Perera v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1109
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perera v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1109
File number: MLG 3262 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 31 October 2024 Catchwords: MIGRATION – student (subclass 500) visa – visa refused – breach of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) – decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider relevant facts – whether Tribunal applied the wrong legal test –Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) sch 16, item 10
Migration Act 1958 (Cth) pt 5, div 5, ss 359(2), 359A, 359AA, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth) item 3, div 1, pt 2, sch 2
Migration Regulations 1994 (Cth) sch 2 cls 500.212, 500.212(a), 500.111
Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
ARG15 v Minister for Immigration and Border Protection [2016]FCAFC 174
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
Craig v State of South Australia [1995] HCA 58
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
Htun v Minister for Immigration & Multicultural Affairs[2001] FCA 1802
Minister for Immigration & Border Protection v Singh[2014] FCAFC 1
Minister for Immigration & Citizenship v Li[2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 24
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80
Tickner v Chapman [1995] FCA 1726
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 30 July 2024 Date of hearing: 16 October 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr Cunynghame Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3262 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAYASURIYA ARACHCHIGE SASANKA HILERIYAN PERERA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to Item 10 of Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.
2.The applicant’s application for judicial review filed on 30 October 2018 is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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 Gostencnik
The applicant is a citizen of Sri Lanka who arrived in Australia on 22 October 2011: Court Book (CB) 30. On 15 March 2017, the applicant applied for a Student (Class TU) (Subclass 500) visa: CB1-CB17. On 22 March 2017 the applicant also provided a statement addressing the Genuine Temporary Entrant (GTE) criterion: CB21-CB23. A delegate of the (then) Minister for Immigration and Border Protection refused the visa application on 29 June 2017, and a notification of the delegate’s decision was sent to the applicant by post: CB24-CB32. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student in accordance with the applicable criteria under cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate noted that the course the applicant was seeking to study would extend his stay in Australia for approximately 12 years – ending on 30 August 2023. The delegate considered that the significant period the applicant spent in Australia since his initial arrival, the lack of regular departure, and his enrolment in various courses without completion; as indicating that the applicant was using the visa to extend his stay in Australia. Consequently, the delegate was not satisfied the applicant intends to genuinely stay temporarily in Australia as outlined in cl 500.212(a): CB28-CB31.
The applicant subsequently applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB33-CB34. Receipt of the application was acknowledged in correspondence from the Tribunal dated 7 July 2017: CB36-CB38. The correspondence advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible: CB37. The applicant provided the Tribunal with a statement dated 1 September 2018 addressing the GTE criterion: CB39-CB40.
By correspondence dated 13 August 2018, the Tribunal requested the applicant to: complete and return an enclosed ‘Request for Student Visa Information’ form; and provide or attach information about the proposed course(s) of study and his entry and stay in Australia as a student. CB42-CB44. By correspondence dated 4 September 2018, the Tribunal invited the applicant to attend a hearing scheduled for 25 September 2018: CB85-CB88. The correspondence also requested the applicant to read and complete an enclosed ‘Response to Hearing Invitation – MR Division’ form to confirm attendance at the hearing, and to use the form to provide or attach any additional or new information the applicant wanted the Tribunal to consider: CB94-CB96. In addition, the correspondence attached the Ministerial Direction No.69 made under s 499 of the Migration Act 1958 (Cth) (Act): CB89-CB93, and the applicant was asked to provide the Tribunal with:
(1)a copy of his current Confirmation of Enrolment (COE) or other documents that show he was then enrolled in a course of study as defined in cl 500.111 of Sch 2 to the Regulations;
(2)documents showing past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion, as well as any documents evidencing any work related to past or intended studies in Australia; and
(3)a written statement addressing the issue of whether the applicant was a genuine applicant for entry and stay as a student by referring to Direction No.69: CB87.
The applicant attended the hearing where he presented arguments and gave evidence with the assistance of a registered migration agent: CB102-CB104 and CB113 at [5] respectively.
On 25 September 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa: CB110-CB111, and on the same day, informed the applicant of the decision by email correspondence sent to his representative as the authorised recipient attaching, inter alia, a copy of the Tribunal’s Statement of Decision and Reasons (Decision): CB109-CB119.
By application filed on 30 October 2018 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal’s decision. The applicant’s grounds of review are as follows (reproduced verbatim):
1.The Administrative Appeals Tribunal did not afford procedural fairness.
2.The Administrative Appeals Tribunal did not consider the arguments, facts and evidence in the case.
3.The Administrative Appeals Tribunal applied the wrong legal test.
Turning first to the Tribunal’s decision, the Tribunal set out at [1]-[8] of the Decision some introductory matters, criteria and mandatory considerations pertaining to student visas. It is evident from the Decision that in assessing whether the applicant satisfied the criterion in cl 500.212 of Sch 2 to the Regulations, the Tribunal had regard to Direction No.69. The Tribunal discussed its assessment of the applicant’s claims and evidence and set out its conclusions at [9]-[47].
The Tribunal’s primary consideration was whether the applicant met the criterion in cl 500.212(a), namely whether he was a genuine applicant for entry and stay by having regard, relevantly, to the applicant’s circumstances and immigration history.
The Tribunal noted at [15] that since the applicant’s initial arrival in Australia, he has been residing in Australia for almost 12 years; whilst, holding several student visas, had been enrolled in various courses and worked multiple jobs in service industries. The Tribunal considered the applicant’s earlier mentioned GTE statements, a further GTE statement provided to the Tribunal on 25 August 2018 and material provided to the Tribunal in response to its (as then in force) s 359(2) invitation: Decision at [11]-[15]. Information from the Provider Registration and International Student Management System (PRISMS) indicating the applicant had: enrolled in 14 courses since his initial arrival; only completed 2 courses, with the remaining 12 either not complete or cancelled, was put to the applicant during the hearing pursuant to (as then in force) s 359AA of the Act. The applicant was invited to comment or respond, and stated the information was correct. He said he encountered poor management by the education provider and several issues with transferring course credit from prior subjects: Decision at [16]-[20].
Despite the applicant’s alleged ties to his home country by way of family, wealth and a secured job position through his family’s company, the Tribunal: noted at [30] that the applicant had not returned to visit Sri Lanka since December 2015; noted at [31] that the ties were not sufficient to attract the applicant to return since 2011 and doubted, also at [31], whether the ties would serve as a significant incentive for the applicant to return to Sri Lanka in the future. At [29], the Tribunal opined that the applicant did not have reasonable reason why he is unable to undertake the study in his home country, nor as the Tribunal noted at [40], did the applicant explain how the courses undertaken in Australia would assist his future employment in Sri Lanka. The applicant proffered his ties to Australia through satisfactory living circumstances, accommodation, a relationship, employment, financial security and community. The Tribunal formed the view at [36] that the applicant developed a well ordered and well-structured life in Australia after a period of residence that commenced in November 2011. The Tribunal noted that his ties to Australia through family; living circumstances and accommodation; relationship, sometime study, employment; financial security and community; are significant, giving him purpose and direction. At [37], the Tribunal opined that these ties presented a strong incentive for the applicant to remain in Australia.
The Tribunal considered the applicant was using the student visa program to maintain ongoing residence in Australia and to circumvent the intentions of the migration program: Decision at [37]. Moreover, considering: the value of the courses to the applicant’s future; his failure to explain why or how the proposed courses would be of benefit to his future plans in Sri Lanka; that he would obtain a position in the family company irrespective of whether the proposed study was complete and that his future was “assured”: Decision at [40]-[41], the Tribunal assessed at [42] that the real value of the proposed courses of study to the applicant was that he could remain resident in Australia for another 5 years. The Tribunal noted at [44] the applicant’s travel to New Zealand, and that there was no evidence of any breaches of any visas issued to the applicant, and therefore made no adverse findings.
Consequently, the Tribunal was not satisfied that the applicant intends to stay in Australia temporarily as required by cl 500.212 of the Regulations and affirmed the delegate’s decision not to grant the applicant the student visa: Decision at [45]-[48].
Returning to the grounds of review, it is firstly to be noted that during the hearing before me in an effort to assist the applicant, I endeavoured to explain to the applicant that the Court cannot conduct a merits review of the Tribunal’s decision and that for the Court to interfere, it needed to be shown that the Tribunal fell into jurisdictional error. I explained that the possible categories of jurisdictional error are not exhaustive but most commonly, jurisdictional error will arise if:
(a)a decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179;
(b)a decision-maker ignores relevant material: Craig at 179;
(c)a decision-maker relies on irrelevant material: Craig at 179;
(d)a decision-maker fails to follow mandatory statutory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 24; (2005) 228 CLR 294 at [207]-[208];
(e)a decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs[2001] FCA 1802; (2001) 194 ALR 244 at [42];
(f)a decision-maker shows actual or there is apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80 at [2]; and
(g)a decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li[2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh[2014] FCAFC 1; (2014) 231 FCR 437 at [44].
Next it should be observed that, the applicant’s review grounds as set out in his application are not particularised. The grounds simply make broad allegations of jurisdictional error without articulating: how the applicant was not afforded procedural fairness; which arguments, facts and evidence the Tribunal did not consider; the “wrong legal test” said to have been applied; or the correct legal test the applicant says should have been applied. This is despite an order made by Registrar Carlton on 22 July 2020 requiring the applicant to file and serve, inter alia, any amended application with proper particulars of the grounds of the application 28 days before the final hearing of this application. I agree with the first respondent that the lack of particulars would provide a basis on which the Court might dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969; AQN15 v Minister for Immigration and Border Protection [2016] FCA 571; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13].
During the hearing before me, the applicant was unable to identify how he was not afforded procedural fairness by the Tribunal. He could not say which arguments, facts and evidence the Tribunal did not consider, nor could he identify the wrong legal test he contended the Tribunal applied. The applicant is aggrieved by the outcome of the Tribunal’s decision, but without pointing to some kind of jurisdictional error which infected the Tribunal’s decision, the applicant appears to want the Court to undertake an impermissible merits review.
Nevertheless, dealing with the generalised review grounds, by the first ground the applicant contends that the Tribunal did not afford procedural fairness. As should be evident from the earlier discussion, the Tribunal appears to have complied with its procedural fairness obligations under Pt 5, Div 5 of the Act. The Tribunal requested the applicant to: complete and return an enclosed ‘Request for Student Visa Information’ form and to provide or attach information about the proposed course(s) of study; and his entry and stay in Australia as a student. Subsequently, the Tribunal invited the applicant to attend a hearing scheduled for 25 September 2018 and requested the applicant complete a ‘Response to Hearing Invitation – MR Division’ form and to provide any additional or new information the applicant wanted the Tribunal to consider. The Tribunal also gave the applicant a copy of Direction No.69 and asked him to provide the Tribunal with information earlier noted relating to matters that arise for consideration under Direction No.69.
The applicant subsequently attended this hearing where he gave evidence and made arguments with the assistance of a registered migration agent. The applicant was on notice from the delegate’s decision, the Tribunal’s invitation and the Tribunal’s questioning at the hearing (as disclosed in the Decision) that his ability to meet the GTE criterion would be a determinative issue on review. The Tribunal also appears to have complied with s 359A of the Act by putting information derived from PRISMS to the applicant during the hearing in accordance with (as then in force) s 359AA. The information derived from PRISMS was obviously adverse to the applicant’s interests because it showed gaps in the applicant’s studies; cancelled and varied courses, and an overall lack of academic progress, which would undermine the applicant’s claim to be a genuine temporary entrant. It formed the reason, or part of the reason, for affirming the decision under review. In this regard, the Decision records at [18] that clear particulars of the information were put to the applicant. At [17], the Decision also records that the Tribunal: explained to the applicant why the information was relevant to the Tribunal’s review; explained the consequences of the Tribunal relying on the information; and invited the applicant to comment on or respond to the information. At [19], the Decision records that the Tribunal advised the applicant he could seek additional time to comment or respond to the information.
Nonetheless, the applicant did not seek an adjournment and chose to respond on the day of the hearing, confirming the information was correct. It is not apparent from the material before the Court that there was other information that engaged with the requirement in s 359A of the Act. Accordingly, ground one of the application is not made out.
By ground two, the applicant contends that the Tribunal did not consider the arguments, facts and evidence in the case. The Tribunal was required to consider and engage with the applicant’s claims and the evidence he advanced which would have a bearing on the Tribunal’s decision. In some cases that a decision makes no, or only a passing, reference to a relevant consideration does not mean, necessarily, that the decision maker did not consider the matter at all. Having considered a matter, a decision maker may give little or no weight to it, which may explain the absence of any reference to the matter in the decision rather than a failure to consider: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 at [31]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]; and ARG15 v Minister for Immigration and Border Protection [2016]FCAFC 174 at [65]. In other cases, when regard is had to the nature of an applicant’s claims, the findings and evidence set out in the decision, it may readily be inferred that if the matter or evidence had been considered at all, it would have been referred to in the decision, even if then rejected or given little or no weight: SZSRS at [34].
The requirement that a decision maker engage with an applicant’s claims and evidence is an active intellectual process requiring real consideration of the evidence, beyond merely simply reciting the evidence or parts of it in a decision without considering the significance of, or the weight, to be given to the evidence: Tickner v Chapman [1995] FCA 1726, 57 FCR 451 at 462; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389, 109 FCR 152at [59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51 at [46]; and Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [74].
Beyond the bare allegation contained in ground two, as earlier noted, the applicant did not identify which arguments, facts and evidence the Tribunal is said not to have considered. The Decision records that the Tribunal recounted and considered the applicant’s oral evidence and assessed the documentary material provided by the applicant. A fair reading of the Decision discloses more than a mere recitation of the evidence or parts of it without considering the significance of, or the weight, to be given to the evidence. The Tribunal considered the evidence, and made findings about the evidence relevant to matters which would inform its ultimate decision. It appears to me that the Tribunal engaged in a merits-based evaluation of the evidence and articulated reasons which rationally explain why, considering the evidence and Direction No.69, the applicant was not granted a student visa. Ground two fails.
By ground three, the applicant contends that the Tribunal applied the wrong legal test. How the Tribunal is said to have done this is not explained nor is the erroneous legal test identified. As earlier noted, the Tribunal identified the legislative framework relevant to its review and it had regard to the considerations in Direction No.69 in its assessment of the visa application and findings. There is no suggestion that any of its findings were erroneously made, and it appears that each finding was open to the Tribunal for the reasons it gave on the material before it. Ground three also fails.
As the applicant was unrepresented before the Court, I have reviewed the Decision and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with those the applicant advanced. I have not identified any arguable case of jurisdictional error.
For these reasons, the application for judicial review will be dismissed.
The first respondent sought an order for costs in the amount fixed by item 3 of Div 1 Pt 2 Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth) (Rules) in the event the applicant was unsuccessful in the judicial review application. The applicant did not advance any cogent reason why an order for costs should not be made or why a sum less than that sought should be ordered. Given the overall history of this matter, I consider that an order in the sum of $8,371.30 for which provision is made in Pt 2 of Sch 2 to the Rules for costs is reasonable and appropriate.
Consequently, the applicant will be ordered to pay the first respondent’s costs fixed in the sum of $8,371.30.
Finally, by reason of Item 10 of Sch 16 of the Administrative Review Tribunal (Consequential And Transitional Provisions No.1) Act 2024 (Cth), the Administrative Review Tribunal is substituted for the Tribunal as a party to any pending proceeding in the Court. Consequently, an order to that effect will also be made.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 31 October 2024
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