First Applicant intended to maintain ongoing residence or stay indefinitely in Australia.
c. The requirements of subclause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) are concerned with how long the visa applicant intends to stay in Australia and nothing else (see: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [13]).
d. Therefore, the Tribunal misconstrued or misapplied cl. 500.212(a) of the Regulations
Applicants’ submissions
In relation to ground 1 the applicants submitted as follows:
(a)the Tribunal Decision was based on its assessment of whether Ms Pena met the genuine temporary entrant criterion which is concerned with, and only with, the intended length of an applicant’s stay in Australia: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”) at [13] per Allsop CJ;
(b)in Eros the Federal Court found that the Tribunal erred by finding that the visa applicant did not satisfy the genuine temporary entrant criterion without making any finding that she did not intend to stay in Australia temporarily, and wherein the Tribunal had expressed concerns about the visa applicant’s motivations but made no finding that she intended on staying in Australia indefinitely, instead finding that she intended on staying in Australia while her daughter was in Australia holding a student visa: Eros at [22] per Allsop CJ;
(c)in the present matter, the only factor to which the Tribunal attributed weight against Ms Pena was a finding that her husband, daughter and brother were in Australia and that this would serve as “a significant incentive” for her to wish to remain living in Australia. The husband and daughter in question are the other two applicants in the present matter. As dependent applicants, their period of stay in Australia is necessarily the same as that of Ms Pena;
(d)the Tribunal accepted Ms Pena’s evidence that her brother was the holder of a Student Visa, a temporary visa with a necessarily limited period of stay, which would have been granted on the basis that Ms Pena’s brother was a genuine temporary entrant which was a mandatory requirement in cl 500.212(a) of Sch 2 to Migration Regulations for grant of all student visas;
(e)no finding was made by the Tribunal that Ms Pena was utilising the Student Visa programme to maintain residence in Australia or that she intended an indefinite stay in Australia;
(f)much the same as the Tribunal in Eros, the Tribunal in this matter expressed various concerns about Ms Pena’s motivations, but such concerns are not findings: Eros at [22] per Allsop CJ;
(g)in fact, the Tribunal made no findings whatsoever about Ms Pena’s motivations in applying for a Student Visa beyond its final conclusion that she did not meet the genuine temporary entrant criterion; and
(h)in circumstances where the only finding against Ms Pena’s claim to be a genuine temporary entrant was that she intended to stay in Australia with her family, also the holders of temporary visas, it was not open to the Tribunal to then find that she did not meet the genuine temporary entrant criterion. In making that finding, the Tribunal therefore misconstrued or misapplied the criterion.
Minister’s submissions
In arguing that ground 1 was not made out the Minister submitted as follows:
(a)the Minister accepts, as was confirmed in Eros, that cl 500.212(a) of Sch 2 to the Migration Regulations is concerned with, and only, with the intended length of an applicant’s stay in Australia;
(b)if the Tribunal’s reasons only reflected the matters set out in the applicants’ submissions, the applicants’ submission would have some merit. However, the following aspects of the Tribunal’s reasons must also be taken into account:
(i)the Tribunal’s “concern” at CB 235 at [22] that Ms Pena may not have had the right intention when applying for a Tourist Visa became, after further analysis and consideration at CB 235-236 at [23]-[28], an express finding that the evidence of Ms Pena that she and her daughter had travelled to Australia and that Ms Pena then decided to study to improve her work prospects was not accepted: CB 236 at [29]. That is, the Tribunal rejected Ms Pena’s evidence that she travelled to Australia as a “tourist”, and it rejected the contention that she had decided she “would study to improve her work prospects”;
(ii)building from the finding that Ms Pena had not come to study in Australia to “improve her work prospects”, was the Tribunal’s further express finding that the chosen course was not going to improve Ms Pena’s employment prospects for the purposes of opening a child care centre in Columbia in the future in her home country: CB 236 at [32];
(iii)the Tribunal expressly rejected Ms Pena’s evidence that she planned to return to Colombia: CB 236 at [38]; and
(iv)most importantly, the Tribunal concluded its assessment: CB 237 at [42] by finding that it was not satisfied that Ms Pena intended genuinely to stay in Australia temporarily;
(c)in light of the above:
(i)the question is whether an applicant intends to stay “temporarily”, which should not be read as meaning anything other than “indefinitely” or “forever”. While both are clearly not “temporary”, what is, or is not, a “temporary” period is a question of fact. As such, the absence of a finding that an applicant intends to stay “indefinitely” is not akin to a finding that an applicant intends to stay “temporarily”; and
(ii)it is a matter for the applicants to present what evidence and arguments they choose to satisfy the Tribunal that they meet the genuine temporary entrant criterion. The Tribunal must be “positively” satisfied that the genuine temporary entrant criterion is met. Here, the Tribunal was unable to reach that positive state of satisfaction that Ms Pena intended genuinely to stay in Australia temporarily. To the contrary, it found that it was not satisfied that Ms Pena intended genuinely to stay in Australia temporarily;
(d)the “concern” expressed by the Tribunal at CB 234-235 at [17] was an introductory comment which was then followed by the clear findings that have been identified above, and is a “concern” entirely distinct from what the Federal Court was referring to in Eros. There the Tribunal had found that the applicant had an intention to remain in Australia while her daughter was here (for a period of two years), and only expressed a concern that the applicant was using the Student Visa program to maintain ongoing residence in Australia, and did not make any finding as to whether the applicant intended genuinely to stay in Australia temporarily. That is clearly not the case here. While the Tribunal expressed concern at CB 234-235 at [17] and expressed further concerns at CB 235 at [22] and [23], it then went on to engage in a detailed analysis and make relevant findings; and
(e)when the reasoning in the Tribunal Decision is read as a whole, it is clear that the Tribunal Decision shows no misconstruction or misapplication of cl 500.212(a) of Sch 2 to the Migration Regulations. Ultimately, the Tribunal rejected Ms Pena’s evidence that she applied for the Student Visa to improve her work prospects, found that her course would not have value for her future (in child care or more generally) and also rejected her evidence of why she intended to return to Colombia. It was entirely open to the Tribunal in these circumstances to conclude that it was not satisfied that Ms Pena intended to genuinely stay in Australia temporarily.
Consideration – ground 1
Relevant legislative provisions
Clause 500.212 of Sch 2 to the Migration Regulations, as at 7 October 2020, provided as follows:
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) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Clause 500.212 of Sch 2 to the Migration Regulations and the judgment in Eros
The words of cl 500.212 of Sch 2 to the Migration Regulations were judicially considered by the Federal Court in Eros. In Eros, the Federal Court held that “subcl (a) [of Sch 2 to the Migration Regulations] is concerned … with the genuine intention as to length of stay, and nothing else”: Eros at [13] per Allsop CJ (emphasis in original).
The Federal Court in Eros at [20] per Allsop CJ quoted and adopted the meaning of the word “temporary” referred to in the context of construing the phrase “temporarily absent from Australia” in Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674 (“Hafza”); FCR at 451 per Wilcox J (applied in Saini v Minister for Immigration and Border Protection [2016] FCA 858; (2016) 245 FCR 238; (2016) 153 ALD 276 (“Saini”) at [19] and [20] per Logan J) as follows:
The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent” … I think that the adjective temporary was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of temporary absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.
Eros and the present case
In the present case, as in Eros (see Eros at [20] per Allsop CJ), the Tribunal based its entire decision on whether the applicants, and in particular Ms Pena, satisfied cl 500.212(a) of Sch 2 to the Migration Regulations, as is apparent from the conclusion drawn at CB 237 at [42]-[43], summarised at [6(z)] above, where the Tribunal:
(a)said it was not satisfied that the applicants intended genuinely to stay in Australia temporarily, and therefore found that they did not meet cl 500.212(a) of Sch 2 to the Migration Regulations: at [42]; and
(b)as indicated by the use of the phrase “[g]iven the above findings” at the commencement of the paragraph, used the finding at [42] to find that the applicants did not meet the criteria for the grant of the Student Visa: at [43].
In Eros at [19] per Allsop CJ the Federal Court set out, quite extensively, parts of the Tribunal’s reasoning in that case, including findings on a number of matters similar to matters in respect of which the Tribunal made findings in relation to Ms Pena, as follows:
(a)that the Tribunal was not convinced in relation to the value of the course to the applicant’s future;
(b)that the Tribunal did not consider that the proposed course of study would assist the applicant to obtain employment or improve her employment prospects in her home country;
(c)that the Tribunal did not consider that personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia, but considered the presence of her immediate family in Australia, and in particular the presence of her daughter, to be a strong incentive to remain; and
(d)that a second applicant could earn more in Australia than in their home country, and this was a significant incentive not to return to their home country.
In Eros at [19] per Allsop CJ the Federal Court set out the Tribunal’s conclusion, as follows:
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
In Eros at [20] per Allsop CJ relevant to cl 500.212(c) of Sch 2 to the Migration Regulations the Federal Court then said as follows (emphasis added):
One can see in these paragraphs consideration of factors that might inform some conclusions about various aspects of the chapeau, such as whether she intended genuinely to be a student, in particular, through the operation of subcl (c). But the Tribunal made no finding that she did not genuinely intend to stay as a student.
In Eros at [22] per Allsop CJ relevant to cl 500.212(c) of Sch 2 to the Migration Regulations the Federal Court further said as follows:
There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.
The Court notes that although Eros was handed down in July 2020, the Tribunal Decision made in October 2020 does not advert to Eros at all, a fact which might support an inference that the Tribunal was not aware of, or failed to consider, matters arising therefrom.
Obviously, each case will fall to be determined upon its particular facts, but it is nevertheless worth observing the similarities between cases when endeavouring to determine the proper outcome. In this case the Tribunal had regard to many matters similar to those which the Tribunal in Eros had regard, and treated them similarly: see [6] and [18] above. And, as in Eros, there was simply no finding by the Tribunal that the applicants, and particularly Ms Pena, did not intend genuinely to stay in Australia “temporarily” and “as a student”, and the Tribunal here, as in Eros, did not grapple with the issue of whether there was any intention to genuinely stay in Australia temporarily as a student, and dealt with other issues (see, for example, the Tribunal’s references to “concern” and “intention”: CB 235 at [22]-[23]), without dealing with the essential criterion for the purposes of cl 500.212(a) of Sch 2 to the Migration Regulations and the chapeau thereto. In dealing with those other issues the Tribunal did not do so in a manner which would confidently enable the Court to draw an inference that the Tribunal made, or intended to make, a finding concerning Ms Pena’s intention to genuinely stay in Australia temporarily as a student. The fact that the Tribunal made findings that the course of study embarked upon by Ms Pena would not improve her work prospects, and that Ms Pena did not intend to return to Colombia, does not go so far as to say, or to allow the inference to be drawn, that the Tribunal considered that Ms Pena did not intend to genuinely stay in Australia temporarily “as a student”.
In the above circumstances, the Court considers that the Tribunal misconstrued cl 500.212 of Sch 2 to the Migration Regulations and therefore misdirected its consideration by asking itself the wrong question. Ground 1 of the Judicial Review Application is therefore made out and establishes jurisdictional error in the Tribunal Decision. Plainly this was a material jurisdictional error in an MZAPC sense, as had the Tribunal considered the right question as to Ms Pena’s intention to genuinely stay in Australia temporarily as a student it is a realistic possibility that the Tribunal Decision may have had a different outcome.
GROUND 2
Ground 2 of the Judicial Review Application is as follows:
2.The Second Respondent’s decision was affected by jurisdictional error as it failed to take into account a relevant consideration in reaching its decision that the First Applicant did not meet the requirements of subclause 500.212(a) of Schedule 2 to the Regulations.
Particulars
a. In a submission to the Second Respondent dated 29 July 2020, the First Applicant raised the fact that her chosen course of study did not qualify her for any occupations currently on any list of eligible skilled occupations for the purposes of Australian migration.
b. This fact was relevant to consideration of the First Applicant’s potential circumstances in Australia, and more broadly whether she had a genuine intention to stay in Australia temporarily.
c. The Second Respondent failed to make any finding or give any consideration to this claim in deciding whether the First Applicant genuinely intended a temporary stay in Australia.
Applicants’ submissions
In relation to ground 2 the applicants submitted as follows:
(a)the submissions provided by the applicants to the Tribunal on 1 July 2020 claim that the course which Ms Pena was studying did not lead to a qualification which would create a pathway to permanent residence for her in Australia: CB 207;
(b)the Tribunal Decision makes no mention of this claim;
(c)the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ summarised the circumstances in which it may be found that a Tribunal failed to consider an issue as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(d)the following paragraphs address the elements of the test outlined in WAEE as applied to the current case:
(i)as to whether the reasons are otherwise comprehensive the Tribunal Decision is comprehensive only in relation to the events of the Tribunal Hearing (on 9 July 2020), and while they mention the documents filed on 5 December 2019, they do not refer to the applicants’ written submission filed with the Tribunal on 1 July 2020: CB 233;
(ii)as to whether the issue has been identified at some point, during the Tribunal Hearing, the topic of whether Ms Pena’s course could lead to a permanent stay in Australia was not canvassed, and the issue was not identified at any point in the Tribunal Decision which discusses Ms Pena’s course of study only to the extent that the course differs from her previous studies: CB 236;
(iii)as to whether the matter is subsumed in findings of greater generality, the Tribunal made very limited findings in the Tribunal Decision and essentially no general findings beyond the finding that Ms Pena did not meet the genuine temporary entrant criterion, and there was, for example, no finding that Ms Pena intended to maintain ongoing residence or to circumvent the intentions of the Student Visa programme. In fact, no findings at all were made in relation to Ms Pena’s intentions when applying for the Student Visa;
(iv)as to whether there is a factual premise upon which a contention rests which has been rejected, there are no factual premises rejected in the Tribunal Decision which relate to the value of the course to Ms Pena’s ability to remain in Australia;
(v)as to whether the issue was raised by the evidence advanced on behalf of the applicant, the issue was raised in a submission provided by the applicants to the Tribunal on 1 July 2020; and
(vi)as to whether the issue would have potentially been dispositive of the Tribunal’s review of the Delegate’s Decision, the consideration of whether the course of study to be undertaken indicated that Ms Pena intended to stay temporarily as a student or could have led to a permanent visa is relevant to determining Ms Pena’s intention in relation to her stay in Australia. It may be inferred from studying a course which directly leads to an occupation which is on a relevant skilled occupation list that a visa applicant may be aiming to stay permanently in Australia. On the other hand, studying a course which does not lead to a permanent visa supports the claim that an applicant intends only a temporary stay;
(e)in the Tribunal Decision the Tribunal expressed several concerns as to Ms Pena’s intentions in Australia but made no related findings other than the overall finding that she did not meet the genuine temporary entrant criterion. Only one factor was given weight against Ms Pena’s application (the presence of close family members in Australia), as opposed to several factors given weight in favour of her application;
(f)that in order to qualify for an employer sponsored permanent visa Ms Pena had to be employed in a nominated occupation for at least three years on a full-time basis and at the level of skill required for the occupation: Migration Regulations, Sch 2, cl 494.225(1)(a); Migration (LIN 19/219: Occupations for Subclass 494 Visas) Instrument 2019 (Cth);
(g)if the Tribunal had made a finding that Ms Pena’s course did not lead to a permanent visa pathway, this would have been strong evidence of her intention to remain in Australia temporarily that likely would have influenced the Tribunal’s overall finding; and
(h)applying the test in WAEE, it can therefore readily be inferred that the Tribunal did not consider the submission made on behalf of the applicants that Ms Pena’s course did not lead to a permanent migration outcome.
Minister’s submissions
In submitting that ground 2 was not made out the Minister submitted as follows:
(a)that the Tribunal failed to consider the following submission:
“Having reviewed the career opportunities and the occupation of childcare worker, we note that the occupation is not in any skill occupation list in Australia neither in the graduate occupation list in Western Australia. As such, it is not clear how the case officer concluded that the studies would lead to a permanent residence in Australia…”: CB 207
(b)it is claimed, and the Minister accepts, that the Tribunal made no mention of this submission, however, the Minister does not accept that this identifies any jurisdictional error;
(c)the absence of any reference to the submission is sensibly understood as being because it was not relevant or material to the Tribunal’s consideration or determination of the issues on review: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 (“SZGUR”);
(d)the Minister notes that the relevance of a course to an applicant’s career opportunities in Australia is not a matter that is identified in Direction 69: Direction No. 69 – Assessing the genuine temporary entry criterion for Student visa and Student Guardian visa applications (“Direction 69”) which commenced on 1 July 2016. Rather, Direction 69 at [12] provides for consideration of:
(i)whether the course will assist the applicant to obtain employment or improve employment prospects in their home country; and
(ii)relevance of the course to the student’s past or proposed future employment either in their home country or a third country,
and the Tribunal clearly addressed these two matters at CB 236 at [32]-[36];
(e)further, the submission was made as a result of the Delegate concluding that the studies to be undertaken by Ms Pena “would lead to permanent residence in Australia”. That submission would only be relevant if the Tribunal was also minded to reach the same conclusion. It is clearly apparent from the Tribunal Decision that it did not make any such finding;
(f)in these circumstances it is understandable why the Tribunal made no specific reference to the submission as it was simply not relevant to the Tribunal Decision. It would have been a different matter if the Tribunal was also of the view that the applicant was intending to use her child care studies to seek future employment in Australia;
(g)further, the Tribunal rejected Ms Pena’s claim that she was studying to improve her “work prospects” in her home country and found that the course provided only “marginal value to someone with her many years of experience”. Read fairly, these findings were such that the premise upon which Ms Pena wanted to study and the career she wanted to engage in (to open a child care centre or work in child care) had been rejected. Accordingly, the Tribunal was not required to make a finding about whether the absence of a child care based occupation on the skilled visa list weighed in favour of Ms Pena; and
(h)finally, and in any event, the submission made is factually inaccurate. A “Child Care Centre Manager” and a “Child Care Worker (group leaders only)” are on the skilled occupation list: Migration (LIN 19/047: Specification of Occupations—Subclass 187 Visa) Instrument 2019; Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019; Migration (LIN 19/048: Specification of Occupations—Subclass 482 Visa) Instrument 2019. Accordingly, any failure by the Tribunal to take into account the submission could not have realistically deprived Ms Pena of a successful outcome.
Consideration – ground 2
Law
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J, it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 (“Singh – Full Court”) at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
The Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, but such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
Analysis
The relevant claim appears at CB 207 where the applicants’ 1 July 2020 submissions to the Tribunal asserted that the “occupation of childcare worker” was not in “any skill[ed] occupation list in Australia”, and it was therefore “not … clear how the case officer concluded that the studies would lead to permanent residence in Australia”.
The Minister concedes that the claim was neither referred to nor considered by the Tribunal. The Minister, citing SZGUR, says it can be inferred that the Tribunal did not consider the submission relevant, and in that regard also cites Direction 69 which is directed at a consideration by the Tribunal of an applicant’s future employment outside of Australia. The Minister also says that Ms Pena could not have been deprived of a successful outcome because “child care manager” and “child care worker (group leaders only)” are on the skilled occupation list.
Dealing with the last point in the previous paragraph first, the Minister’s submission is misconceived. The Minister’s submission highlights the misconception, referring to two categories of occupation which are different from the occupations referred to in the applicant submissions at CB 207. Further, the ANZSCO Classification of Occupations, does not include “child care worker” as an occupation category. And, even if it did, in order to qualify for an employer sponsored permanent visa Ms Pena would have had to have been employed in a nominated occupation for at least three years on a full-time basis and at the level of skill required for the occupation: Migration Regulations, Sch 2, cl 494.225(1)(a); Migration (LIN 19/219: Occupations for Subclass 494 Visas) Instrument 2019 (Cth). Thus, Ms Pena was not proposing to engage in a course of study which would have led to eligibility for a permanent visa, and that was a claim which the Tribunal ought to have considered when determining whether Ms Pena intended to genuinely stay in Australia temporarily as a student.
The fact that Direction 69 is directed at matters related to an applicant’s future employment outside of Australia does not render irrelevant, or obviate the necessity to consider, a claim that because the qualification intended to be undertaken is not one which puts an applicant on a career path that leads to permanent residence, that that might be indicative of an intention to not stay permanently in Australia, or more relevantly, an intention to stay temporarily in Australia as a student. The claim and its associated submission made in this matter to that effect was logical, rational and relevant to Ms Pena’s circumstances, and ought to therefore have been considered by the Tribunal. For those reasons also the Minister’s submission, citing SZGUR, that the Tribunal must have considered the claim and its associated submission to be irrelevant must fail.
In the above circumstances, the claim was made and clearly articulated, but the Tribunal did not consider it and therefore did not engage in an active and intellectual process directed at the claim. Further, the claim, if made out, might have been dispositive of the Tribunal Application, and was certainly material in an MZAPC sense in that it gives rise to a realistic possibility of a different outcome to the Tribunal Application.
For the reasons set out at [31]-[35] above, ground 2 of the Judicial Review Application is made out, and establishes jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that both grounds 1 and 2 of the Judicial Review Application have been made out and that they establish material jurisdictional error in the Tribunal Decision, and therefore there should issue writs of:
(a)certiorari quashing the Tribunal Decision; and
(b)mandamus requiring the Tribunal to re-hear the Tribunal Application and determine it according to law,
and there will be orders accordingly.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 August 2022