Regmee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1733
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Regmee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1733
File number: PEG 340 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 29 July 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied the applicants procedural fairness or natural justice – whether the Tribunal failed to consider relevant information or denied the applicants an opportunity to provide such information – no jurisdictional error – application dismissed Legislation: Federal Circuit Court of Australia Act 1999 (Cth), Part 6 of Division 5
Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cll 500.211, 500.212, 500.218, 500.311 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 95 Date of hearing: 28 July 2021 Place: Perth Applicants: Appeared in person Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 340 of 2020 BETWEEN: NIRAJ REGMEE
First Applicant
NISHA BARAKOTI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicants (husband and wife) are from Nepal. They arrived in Australia on 19 July 2008 on a student visa (Court Book (“CB”) 83). They were subsequently granted 5 further student visas and one Graduate work (Subclass 485) visa (CB 104).
Prior to arriving in Australia, the first applicant attained a Bachelor’s Degree in Business from a university in Nepal (CB 10). He has completed the following courses in Australia: a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality, a Certificate IV in Business, a Diploma of Business and an Advanced Diploma of Business (CB 11-12, 83 & 105).
On 15 March 2019, the first applicant applied for a Temporary Student (class TU) (subclass 500) visa (the “visa”) (CB 1-46 & 83). At the time of application, the first applicant was enrolled to complete an Advanced Diploma of Hospitality Management. He completed that course on 24 April 2019 (CB 83).
On 18 May 2019, the Department of Home Affairs (the “Department”) asked the first applicant to provide a current Confirmation of Enrolment (“CoE”) because the CoE provided with the visa application had expired (CB 49-55).
The first applicant provided a CoE which confirmed his enrolment in a Certificate IV in Work Health and Safety (CB 56).
On 18 June 2019, the Department asked the first applicant to provide further information addressing the genuine temporary entrant criterion (CB 57-63). The “information request” provided as follows:
Genuine temporary entrant criterion
Please note that the Genuine Temporary Entrant statement you have provided is in reference to the Advanced Diploma of Hospitality you were previously enrolled in. To assess the value of Certificate IV in Work Health and Safety to you future, we require a new Genuine Temporary Entrant statement setting out your reasoning behind studying this course.
Provide a statement setting out your reasons for undertaking the course(s) of study specified in your application.
The statement should set out:
•your reasons for choosing to undertake the course(s) of study specified in your application
•your reasons for choosing your education provider(s)
•your reasons for choosing to study in Australia rather than in your home country or usual country of residence
•your planned living arrangements in Australia
•the relevance of your course(s) of study to your academic and/or employment background
•the relevance of the course(s) of study to your future career and/or educational plans.
Provide evidence of your economic circumstances in your home country.
This may include evidence of employment or business undertakings for at least the 12 months immediately before the lodgement of your visa application, evidence of an offer of employment on your return home, income tax return reports or bank statements for the previous 24 months.
Provide evidence of your ties to your home country or usual country of residence that shows that you have significant incentives to return home at the end of your stay in Australia.
This may include evidence of financial, family or social ties.
Provide evidence of your current employment.
Evidence should include the address of your employer, period of employment and details about the position held. Include the name and contact details of a person who can verify the terms of your employment.
On 11 July 2019, the first applicant provided a response which included a statement addressing the genuine temporary entrant criteria, payslips and other supporting documents (CB 64-76).
On 26 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the first applicant the visa (CB 81-87). The delegate was not satisfied that the applicant met cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) and was not satisfied that the first applicant genuinely intended to stay in Australia temporarily. As the first applicant was refused the visa and could not satisfy the primary visa criteria, it followed that the second applicant’s visa was also refused. That is, the delegate found that the second applicant did not satisfy cl 500.311 of the Regulations.
On 4 August 2019, the applicants lodged an application for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 88-90).
On 1 April 2020, the Tribunal invited the applicants to provide further information in relation to the first applicant’s enrolment in a registered course of study and information addressing the genuine temporary entrant criteria (CB 95-99). In response, the applicants submitted a completed Request for Student Visa Information form to the Tribunal (CB 100-109).
On 24 July 2020, the Tribunal invited the applicants to attend a hearing scheduled for 17 August 2020. In response, the applicants (through their registered migration agent) provided a completed response to the hearing invitation, written submissions, letters from Kinggdom Institute of Management, payslips and CoEs (CB 116-131).
On 17 August 2020, the applicants appeared before the Tribunal with their registered migration agent (CB 132-134).
On 21 October 2020, the Tribunal affirmed the decision not to grant the applicants the visa (CB 138-149).
On 11 November 2020, the applicants filed an application for judicial review of the Tribunal’s decision in this Court. The application was filed pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 12 pages long and spans 43 paragraphs.
The Tribunal first identified the type of visa the applicants were seeking (at [1]) and discussed the two subclasses contained within that class of visa (at [2]). The Tribunal noted that the delegate had refused to grant the applicants the visas on the basis that the first applicant had not satisfied cl 500.212 of Schedule 2 of the Regulations (at [3]).
The Tribunal also noted that the applicants had been invited to provide further information prior to the Tribunal hearing (at [4]) and that the first applicant had provided additional documents and material (at [5]). The Tribunal confirmed that it had read and considered all of those documents, together with further submissions provided immediately prior to the hearing.
The Tribunal then confirmed that the first applicant had appeared before the Tribunal (at [6]) and that the applicants had been assisted by their registered migration agent (at [7]).
The Tribunal explained that, in order to be granted the visa, the primary criteria set out in cl 500.211 to 500.218 of Schedule 2 of the Regulations must be met by one of the applicants (at [9]) and that the remaining applicants need only satisfy the relevant secondary criteria.
The Tribunal then outlined the relevant legislative provisions as follows:
Genuine applicant for entry and stay as a student (cl. 500.212)
10. Clause 500.212 requires 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.
Does the applicant intend genuinely to stay in Australia temporarily?
11.In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
12.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then detailed some of the information provided by the first applicant (relevantly his age, date of birth and arrival date (with the second applicant) in Australia) (at [13]) and described how the first applicant had initially come as a dependant on the second applicant’s student visa and had applied to study Commercial Cookery when his wife did not become a qualified chef (at [14]).
The Tribunal discussed the fact that the first applicant was a dependant on his wife’s visa until February 2011 and outlined that, prior to being refused the visa, the first applicant was granted three student visas between February 2011 and July 2015, obtained a graduate work visa from September 2015 to March 2017 and was granted a further student visa in May 2017 (at [15]).
The Tribunal then detailed information provided in the first applicant’s submissions as follows:
16.In his written submissions to the Department he said as follows: “I am determined to complete Certificate IV in Health and safety. This level, I believe will help me become a well presented Chef or a successful restaurant owner in the future with superior hospitality restaurant management skills and more importantly hold the knowledge and skills of Health and Safety, outstanding professional competence and an exciting successful future. Having mentioned above, with those knowledges and experience I want to go back to Nepal, be closer with my family and contribute to the country with my exceptional hospitality services in safety environment.” The written submissions were dated the 11 July 2019.
The Tribunal noted that the first applicant had provided a letter claiming that he could not complete his study due to the pandemic, had requested reenrolment (at [17]) and had since enrolled in a Diploma in Work Health and Safety course (at [18]). The Tribunal did not place much weight on the CoE provided regarding that course as it appeared to have been obtained so the applicant could be enrolled in a course of study at the hearing.
The Tribunal noted:
19.In his statement to the Department of Home affairs dated the 11 July 2019 the first named applicant stated as follows: “I first completed Certificate III in hospitality Commercial Cookery and then was misguided by the agent and ended up studying Certificate IV, Diploma and Advanced Diploma of Business. I was advised by the agent that doing the business courses will help in the future if I wanted to be a chef or work in a restaurant. While I studied the said business courses my friends living in Perth studied and continued with commercial cookery and always expressed that it was a great career.”
The Tribunal considered the first applicant’s study history and, relevantly:
(a)noted that the first applicant had gone on to complete an Advanced Diploma in Hospitality and was advised by friends to complete studies in work, health and safety to better guide staff in a kitchen environment (at [20]);
(b)found that, given the first applicant Completed a Diploma in Business and subsequently completed an Advanced Diploma in Business, he must have been aware of his study pathway (at [21]); and
(c)noted that the first applicant had worked as a chef in 2015/2016, earning reasonable money, whilst on a graduate visa (at [22]).
Based on the evidence provided by the first applicant, the Tribunal was of the view that, had the applicant been a genuine temporary entrant, he would have left Australia upon completion of his Advanced Diploma in Hospitality and opened the restaurant he spoke about in his home country (at [23]).
The Tribunal then considered the value of the proposed courses, the genuine temporary entrant statement and submissions provided by the first applicant and found his comments to be general and lacking in detail or depth. In this regard, the Tribunal determined that the evidence provided did not demonstrate “the value of the proposed courses to [the applicant’s] future” at [24]).
The Tribunal also determined that, given that the first applicant had only returned home on two occasions in a 12 year period and his wife (the second applicant and his closest family tie) was living with him in Australia, the applicant’s familial ties would not serve as an incentive for the applicant to return to his home country. This weighed significantly against the first applicant’s case (at [25]).
When reviewing evidence provided by the first applicant, the Tribunal:
(a)acknowledged that he was a member of various community groups, assisted other international students from Nepal, had made close friends and had strong community ties in Australia and found that this weighed against the first applicant’s case (at [26]);
(b)noted the he had worked in Australia as a chef since 2014 and would have gained a sufficient amount of experience and knowledge through his work and study in Australia to “succeed in his own business” (at [27]);
(c)found that he had already had sufficient time to complete his study and did not accept his explanations about future studies (at [28]); and
(d)found his evidence unconvincing and the answers provided to questions put to him at the hearing to be vague and general (at [29]).
The Tribunal discussed the applicants’ earnings and noted that they had advised the Tribunal that their money is spent on their education, with the first applicant’s parents helping if “they are short” (at [30]). The Tribunal also noted that the first applicant had worked in a variety of roles, including as a cleaner, cook and chef, since his arrival in Australia in 2008 (at [31]). Further, the first applicant had given evidence that the second applicant works “in cooking and childcare” and that he was “working as a chef in an aged care facility” (at [32]).
The Tribunal noted that the first applicant had stated that he had made enquiries and there were not many work health and safety courses available in Nepal. However, the Tribunal also noted that no evidence had been provided regarding enquiries in this regard and doubted that the first applicant would require the Diploma to open a business or obtain employment (at [33]).
Given that the first applicant had already completed courses at an Advanced Diploma level in Business and Hospitality and the basics of Health and Safety, the Tribunal did not believe that the present qualification would further the first applicant’s career – particularly as he already had “chef qualifications” and work experience in Australia (at [34]).
Considering the first applicant’s circumstances in Australia (noting that his wife lives in Australia and his involvement in various organisations assisting the Nepalese community), the Tribunal found that the first applicant had strong personal and social ties to Australia formed over the 12 years he has lived in Australia (at [35]).
The Tribunal also found as follows:
36.The Tribunal's strongly held view is that the first named applicant is motivated to remain in Australia to work until such time as he can find a pathway to a more permanent arrangement. The Tribunal is not satisfied that in the circumstances of his case the fact that he has lived in Australia for 12 years that he considers living in Australia to be temporary. Given that he is now 37 years of age and he has not lived in any other country for most of his adult life other than Australia he would have very limited or social ties to his home country.
37.Given the amount of time that the first named applicant and his wife have spent in Australia on student visas and associated bridging visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.
38.The Tribunal is of the view that his studies in work health and safety is relevant or necessary for him to work in management in a restaurant if he does intend to work as a chef or open his own business.
The Tribunal also noted that the first applicant had stated that he did not have to complete military service and there was no civil unrest in his home country (at [39]). The Tribunal made no findings, due to a lack of evidence, regarding whether the first applicant had complied with migration laws in any other country (at [40]).
The Tribunal determined that:
41.The second named applicant has applied for a visa on the basis of being a member of the first named applicant's as part of the family unit and therefore their application is determined by the first named Applicant's Application.
Overall, the Tribunal was not satisfied that the first applicant met cl 500.212(a) of the Regulations and affirmed the decision not to grant the applicants the visas (at [42]-[43].
PROCEEDINGS IN THIS COURT
In their application for judicial review filed with this Court on 11 November 2020, the applicants provide the following “grounds of review”:
1.I, Niraj Regmee, Passport number [omitted], Date of Birth: [omitted] along with my wife Mrs Nisha Barakoti, passport number [omitted], made an application for a Student Visa subclass 500 on 15 March 2019. I was the primary applicant and my wife was the secondary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. I wanted to study in Australia and I did enrol for Certificate IV and Diploma in Work Health and Safety. The reason behind this intention was that we worked in a restaurant environment for a long time and had an aspiring dream of opening a restaurant of our own either in Australia or overseas. However, my lack of knowledge in health and safety within the business will not help me control hazard or develop safety plans for my staff members. As a chef we daily experience risk at work place dealing with cooking or grilling hot food items. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give me a fair chance for providing further explanation or clarifications in relation to my circumstances or immigration history. I had provided my GTE and in which, I had stated my plans or future after studying in Australia. We received a notice of refusal of student visa application by Department of Immigration and Border Protection on 26 July 2019, which stated that I did not satisfy clause 500.212 of the Migration Regulations for meeting the criteria as a genuine temporary entrant. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant my wife and I the Student Visa. Not having knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.212 and also the ministerial direction no 69 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as circumstances at home country, travel history, intentions to study as a genuine student. Given a fair chance by the decision maker I was able to satisfy these clauses and I strongly believed that there has been an error in the decision maker’s judgement for the student visa application. I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. The officer states that the regulation direction no 69 not being satisfied, whereas; I strongly believe that I have satisfied the same rule. I have also carefully gone through the decision record from Administrative Appeals Tribunal and also believe that I was not given a fair chance at the AAT for my visa application too. I was invited for a telephone hearing. I was asked questions in relation to the career at present and my history in Australia. I had also provided reason for deferring the semesters due to COVID19. The college provided a statement in support of my deferment and re-enrolment due to COVID19. I believe the officer should have given attention to my plans in the future and hence I believe, I was not given a chance to speak or explain further and provide any explanation. I wasn't provided the natural justice by the Tribunal member who made the final decision.
2.After the department refused my visa, we applied for the review the application at the AAT with the expectation that they would understand and consider my scenario and accept the reenrolment in same course due to COVID19. I was not even heard at the AAT, although I was invited to provide further information, I believe that the information I provided prior and during the hearing was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
3.The main reason behind filing this appeal application at the Federal Circuit Court is that we believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I have worked as a chef in the kitchen for nearly 5 years. It is essential to follow the health and safety guidelines in the kitchen especially during the pandemic that has changed the normal way of living and without proper knowledge it is impossible to implement or follow health and safety rules within my future business. I had strong claims for the enrolment and student visa and had a fair chance of approval. I believe that I have strong grounds to challenge the decision made by AAT. I request the Federal Circuit Court to please shed some light in our case and provide justice to us. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered, as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.
The applicants also filed an affidavit sworn by the first applicant in support of their application for review. The affidavit annexed copies of the decisions made by the Department and the Tribunal, together with the associated notification letters and information sheets and provides as follows:
1.I wish to apply for a Federal Circuit Court Application for review of AAT Decision. The AAT Decision Maker has not made a fair decision. I wish to provide additional information on file.
The applicants were given an opportunity to file an amended application, any additional affidavit evidence and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit filed on 11 November 2020, a Court Book numbering 149 pages (marked as Exhibit 1) and written submissions filed by the Minister on 1 July 2021.
The Court granted counsel for the Minister leave to appear at the hearing via Microsoft Teams pursuant to Part 6 of Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the applicants during the hearing but the second applicant also spoke at times on her own behalf. Court confirmed with the first applicant that the applicants had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Unfortunately, the applicants’ oral submissions did not address the issue of jurisdictional error. Rather, they simply expressed disagreement with the Tribunal’s decision and again stressed their intention to return to Nepal.
CONSIDERATION – GROUNDS OF REVIEW
Ground 1
Ground 1 is lengthy and, for ease of reference, will be considered in discrete parts.
Ground 1 begins:
I, Niraj Regmee, Passport number [omitted], Date of Birth: [omitted] along with my wife Mrs Nisha Barakoti, passport number [omitted], made an application for a Student Visa subclass 500 on 15 March 2019. I was the primary applicant and my wife was the secondary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. I wanted to study in Australia and I did enrol for Certificate IV and Diploma in Work Health and Safety. The reason behind this intention was that we worked in a restaurant environment for a long time and had an aspiring dream of opening a restaurant of our own either in Australia or overseas. However, my lack of knowledge in health and safety within the business will not help me control hazard or develop safety plans for my staff members. As a chef we daily experience risk at work place dealing with cooking or grilling hot food items. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give me a fair chance for providing further explanation or clarifications in relation to my circumstances or immigration history. I had provided my GTE and in which, I had stated my plans or future after studying in Australia. We received a notice of refusal of student visa application by Department of Immigration and Border Protection on 26 July 2019, which stated that I did not satisfy clause 500.212 of the Migration Regulations for meeting the criteria as a genuine temporary entrant. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant my wife and I the Student Visa. Not having knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.212 and also the ministerial direction no 69 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as circumstances at home country, travel history, intentions to study as a genuine student. Given a fair chance by the decision maker I was able to satisfy these clauses and I strongly believed that there has been an error in the decision maker’s judgement for the student visa application. I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. The officer states that the regulation direction no 69 not being satisfied, whereas; I strongly believe that I have satisfied the same rule.
Much of the first part of this ground outlines factual information and reasons for the first applicant wanting to pursue his proposed course of study. This does not raise any issue in relation to jurisdictional error on the part of the Tribunal.
The applicants also make reference to the decision made by a delegate of the Minister. The applicants then reference not being given a “fair chance” by the “decision maker” to satisfy the relevant conditions and state that there “has been an error in the decision maker’s judgement for the student visa application”. The applicants go on to say that they are of the view that the “decision maker has taken the advantage of his discretionary power to refuse the student visa” and that, despite the “officer” stating that Direction No. 69 has not been satisfied, the first applicant believes that he has “satisfied the same rule”.
To the extent that the applicants are concerned that there was an error in relation to the delegate’s decision, this Court has no jurisdiction to review that decision: the Act, ss 476(2) and (4). Further, the Tribunal conducts a de novo review which would in effect “cure” any error in the delegate’s decision: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
In so far as the first applicant suggests that he was “not given a fair chance at the AAT for [his] visa application”, that “attention” should have been “given to [his] plans in the future”, that he was “not given a chance to speak or explain further or provide any explanation” to the Tribunal and “wasn’t provided the natural justice by the Tribunal member who made the final decision”, those are matters which this Court can review and they will be addressed below.
Ground 1 continues:
I have also carefully gone through the decision record from Administrative Appeals Tribunal and also believe that I was not given a fair chance at the AAT for my visa application too. I was invited for a telephone hearing. I was asked questions in relation to the career at present and my history in Australia. I had also provided reason for deferring the semesters due to COVID19. The college provided a statement in support of my deferment and re-enrolment due to COVID19. I believe the officer should have given attention to my plans in the future and hence I believe, I was not given a chance to speak or explain further and provide any explanation. I wasn't provided the natural justice by the Tribunal member who made the final decision.
Insofar as this ground refers to deferment of studies and re-enrolment due to the COVID-19 pandemic, this will be discussed with ground 2 below.
This part of ground 1 appears to allege that the Tribunal denied the applicants procedural fairness. It also alleges a failure to “give attention” to the first applicant’s future plans and suggests that the first applicant was not given a chance to speak or provide further explanation to the Tribunal in that regard.
In relation to concerns that the applicants were not provided natural justice and were not able to speak or provide further explanations to the Tribunal, the Court notes as follows.
The applicants were at all times represented by a registered migration agent.
On 1 April 2020, the Tribunal invited the applicants, through their agent, to provide the following information (CB 98):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.
Click here to complete the online Request for Student Visa Information form.
The form was completed and returned by or on behalf of the applicants (CB 100-109).
Further, on 24 July 2020, the Tribunal invited the applicants, through their migration agent, to attend a hearing before the Tribunal. In that invitation letter, the Tribunal also requested the following information (CB 114):
What you should do on receipt of this letter
Please read and complete the enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days of receipt of this letter.
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.
We may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate's decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
In the completed response to the hearing invitation form, the applicants advised they intended to rely on the following documents at the hearing:
I Completing evidence of Certificate IV Health & Safety
II CoE of Diploma of Health & Safety
The applicants’ migration agent provided submissions and supporting documentation on 11 August 2020 (CB 120-131). This supporting information included letters from Kinggdom Institute of Management confirming the first applicant was enrolled in a Diploma of Work Health and Safety (at CB 126) and advising that the first applicant “claimed that he could not complete whole units within the COE period” for the Certificate course “due to the pandemic period” (at CB 127), payslips and CoE documents.
The applicants appeared before the Tribunal on 17 August 2020. The Court does not have a transcript of the Tribunal hearing. However, the Court notes that the hearing lasted for 32 minutes and the applicants were represented by a migration agent who was also present at that hearing (CB 132-134).
The Tribunal’s reasons also make specific reference to applicants’ evidence and the responses provided by the first applicant (see for example [26]-[34]). Specifically, at [29], the Tribunal states:
The Tribunal found that his evidence was not convincing and that he gave vague and general answers to the questions posed by the Tribunal during the hearing.
On the basis of the above, the Court is satisfied that the applicants were given a fair chance to speak and present their case at the hearing.
The Court also notes that there was a period of over two months between the Tribunal hearing and the decision being made by the Tribunal. There is no evidence before this Court that the applicants or their representative suggested that they would like to provide more information or were denied an opportunity to do so.
The Court is satisfied that the Tribunal did not breach any natural justice or procedural fairness obligations.
In relation to the claim that the Tribunal did not “give attention” to the first applicant’s future plans, the Court notes that no particulars have been provided regarding what was not actually considered. In any event, the Court notes that the Tribunal discussed the first applicant’s “future” and “career plan” as follows:
24.Thee Tribunal has considered the value of the proposed courses to the applicant's future. The Tribunal has also considered the GTE statement and further submissions setting out the applicant's reasons for undertaking the intended courses of study in Australia. His comments are general in nature. They are not related in any detail or any great depth to possible future employment or a career plan. Therefore, the Tribunal is not satisfied that the first named applicant has demonstrated the value of the proposed courses to his future.
The Tribunal further discussed the applicant’s future as follows:
34.He did state that he expects to get a job after completing his studies in his form 17 that he will get a job and is expecting to receive more than 75,000 in his home country. In his genuine Entrant statement, he stated that his dream is to become a qualified chef or manage his own restaurant with enough knowledge of health and safety. Considering the fact that he has already studied the basics of Health and Safety and finished courses in Business and Hospitality at an Advanced Diploma level the Tribunal does not believe that the present courses are going to help him further his career as he has already has the qualifications of a chef and work experience in Australia.
As outlined above, there is no evidence before this Court that the applicants attempted to provide any further information to the Tribunal regarding their future plans or that they were denied an opportunity to provide any further information to the Tribunal, either before, during or after the Tribunal hearing.
There is no evidence to support the assertion that the Tribunal failed to consider any relevant information or denied the applicants an opportunity to provide such information.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 states:
2.After the department refused my visa, we applied for the review the application at the AAT with the expectation that they would understand and consider my scenario and accept the reenrolment in same course due to COVID19. I was not even heard at the AAT, although I was invited to provide further information, I believe that the information I provided prior and during the hearing was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
The first applicant again argues that the Tribunal did not give him an opportunity to explain or clarify any matters in relation to his genuine intention to study.
For the reasons outlined above, this Court has concluded that the Tribunal did afford the applicants procedural fairness and that the applicants were given multiple opportunities to provide information and “explain” or “clarify” any issues relating to their application.
In relation to any concerns that the Tribunal did not consider the first applicant’s failure to complete a course and re-enrolment in that same course due to the COVID-19 pandemic, this issue was also partially raised in ground 1 where the first applicant stated:
I had also provided reason for deferring the semesters due to COVID19. The college provided a statement in support of my deferment and re-enrolment due to COVID19.
The Court notes that the Tribunal specifically acknowledged the correspondence from Kinggdom Institute of Management at [17] where it stated:
17.The first named applicant did provide a letter from Kingdom College to the Tribunal which stated that “the Student claimed that he could not complete whole units within the COE period due to the pandemic period so he had requested to be re-enrolled.”
The Tribunal went on to discuss the first applicant’s re-enrolment as follows:
18.Since writing that statement the applicant enrolled in a course being the Diploma in Work Health and Safety at Kingdom College with a start date of the 10 August 2020. The current Certificate of Enrolment was created on the 4 August 2020.The Tribunal notes that the applicant's hearing date was known to him at the time that the certificate of enrolment was created as the actual hearing date was the 17 August 2020. The Tribunal does not place a lot of any weight in favour of the applicant's case because of the enrolment as it appears that it was obtained so that he could claim to be enrolled at the hearing.
Further, the Tribunal did not accept the first applicant’s explanations regarding his further study, determined that he had already had sufficient time to complete the course and that it was his choice not to continue his studies because of the COVID-19 pandemic. Specifically, the Tribunal stated:
28.The Tribunal does not accept his explanations as to why he wishes to do further studies as he has already had enough time to complete the vocational course of Certificate IV in Work Health and safety. The College stated in their letter that it was his choice to stop studying as the covid 19 situation in Western Australia.
It is clear from the above that the Tribunal did, in fact, consider the first applicant’s
re-enrolment, and the correspondence from Kinggdom Institute of Management and the first applicant’s decision to cease his study due to the COVID-19 pandemic. The Tribunal assessed that information and did not place a lot of weight on the documents and information provided on the basis that, in the Tribunal’s view, the first applicant appeared to have re-enrolled in the course for the sole purpose of being enrolled at the time of the hearing.
This was a finding that was open to the Tribunal and mere disagreement with the Tribunal’s assessment does not in itself evidence error. No jurisdictional error arises in this regard.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 begins as follows:
The main reason behind filing this appeal application at the Federal Circuit Court is that we believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case.
For the reasons given above in relation to ground 1 and ground 2, the Court is satisfied that the applicants were provided procedural fairness by the Tribunal.
Ground 3 continues:
I have a strong view that AAT should have considered the fact that I have worked as a chef in the kitchen for nearly 5 years. It is essential to follow the health and safety guidelines in the kitchen especially during the pandemic that has changed the normal way of living and without proper knowledge it is impossible to implement or follow health and safety rules within my future business. I had strong claims for the enrolment and student visa and had a fair chance of approval. I believe that I have strong grounds to challenge the decision made by AAT.
Here, the applicants are simply disagreeing with the Tribunal’s decision.
As to any other concerns raised, it is noted that, relevantly, the Tribunal considered the first applicant’s “chef qualifications” and his work experience (see for example [27], [31] and [34]) but ultimately found that, given the amount of time the applicants had spent in Australia, any further student visa would likely be used “primarily for maintaining ongoing residence” in Australia (at [37]).
Again, this was a finding that was open to the Tribunal to make and no error arises with the Tribunal’s reasoning in this regard. It cannot be said that this a finding that no other decision maker could make or that the decision was, in any way, illogical, irrational or unreasonable.
Ground 3 concludes:
I request the Federal Circuit Court to please shed some light in our case and provide justice to us. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered, as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.
This passage is a plea for relief and does not identify any jurisdictional error on the part of the Tribunal.
Ground 3 is, accordingly, dismissed.
CONCLUSION
The applicants’ grounds of review fail to identify any jurisdictional error. This Court has also failed to identity any error on the part of the Tribunal.
The application for review is, accordingly, dismissed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 July 2021
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