POONIA v Minister for Immigration
[2016] FCCA 908
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POONIA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 908 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether no probative evidence or a failure by the Tribunal to give proper consideration to evidence before it – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 499 |
| Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507; [2009] HCA 31 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1; [2008] FCAFC 1 SZJBD v Ministerfor Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106 SZLPOv Minister for Immigration and Citizenship (2009) 177 FCR 1; [2009] FCAFC 51 |
| Applicant: | ABHISHEK POONIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 458 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 7 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 458 of 2014
| ABHISHEK POONIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 22 January 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.
The Applicant arrived in Australia in February 2007 on a Subclass 573 Student visa. He was granted another Student visa (a Subclass 572 visa) in February 2012. On 15 March 2013 he applied for another Subclass 573 Student visa. In connection with his visa application he provided a Confirmation of Enrolment (CoE) for a Bachelor of Interactive Media course to commence in May 2013.
The application was refused by a delegate as the Applicant had not provided requested evidence as to overseas student health cover and financial capacity.
The Applicant sought review by the Tribunal.
On 23 October 2013 the Tribunal wrote to the Applicant inviting him to attend a Tribunal hearing and to provide specified information in support of his application. He provided information to the Tribunal as described below.
The Applicant attended a Tribunal hearing on 26 November 2013. After the hearing he provided submissions. He sought additional time to provide financial information and a valid (current) Certificate of Enrolment (CoE). He did not provide such further information.
Tribunal Decision
In its reasons for decision the Tribunal recorded that in his Student visa application of 15 March 2013 the Applicant claimed he had studied a Certificate III in Printing and Graphics from April 2009 to February 2010 and a Certificate IV in Financial Services from January 2012 to March 2013 and intended to undertake a Bachelor of Interactive Media from 3 May 2013 for which he provided a CoE. It recorded that prior to the Tribunal hearing he provided an offer of placement in a Bachelor of Interactive Media course from March 2014, certificates of enrolment for a Diploma and Certificate III in Printing and Graphic Arts and a Certificate IV in Financial Services and an interim academic record for the Certificate III Printing and Graphic Arts course dated 28 August 2009. At the hearing, when asked what courses he had successfully completed, the Applicant said that after he had arrived in Australia in 2007 he studied three semesters of a Bachelor of Science in Biotechnology but did not like this course. He claimed he had successfully completed a Certificate III in Financial Services and a Certificate IV in Financial Services in about 12 months of study. He claimed he also studied one semester of graphic arts.
The Tribunal recorded that when the Applicant was asked (again) what he had “successfully” completed, he said he could not study while he did not hold a Student visa. The Tribunal recorded: “He was advised this was not correct, and he could. The applicant said that when his visa was cancelled he had a bridging visa E and couldn’t leave the country and the appeal process took him 3.5 years.” He also claimed that when he changed from biotechnology he was given a s.20 notice (under s.20 of the Education Services for Overseas Students Act 2000 (Cth)) and that this led to a “big misunderstanding” about which he had appealed.
When asked if he held a Certificate IV, the Applicant explained that he did not in fact hold a Certificate IV as he had only completed 75 per cent of the course. He claimed that he had misunderstood the Tribunal when asked what he had successfully completed and confirmed that in six years in Australia he had successfully completed only a Certificate III in a course over a period of about six months.
The Applicant also claimed that at the time of the hearing he had completed one semester of study in the Bachelor of Interactive Media but told the Tribunal that he did not have a current CoE and that he was on a “university break”. However the Tribunal recorded that when it put to the Applicant that he was not on a university break and was not studying, he confirmed that this was correct.
According to the Tribunal, the Applicant also claimed there had been a misunderstanding between himself and his father and that his father wanted him to sort out his visa issues before he would transfer any more funds to him. He claimed that all the time he held a Student visa he had studied and that he had no option while holding a visa described in the Tribunal reasons for decision as a “student visa E”. This appears to be intended to be a reference to a bridging visa E.
After the hearing the Applicant wrote to the Tribunal claiming that he had not been able to explain himself properly at the hearing because he had been stressed, that when he first came to Australia he had enrolled in the Bachelor of Science in Biotechnology and studied for three semesters, but then decided there were very limited career options and so changed his course. He claimed he then studied Graphic Arts and Multimedia and successfully completed the first semester, but that then his visa was cancelled. He claimed he was depressed and his study rights were taken from him for a few weeks so that he had to stop that course.
He claimed that during the “appeal and re-appeal process” in relation to cancellation of his Student visa, he was depressed and stressed, but that as soon as everything was sorted out he undertook a Certificate III and Certificate IV in Financial Services, and that he had successfully completed one semester of a Bachelor of Interactive Media course while his current visa application was being processed.
The Applicant claimed to the Tribunal that the only reason he did not have a current CoE was because his visa application had been refused. He also claimed that he could not study “under the stress of having to go through all the appeal process.” He sought additional (unspecified) time to provide financial information and a CoE.
The Applicant provided a further explanation in an email of 26 November 2013. In particular, he claimed that he had dropped out of the Bachelor of Interactive Media course after the first semester because of stress when his current visa application was refused (in June 2013). He stated that his CoE for this course had been cancelled, but that the education provider had indicated that it would issue him with another CoE when he came back. He also claimed he would submit financial documents to the Tribunal.
The Applicant claimed that he did not enrol in any course during the appeal process after his visa cancellation as he was never sure whether he was going to win or lose. He claimed he wanted to finish his degree and become an independent filmmaker to make documentaries all over the world and then return to India and work in Bollywood.
The Tribunal did not make a decision until 22 January 2014. The Applicant did not provide financial information or a CoE.
In its reasons for decision the Tribunal summarised the law and the Applicant’s claims and evidence. The Tribunal stated that the issue was whether the Applicant met the time of decision criterion in cl.573.223 in Schedule 2 to the Migration Regulations that it was “satisfied [he was] a genuine applicant for entry and stay as a student because”:
(a) the Minister is satisfied that 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 meets the requirements of subclause (2).
It found that at the hearing and thereafter the Applicant had made claims that were not true, including that he had a Certificate IV in Financial Services, and (as he repeated post-hearing) that he had successfully completed one semester of his Bachelor of Interactive Media. The Tribunal found that he had provided no evidence of this and did not accept that the Applicant had undertaken such studies. The Tribunal had regard to the fact that the Applicant had not produced any evidence of commencing the Bachelor of Interactive Media degree or completing a semester. It noted that in his post-hearing emails the Applicant claimed that he had dropped out and that his CoE had been cancelled, but found that this contradicted his claim of having successfully completed a semester in the degree course.
The Tribunal also found that despite claiming he had a Certificate III in Financial Services, the Applicant had provided no evidence of such a qualification. Rather, he had provided evidence of a Certificate III in Printing and Graphic Arts. In addition, despite asking for additional time to provide evidence of a valid CoE, the Applicant had not provided such evidence or any evidence of financial capacity.
The Tribunal found that overall the Applicant’s evidence and statements about what he had done lacked veracity. It found that he was not a credible witness.
The Tribunal recorded that “most concerning” in the Applicant’s circumstances and history of study was his “lack of achievement”. It recorded that in nearly seven years in Australia while holding a Student visa from 17 February 2007 to cease on 15 March 2010 and a further Student visa from 16 February 2012 to 15 March 2013, the Applicant had provided evidence of successfully completing only one course – a Certificate III course that, according to the interim transcript provided by him, took 45 weeks to complete.
The Tribunal stated that it appreciated that the Applicant had an “appeal” at one stage (in relation to his visa cancellation). However it had regard to the fact that he was subsequently granted a further Student visa but had provided no evidence of successful completion of any further course of study. It did not accept that the Applicant had “the application or intention” to study in Australia. It considered that he was making the visa application for the purpose of extending his stay in Australia.
The Tribunal found on the basis of these matters and having considered the Applicant’s circumstances, immigration history and other relevant matters, that it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly it found that he did not meet cl.573.223(1)(a) in Schedule 2 to the Migration Regulations and hence that he did not meet an essential requirement of cl.572.223.
Similarly, the Tribunal found that the Applicant did not meet the equivalent criterion in relation to other subclasses of Student visa. The Tribunal also considered Subclass 580 (a Student Guardian visa), but found there was no material before it to suggest that the Applicant met the criteria for that subclass. As the Tribunal found that the Applicant did not meet the criterion for the grant of a Student visa, it affirmed the decision not to grant him such a visa.
The Applicant sought review by application filed in this court on 27 February 2014. A proposed Amended Application was attached to submissions and filed in court. However the Applicant now relies on a “Final” Amended Application filed after the hearing.
I note first that in his initial application the Applicant did not apply for an extension of time to make the judicial review application, despite the fact that (as was pointed out in the Response) his application was filed one day outside the 35 day time limit provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act). The Applicant subsequently filed an Amended Application and an affidavit explaining the reasons for his delay and seeking an extension of time. I granted such an extension of time pursuant to s.477(2) of the Act.
There are two grounds in the “Final” Amended Application.
Section 359A of the Migration Act 1958 (Cth)
The first ground is that the Tribunal failed to comply with s.359A of the Act. It is asserted that the Tribunal relied on “PRISMS records for the applicant held by the Department of Education, employment and workplace relations in relation to the cancellation of confirmation of enrolments for the applicant (CB 89)” as the reason or part of the reason for finding that the Applicant did not satisfy cl.573.223 and that in the absence of compliance with ss.359AA of the Act, 359A(1)(a) and (b) required the Tribunal to give particulars of this adverse information to the Applicant in writing. It was contended that the Tribunal failed to do so, thereby committing jurisdictional error.
Section 359A of the Act is relevantly as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
In its reasons for decision the Tribunal found that the Applicant did not satisfy the criterion in cl.573.223(1)(a) in Schedule 2 to the Migration Regulations that it be satisfied that he genuinely intended to stay in Australia temporarily and hence that he did not meet one of the requirements for Ministerial satisfaction that he was a genuine applicant for entry and stay as a student.
In making such findings, after addressing the Applicant’s evidence about his past study (which it found lacked veracity) and his lack of achievement in Australia, the Tribunal stated:
27. Whilst I appreciate he had an appeal at one stage and then was granted a further student visa he has provided no evidence of successful completion of any further course of study. I do not accept that the applicant has the application or intention to study in Australia and consider he is making this application for the purpose of extending his stay in Australia.
28. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.573.223(1)(a).
The Applicant submitted that in reaching its finding in relation to cl.573.223(1)(a) the Tribunal had relied on information that included an extract from PRISMS records in relation to cancellation of enrolments (a copy of which appears in the Court Book at p.89 as part of the material on the MRT file). The solicitor for the Applicant acknowledged that the Applicant’s study history was not impressive and that the Tribunal had also had regard to inconsistencies in his evidence and the absence of documentation to support his claims. However it was contended that in looking at the Applicant’s overall history of study in Australia and forming its conclusion that he was just making the application for the purposes of extending his stay in Australia, the Tribunal had had before it the Applicant’s PRISMS records.
These records were said to indicate that the first course for which the Applicant held a CoE was a Bachelor of Science from February 2007. The “variation reason” (dated 16 March 2009) was said to be “unsatisfactory course progress”. The Applicant conceded that while the PRISMS record also stated that this course was “finished” it included another entry indicating that an enrolment in the Bachelor of Science course (from January 2010) was varied on 16 March 2009 (sic) for non-commencement of studies and was also recorded as cancelled. Oddly, I note that this part of the PRISMS record appears to suggest that the cancellation for non-commencement of studies was in March 2009 for a course from January 2010 to November 2010 and appears to give two unrelated reasons for variation in relation to the same course on 16 March 2009.
The PRISMS record also referred to the February 2009 cancellation of the Applicant’s enrolment in a Certificate III in Printing and Graphic Arts apparently due to be completed in December 2009 (although no start date or reason for cancellation was given). The next enrolment referred to was enrolment in a Diploma of Business from October 2009 said to have been varied in March 2010 for non-payment of fees and cancelled. The next entry was the 2010 Bachelor of Business said to have been varied in March 2009 for non-commencement of studies. The record then listed, with no start date, enrolment in a Diploma of Printing and Graphic Arts described as cancelled on 4 January 2010 although no reason was given. The next recorded enrolment in a Certificate IV in Financial Services from October 2011 was recorded as cancelled in January 2012 because the provider was unable to deliver the course. A Certificate IV in Accounting (sic) from January to November 2012 was described as “finished”. The PRISMS record listed a Certificate II in Information Technology from January to March 2013 as “finished”. Finally the record stated that enrolment in a Bachelor of Interactive Media which was to start in May 2013 was varied in August 2013 due to non-commencement of studies and had been cancelled.
The Applicant submitted that the Tribunal had regard to the information in this PRISMS record as relevant information available to it, consistent with its obligation under Direction No. 53 “Assessing the genuine temporary entrant criterion for Student visa applications” under s.499 of the Act. This direction, referred to in the Tribunal reasons for decision, requires the Tribunal to have regard to a number of specified factors, including information otherwise available to the decision-maker that may be either beneficial or unfavourable to the Applicant. It was submitted that the PRISMS records were unfavourable to the Applicant because of the nature of the recorded reasons for cancellation or “finishing” his enrolments, but that such information was not put to the Applicant for comment in relation to the ultimate finding that he was not a genuine applicant for entry as a student.
In support of the proposition that such information enlivened the obligation in s.359A(1) of the Act, the Applicant sought to distinguish the circumstances considered by the majority in SZJBD v Ministerfor Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106. Buchanan J (with whom Perram J agreed) had reached the view (at [104]) based on earlier authorities that:
I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant’s answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.
The Applicant submitted that the PRISMS record was not “neutral” in the sense considered by Buchanan J as it referred to non-commencement of studies and unsatisfactory course progress and hence was said to undermine his claims to intend genuinely to stay in Australia temporarily. In addition, the PRISMS record was said to relate directly to the Applicant.
It was also pointed out that under s.359(1) of the Act, if the Tribunal obtained information, it had to have regard to it. It was contended that the Tribunal had obtained this information from the PRISMS record and had had regard to it and while it was under no obligation to mention such records in its reasons for decision, the absence of any mention of such information did not mean that the information was not information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review such as to enliven s.359A(1) of the Act. It was submitted that there was no evidence or suggestion that the Tribunal had used s.359AA to put such information to the Applicant at the Tribunal hearing such as to avoid the need for it to comply with s.359A of the Act.
The First Respondent submitted that given that the PRISMS record was not mentioned in the Tribunal’s reasons and the fact that it appeared from the Tribunal’s reasons for decision that it had relied on the Applicant’s own account of his academic history, the preferable inference in this case was that the PRISMS record was not the reason or part of the reason for affirming the decision under review (see Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507; [2009] HCA 31 at [17]-[26]).
In any event, it was submitted that the PRISMS record would not enliven the obligation in s.359A(1) of the Act because it did not in its terms amount to a rejection, denial or undermining of the Applicant’s claims to the visa. It was submitted that such information was essentially “neutral” historical information (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17]; SZLFX at [22] and SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1; [2008] FCAFC 1 at [26]; and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [23]) and that information for the purpose of s.359A was not to be found in disbelief arising from a process of reasoning applied to such evidence (and see SZUBD).
Consideration
As Gleeson CJ, Gummow, Callinan, Heydon and Crennan J observed in SZBYR at ([17]) (albeit in relation to the equivalent provision in s.424A(1) of the Act) the reason for affirming the decision under review depends on the criteria for the making of the decision under review. In this case the relevant issue was whether the Applicant met the time of decision criterion in cl.572.223(1)(a) that the Minister (or the Tribunal) was satisfied that the Applicant was a genuine applicant for the entry and stay as a student (in particular because the decision-maker was satisfied that he genuinely intended to stay in Australia temporarily having regard to his circumstances, immigration history and any other relevant matter).
While their Honours also indicated that the use of the future conditional tense strongly suggested that the operation of a provision such as s.359A was to be determined in advance and independently of the Tribunal’s reasons, this is to be seen in light of the consideration by the High Court in SZLFX of the circumstances in which inferences can be drawn from the Tribunal’s decision.
First, the PRISMS record on its face simply indicated that the Applicant had finished some courses and not finished others and, in some instances, included a reason for variation. This history of undertaking education courses did not in itself constitute or contain a rejection, denial or undermining of the Applicant’s claims to meet the criterion that the Minister (or Tribunal) be satisfied that he was a genuine applicant for entry and stay as a student, in particular because the Tribunal was satisfied that he intends genuinely to stay in Australia temporarily having regard to his circumstances, immigration history and any other relevant matter (see SZICU at [26]). This is not a case in which what was in issue was a requirement that the Applicant be enrolled in a registered course while the holder of a visa, or that he achieve certain academic results.
It is the case that the fact that the Applicant had enrolled in or started some courses, and apparently did not finish some courses or had enrolments cancelled, may ultimately be a matter of significance to a Tribunal in considering the circumstances of the particular case and having regard to the Applicant’s evidence. However in determining the application of s.359A(1) the information must be considered in itself.
In that context it is important that, as stated in SZICU at [26] in relation to s.424A, the relevant information “is not to be found in disbeliefs arising from a process of reasoning applied to the evidence”. If it is to be found “it must be in the text” of the information in issue. Similarly in SZGIY at [23], [25] and [27] it was pointed out that “the drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of [the equivalent of s.359A(1)]”.
Indeed, as Buchanan J indicated in SZJBD (after a detailed analysis of relevant authorities about the limitations on the scope of the notion of “information” as used in s.424A which would, similarly, apply to s.359A), “primary facts” may be “neutral” which do “not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right” (at [104]).
On this approach to the scope of the concept of “information”, even if the decision was made with background knowledge of the PRISMS record (which, it has to be said, appears to be internally inconsistent in more than one respect including in relation to the one course for which a variation reason of unsatisfactory course progress was given), that does not mean that such material, in itself, was such as to constitute a rejection, denial or undermining of the Applicant’s claims to meet the visa criterion in the sense considered in SZBYR. It did not, “in its terms”, constitute a rejection, denial or undermining of the claim to meet the criterion in cl.572.223(1)(a) in Schedule 2 to the Regulations. Hence it did not enliven the s.359A(1) obligation.
Furthermore, even if the information in the PRISMS record was to be seen on its face as capable of undermining the Applicant’s claims to be a genuine applicant for entry and stay as a student, in this case it can be inferred from the Tribunal’s reasons for decision that the Tribunal did not consider the PRISMS record to be the reason or part of the reason for affirming the decision under review (see SZLFX at [26]). Rather, it is apparent from the Tribunal’s reasons for decision that there is “no evidence or necessary inference that the [Tribunal] had “considered” or had any opinion about [the PRISMS record]” (see SZLFX at [24]). Whether or not the Tribunal ought to have had regard to such material is not determinative in this context.
While this was not a case in which what counted against the Applicant were simply internal inconsistencies in his evidence, the Tribunal’s reasons do not support any inference that it considered that the PRISMS record would (at an anterior time) be part of the reason for affirming the decision under review.
Rather, the Tribunal made an adverse credibility finding in relation to the Applicant based on the documentary evidence he provided and the fact that he made oral claims about studies he had completed for which there was no documentary evidence and which were internally inconsistent. It did not refer to any aspect of the PRISMS record of enrolments. Rather it had regard to the documents provided by the Applicant, inconsistencies in his evidence and what it considered, based on his evidence and the absence of documentary evidence, to be untruths in his evidence as well as his failure to provide a valid CoE as promised. It went on to find most concerning the Applicant’s lack of academic achievement in his time in Australia beyond (on his account) completion of one Certificate III course in nearly 7 years in Australia whilst holding a Student visa for several years. I note that the Tribunal accepted that the Applicant had completed a Certificate III Printing and Graphic Art course as he claimed, although the PRISMS record suggests that the enrolment was cancelled and does not record completion of any Certificate III course (but refers to a Certificate II in Information Technology and a Certificate IV in Accounting – neither of which were relied on by the Applicant or referred to by the Tribunal).
It is clear from the Tribunal’s reasoning that of particular concern was the fact that the Applicant gave contradictory oral evidence about having completed a Certificate IV course in Financial Services as well as the fact that in the absence of any supporting evidence, his claims to have completed certain courses of study, including a semester in a Bachelor of Interactive Media, lacked veracity.
The adverse credibility finding and the evidence from the Applicant as to his own lack of achievement led the Tribunal to find that it did not accept that he had “the application or intention” to study in Australia and to conclude that he was making the application for the purposes of extending his stay in Australia and hence to find that he did not meet cl.573.223(1)(a).
The Tribunal’s reasoning did not in its terms involve any reference to the PRISMS record. Moreover, and importantly, while the PRISMS record differs in several respects from the Applicant’s evidence about his past studies on which the Tribunal relied, what counted against the Applicant was his contradictory evidence and initial untrue claim. The Tribunal’s adverse credibility finding arose from its consideration of the Applicant’s own evidence – which did not enliven the s.359A obligation.
As indicated, the Applicant made written claims about his past study in connection with his protection visa application. He gave the Tribunal a copy of a CoE for a Diploma and Certificate III in Printing and Graphic Arts, an interim academic record for the Certificate III in Printing and Graphic Arts and a CoE for a Certificate IV in Financial Services. He also gave the Tribunal a copy of an offer of placement for a Bachelor of Interactive Media to start in March 2014. It was this evidence and the Applicant’s oral evidence to which the Tribunal had regard in considering the Applicant’s past studies in Australia as relevant to the criterion in cl.573.223(1).
It is the case that, to some extent, the same information was contained in the PRISMS record. However, having regard to the differences in the PRISMS record in this case it can be inferred that the Tribunal had regard to the evidence provided by the Applicant and to internal inconsistencies in his evidence as well as differences between the written and documentary evidence he had provided and the oral claims he made about his studies, but not that it considered or had any opinion about the PRISMS record (see SZLFX at [24]).
In these particular circumstances, where the Applicant proffered written and documentary evidence about courses about which he then made conflicting claims, I am satisfied that the Tribunal’s adverse findings arose from matters which did not enliven s.359A of the Act and that it can be inferred that the Tribunal did not consider the PRISMS record to be the reason or part of the reason for affirming the decision under review.
I note that insofar as it was asserted that the Tribunal did not comply with s.359AA of the Act, in the absence of a transcript of the Tribunal hearing there is insufficient evidence before the Court to make such a finding.
This ground is not made out.
No probative evidence and proper consideration grounds
The second ground is that the Tribunal’s decision was made “in the absence of probative evidence”. The particulars to this ground are as follows:
(A) The Tribunal found that the Applicant could study when the Applicant did not hold a student visa. (see CB130 at [14]):
(i) In the alternative to particular (ii)(c) at Ground 1 above, there was no evidence that the Applicant could study when he did hold a student visa.
While particular (ii)(c) to ground 1 was not pressed in that context, it referred to “Information that the Tribunal had that the Applicant could study when the Applicant did not hold a student visa (CB130 at [14])”.
At the hearing, the Applicant sought and was granted leave to file a Further Amended Application which included ground 3, which asserted that that the Tribunal did not give proper consideration to information before it in that it did not have proper regard to the Applicant’s movement records which were before it.
The Applicant submitted that as part of the Tribunal’s reason for finding that he did not satisfy the criterion in cl.573.223(1)(a), it was of the view that he could study when he did not hold a Student visa. The written submissions referred to paragraph 40 of the Tribunal reasons for decision, but it was clarified that this was intended to be a reference to paragraph 14 of the Tribunal reasons for decision which was as follows:
14. He was again asked what he had successfully completed. He said he could not study while he did not hold a student visa. He was advised this was not correct and he could. The applicant said that when his visa was cancelled he had a bridging visa E and couldn’t leave the country and the appeal process took 3.5 years. He claimed that when he changed from biotechnology and he was given a section 20 Notice and this lead [sic] to a “big misunderstanding”. He appealed this.
The Applicant contented that this issue was important because he did not study for 3.5 years while the cancellation of a previous Student visa was being reviewed and, as the Tribunal recorded, claimed that he did not have permission to study while he did not hold a Student visa.
It was submitted that the Applicant’s lack of study was one of the reasons why the Tribunal concluded that he did not satisfy cl.573.223(1)(a) in Schedule 2 to the Regulations. However there was said to be no evidence that the Applicant could study when he did not hold a Student visa. On this basis it was contended that the Tribunal had committed a jurisdictional error by making such finding in the absence of any probative evidence.
In oral submissions the solicitor for the Applicant pointed out that the Applicant’s movement records (annexed to the affidavit of Ada Oi-Yee Wong affirmed on 26 June 2015) were before the Tribunal (as part of the Tribunal file) and disclosed that the Applicant’s visas were subject to various conditions at various times. The Applicant submitted that this material revealed that at one stage under a particular bridging visa he had no permission to study and at other times he had what the solicitor for the Applicant described as permission to undertake “non-formal” study in the sense of study in a course of no more than three months.
It was acknowledged that the Applicant had unrestricted permission to study while the holder of a Student visa and that the movement records showed that the Applicant could study at some times and not at others while the holder of a Bridging visa, but submitted that there was no evidence before the Tribunal for it to conclude (as it was said to have done in paragraph 14 of its reasons) that the Applicant could study while he did not hold a Student visa. It was submitted that when the Tribunal suggested that the Applicant was not correct when he said he could not study while the holder of a bridging visa and that “he could”, this should be taken as referring to the entirety of the time that the Applicant did not hold a Student visa. Hence it was submitted that insofar as the Tribunal had made a finding that the Applicant could study for the entirety of his study when he did not have a Student visa this was not based on any evidence.
In the alternative, it was submitted that if the Tribunal did have regard to the evidence from the movement records as to the conditions imposed on the Applicant’s visas, it had not had proper regard to such evidence, so that its opinion that the Applicant could study (when this was contrary to conditions imposed on his visa at times) could be described as an arbitrary opinion. There was said to be no information relied on by the Tribunal to indicate that the Applicant always had permission to study.
The Applicant drew the court’s attention to the fact that the movement records revealed that after Student visas granted on 8 February and 8 March 2007, he was granted a Bridging visa A on 30 March 2009 to cease on 4 June 2009. It was acknowledged that this visa was subject only to condition 8105 and hence the Applicant did have full study rights. However, it was pointed out that the Bridging visa E granted to the Applicant on 5 June 2009 (to cease on 19 June 2009) and the subsequent Bridging visa E granted on 18 June 2009 (until 29 June 2009) were both subject to conditions including condition 8201 which is:
While in Australia the holder must not engage, for more than three months, in any studies or training.
Furthermore, it was pointed out that the Bridging visa E granted to the Applicant (after a Bridging visa E not subject to condition 8201 between June and November 2009) on 26 November 2009 (in force until 10 December 2009) was subject to condition 8207 which was:
The holder must not engage in any studies or training in Australia.
It was acknowledged that it appeared from the movement records that from 11 December 2009 on, the visas held by the Applicant (which included a Student visa from 16 March 2013 to 1 October 2013) were not subject to either condition 8201 or 8207.
However the Applicant submitted that the evidence before the Tribunal, in particular the movement records, showed that he did not have permission to study at all times while he did not hold a Student visa. It was submitted that insofar as the Tribunal found that for the entirety of the period the Applicant could study when he did not have a Student visa, if such finding was based on the movement records, proper regard was not had to such records.
The First Respondent submitted that the Tribunal’s account at paragraph 14 of its decision of what occurred in the Tribunal hearing (in which it recorded that at the hearing it had advised the Applicant that it was not correct to say that he could not study while he did not hold a Student visa, and that he could do so) amounted to no more than an expression of the Tribunal’s (correct) opinion. There was said to be no basis to contend that the Tribunal did not have some basis in its background knowledge for this statement. It was also suggested that as far as one could tell from the Tribunal’s reasons, the Tribunal’s remark in this respect was not based on any particular analysis of the movement records rather than general knowledge and that the Tribunal was entitled to rely on its background knowledge as to the workings of the visa system, rather than a specific fact and that it was not obliged by procedural fairness to record the basis for all such knowledge (see SZLPOv Minister for Immigration and Citizenship (2009) 177 FCR 1; [2009] FCAFC 51 at [148] to [153]).
In any event, the First Respondent submitted that if it was necessary to have regard to the movement records, the only period in which the Applicant was prohibited from studying was while he held a Bridging visa granted on 26 November 2009 which ceased on 10 December 2009 which was subject to condition 8207. The First Respondent conceded that for that period of a little over two weeks the Applicant could not study, but submitted that this was the only condition on the visas held by the Applicant which actually prohibited studying.
It was also acknowledged that there was a limited time in June 2009 during which study for more than three months was prohibited, but submitted that this was not contrary to what the Tribunal had said, given that neither of the visas held by the Applicant in June 2009 lasted for more than three months.
The First Respondent submitted that if the Tribunal did rely on the movement records in relation to this exchange at the hearing and insofar as the Tribunal did reach a conclusion instead of merely recording a comment or opinion to the Applicant during the hearing, those records indicated that for the great majority of the time in question there was no restriction on the Applicant studying. In this respect the evidence was said to support a conclusion that it was not correct that the Applicant could not study while not holding a Student visa and that he could.
It was submitted that the fact that the Tribunal could have been more accurate in its comment (in that it could have excluded the period of slightly over two weeks in which the Applicant was prohibited from studying) was not such as to establish a jurisdictional error.
Consideration
Neither Ground 2 nor Ground 3 is made out. First, paragraph 14 of the Tribunal decision is merely a record of an exchange at the Tribunal hearing. It does not amount to a finding by the Tribunal. In its findings, the Tribunal had regard to the fact that the Applicant did not hold a Student visa for all his time in Australia in reaching its finding about his lack of achievement. It acknowledged that there was an interim period while he sought review of the visa cancellation (and did not hold a Student visa) but, relevantly, also had regard to the fact that although he was granted a further Student visa, he had provided no evidence of successful completing of any further course of study. It did not make a “finding” that the Applicant could study when he did not hold a Student visa.
Secondly, it was not in fact correct that the Applicant could not study while he did not hold a Student visa – albeit that there was a period of a little over two weeks when this was the case.
Even if the Tribunal’s remark at [14] considered with its general conclusion at [28] expressed in terms of the factors in cl.573.223(1)(a) is to be taken as an implicit finding in the terms of the comment recorded in paragraph 14 of the reasons for decision, it was not to the effect that the Applicant could always study but rather that it was not correct to say that he could not study when he did not hold a Student visa. Insofar as any issue arises as to whether there was no evidence for such a finding or whether the Tribunal failed to have regard to the movement records, such records in fact made it clear that the Applicant could study when he did not hold a Student visa (except for a prohibition for a period of slightly more than two weeks in 2009 and limitations as to the nature of the study for a brief period in 2009). In other words, the Applicant could study when not holding a Student visa except for a two week period in 2009.
It has not been established that the decision was made in the absence of probative evidence in this respect given the evidence before the Tribunal as to the visas held by the Applicant and the conditions thereon or that the Tribunal failed to have proper regard to the movement records given the consistency between these records and the Tribunal’s “rejection” of the Applicant’s general claim that he could not study while he did not hold a Student visa.
These grounds are not made out.
As none of the grounds relied on by the Applicant has been established the Application must be dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 29 April 2016
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