RAVI v Minister for Immigration and Anor
[2020] FCCA 1353
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAVI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1353 |
| Catchwords: MIGRATION – Student Visa – decision of the Administrative Appeals Tribunal – where the Tribunal gave oral reasons – whether the Tribunal erred – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 44.12, pt.3, div.1 of sch.1 Migration Act 1958 (Cth), ss.359A, 360, 368D, 476 Migration Regulations 1994 (Cth), reg.4.27B, cl.572.223 of sch.2 |
| Cases cited: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 |
| Applicant: | HEMANTH RAVI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1678 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 20 June 2018 |
| Date of Last Submission: | 20 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to r. 7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1678 of 2016
| HEMANTH RAVI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 5 August 2016, the Applicant seeks judicial review of a decision of the Second Respondent (Tribunal), dated 12 July 2016. The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Class TU subclass 572) visa (Visa).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (Act). To obtain assistance from this Court, the Applicant must show jurisdictional error on the part of the Tribunal. The matter was listed for show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules).
Factual Background
The Court had before it a Court Book numbering 197 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 29 March 2017 (Minister’s Written Submissions), at [2]-[8], accurately summarise the factual history of this matter. The Court adopts those submissions, with amendments, as its own. They provide, relevantly, as follows.
The Applicant was granted his initial Student (Class TU subclass 572) visa offshore on 16 December 2008, which was valid until 15 March 2011[1]. The Applicant subsequently arrived in Australia on 22 January 2009. He was granted a further Student (Class TU subclass 572) visa onshore on 7 June 2011, which was valid until 2 December 2013[2].
[1] Court Book (CB) 64.
[2] CB 64.
The Applicant applied for the Visa on 28 November 2013[3] (Visa Application). At the time of the Visa Application, the Applicant was enrolled to undertake a Certificate IV in Business and a Diploma of Business.
[3] CB 1-8.
At the time of the Visa Application, there was insufficient information to satisfy the Minister’s department (Department) that the Applicant met the requirements for the grant of the Visa. On 29 November 2013, an email was sent to the Applicant inviting him to comment on his circumstances in relation to the Genuine Temporary Entrant criteria, and provide other documentation in relation to the English language requirements, his funds, requisite health assessments and Overseas Student Health Cover[4].
[4] CB 10-22.
On 24 December 2013, the Applicant provided a response to the Department’s request for information[5]. The Applicant provided further information to the Delegate on 6 August 2014[6].
[5] CB 23-46.
[6] CB 51-55.
On 2 October 2014, the Delegate refused to grant the Visa[7] (Delegate’s Decision). The Delegate found that the Applicant had failed to provide any substantial reason as to why he had chosen to study certain courses, and gave little weight to the lack of apparent value of the courses to the Applicant’s future.
[7] CB 57-66.
Overall, given the Applicant’s lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the Delegate found that the Applicant was using the Student visa program as a means of maintaining residence in Australia. The Delegate was ultimately not satisfied that the Applicant was a genuine applicant for entry and stay as a student, and that he intended to stay in Australia temporarily.
On 21 October 2014, the Applicant applied to the then Migration Review Tribunal (MRT) for review of the Delegate’s Decision[8]. The Applicant was represented by a migration agent.
[8] CB 67-68.
The Applicant provided submissions dated 5 May 2015 to the MRT, along with various other supporting documents[9]. The Applicant attended a hearing before the MRT, with his migration agent, on 6 May 2015 (First Tribunal hearing)[10].
[9] CB 98-147.
[10] CB 148-151.
The Applicant attended a further hearing, with his migration agent, before the Tribunal on 12 July 2016[11] (Second Tribunal hearing). At the conclusion of the Second Tribunal hearing, the Tribunal made an oral decision that affirmed the decision under review[12].
[11] CB 189-193
[12] CB 194-197.
The Tribunal’s Decision
At the Second Tribunal hearing, the Tribunal made an oral decision and gave an oral statement of its decision and reasons. The Tribunal subsequently provided a written record of its decision, dated 15 August 2016 (Tribunal’s Decision).
The Minister filed an affidavit of Aaron Michael Day, affirmed 7 February 2016, which annexed a copy of the Tribunal’s Decision[13]. The Affidavit of Aaron Michael Day was marked as Exhibit 1.
[13] Affidavit of Aaron Michael Day, filed 8.2.17.
At [1]-[6] of its decision, the Tribunal provided a factual history of the matter, as well as a brief explanation of the requirements that the Applicant needed to meet to be eligible for the grant of the Visa[14].
[14] Exhibit 1, at [1]-[6].
As to the remainder of the Tribunal’s Decision, the Minister accurately summarised this at [9]-[19] of the Minister’s Written Submissions. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal outlined that its role was to consider the Applicant’s circumstances and the issues in Ministerial Direction 53 (Direction 53), and be satisfied that the Applicant was a genuine student, who genuinely intends to stay in Australia temporarily[15].
[15] Exhibit 1, at [11].
The Tribunal noted that since coming to Australia, the Applicant had been enrolled in a number of courses (some on multiple occasions), including a Certificate III in Hospitality Management (Commercial Cookery), a Diploma in Hospitality Management, a Certificate IV in Information Technology (IT), a Diploma in IT, a Certificate IV in Business, a Diploma of Business and a Master of Professional Accounting. The Tribunal also noted that the Applicant was currently enrolled in a Master of Business Administration[16].
[16] Exhibit 1, at [18].
The Tribunal raised with the Applicant his study history since coming to Australia, and questioned how these courses were related to his future career plans or previous studies, or indeed to each other. The Tribunal noted that the Applicant provided some “vague strange statements”[17].
[17] Exhibit 1, at [19].
The Tribunal considered the pressing question to be why the Applicant had not persisted with his hospitality training, which is what he said he came to Australia for. The Applicant claimed that these courses were all somehow relevant to his business, and as an example, said that the study of information technology would allow him to develop applications to attract customers[18].
[18] Exhibit 1, at [19].
The Tribunal found that the courses were not related and therefore found that the Applicant enrolled in these courses not because they form part of an academic pathway, but instead as a method of maintaining residence in Australia. The Tribunal also found that the Applicant’s proposed courses were of questionable or little value to his future[19].
[19] Exhibit 1, at [20]-[22].
Considering the Applicant’s poor academic record, the Tribunal found that his study history was not that of a genuine student seeking to progress academically, but rather indicated that he was using the student visa programme to maintain residence in Australia[20].
[20] Exhibit 1, at [23]-[26].
The Tribunal noted that there was a gap in the Applicant’s study during the Certificate III in Hotel Management for about one year. The Tribunal noted that when asked about this gap, the Applicant provided a range of conflicting answers that were not satisfactory. Further, the Tribunal noted that there was a gap of almost one year between the Applicant’s Certificate IV in IT and his Certificate IV in Business. The Tribunal noted that when asked about this gap, the Applicant said that he “stopped to assess his life”[21].
[21] Exhibit 1, at [27]-[29].
The Tribunal found that student visas require students to remain enrolled and studying, and that the Applicant’s study gaps were unacceptable and indicated that he was not a genuine student[22].
[22] Exhibit 1, at [30].
The Tribunal also took into account the potential economic circumstances in India and Australia, and believed they provided incentives for the Applicant to remain in Australia. The fact that the Applicant had not been home since coming to Australia seven and a half years earlier, led the Tribunal to find that the Applicant did not have strong ties to India or incentives to return home[23].
[23] Exhibit 1, at [32]-[33].
Having considered the Applicant’s circumstances as a whole, including the matters specified in Direction 53, the Tribunal was not satisfied that the Applicant was a genuine student who intended to stay temporarily in Australia[24].
[24] Exhibit 1, at [34].
The Tribunal therefore found that the Applicant did not meet cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (Cth) (Regulations) and affirmed the Delegate’s Decision[25].
[25] Exhibit 1, at [34] and [35].
Proceedings before the Court
As this matter is listed for a show cause hearing, the Applicant is required to satisfy the Court that his judicial review application has raised an arguable case of jurisdictional error. The Court has also reviewed the Tribunal’s Decision carefully to determine if an arguable error may arise.
The Applicant filed his application for judicial review on 5 August 2016 (Application). The Application contained eleven grounds of review, as follows:
1.I was granted my initial Student (Class TU subclass 572) visa offshore on 16 December 2008, Came to Australia in January 2009. Again I have applied tor Student visa Extension in June 2011 and which was expired in December 2013.
2.In November 2013, When I apply for Student visa Extension Delegate for Minister of Immigration and Border Protection has refused my visa Application on the basis of Genuine Temporary Entrant.
3.Then I have applied for Tribunal Review in October 2014 and got the decision in 12th July 2016 as my review was affirmed but Tribunal has not given the full Decision, Been waiting but any how my time frame running out and also I have got some studies left on me to finish the Master’s Program.
4.That is the reason I have I am lodging the Judicial Review application at FCCA, Melbourne Registry.
5.MRT decision has jurisdiction error which has been found because of they have organised me two hearings, but they did not give Decision with explanation.
6.FCCA has to accept the judicial review application because I do have genuine Intention to finish my education in Australia and just three month left on me to finish the Education. Unnecessarily Tribunal Member make an allegation that I am not genuine and affirmed the decision not grant the visa. But there wasn’t any written decision made yet.
7.I have given explanation in my affidavit how my situation took me to this situation
8.And also Decision records of Immigration and Tribunal have been submitted with affidavit
9.Further written submission and oral submission will be submitted in later stage in time frame.
10.My Master’s degree is essential to future life
11.I hope Federal circuit court has got Jurisdiction in this matter to re-review the tribunal decision where the matter is not exposed in the FCCA decision previously.
(Without alteration)
In support of the Application, the Applicant filed an affidavit on 5 August 2016, which annexed correspondence from the Tribunal regarding its decision, as well as correspondence from the Delegate, and the Delegate’s Decision. The Applicant’s affidavit also stated:
1.This is an application for review of a decision dated 12th July 2016 made by a Administrative appeal Tribunal to Affirm to not to grant the applicant’s Subclass 573 Higher Education Sector visa where I have only three months course left to finish.
2.On 2nd October 2014 delegate of the Minister for Immigration to refuse my Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
3.I need 573 Subclass which let me finish the Master’s Program in Australia, on july 12th , 2016, again tribunal affirm the Decision not grant the visa but not written decision made yet
4.My enrolment in the master ‘s program at Holmes Institute is active at Hearing date, there weren’t any issues in my Master’s program.
5.I do have exceptional circumstances beyond my control where I can’t finish this masters from India, I have to finish this Master’s program from Australia Only.
6.MRT decision has jurisdiction error, Justice of FCCA would give me legitimate decision on my case.
7.There is no other reason to apply for student visa this was genuine reason behind the student visa application. Even I will be returning to India after my studies finished
8.My exceptional reasons would be understood and considered by justice, as I am genuine student and I have finished 80% of the course just few months of course left on me.
9.I hope Justice could understand and allow me have student visa onshore to finish my master’s program.
10.I am well educated , and I never going to breach the condition if I am given one opportunity by Federal Circuit court.
11.I am eagerly waiting to get my completion letter by end of this year, relevant submissions made at later time when required.
12.And also My Department decision record and Tribunal decision record have been enclosed with application.
(Without alteration)
Despite being given an opportunity by a Registrar of this Court to amend his application to provide “particulars”, affidavit evidence and written submissions, no further materials were provided by the Applicant. The Applicant’s grounds of review remain unparticularised.
The Applicant appeared before the Court without legal representation.
During the hearing before this Court, the Applicant told the Court that when he came to Australia, his genuine intention was to study here and that is what he did. The Applicant outlined to the Court the courses that he had completed, and stated that although “he [had] messed up in-between” and had initially not known what he was doing, he was a genuine student and had fulfilled all the requirements.
Unfortunately, the matters raised by the Applicant orally did not identify any error in the Tribunal’s decision. They are not relevant to the issues before the Court. The only issue for the Court is whether the Tribunal has fallen into jurisdictional error.
Consideration
The Applicant’s Grounds of Review and Affidavit
The concerns raised in the Applicant’s grounds of review and the affidavit are, for the most part, statements of fact or disagreement with the findings of the Tribunal. The Applicant appears to take particular issue with the Tribunal’s finding that he was not a genuine student. Disagreement does not amount to jurisdictional error. The Court has no jurisdiction to review the factual merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
At their highest, grounds three to six could be taken to be allegations of jurisdictional error whereby the Applicant takes issue with being invited to two hearings with no written decision provided by the Tribunal.
There is no legislative obligation on the Tribunal to provide written reasons where a decision has been made orally pursuant to s.368D(2)(a) of the Act (which is what occurred in this case), unless the Applicant requests that the Tribunal provide a written statement.
The Court notes that on 12 July 2016, the Tribunal wrote to the Applicant, through his agent, notifying him of its decision to refuse to grant the Applicant the Visa[26]. The Tribunal’s letter confirmed that the Tribunal had made an oral decision (though the Court notes that the Applicant was present when that decision was made), and advised the Applicant that he may request a written statement of its decision. The Tribunal’s letter noted that the Applicant’s request must be in writing and be received within 14 days of the date of the Tribunal’s oral decision. The Tribunal’s letter accorded with reg.4.27B of the Regulations, which provides that the prescribed period for requesting a written statement in relation to an oral decision made by the Tribunal under s.368D(2)(a) of the Act commences when the Tribunal makes the oral decision, and ends 14 days after the day on which the Tribunal makes the oral decision.
[26] CB 196.
There is no evidence before the Court to indicate that the Applicant requested a copy of the Tribunal’s written reasons, nor has the Applicant claimed that he requested written reasons from the Tribunal. Further, non-compliance with s.368D of the Act does not, by itself, amount to jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [75]. Here, the Applicant has pointed to no more than an apparent failure to provide a written statement (which the Applicant was not entitled to, nor was the Tribunal obliged to provide in the circumstances). Hence, no jurisdictional error arises simply because the Applicant did not receive a written record of the Tribunal’s reasons.
Further, to the extent the Applicant may be arguing that the Tribunal acted unfairly in making an oral decision, the provision of oral reasons as opposed to a written statement is not, by itself, indicative of bias or any other denial of fairness: SZANH v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1280.
Overall, the Court is satisfied that there is no reasonably arguable error identified by the Application or the Applicant’s Affidavit.
Other matters
After the Applicant commenced this judicial review application, the Tribunal provided a written statement of reasons dated 15 August 2017. The Court has reviewed these reasons in detail and is satisfied that there is no discernible or arguable error present in the Tribunal’s reasons as a whole.
The Court agrees with the Minister’s submissions that the Tribunal complied with its statutory obligations with respect to its review, and correctly identified the relevant legislative provisions and matters in Direction 53 that needed to be considered in a review of this sort.
At [7] of its decision, the Tribunal set out the relevant considerations in Direction 53, and the Court is satisfied that a fair reading of the Tribunal’s Decision record indicates that the factors which the Tribunal considered relevant were considered at [11]-[33].
Although the Tribunal has not outlined each of the factors contained in Direction 53 individually, this cannot be seen to give rise to any jurisdictional error. The Court is satisfied that the Tribunal considered all relevant considerations. It engaged fully with the Applicant’s evidence, and responded to the Applicant’s evidence as put to the Tribunal. The weight that the Tribunal gives each of the factors in Direction No.53 is a matter for the Tribunal, as is the assessment of the Applicant’s evidence against those factors: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16. The Tribunal’s consideration of the matters in Direction 53 is shaped by the way the Applicant presented his evidence and arguments, and here it is apparent that the Tribunal considered those factors to which the Applicant’s evidence directly pertained.
The Tribunal’s reasons explain why, having regard to the factors in Direction No.53 (and having assessed the Applicant’s evidence and materials against these factors), it was not satisfied that cl.572.223(1)(a) of sch.2 to the Regulations was met by the Applicant. There was nothing illogical in that conclusion, and nothing was overlooked. The Tribunal’s Decision was based solely on the evidence before it, and was entirely sound.
The Applicant attended a hearing (albeit two hearings), as required under s.360 of the Act, and he was clearly on notice of the dispositive issues in the review by virtue of the Delegate’s Decision and from the Tribunal’s discussion with the Applicant at the hearings[27]. Further, there was no information relied upon by the Tribunal which enlivened its obligations under s.359A of the Act. The information regarding the Applicant’s enrolment and study history was provided to the Tribunal by the Applicant, in the Delegate’s Decision and in his own statement and documents.
[27] Exhibit 1, at [13].
The Court is not satisfied that there is any evidence before it that gives rise to any arguable jurisdictional error.
Conclusion
The Application and the Applicant’s Affidavit do not disclose an arguable case of jurisdictional error. The Court’s review of the Tribunal’s Decision itself also does not identify any arguable error.
Accordingly, the Application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Minister seeks costs in the sum of $3,606 which was the scale costs allowed in pt.3, div.1 of sch.1 to the Rules at the time of the hearing. An Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $3,606.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 3 June 2020
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