Rani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 184
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 184
File number: MLG 1381 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 March 2024 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants student visas – where matters raised by applicants primarily seek merits review of Tribunal decision – whether Tribunal’s failure to disclose a non‑disclosure certificate issued under s 375A of Migration Act 1958 (Cth) amounts to jurisdictional error – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 116, 360, 360A, 375A, 476, 477, 499
Migration Regulations 1994 (Cth) cl 572.223
Cases cited: Chi Cong Le v Minister for Immigration and Border Protection (2019) 272 FCR 1; [2019] FCAFC 178
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DTH17 v Minister for Immigration and Border Protection [2018] FCCA 729
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 28 February 2024 Place: Perth (by Microsoft Teams) First Applicant: The first applicant appeared in person Counsel for the First Respondent: Mr A Gardner Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1381 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISHA RANI
First Applicant
DEVINDER SINGH
Second Applicant
BHAVYA SANGWAN, BY HER LITIGATION GUARDIAN, NISHA RANI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicants are non-citizens who came to Australia on student visas and who have held a number of student visas since their arrival in Australia. The applicants applied for further student visas in 2014 whilst in Australia and a delegate of the Minister refused to grant the applicants further student visas. That decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 24 April 2018. The applicants seek judicial review of the Tribunal decision by way of an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, the applicants have not established that the Tribunal decision is affected by jurisdictional error. The application to this Court must therefore be dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 24 September 2014 the applicants applied for the student visas. The first applicant was the primary visa applicant and the second applicant, who is the husband of the first applicant, was included in the application as a member of the same family unit. The third applicant, who is the child of the first and second applicant, was later included in the application as a member of the same family unit.
A delegate of the Minister made a decision not to grant the applicants student visas on 24 December 2014. The applicants sought merits review of this decision and on 11 November 2015 the Tribunal remitted the matter to the Minister’s Department for reconsideration with a direction that the first applicant met the criteria in cl 572.223(2)(a) and (c) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which relate to financial capacity.
Following the remittal, a delegate of the Minister refused to grant the applicants student visas on 7 July 2016, finding that the first applicant did not genuinely intend to stay temporarily in Australia and therefore did not meet the criterion in cl 572.223(1)(a).
On 8 July 2016 the applicants made an application to the Tribunal seeking merits review of the delegate’s decision.
The applicant appeared before the Tribunal to give evidence and present arguments on 13 February 2018.
On 24 April 2018 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant met the time of decision criterion in cl 572.223, and in particular cl 572.223(1)(a) which provides:
The Minister is satisfied that the applicant is 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…
The Tribunal also recognised that in considering whether the first applicant satisfied this criterion, it was required to have regard to Ministerial Direction No 53.
In considering the first applicant’s study history, the Tribunal accepted that the first applicant completed a number of courses between February 2009 and May 2017, primarily in the fields of hospitality and management. The Tribunal accepted the first applicant’s evidence in relation to her study history, but it was not persuaded by her reasons for studying in Australia and it did not give weight to her study plan in which she stated that her studies in Australia would assist her by improving her employment prospects on return to her home country. The Tribunal considered that, objectively, the first applicant had more than sufficient skills, knowledge and qualifications to confidently embark on her stated career path in hospitality in India or elsewhere.
The Tribunal considered that the first applicant’s decision to enrol in an Advanced Diploma of Hospitality and pursue further studies in late 2014 when her previous visa was about to expire was not indicative of a genuine student intending to reside temporarily in Australia. The Tribunal considered that the first applicant’s decision to stay in Australia to study a course of questionable value to her future suggested that she would not yield to the incentive she has to leave Australia but would rather stay in Australia indefinitely. The Tribunal therefore found that the first applicant’s study history did not show the academic process of a genuine student with a genuine intention to reside temporarily in Australia.
The Tribunal considered the value of the course to the first applicant’s future and found that her study choices did not support a clear career plan but rather suggested that her study selection was motivated by migration and visa considerations. The Tribunal accepted that some educational and career pathways require many years of study but, on the evidence before it, was not satisfied that the first applicant’s stated future plans fell into this category.
In considering the first applicant’s stated future plan to run a successful restaurant business on her return to India, the Tribunal noted that the first applicant was unable to imbue this plan with further details in relation to matters such as the business strategy she has in mind and funding and found the stated plan to be vague and inchoate. The Tribunal was not persuaded that the first applicant’s stated future plan of establishing a restaurant business in India was well-developed or a genuinely held business goal.
The Tribunal considered the first applicant’s ties to India and accepted that she had strong ties to India, including an 11 year old daughter who was residing in India with the second applicant’s parents. However, the Tribunal found that the first applicant’s decision to extend her stay beyond 2014 suggested that she would not yield to the array of incentives she has to leave Australia and rather intended to stay in Australia indefinitely.
The Tribunal considered that the first applicant’s claim that she is a genuine temporary resident was difficult to reconcile with her immigration history and the length of her stay in Australia (since 2008) and found that the first applicant was seeking to pursue further vocational studies, not as a genuine student intending to progress academically, but in order to maintain residency in Australia while she and her family explore other avenues of obtaining long-term residency. In reaching this finding, the Tribunal acknowledged the first applicant’s evidence that she applied for permanent residency in 2017.
The Tribunal considered the first applicant’s circumstances in Australia and found that the applicants had been living in Australia for almost 10 years and had financial and economic reasons to seek to remain in Australia indefinitely.
Taking into account all of these considerations, the Tribunal was not satisfied that the first applicant intended to genuinely stay in Australia temporarily and therefore found that she did not meet cl 572.223(1)(a) in Schedule 2 to the Regulations. Given that the first applicant did not meet the primary criteria for the grant of the visa, the Tribunal found that the decision in respect of the secondary applicants must also be affirmed.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 21 May 2018 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicants raise the following grounds in their application:
4.To Revoke and not to refuse/cancel my application for the student (Temporary) (class TU) Visas
5.Similar cases over turned in MTAT – MRTA overturned in Mr Brijesh Giri V MRTA 071643455 [2008] MRTA 572 (30 June 2008)
6.MRTA overturned/aside in Mr Vijay PAL V MRTA 1417099 [2015] MRTA 223 (10 February 2015)
7.MRTA overturned/remits in Mrs Neetu Bala V 1109713 [2013] MRTA 2327 (25 September 2013)
I was a Genuine international student and I had successfully completed all the courses. I’d paid all my tuition fees through my studies and thus I met the Genuine Temporary Entrant Criteria GTE Cl 572.223 of Schedule 2 to the Regulations but I was surprised that my case officer felt I am not a genuine student which is not right.
From the time I arrived in Australia I was a genuine student that’s why I didn’t have any gap in my studies. With my funds I’d paid all my fees and successfully completed all my courses and later wanted to do more study too.
Similar cases above mentioned were overturned/set aside under the same class Cl 572.223 of Schedule 2 to the Regulations.
Based on the above facts that I am seeking for a natural justice and to revoke and not to refuse my student visa application under the cl 572.223 of Schedule 2 to the Regulations.
The only relief sought by the applicants in their application as filed was an order that the decision of the Tribunal be quashed. The applicants did not seek a writ of mandamus to require the Tribunal to redetermine their application according to law. The Court’s jurisdiction to hear migration matters is set out in s 476 of the Migration Act and relevantly provides that, subject to that section, the Court has the same jurisdiction in relation to migration matters as does the High Court under s 75(v) of the Constitution. That provision requires that an applicant seek a writ of prohibition or mandamus or an injunction against an officer of the Commonwealth. At the hearing, I made an order allowing the applicants to orally amend their application to seek a writ of mandamus and I am satisfied that the application therefore now invokes the Court’s jurisdiction.
Pursuant to an Order made by Judge Riethmuller (as his Honour then was) in July 2019, the applicant was required to file and serve any amended application, any supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed and served written submissions.
When the matter came before the Court for hearing, the first applicant appeared for herself and was given an opportunity to make oral submissions. Mr Gardner appeared on behalf of the Minister.
IS THE TRIBUNAL DECISION AFFECTED BY JURISDICTIONAL ERROR?
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (Eshetu) at [40].
The grounds raised by the applicants
The grounds raised by the applicants in their written application invite the Court to consider the merits of the student visa application. As identified in the Minister’s submissions, the Court does not have any power to engage in merits review.
The grounds raised by the applicants do not assert that the Tribunal made any particular jurisdictional error.
In responding to the grounds raised in the application, the Minister submitted that no jurisdictional error is evident in the Tribunal decision, noting that:
(a)the Tribunal addressed the relevant statutory criteria, being whether the first applicant met the requirements of subcl 572.223(1) of Schedule 2 to the Regulations;
(b)in accordance with s 499 of the Migration Act, the Tribunal had regard to Direction No 53 in considering whether the first applicant satisfied the relevant criterion;
(c)the Tribunal made clear to the applicants the dispositive issue on the review and what it would consider as part of its determination; and
(d)the Tribunal invited the applicants to attend a hearing pursuant to s 360 of the Migration Act.
I accept these submissions.
The issue considered by the Tribunal on review was the same issue considered by the delegate in the decision of 7 July 2016, namely, whether the first applicant met the genuine temporary entrant criterion in cl 572.223(1) of Schedule 2 to the Regulations. The Tribunal was correct to identify this as a criterion that needed to be satisfied at the time of its decision. The Tribunal was also correct to identify that, in considering whether the first applicant met the requirements of the subclause, it was required to take into account Direction No 53, which had been issued pursuant to s 499 of the Migration Act.
The Tribunal, when inviting the applicants to attend the hearing, put the applicants on notice in three separate invitation letters that it would consider whether they intend genuinely to remain in Australia temporarily and provided a copy of Direction No 53. The Tribunal invited the applicants to attend the hearing in accordance with ss 360 and 360A of the Migration Act and agreed to reschedule the hearing at the applicants’ request. There is nothing in the materials before the Court to suggest that the invitation to attend a hearing was not a real and meaningful one.
In their grounds, the applicants identified that the Tribunal made favourable decisions in respect of other applicants in other matters in which the Tribunal considered the criteria for the grant of a student visa. I accept the Minister’s submission in response that the existence of some similarity to other matters does not necessarily mean that there must be the same result. As Judge Smith said in DTH17 v Minister for Immigration and Border Protection [2018] FCCA 729 at [32]:
… It may be, as the applicant asserted in her submissions to the IAA, that she and her sister had the same claims; however, that does not necessarily mean that there must be the same result. The task of the IAA is to review the delegate’s decision. That means, as far as is presently relevant, that the IAA must determine whether it is satisfied that the applicant meets the criteria for the grant of a protection visa on the basis of the material before it. That can mean that, even where there is the same material before the IAA in respect of different applications, there can still be different outcomes.
In any event, the three cases referred to by the applicants in their application are substantially different to the Tribunal decision the subject of this judicial review application. The 2008 and 2013 decisions referred to by the applicants both primarily relate to criteria addressing financial capacity. The 2015 decision is a review of a decision to cancel a student visa under s 116 of the Migration Act. These decisions raise different considerations to those relevant to the Tribunal decision in the present case. The Tribunal in the present case appropriately made its decision by reference to the facts and information before it and assessed the criterion that it considered to be determinative of the review application.
In oral submissions, Counsel for the Minister submitted that the ground might be interpreted as asserting illogicality. The Minister submitted that the Tribunal gave cogent reasons for the findings it made. I accept this submission. The Tribunal carefully considered the matters raised in Direction No 53 in finding that the first applicant did not meet the criterion in cl 572.223(1). It gave logical and rational reasons, based on the evidence before it, for not being satisfied that the first applicant intended genuinely to stay in Australia temporarily. While it is possible that a different decision-maker might have reached a different conclusion, the decision reached by the Tribunal was one that was open to a logical and rational decision-maker on the material that was before the Tribunal. This is not a matter in which only one conclusion was open on the evidence before the Tribunal and the Tribunal did not reach that conclusion: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135].
The grounds raised in the written application therefore do not establish jurisdictional error in the Tribunal decision.
Matters raised by the first applicant at the hearing
At the hearing I explained to the first applicant that the Court cannot engage in merits review and can only consider whether the Tribunal made a jurisdictional error. I invited her to identify any alleged jurisdictional error.
The first applicant made submissions to the effect that:
(a)after she went to the Tribunal for her first review, in which she was successful, she was then asked to provide further documents, which was very annoying as she was pregnant at the time and it was hard for her to provide the documents, and it then took a long time to get a new decision; and
(b)the Tribunal said that she was not a genuine student and only put weight on that word and this is not right.
When asked why she says that the Tribunal made a legal error in finding that she was not a genuine student, the first applicant submitted that the Tribunal said the funds were not genuine, she had already provided a number of documents in relation to her fees, which she also provided at her first Tribunal hearing, she is independent, she can pay her fees if she is working and she has already showed her funds overseas during the student visa process.
These submissions do not establish jurisdictional error in the Tribunal decision.
To the extent that the first applicant’s complaint is directed at requests by the Department to provide further information or the time taken for the delegate to reconsider her matter after it was remitted by the first Tribunal, they do not demonstrate or allege any error in the Tribunal decision that is the subject of this judicial review application. The Court does not have jurisdiction to review the delegate’s decision, or the procedural aspects of the decision-making process adopted by the delegate. That is because the delegate’s decision is a primary decision within the meaning of s 476(4)(a) of the Migration Act and s 476(2)(a) expressly provides that the Court does not have jurisdiction to review a primary decision.
The first applicant’s complaint that the Tribunal was not correct to find that she was not a genuine student amounts to nothing more than an expression of disagreement with the Tribunal decision. Disagreement with the Tribunal decision, even emphatic disagreement, is not of itself sufficient to establish jurisdictional error: Eshetu at [40]. The submission also fails to properly grapple with the Tribunal’s reasons, and in particular the finding of the Tribunal that the first applicant did not intend genuinely to stay in Australia temporarily.
The first applicant’s final submission to the Court addresses the funds that she has available to her. While an earlier Tribunal decision was primarily focused on whether the first applicant met the financial capacity criterion, that was not the focus of the Tribunal decision the subject of this judicial review application. The first applicant needed to meet a number of different criteria in order to meet the requirements for the grant of a student visa. A failure to meet all of the mandatory criteria meant that the applicants could not be granted student visas even if some of the criteria were met. In the decision the subject of this judicial review application, the Tribunal considered whether the first applicant met the genuine temporary entrant criterion in cl 572.223(1). Having found that she did not meet this criterion, the Tribunal was required to affirm the delegate’s decision. In these circumstances, it did not need to, and did not, consider the financial capacity criterion because, even if the first applicant met that criterion, she could not satisfy all relevant requirements for the grant of the student visa.
Issue raised by the Minister: Does the Tribunal’s failure to advise the applicants of a certificate issued under s 375A of the Migration Act give rise to jurisdictional error?
The Minister’s lawyers appropriately drew to the Court’s attention that an officer of the Department issued a non-disclosure certificate pursuant to s 375A of the Migration Act in respect of some of the documents on the Department’s file in relation to the applicants’ student visa application. That certificate certified that the disclosure, other than to the Tribunal, of certain documents on the Department’s file would be contrary to the public interest because the relevant documents contained information provided in confidence by an informant.
The documents covered by the non-disclosure certificate were provided to the Court in a supplementary court book, which was received into evidence and marked as Exhibit 2 at the hearing. The documents covered by the certificate relate to internal investigations that the Department made with banks in India and with the first applicant’s father regarding the first applicant’s father’s capacity to fund her education.
Counsel for the Minister acknowledged in oral submissions to the Court that the Tribunal did not disclose the existence of the non-disclosure certificate to the applicants. I have reviewed the materials before the Court and agree that there is nothing in these materials to suggest that the Tribunal disclosed the existence of the non-disclosure certificate to the applicants. The Tribunal was required, as a matter of procedural fairness, to disclose the existence of the non-disclosure certificate to the applicants and a failure to do so can in some circumstances amount to jurisdictional error: Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 at [51]-[52].
I have considered the Minister’s submissions and I accept, in the circumstances of the present case, that the Tribunal’s failure to disclose the existence of the non-disclosure certificate to the applicants does not amount to jurisdictional error. I am satisfied that the documents covered by the non-disclosure certificate all relate to the first applicant’s financial capacity, which was not considered by the Tribunal in the decision the subject of this judicial review application, and I am satisfied that the Tribunal did not see these documents as being relevant to the determinative issue on the review. In these circumstances, the failure to disclose the existence of the certificate to the applicants could not realistically have deprived the applicants of the possibility of a successful outcome: SZMTA at [2], [45] (Bell, Gageler and Keane JJ). Nor can there be any material denial of procedural fairness in the applicants not having an opportunity to comment on information that the Tribunal did not consider to be relevant to its decision and did not take into account. In this regard I note Minister’s reliance on Chi Cong Le v Minister for Immigration and Border Protection (2019) 272 FCR 1; [2019] FCAFC 178, where the Full Court said at [41]:
There cannot be any denial of procedural fairness, at least in these circumstances, in not being given an opportunity to comment on adverse material that, rightly or wrongly, was considered irrelevant and therefore not taken into account. It follows that there was no error in the primary judge finding that the failure of the Tribunal to provide the documents to the appellant was not material because it could not have made a difference to the outcome. As the majority pointed out in SZMTA at [45], “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision”. Being deprived of an opportunity to address adverse material that was not relied upon could not realistically have resulted in a different outcome.
I also acknowledge, as identified in the Minister’s submissions, that at least some of the information was disclosed to the applicants in the delegate’s decision made on 24 December 2014. However, I do not rely on that to find that the Tribunal’s failure to disclose to the applicants the existence of the non-disclosure certificate could not realistically have deprived the applicants of the possibility of a successful outcome given my finding above that the information covered by the certificate was not considered by the Tribunal to be relevant to its decision.
CONCLUSION
The applicants have not established that the Tribunal decision is affected by jurisdictional error. The judicial review application to this Court must therefore be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 March 2024
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