Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 5
•24 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 5
File number(s): PEG 260 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 24 January 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether genuine temporary entrant – whether jurisdictional error – writs issued.
PRACTICE AND PROCEDURE – Extension of time – factors for consideration – where delay of one day – where delay due to miscalculation of period – where no asserted prejudice – whether application has merit.
WORDS AND PHRASES – “temporary” – “temporarily” – “foreseeable” – “foreseeable future”.
Legislation: Migration Act1958 (Cth), ss 353, 474, 476, 477
Migration Regulations 1994 (Cth), Sch 2 cl 500.212Cases cited: Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238
C Czarnikow Ltd v Koufos (The Heron II) [1966] 2 QB 695; [1966] 2 All ER 593; [1966] 2 WLR 1397; [1966] 1 Lloyd’s Rep 595
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; (1961) 35 ALJR 170; [1962] ALR 379
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Hadley v Baxendale (1854) 156 ER 145; [1843-60] All ER Rep 461; (1854) 1 El & El 602; (1854) 18 Jur. 358; (1854) 9 Ex 341; (1854) 2 WR 302; (1854) 23 LJ Ex 179; (1854) 23 LT (OS) 69
Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350; [1967] 3 All ER 686; [1967] 3 WLR 1491; [1967] 2 Lloyd's Rep 457
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 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
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Saini v Minister for Immigration and Border Protection [2016] FCA 858; (2016) 245 FCR 238; (2016) 153 ALD 276
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117Texts and dictionaries The Oxford English Dictionary, Second Edition (Oxford: Clarendon Press, 1989) Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 9 August 2021 Place: Perth Counsel for the Applicant: Mr R. S. Jahnke Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Ms C. I. Taggart Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 260 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DILEEPA ARRIYAPPERUMA RAMANAYAKE
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:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the time in which to file the applicant’s originating application for judicial review under s 476 of the Migration Act 1958 (Cth) be extended to 4 September 2020.
2.A writ of certiorari issue quashing the decision of the second respondent made on
30 July 2020.3.A writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 1 November 2018 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 an extension of time (“Extension of Time Application”), filed on 4 September 2020 pursuant to s 477 of the Migration Act1958 (Cth) (“Migration Act”), by the applicant, Mr Dileepa Arriyapperuma Ramanayake (“Mr Ramanayake”), to bring an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 30 July 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (“Student Visa”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 295-308.
The relevant background to the matter is as follows:
(a)Mr Ramanayake is a citizen of Sri Lanka who first arrived in Australia on 2 August 2008 as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa, which expired on 26 August 2010: CB 295-308;
(b)since 26 August 2010, Mr Ramanayake has held a number of student and graduate visas as follows:
(i)a Student (Temporary) (Class TU) (Subclass 572) visa (“Subclass 572 Visa”) granted on 26 August 2010 with an expiry date of 15 March 2013: CB 129;
(ii)a Subclass 572 Visa granted on 18 March 2013 with an expiry date of 15 March 2014: CB 129;
(iii)a Subclass 572 Visa granted on 9 June 2014 with an expiry date of 2 June 2015: CB 128;
(iv)a Subclass 572 Visa granted on 10 June 2015 with an expiry date of 18 September 2016: CB 127;
(v)a Skilled (Provisional) (Class VC) (Subclass 485) visa granted on 10 February 2017 with an expiry date of 10 August 2018: CB 126.
(c)on 8 August 2018 Mr Ramanayake lodged the Student Visa application: CB 11-42. In the Student Visa application, Mr Ramanayake provided a Confirmation of Enrolment (“COE”) for a Diploma of Leadership and Management commencing on 8 October 2018 with a scheduled completion date of 3 April 2020: CB 84;
(d)on 22 October 2018 the Delegate refused to grant Mr Ramanayake a Student Visa, finding that he failed to satisfy cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 116-123;
(e)on 1 November 2018 Mr Ramanayake made an application to the Tribunal for review of the Delegate’s Decision: CB 124-125;
(f)on 22 October 2019 Mr Ramanayake attended a Tribunal hearing (“First Tribunal Hearing”): CB 168-170. At the time of the First Tribunal Hearing, Mr Ramanayake was still enrolled in his Diploma of Leadership and Management course which had commenced in October 2018;
(g)on 8 April 2020 the Tribunal wrote to Mr Ramanayake requesting his comment on the fact that he no longer held a current COE: CB 227, as his previous COE had finished on 3 April 2020: CB 224;
(h)on 6 May 2020 Mr Ramanayake provided the Tribunal with a response which included an “International Student Offer and Acceptance Agreement” for a Bachelor of Business (Leadership and Management) with a scheduled commencement date of 20 July 2020 and a scheduled completion date of 23 June 2023: CB 238 and 240-251;
(i)on 24 June 2020 Mr Ramanayake attended another Tribunal hearing (Second Tribunal Hearing): CB 274-276; and
(j)on 30 July 2020 the Tribunal Decision was to affirm the Delegate’s Decision not to grant Mr Ramanayake a Student Visa: CB 295-308.
EXTENSION OF TIME APPLICATION
Grounds
The grounds for the Extension of Time Application are as follows:
1. The application has merit.
2. The Respondents would not be prejudiced by the grant of an extension of time.
The Minister’s Position
Counsel for the Minister submitted that:
(a)the Minister does not suffer prejudice if an extension of time is granted;
(b)the delay is minor; and
(c)although Mr Ramanayake has not established his sole ground of review, the Judicial Review Application is not so hopeless as to be without merit;
and the Minister, therefore, does not oppose the grant of an extension of time to bring the Judicial Review Application.
Consideration of Extension of Time Application
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
(a)the length or extent of delay;
(b)the reason for the delay;
(c)any prejudice to the opposing party; and
(d)the merits of the proposed application,
see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J.
The delay in filing the Judicial Review Application is the absolute minimum: one day. The reason for the delay was said by Mr Ramanayake’s lawyer to be a miscalculation of the relevant time period arising from the fact that, although the Tribunal Decision was made on 30 July 2020, the relevant notifications in relation to the Tribunal Decision were dated 31 July 2020: Transcript, p 3; and see CB 293-294 (notification correspondence) and 295-308 (Tribunal Decision). The Minister asserted no prejudice if the Extension of Time Application was to be granted and conceded that the Judicial Review Application is not without merit, a concession that the Court considers is properly made. Taking into account the factors set out at [6] above and the Minister’s non-opposition to the grant of the Extension of Time Application, and weighing the factual circumstances, the Court is satisfied that it is in the interests of the administration of justice to grant the Extension of Time Application: Migration Act, s 477(2). There will therefore be an order that the time for the filing of the Judicial Review Application be extended to the time of filing of the Extension of Time Application, that being 4 September 2020.
JUDICIAL REVIEW APPLICATION
Ground of review
The Judicial Review Application contains one ground of review, as follows:
1.The Administrative Appeals Tribunal (Tribunal) misconstrued or misapplied cl.500.212(a) of Schedule 2 to the Migration Regulations (Cth) (Regulations).
Particulars
a. The Tribunal noted that the Applicant had ‘formed the view that it is better for him to remain in Australia ‘until the ‘pandemic situation’ in Sri Lanka is normalised’.
b. The Tribunal concluded that the Applicant’s ‘motive in seeking to remain onshore’ was ‘his assessment of his relative situation in Australia versus his home country during the global response to the COVID-19 pandemic’.
c. The Tribunal made no finding that the Applicant intends to stay in Australia indefinitely.
d. The Tribunal then concluded that the Applicant did not meet cl.500.212(a) of the Regulations. The Tribunal’s reasoning was based on its finding that the Applicant does not intend genuinely to stay in Australia temporarily.
e. However, the Applicant’s evidence and the Tribunal’s findings indicated that the Applicant intended on remaining in Australia for a temporary period of time (that being, until the ‘pandemic situation’ in Sri Lanka normalises).
f. As cl.500.212(a) of the Regulations is concerned with how long an 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]), the Tribunal misconstrued or misapplied cl.500.212(a) of the Regulations.
Tribunal Decision
In the Tribunal Decision, the Tribunal found that Mr Ramanayake did not meet the requirements of cl 500.212(a) of Sch 2 to the Migration Regulations, as it was not satisfied Mr Ramanayake intended genuinely to stay in Australia temporarily: CB 302, Tribunal Decision at [40].
The Tribunal’s analysis is set out at CB 301-302, Tribunal Decision at [31]-[42], as follows:
31. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence. In the giving of his evidence the applicant was able to corroborate the existence of the family gem mines with documentary evidence and, when pressed, he was able explain their operation with enough detail to persuade the Tribunal of the veracity of his evidence.
32. The applicant also has strong personal ties to his home country, particularly in his family, but also in his business interests there. The Tribunal accepts that these ties provide a significant incentive for the applicant to return to his home country. The Tribunal also acknowledges the applicant’s positive immigration history.
33. Balanced against these factors, however, is the applicant’s evidence regarding his decision in respect of his foreseeable future. In this the applicant has been explicit: his decision is based upon his, and his family’s, assessment of the COVID-19 pandemic and its relative impact on Australia and Sri Lanka, both from a health and an economic perspective. He stated expressly in evidence that, whereas he had intended to return to Sri Lanka prior to the impact of COVID-19 becoming apparent, he had now formed the view that it is better for him to remain in Australia “until the ‘pandemic situation’ in Sri Lanka is normalised”.
34. Having made that decision the applicant has then re-enrolled in the Diploma of Leadership and Management that he had previously abandoned.
35. The Tribunal concludes from this evidence that the prospect of undertaking further studies is not the applicant’s motive in seeking to remain onshore; rather his motive is his assessment of his relative situation in Australia versus his home country during the global response to the COVID-19 pandemic.
36. The applicant’s evidence as to the value to his future of the particular course he is now proposing to undertake is, therefore, to be taken as a post-hoc rationalisation in support of his decision to remain onshore due to the COVID-19 pandemic. Consequently, the Tribunal ascribes minimal weight to it.
37. Clause 8 of Direction No.69 mandates that:
Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
38. In this case that weight, as against the applicant’s reasonable study history, recent academic achievement, strong personal ties to his home country, positive immigration history and the other matters the Tribunal has weighed in his favour, is decisive.
39. The Tribunal is persuaded that the applicant’s motive in seeking a further Student visa is not that of genuine academic pursuit; rather, for the reasons set out above, the Tribunal considers that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.
40. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
41. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
42. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Submissions
Mr Ramanayake’s submissions
Mr Ramanayake made the following submissions:
(a)the Tribunal Decision turned on whether Mr Ramanayake met cl 500.212(a) of Sch 2 to the Migration Regulations, a provision 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)the single ground of review is on all fours with the ground made out in Eros where the Federal Court found that the Tribunal erred by finding that the applicant failed to satisfy cl 500.212(a) of Sch 2 to the Migration Regulations while not making any finding that the applicant did not intend to stay in Australia temporarily;
(c)in Eros, the Tribunal:
(i)decided the review application only by reference to cl 500.212(a) of Sch 2 to the Migration Regulations: Eros at [16] per Allsop CJ;
(ii)went as far as expressing concerns about the applicant’s motivations for remaining in Australia but made no finding that she intended on staying in Australia indefinitely;
(iii)concluded that the applicant genuinely intended on staying in Australia for a defined period of time: Eros at [22] per Allsop CJ; and
(iv)specifically found that the applicant intended on staying in Australia while her daughter remained here, which on the “[t]he evidence was … for two years”: Eros at [21] per Allsop CJ;
(d)in this matter the Tribunal:
(i)decided the review application only by reference to cl 500.212(a) of Sch 2 to the Migration Regulations;
(ii)made no finding that Mr Ramanayake intended on staying in Australia indefinitely; and
(iii)accepted Mr Ramanayake’s evidence that he intended on remaining in Australia only ““until the ‘pandemic situation’ in Sri Lanka is normalised””: CB 301, Tribunal Decision at [33], which, on the evidence before the Tribunal, was estimated to be for a period of “one year or two years”: Affidavit of Shaun Wyn-Jones affirmed on 19 November 2020 (“Wyn-Jones Affidavit”), Annexure “SWJ-2”, page 4, lines 8-33;
(e)in Eros, the Tribunal made no finding that the applicant was not a genuine student insofar as this is relevant to cl 500.212(c) of Sch 2 to the Migration Regulations: Eros at [22] and [26] per Allsop CJ;
(f)in this matter, the Tribunal noted that it “is persuaded that the applicant’s motive in seeking a further Student visa is not that of genuine academic pursuit; rather, for the reasons set out above”: CB 302, Tribunal Decision at [39], that being to “remain in Australia “until the ‘pandemic situation’ in Sri Lanka is normalised””: CB 301, Tribunal Decision at [33];
(g)the Tribunal’s conclusion that Mr Ramanayake’s motivation to be a student did not derive from a “genuine academic pursuit” is not the same as a finding that he was a genuine student, as a “student” is simply a person who is engaged in a course of study or instruction, and there is no requirement for a genuine student to hold any particular level of “academic pursuit”;
(h)in the present matter, the Tribunal:
(i)acknowledged Mr Ramanayake’s “reasonable study history, recent academic achievement, strong personal ties to his home country, positive immigration history and the other matters the Tribunal has weighed in his favour”: CB 301, Tribunal Decision at [33];
(ii)accepted Mr Ramanayake’s evidence that he intended on remaining in Australia for a temporary period of time, that being, until the “pandemic situation” in Sri Lanka normalises, which he estimated as being “one year or two years”: CB 301, Tribunal Decision at [33];
(iii)made no finding that Mr Ramanayake intends to stay in Australia indefinitely; and
(iv)concluded that Mr Ramanayake did not meet cl.500.212(a) of Sch 2 to the Migration Regulations: CB 302, Tribunal Decision at [34]; and
(i)as cl 500.212(a) of Sch 2 to the Migration Regulations is concerned with how long an applicant intends to stay in Australia, and nothing else, the Tribunal misconstrued or misapplied cl 500.212(a) of Sch 2 to the Migration Regulations.
Minister’s submissions
The Minister made the following submissions:
(a)for the purposes of cl 500.212(a) of Sch 2 to the Migration Regulations, the Tribunal was required to consider, and only consider, whether Mr Ramanayake intended to stay in Australia temporarily;
(b)the Federal Court considered the meaning of the word “temporary” in Eros at [21] per Allsop CJ, quoting from Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674 (“Hafza”); FCR at 451 per Wilcox 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.
(c)the question to be satisfied is whether an applicant intends to stay temporarily, and the decision-maker need not be satisfied an applicant positively intends to remain in Australia permanently;
(d)a person who has an indefinite (that is, an unfixed and unknowable period of time) intention to remain in Australia may not satisfy the temporary student requirement, even if that person does not intend to remain for the rest of their life, and this is a question of fact to be determined in a given matter;
(e)as it concerns Mr Ramanayake, the Tribunal was not satisfied that he intended to stay in Australia temporarily;
(f)contrary to Mr Ramanayake’s submissions, the Tribunal did not accept Mr Ramanayake’s evidence that he intended to remain in Australia for a temporary period of time, concluding instead that Mr Ramanayake’s intention was to remain in Australia for the “foreseeable future”: CB 301, Tribunal Decision at [33];
(g)the foreseeable future is as far as may be reasonably peered into the future, and is a period without a known or fixed end;
(h)having regard to the unpredictable nature of COVID-19, the relative infancy of the pandemic within Australia at the time of the Tribunal Decision, and the absence of any real information as to when the pandemic may come to an end, it was reasonably open to the Tribunal to reach the finding that it did, and no challenge is made to the finding in any event;
(i)the Tribunal was not obliged to accept Mr Ramanayake’s unsupported and subjective estimate that he (and his family) may consider the situation sufficiently resolved in one to two years, such that he may return to Sri Lanka at that time. That evidence was speculative, and was conditioned upon wholly subjective matters and was not capable of assessment by the Tribunal;
(j)having identified that Mr Ramanayake’s intention was to remain in Australia for the foreseeable future, the Tribunal then concluded that Mr Ramanayake’s justification for why he intended to undertake further study in Australia was a post-hoc rationalisation in support of his actual motive to remain in Australia due to COVID-19: CB 301-302, Tribunal Decision at [35]-[36];
(k)having had regard to Direction 69 - “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” - the Tribunal then reasoned that Mr Ramanayake’s motive in seeking a further Student Visa was not one of genuine academic pursuit, but was rather being used to circumvent the intentions of the migration programme: CB 302, Tribunal Decision at [39]. Put another way, the Tribunal did not accept that Mr Ramanayake’s intention to remain in Australia could be aligned with the period of study he proposed to undertake, but rather, that that study facilitated Mr Ramanayake’s intention to maintain residence in Australia “for his foreseeable future”: CB 301, Tribunal Decision at [33];
(l)if the Court does not accept the above submissions, and instead finds that the Tribunal fell into an error similar to that which occurred in Eros, any such error would not be jurisdictional as it was not material because the Tribunal made distinct findings that Mr Ramanayake’s motive was not that of “genuine academic pursuit” and was intended to circumvent the intentions of the migration program, which constitute findings that Mr Ramanayake was not a genuine student for the purposes of cl 500.212(c) of Sch 2 to the Migration Regulations; and
(m)on the basis of the finding that Mr Ramanayake was not a genuine student, it follows that any error could not have realistically deprived Mr Ramanayake of a successful outcome. Specifically, on the findings made by the Tribunal, it could not reasonably have been concluded that Mr Ramanayake was a genuine applicant for entry and stay as a student.
Consideration
The requirement for jurisdictional error
If a decision of the Tribunal 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 Mr Ramanayake 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.
Relevant legislative provisions
Clause 500.212 of Sch 2 to the Migration Regulations, as at 30 July 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; 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), and as set out at [12(b)] above.
In the present case, as in Eros (see Eros at [20] per Allsop CJ), the Tribunal based its entire decision on whether Mr Ramanayake satisfied cl 500.212(a) of Sch 2 to the Migration Regulations, as is apparent from the conclusion drawn at CB 302, Tribunal Decision at [40]-[42], set out at [10] above, where the Tribunal:
(a)was not satisfied Mr Ramanayake intended genuinely to stay in Australia temporarily, and therefore found that he did not meet cl 500.212(a) of Sch 2 to the Migration Regulations: at [40];
(b)as indicated by the use of “[a]ccordingly” at the commencement of the paragraph, used the finding at [40] as the basis for the further finding that it was not satisfied that Mr Ramanayake was a genuine applicant for entry and stay as a student as required by cl 500.212 of Sch 2 to the Migration Regulations: at [41]; and
(c)as indicated by the use of the phrase “[g]iven the above findings” at the commencement of the paragraph, used the findings at [40] and [41] to find that Mr Ramanayake did not meet the criteria for the grant of the Student Visa: at [42].
The Minister sought to contrast the present facts with those of Eros, insofar as in Eros the applicant had indicated that she intended to remain temporarily in Australia while her daughter completed her studies, there being a defined end date to those studies. The Minister argued that by contrast, no one could predict how long a pandemic would last or how long it would take for the situation to “normalise” in Sri Lanka, and therefore this was not “related to the fulfilment of a specific passing purpose” and rather was a contemplation of Mr Ramanayake’s foreseeable future.
The Minister’s submissions raise two issues, as to time (and in particular, the “foreseeable future”) and purpose, which are considered by the Court below: see [23]-[34] below. Suffice to say, however, that the Minister’s submissions are not persuasive.
The Minister’s submission as to time, and in particular that the “foreseeable future” is a period without a known or fixed end, cannot, in such broad terms, be accepted. Furthermore, it is a phrase, used by the Tribunal in the Tribunal Decision: CB 301 at [33], which must be considered in its context, having regard to the evidence as it was before the Tribunal.
The word “foreseeable” means “[t]hat may be foreseen. Freq. in phr. foreseeable future”, whilst “foreseen” means “[t]hat is seen beforehand”: The Oxford English Dictionary, Second Edition (Oxford: Clarendon Press, 1989) (“OED”), Vol 6, p 58 (emphasis in original). As was observed in C Czarnikow Ltd v Koufos (The Heron II) [1966] 2 QB 695; [1966] 2 All ER 593; [1966] 2 WLR 1397; [1966] 1 Lloyd’s Rep 595 (“The Heron II”) at 604 per Diplock LJ (albeit in a discussion concerning the application of the rule formulated in Hadley v Baxendale (1854) 156 ER 145; [1843-60] All ER Rep 461; (1854) 1 El & El 602; (1854) 18 Jur. 358; (1854) 9 Ex 341; (1854) 2 WR 302; (1854) 23 LJ Ex 179; (1854) 23 LT (OS) 69 as to the measure of damages for breach of contract) “[w]hat is “foreseeable” depends on the knowledge of the foreseer”. (The Heron II was appealed to the House of Lords on a separate question on the correct measure of damages for wrongful delay. The House of Lords did not dispute the application of Hadley v Baxendale and the appeal was ultimately dismissed: Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350; [1967] 3 All ER 686; [1967] 3 WLR 1491; [1967] 2 Lloyd's Rep 457).
A foreseeable period need not, and ordinarily would not, therefore be a period without a known or fixed end, or be one which is not definable by reference to some activity or event – in this case, the COVID-19 pandemic. In The Heron II the measure of damages turned upon whether it was foreseeable that there might be a downwards fluctuation in the price of sugar if a cargo of sugar was delivered late to the Port of Basrah by reason of the acts of the shipowner in causing the ship to deviate from the normal course by going to other ports, in breach of the charterparty, so as to profit the shipowner: at 604-607 per Diplock LJ and 609-610 per Salmon LJ. Further, foreseeability has never required that the precise sequence of events be foreseeable: Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; (1961) 35 ALJR 170; [1962] ALR 379 (“Chapman”); CLR at 121 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ, and foreseeability of itself might not include any concept of likelihood at all: Chapman, CLR at 115 per Dixon CJ (in argument).
In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 (“CPE15”) the Federal Court dealt with the meaning of the phrase “reasonably foreseeable future” for the purposes of assessing risk of harm to a person occurring in the future, observing at [60] per Mortimer J that:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. …
Although CPE15 was dealing with the “reasonably” foreseeable future the judgment:
(a)identifies that the concept of the foreseeable future is ambulatory, that is “movable” or “not permanent”: OED, Vol 1, p 391;
(b)identifies that the assessment of what constitutes the foreseeable future needs to be based on probative material, and without descending to guesswork; and
(c)precludes from the assessment of the foreseeable future predictions that are so far removed from the present as to be unrealistic.
That the foreseeable future was identified by Mr Ramanayake as being a period between one year and two years does not:
(a)offend the ambulatory nature of the concept; or
(b)provide a basis for considering, in the context of what was already being described by both Mr Ramanayake and the Tribunal as a “pandemic”: CB 300-301, Tribunal Decision at [25], [26], [33], [35] and [36], that the estimate of pandemic length as being one to two years was so far removed from the present reality (at the time of the Second Tribunal Hearing in June 2020) as to be unrealistic.
There was evidence before the Tribunal as to what Mr Ramanayake considered the future position would be in Sri Lanka in relation to the COVID-19 pandemic: Wyn-Jones Affidavit, Annexure “SWJ-2”, page 4, lines 14, 28, 34 and 37, page 5, lines 23, 35 and 36, page 6, lines 6,7, 14, 17, 20, 23 and 25. At no point did the Tribunal question or challenge Mr Ramanayake’s account in relation to the pandemic in Sri Lanka. Rather, the form of the questions from the Tribunal appear to have assumed the pandemic as fact. In those circumstances, and having regard also to the provisions of s 353(a) of the Migration Act, there was evidence of sufficiently rational and probative force to found a finding by the Tribunal as to the “foreseeable future” of the pandemic in Sri Lanka.
In this case, the foreseer, Mr Ramanayake, said to the Tribunal at the Second Tribunal Hearing on 24 June 2020 that he foresaw that the COVID-19 pandemic might normalise in Sri Lanka in a year or two. Whether Mr Ramanayake is ultimately right or wrong about the normalisation of the COVID-19 pandemic in Sri Lanka is immaterial. What matters is that he foresaw events concerning the COVID-19 pandemic occurring in a certain way over a certain period (seemingly over a two-year maximum period), and as a consequence, he re-enrolled in a Diploma of Leadership and Management that he had previously abandoned: CB 301, Tribunal Decision at [33]-[34].
It follows from the reasons set out at [23]-[30] above that the Minister’s submission that the “foreseeable future” refers to a period which is unknowable or not fixed is:
(a)wrong as a matter of definition; and
(b)not sustainable on the relevant facts.
Viewed superficially, a certain date of completion of a course of study might appear to offer a more concrete end date and, by extension, a more certain date of intended departure, for an applicant in Mr Ramanayake’s circumstances, but there are a multitude of scenarios in which someone may fall ill, fail or change their course, and in so doing, extend the duration of study. Whilst having a specified date may assist in deducing an intention to remain temporarily, that in itself is not the test. The Tribunal did not take issue with Mr Ramanayake’s evidence that he intended to remain in Australia “until the ‘pandemic situation’ in Sri Lanka is normalised”: CB 301, Tribunal Decision at [33]. Mr Ramanayake provided to the Tribunal an estimate of how long he considered it would take for the situation to “normalise” in Sri Lanka, that being one to two years: Wyn-Jones Affidavit, Annexure “SWJ-2”, page 4, lines 8-33. While it remains to be seen just how long recovery from the COVID-19 pandemic will take, the “specific passing purpose”, here the passing of the COVID-19 pandemic, need not have a defined end date to meet the “temporary” nature of the requirement in cl 500.212(a) of Sch 2 to the Migration Regulations. The test is not whether the applicant has a defined date of departure, but rather, whether there was an intention to remain “temporarily” as that word has been defined in Hafza and applied in Saini: see [12(b)] above, and Eros at [20] per Allsop CJ. Indeed, an initial temporary period may continue to be temporary even where it is prolongated, provided that the prolongation is governed by the intention to fulfil the specific passing purpose: Hafza, FCR at 452 per Wilcox J. Intention is a mental state, which can be deduced from the evidence, which is set out above in this paragraph. By:
(a)specifying the circumstances he was waiting to eventuate before his return to Sri Lanka; and
(b)giving an estimation of the period of time that he would stay in Australia,
Mr Ramanayake evinced his intention to remain temporarily in Australia.
The Court notes that depending on the circumstances of the case, the evidence referred to above may not have been, by itself, sufficient to satisfy the requirements of cl 500.212 of Sch 2 to the Migration Regulations, particularly when balanced against other factors for consideration. In this case, however, the Tribunal made overwhelmingly positive findings about Mr Ramanayake’s “reasonable study history, recent academic achievement, strong personal ties to his home country, positive immigration history and the other matters the Tribunal has weighed in his favour”: CB 302, Tribunal Decision at [38]. The Tribunal points to no other evidence that would appear to contradict Mr Ramanayake’s intended period of stay.
The Court notes that the Tribunal did find that Mr Ramanayake did not have genuine academic pursuit as his motive in seeking to remain in Australia, but rather was motivated by the COVID-19 pandemic situation: CB 301 and 302, Tribunal Decision at [35] and [39]. But the Tribunal does not go so far as to say that, in undertaking the Diploma of Leadership and Management in which he had re-enrolled, Mr Ramanayake was not a genuine student. Indeed it does not grapple with the issue of the genuineness (a matter distinct from motive) of Mr Ramanayake in actually undertaking that Diploma of Leadership and Management, and that is something it was be required to do, even if the undertaking of the Diploma of Leadership and Management was a means by which Mr Ramanayake might be able to remain in Australia: Eros at [20] per Allsop CJ.
At hearing the Minister referred to Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238 (“Beejadhur”) wherein this Court held that Eros did not apply in the circumstances of that case because, firstly, there had been no finding by the Tribunal that Mr Beejadhur was staying in Australia for a defined period of time, and, secondly, that there had been an unequivocal finding that Mr Beejadhur had been misusing the student visa program to maintain ongoing residence in Australia, which was said to be a clear finding that Mr Beejadhur did not intend to stay in Australia permanently: Beejadhur at [97] per Judge Kendall. The reference to Beejadhur does not assist the Minister in this case because:
(a)there was in this matter, as submitted by the Minister: Transcript, p9, lines 12-13 and p10, lines 32-33, a finding by the Tribunal that Mr Ramanayake intended to stay in Australia for the “foreseeable future”, which, for the reasons set out above: see [23]-[30] above, evinced an intention on Mr Ramanayake’s part to remain in Australia temporarily;
(b)there was no specific finding by the Tribunal in this matter that any use of the student visa programme was “misuse” or use for the purpose of “maintaining ongoing residence in Australia”: Beejadhur at [97] per Judge Kendall; CB 302 at [39]-[40];
(c)further, the finding of “misuse” in Beejadhur was based upon the inconsistent evidence given by the applicant, the Tribunal’s uncertainty of the value of the proposed course of study and the lack of any real direction as to the applicant’s future: Beejadhur at [16] per Judge Kendall. By contrast, the Tribunal in the present case made the finding that the Student Visa application was being used to circumvent the migration program solely upon Mr Rajmohan’s motivation to remain in Australia until the pandemic normalises. Here the Tribunal made no findings as to his genuineness as a student, or findings in relation to any other relevant factors; and
(d)Beejadhur is distinguishable on the facts, particular as to the change of study pathway of Mr Beejadhur, which formed the basis for a finding, by the Tribunal, and that he had been enrolling in different courses for the purpose of maintaining ongoing residence in Australia: Beejadhur at [54]-[58] per Judge Kendall.
On the above bases, 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. The single ground of the Judicial Review Application is therefore made out and establishes jurisdictional error in the Tribunal Decision.
Minister’s alternate position – jurisdictional error not material
The Minister made an alternative or further submission that the error which the Court has found occurred: see [36] above, would not be jurisdictional as it was not material because the Tribunal made distinct findings that Mr Ramanayake’s motive was not that of “genuine academic pursuit” and was intended to circumvent the intentions of the migration program, which the Minister says constitute findings that Mr Ramanayake was not a genuine student for the purposes of cl 500.212(c) of Sch 2 to the Migration Regulations, and it follows that any error could not, therefore, have realistically deprived Mr Ramanayake of a successful outcome, because it could not reasonably be concluded that Mr Ramanayake was a genuine applicant for entry and stay as a student.
In Eros at [22] and [26] per Allsop CJ relevant to cl 500.212(c) of Sch 2 to the Migration Regulations the Federal Court said as follows:
[22] ... 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. ...
[26] ... If the kind of reasoning that is revealed by the Tribunal and the primary judge is to found the visa refusal, there has to be a treatment of the material whether by way of findings or conclusions as to the lack of satisfaction concerning matters such as whether the person is a genuine student or intends to undertake a course of study. That is, relevant findings or consideration need to be made or undertaken, based on considerations made relevant by subcl 500.212(c), to the effect that the chapeau is not met. That was not done. Matters were hinted at. But the reasoning was based on Ms Eros not intending to stay temporarily, when the factual finding was such that she was intending to stay temporarily.
As in Eros, the true factual finding in this matter was one of a person intending to stay in Australia temporarily: see [23]-[34] above. The Tribunal noted that Mr Ramanayake had provided it with a valid COE for the Diploma of Leadership and Management, which had a scheduled start date of 15 June 2020 and a completion date of 21 February 2021: CB 299, Tribunal Decision at [17] and fn 5. Albeit that the scheduled start date was only nine days before the Second Tribunal Hearing and that the Tribunal Decision was delivered just five weeks later, there was scope for the Tribunal to undertake the relevant assessment of Mr Ramanayake’s genuineness as a student enrolled in the Diploma of Leadership and Management. In this matter, however, the genuineness of Mr Ramanayake as an actual student actually undertaking the Diploma of Leadership and Management was not assessed by the Tribunal, as it had to be if a decision was to be made that he was not a genuine student for the purposes of the chapeau, read with sub-para (c), of cl 500.212(c) of Sch 2 to the Migration Regulations: Eros at [20], [22] and [26] per Allsop CJ. A proper examination and consideration of these issues might realistically have made a difference to the Tribunal’s decision-making process and ultimately to the Tribunal Decision itself: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and the Court is therefore not satisfied that the jurisdictional error which it has found: see [36] above, was not material to the Tribunal Decision. In those circumstances, the Minister’s alternative submission is not made out.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)an extension of time, to 4 September 2020, in which to file the Judicial Review Application ought to be granted;
(b)the single ground in the Judicial Review Application has been made out, and therefore there should issue writs of:
(i)certiorari quashing the Tribunal Decision; and
(ii)mandamus requiring the Tribunal to re-hear the Judicial Review Application and determine it according to law,
and there will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 January 2022
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