Sandhu v Minister for Immigration, Citizenship, and Multicultural Affairs
[2024] FedCFamC2G 319
•9 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] FedCFamC2G 319
File number(s): SYG 2626 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 9 May 2024 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) visa – whether Tribunal made unwarranted assumptions in not being satisfied that the applicant was a genuine temporary student for the purposes of cl 500.212(a) in Schedule 2 to the Migration Regulations1994 (Cth) – Jurisdictional error – Application granted. Legislation: Migration Act 1958 (Cth), ss.359,476,499.
Migration Regulations 1994 (Cth), Sch. 2.
Cases cited: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175
Minister for Immigration and Citizenship v SZMDS 2010 HCA 16; (2010) 240 CLR 611
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 26 October 2023 Date of hearing: 26 October 2023 Place: Sydney Counsel for the Applicant: Mr Godwin Solicitor for the Applicant: Teleo Lawyers Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2626 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PALVINDER SINGH SANDHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 8 September 2019.
2.A writ of mandamus issue directed to the second respondent requiring the second respondent to determine the applicant’s review application according to law.
3.That the first respondent pay the applicants costs of the application.
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 r17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD
INTRODUCTION
By an application filed on 10 October 2019, the applicant seeks review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”), refusing to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”) on the ground that the applicant did not meet the criteria for the grant of the visa in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Clause 500.212 (“the genuine temporary entrant criterion”) of the Regulations provides relevantly 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) or any other relevant matter.
The question before the delegate, and then the Tribunal, was whether the applicant was a genuine temporary student. The principal question on this review is whether the Tribunal made unwarranted assumptions when reaching its decision that it was not satisfied that the applicant was a genuine temporary student.
For the reasons explained below, I have found that the applicant has established that the Tribunal decision is affected by jurisdictional error, and I grant the application for judicial review.
BACKGROUND
The applicant is a citizen of India who arrived in Australia on 8 June 2016. The applicant had been granted on 31 May 2016, an initial Student (Class TU subclass 573) visa, which was valid until 15 March 2018.
The applicant applied for a Student (Temporary) (Class TU) visa on 15 March 2018. At the time of application, the applicant was enrolled in the following courses:
·Certificate IV in Leadership and Management; and
·Diploma of Leadership and Management.
On 30 April 2018, the then Department of Home Affairs (“the Department”) notified the applicant of the refusal of his application for a student visa. The Decision Record details the following reasons for finding that the criteria for the grant of a Student visa were not met by the applicant:
Information in the application for a student visa requires the applicant to provide a statement and include any supporting information in relation to the Genuine Temporary Entrant (GTE) criterion. In response to the specific question in the application form, the applicant stated “I work in Departmental store… My job is also very good and I like working in this field… will learn many skills and subjects related to job in management field… I was typing in this column but the page went off in all information is gone. I am loading Word document, signed with other docs.” A search of Departmental records indicates that the applicant has not submitted any further documentation or information addressing the GTE criterion, though they have been afforded ample time. I have made my assessment in regard to the GTE criterion, on the basis of documentation and information available to me at the time of the decision.
The delegate of the Minister found that the criteria for the grant of a Student visa were not met by the applicant in circumstances where no evidence had been provided in support of the application.
On 18 May 2018, the applicant applied for review of the delegate’s decision by the Tribunal.
On 11 June 2019 the Tribunal invited the applicant to provide further information, specifically information about the course of study he was undertaking and his entry and stay in Australia as a student.
On 25 June 2019, the applicant completed an on-line form titled Request for Student Visa Information form. He provided a submission with respect to the proposed course of study and an Overseas Student Confirmation-of-Enrolment (CoE) identifying his enrolment in a Diploma of Leadership and Management Course. The CoE was created on 13 March 2013 and updated on 25 March 2019. The course study date was 25 March 2019 and end date 22 March 2020.
On 27 June 2019, the applicant sent an email to the Tribunal requesting to “add some additional information in support of my student visa application”. On 28 June 2019 the Tribunal refused to give the applicant any further time. The Tribunal requested that any documents were to be forwarded to it by 4 July 2019.
On 4 July 2019, the applicant sent to the Tribunal the following email:
To whom it may concern,
Following your request for further information on the 11th of June I would like the opportunity to add further documents in support of my student visa application to demonstrate that I am a genuine applicant for a student visa. Therefore, please find attached the following documents:
•A new COE to continue my studies and progress my education in leadership and management enrolling in an advanced Diploma following the completion of my current Diploma studies;
•A letter from my current school confirming that I am a student at their college and if they did have any issues with my attendance or not being a genuine student, it would have been highlighted in this letter;
•An employment offer letter from a home based company willing to employ me upon completion of course in Australia as my parents’ business plans will take longer than expected.
In this assessment I would like the member to fairly consider my circumstances and intentions of being an active and genuine student in Australia. If I had any different intentions besides studying and further progressing my educational skills and knowledge, I would have applied for a different type of visa by now in which I have not. I am still studying on full time basis and I would like to complete my advanced Diploma in the same field and will be moving to a different state by March 2020. I am 100% committed to advance my education in Australia and gain sufficient education and experience to enable me in becoming a qualified and skilled candidate back home. Australian education will open a lot of new opportunities and doors in which I can further explore and benefit from upon my return back home.
I am more than happy to provide you with any further evidence should you require to demonstrate my intentions and I will be also willing to sit for an interview should the member see the need to.
I look forward to your fair assessment of my student visa application and thank you for granting me the extension.
Thanks and very best regards.
Palvinder Singh Sandhu
The applicant provided further information and documents including a further CoE, a letter from Gamma Education and Training confirming that the applicant was a full-time student and a letter of reference from an employer in India. The second COE identify the applicant’s enrolment in Advanced Diploma of Leadership and Management. The course start date was 6 April 2020 and end date 5 September 2021.
On 8 September 2019, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Student visa. Having consented to the Tribunal deciding the review without a hearing, the application was decided without hearing from the applicant.
By way of application filed on 11 October 2019 the applicant seeks judicial review in this Court of the decision made by the Tribunal. The application to this Court is brought under s.476 of the Migration Act 1958 (Cth) (“the Act”). The application was supported by an affidavit annexing a copy of the Tribunal’s decision.
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL DECISION
The Tribunal’s decision runs for eight pages and spans 34 paragraphs.
The Tribunal began by identifying the type of visa the applicant was seeking and detailed the delegate’s decision. The Tribunal recorded that in the circumstances where there was some 15 months that had elapsed since the making of the delegate’s decision and recognising possible changes in the applicant’s personal circumstances, the Tribunal considered it would be beneficial for the applicant to provide updated information to the Tribunal for the purposes of determining the outcome of the application for review.
The decision recorded that on 11 June 2019 the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, inviting him to provide information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student (“the s.359(2) letter”). The applicant responded to the s.359(2) letter on 25 June 2019. The Tribunal recorded that the applicant elected to have his matter decided without a hearing.
The applicant provided additional information on 4 July 2019. Whilst this additional information was not referred to specifically in the introductory paragraphs of the Tribunal decision record, the Tribunal did refer to this further information later in the decision.
The Tribunal noted the statutory framework and summarised the criteria for a Subclass 500 (Student) visa contained in clauses 500.211 – 500.218 of the Regulations. The Tribunal explained that in considering whether the applicant satisfies clause 500.212(a), it must have regard to Direction No.69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“the Direction”) made under s.499 of the Act. The Tribunal summarised the specific factors to which the Direction require the Tribunal to have regard.
The Tribunal then considered the Applicant’s claims and evidence as follows:
The Tribunal observed that in the circumstances where having arrived in Australia on 8 June 2016 as a dependent on his spouses’ TU-573 Student visa which was valid until 15 March 2018, and only applying for his own student visa on the day his dependent spouse visa expired, concerns are raised for the Tribunal regarding the true nature of the applicant’s intentions in residing onshore. The Tribunal observed it was open to the applicant to apply for and/or commence studying onshore at any time after his arrival but he elected not to do so until the very day of his previous visa expiring.
The Tribunal expressed concern with the applicant’s response to the s.359(2) letter. The applicant did not complete the section of the questionnaire enquiring about previous study and work experience prior to arriving in Australia. The Tribunal considered that because the applicant’s response to the s.359(2) letter “fails to respond to numerous questions in the standard questionnaire” – questions were raised for the Tribunal about whether the applicant was being forthright in his evidence and submissions.
The questions in the on-line form to which there was no response by the applicant included information about courses undertaken before arriving in Australia; information about work experience before arriving in Australia and information about work experience in Australia.
The applicant’s initial application for a student visa made in March 2018 identified that he had completed secondary school in India. The applicant’s initial application also identified that he was working as a senior manager at a wholesale and retail premises in Sydney in New South Wales. The applicant made submissions to the Tribunal on 4 July 2019 which included a letter dated 30 June 2019 from his previous employer in India.
The Tribunal was troubled by the fact that there was no evidence that the applicant studied between the making of his visa application in March 2018 and commencing his Diploma in March 2019. The Tribunal considered this 12-month period to be significant in the context of an application for vocational level study where the courses are relatively short. The Tribunal considered that the applicant had not used this time to engage with study. The Tribunal considered that a particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. The Tribunal considered that an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application had been refused.
In his March 2018 application for a student visa the applicant said “I have written all information nicely on word document. I was typing in this column but the page went off and all information is gone. I am loading word document, signed with the other docs.”. The applicant did not file any other material with the Tribunal. He did not provide a copy of the “word document”. This raised concerns with the Tribunal whether the applicant was being forthright in his evidence and submissions.
In his response to the s.359(2) letter, the applicant stated he intended to join his family business in India. He stated that he expected his income to be between $14,000 and $17,000AUD. The Tribunal found this evidence difficult to accept given the average income per capita per annum in India in 2018 was approximately $2,300AUD.
The Tribunal acknowledged that the applicant had commenced and appeared to be engaging with his Diploma course, providing a letter from his course provider dated 3 July 2019. The Tribunal accepted that the proposed qualifications are consistent with the applicant’s current level of education and relevant to a future career in business and management.
The Tribunal was concerned however that the proposed qualifications were unlikely to assist to improve the applicant’s career prospects given his work experience in management. The Tribunal pointed to his previous experience with Krishna Iron Works as Assistant Manager and his current work as Senior Manager since June 2016 in the retail trade. The Tribunal observed that given the applicant’s considerable practical experience in leadership and management it was difficult to see how any benefit the proposed qualifications have to offer the applicant in circumstances of the considerable expense of engaging in such study in Australia.
In his response to the s.359(2) letter, the applicant states that Australia is the best place for this study and that although the course is available in India its “scope is not that much as Australia”. In the circumstances, the Tribunal did not consider the applicant had provided reasonable reasons for not undertaking the study in his home country.
In his response to the s.359(2) letter, the applicant has left blank the sections of the questionnaire enquiring about his community ties to Australia or his home country. The Tribunal observed, in the circumstances where his length of stay in Australia is for more than three years, and in combination with an enrolment indicating a desire to remain onshore for a further 18 months, he has a preference to remain in Australia.
The Tribunal observed that in response to the s.359(2) letter, despite evidence of him working as a Senior Manager since June 2016, the applicant did not disclose any work experience in Australia or any income in Australia. The Tribunal noted that the United Nations Human Development Index ranks India as 130th in the world as compared to Australia’s ranking of third in the world. This, in combination with the likelihood that the applicant has been earning income in Australian dollars, the Tribunal considered that the applicant’s economic circumstances in Australia may have been acting as a significant incentive for him to not return to his home country, particularly in circumstances where he had been selective in the information he has proffered to the Tribunal in this regard.
In circumstances where the applicant did not provide any information in response to the s.359(2) letter about the regularity and method by which the applicant maintains contact with his family members or his community ties to India – the Tribunal did not consider the applicant had personal ties to his home country that were acting as a significant incentive for him to return.
In summary, the Tribunal considered that the applicant’s application and submissions did not satisfy the Tribunal that the applicant genuinely intended to stay in Australia temporarily. The Tribunal considered the length of the applicant’s time onshore, being in excess of three years; the fact that the applicant did not commence any study until March 2019; the inconsistent and selective nature of his submissions and evidence; the fact that, if he had commenced his study when he initially applied for his visa, he would now have completed or been near completion of the proposed courses and be in a position to return to his home country and put into motion his future career plans; and the limited assistance the proposed qualifications have to offer the applicant given his considerable work experience in the field of management.
In the circumstances the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met and the decision under review was affirmed.
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 10 October 2019 contains one “Grounds of application” as follows:
The decision of the Tribunal is affected by legal unreasonableness.
Particulars.
1.The Tribunal made an unwarranted assumption that the applicant should have immediately commenced his studies upon his student visa been refused by the Department.
2.The Tribunal used a matter to discredit the applicant that was not probative on the question of credit, being the disparity between what the applicant projected his annual earnings in India to be and the average per capita annual earnings in India.
The materials before the Court include the application for judicial review and supporting affidavit filed on 10 October 2019, a court book numbering 91 pages, written submissions filed 28 September 2023 and a list of authorities filed 25 October 2023 at the hand of Mr Godwin, Counsel for the applicant and written submissions filed 9 October 2023 and list of authorities filed 26 October 2023 by the first respondent.
LEGAL PRINCIPLES
Unwarranted Assumptions
In oral argument, Counsel for the applicant took the Court to WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 (WAGO). In WAGO the appellant led evidence before the Tribunal from a corroborative witness, which if accepted, tended to support the view that the appellant was a political writer for a newspaper with fears of returning to Iran. The Tribunal found the corroborative witness was not a witness of truth because he did not provide his evidence to either the Department or the Tribunal until the day of the hearing and that, in response to the Tribunal’s question why he had not done so earlier, he had stated he had not seen the witness earlier and was not aware of “legal procedures”. The Tribunal rejected this evidence because the witness was a detainee who had negotiated “the legal processes”. The nature of these processes or procedures was not identified in the reasons of the Tribunal: [47]. The Full Court concluded that there was no foundation upon which the Tribunal could have reached its crucial finding:[51],[57].
WAGO was considered by Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 on an appeal concerning whether the Tribunal made unwarranted assumptions in reaching its decision. In that case, which concerned a protection visa, the Tribunal concluded that the appellant’s account of certain events in Sri Lanka was not credible. It was the Appellant’s case that in reaching that conclusion about her credibility the Tribunal made certain unwarranted assumptions. His Honour summarised the current state of authorities concerning the grounds of unwarranted assumptions and considered that there is no freestanding ground of review of unwarranted assumptions, that the making of unwarranted assumptions as part of a credit findings may be reviewed on rationality grounds or because the decision maker has failed duly to consider the question raised by the material. His Honour considered that, for himself, the former test is easier to apply in practice in the sense that it appears less conclusory referring to the formulation of this ground by the Full Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] as follows:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
With respect to a party relying upon an unwarranted assumption, His Honour concluded this way (at [8]):
Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal’s impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.
GROUND 1
PARTICULAR 1
Applicant’s submissions
The applicant submitted that the Tribunal’s assumption that a genuine student would have commenced their studies even though the Department refused the visa was unsound. The applicant submitted that it may be accepted that if he had immediately studied, this would be a probative fact, however, the converse is not true in the circumstances before the Tribunal. The applicant submitted that other objective surrounding circumstances do not suggest that he should have started studying. The applicant submitted that this was the applicant’s first application for a student visa in Australia such that there was no reason to assume that he would know that the process would take any more than a week or two. Similarly, it was submitted, there is no reason to assume that the applicant knew that the review in the Tribunal would take a long time.
The applicant submitted that the fact that he agreed not to have a hearing would suggest that he wanted the matter decided quickly, that it would be likely that the enrolment fee would be refunded if the visa was not granted. However, if an applicant were to commence the course and then have their visa application refused by the Department halfway through, the applicant would lose money and obtain no qualification.
The applicant submitted that it is not logical to reason in hindsight that the period that elapsed before the applicant did commence studies in this case showed that he was not a genuine student in absence of other supporting facts. The applicant asks rhetorically – he was not to know when the decision would be made and it may be imminent so why would he take the risk of losing his course fee?
The applicant says that the objective facts did not support the inference drawn by the Tribunal. The applicant submitted that the conclusion reached by the Tribunal that it was not satisfied that the applicant generally intended to stay in Australia temporarily was explicitly based in part on the fact that the applicant did not commence any study until March 2019. The applicant referred the Court to the Full Court decision in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 referring to Minister for Immigration and Citizenship v SZMDS 2010 HCA 16; (2010) 240 CLR 611, where Crennan and Bell JJ explained (at [135]:
… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
In oral submissions, Counsel for the applicant submitted that the inference drawn by the Tribunal – the fact that the applicant did not enrol in a proposed course of study in Australia promptly after making the visa application are not the actions of a genuine student – was not supported by the underlying facts in this case.
The applicant submitted that this fact is material as it is identified by the Tribunal as being one of four specific matters relied upon in not being satisfied that the applicant genuinely intends to stay in Australia temporarily.
First Respondent’s submissions
The first respondent contended that read fairly and as a whole, the Tribunal’s decision does not contain any unwarranted assumption. The first respondent submitted that the Tribunal identified that the applicant’s response to the s.359(2) letter indicated he did not study at all until March 2019 and recorded that the Tribunal was “troubled” by the period of almost 12-months that passed between the making of the visa application in March 2018 and commencing the course in March 2019. The first respondent noted the Tribunal recording that an effective way for the applicant to show he held a genuine desire to study would be to take positive steps to progress the proposed course notwithstanding that the visa application was refused. The first respondent contended that the applicant not having taken positive steps to progress the proposed course was a legitimate and intelligible basis for the Tribunal to have concerns about the applicant’s intentions and was expressly relevant to the question of whether the applicant was a genuine applicant for entry and stay in Australia as a student (from the original).
In oral submissions, the legal representative for the first respondent agreed with the submission of the applicant’s Counsel that when evaluating unreasonableness, one needs to look at the decision as a whole and the surrounding circumstances and submitted that when the decision is read as a whole there is support for the finding that the applicant was not a genuine student because he was not genuinely interested in study. The first respondent submit that the Court would have to be satisfied that the path of reasoning that the Tribunal adopted simply was not open on the evidence.
The first respondent submitted that one possible reason why the Tribunal might have concerns that the applicant was not being forthright because he failed to disclose his work experience in his visa application was because he realised that he needed to have an explanation to the Tribunal about any incentive for him to return to India and that materialised very late in the piece.
The first respondent submitted that for this ground to succeed the court would have to find that it simply was not open to the Tribunal to say someone who is in Australia and has the opportunity to study and who chooses not to, clearly does not want to remain in Australia for the purposes of study – that someone who delays commencing the course is perhaps using the visa for the purpose of remaining in Australia for a longer period of time, rather than generally being here for the purpose of study.
CONSIDERATION PARTICULAR 1
The applicant arrived in Australia on 8 June 2016. He was able to enter Australia because he held a dependant visa which ceased in March 2018. He applied for a student visa on 15 March 2018. His visa application was refused by the Minster on 30 April 2018. He applied for a review of that refusal to the Tribunal on 18 May 2018. The Tribunal delivered its decision affirming the Ministers refusal of the visa on 8 September 2019.
In oral submissions, the respondent informed the Court that there was no condition attached to the applicant’s dependant visa that required him to maintain enrolment and study during the June 2016 and March 2018 period because he came with his partner, and she was the student. The respondent submits however, that if the applicant was genuinely interested in undertaking study it would have been open for him to do that.
At [14] of the Tribunal’s decision, the Tribunal commented upon the timing of the applicant’s application for the student visa. The Tribunal concluded that concerns were raised about the true nature of the applicant’s intentions in residing onshore because the applicant did not apply for a student visa until the very day of his previous visa expiring.
At [31] of the Tribunal’s decision, the Tribunal identified four matters it placed weight upon in failing to be satisfied that the applicant genuinely intends to stay in Australia temporarily. One of those matters was the length of the applicant’s time onshore, being in excess of three years. For two of those years, the applicant was onshore pursuant to a dependent visa with no condition that required him to maintain an enrolment. Another matter was the fact that the applicant did not commence any study until March 2019. It is evident that the Tribunal relied upon the applicant not commencing his study until some 12-months after his application for a student visa to not be satisfied that the applicant was a genuine temporary entrant. Both these matters were material to the ultimate decision of the Tribunal.
In dealing with the issue of the applicant not commencing study until March 2019, after making his visa application in March 2018, the Tribunal expressed the view that applicants generally should progress with a proposed course of study in Australia notwithstanding their Student visa applications had been refused. The Tribunal considered that if the visa applicants did progress with a proposed course of study, despite visa refusal, by the time the application and review proceeds to the Tribunal, applicants would be in a position to produce compelling evidence that shows that they were genuine applicants for a Student visa. No factual basis or explanation is provided by the Tribunal as to why that conclusion was reached.
Because the applicant in this case did not progress with a propose course of study, in the view of the Tribunal, this was not consistent with that of a genuine applicant for entry and temporary stay in Australia. As a result, the applicant’s failure to continue studying despite visa refusal was an adverse credit matter causing the Tribunal to hold concerns that the applicant was using the student visa program to circumvent the intentions of the migration program.
The applicant submits that it may be accepted that if he had progressed with a proposed course of study despite visa refusal, this would be a probative fact with respect to the assessment of his genuineness. However, the applicant submits, the converse is not true in the circumstances before the Tribunal. I accept that submission.
Absent other relevant objective circumstances, it is illogical to infer that because a visa applicant, in circumstances where the student visa has been refused and has not progressed with their proposed course of study in Australia, is not a genuine applicant for entry and stay as a student.
Such an inference has to be premised on the applicant being aware of how long the review proceedings before the Tribunal would take and knowing that if he failed to progress with a course of study, that failure would be considered adversely to his application. In this case, true it would be that if the applicant had commenced his proposed certificate for a diploma at the time of his application for review to the Tribunal in May 2018, he would be near completion by the time the matter came before the Tribunal. However, simply because he did not progress his course of study, does not mean he is not genuine. Drawing an adverse view of the credit of the applicant because he has failed to progress with his course of study while awaiting review of a visa refusal lacks an evident and intelligible justification.
There is no evidence that he (or any Tribunal review applicant) was expected to know of the Tribunal delays. There is no evidence that the Tribunal informs applicants that the failure of an applicant to progress with their proposed course of study, notwithstanding visa refusal, adverse comment may be drawn upon any review. If it is the case that the Tribunal will readily draw an adverse view of applicant’s failure to progress study after visa refusal and whilst awaiting a review – applicants should be informed of this.
I accept the submission of the applicant that if an applicant were to pay for and commence the preferred course of study, and then have their visa application review refused by the Tribunal, the applicant may lose their money and obtain no qualifications. In this case, the applicant’s course fee was $7,000. In the event the student visa is refused, as it was in this case, the applicant would have expended the money for tuition and obtain no qualification.
The applicant applied for the Tribunal review on 18 May 2018, it was only on 11 June 2019, over a year later, that the Tribunal invited the applicant to provide information about his enrolment. It is not logical to reason that the applicant would have known that if he had commenced study, notwithstanding his student visa was refused by the Department, it would be an effective way for the applicant to demonstrate his genuine desire to study in Australia.
In my view, the assumption that a genuine student would have commenced their studies notwithstanding the refusal of a Student visa has at its foundation a false premise, and is not an assumption that could reasonably be made.
PARTICULAR 2
Applicant’s submissions
The applicant’s second particular concerns paragraph 23 of the decision where the Tribunal did not accept the applicant’s statement that he expected to earn between $14,000 and $17,000AUD equivalent in India using the qualifications gained. The Tribunal found this evidence difficult to accept given the average income per capita per annum in India in 2018 was approximately $2,300AUD equivalent.
The applicant submitted that the rejection of this evidence was another matter which underpinned the Tribunal’s conclusion that he was not a genuine temporary entrant. The Tribunal used average per capita earnings in India to discredit the applicant’s claim that he would earn an amount several times larger than his average on his return to India. The underlying reasoning appears to be, according to the applicant, that the applicant has exaggerated his likely income in India to show he had an incentive to return there.
The applicant submitted, as India is still largely rural, the average per capita income for all of India is meaningless as a comparison earnings of a qualified employee in a business. The applicant submitted that the reasoning relied upon by the Tribunal was not probative of the conclusion that the applicant was not a genuine temporary entrant.
In oral submissions, Counsel for the applicant suggested that given that the applicant had specified what he is going to be doing at the business as a manager, using the figure of average weekly earnings for an Indian is a meaningless figure, such that the evidence of the applicant was discounted for illogical reasons. Counsel for the applicant submitted that if the Tribunal were not going to accept the evidence given by the applicant there would need to be a proper basis for that rejection and relying on a figure for all of India per capita is simply not a proper basis.
In oral submissions, Counsel for the applicant took the Court to what the Full Court said in WAGO at [54]:
54.The unwarranted assumptions of the Tribunal as to matters relevant to formation of the view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the grounds of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision to which the Tribunal had neither authority or jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85].
Counsel for the applicant submitted that the Tribunal has disregarded relevant evidence, being the information provided by the applicant about the income he expected to achieve in India, on an unwarranted basis.
Respondent’s submissions
The first respondent submitted that the principal difficulty with this ground is that the choice of information about the applicant’s potential earnings in India was a matter solely for the Tribunal and the applicant’s assertion that the information relied on by the Tribunal was “meaningless” is no more than an invitation to this Court to engage in merits review. The first respondent submitted that in any event, the Tribunal’s reasons (at [31]) make clear that the disparity between the applicant’s claimed expected annual earnings in the average earnings in India was not a matter that the Tribunal ultimately placed weight upon, in finding that the applicant did not genuinely intend to stay in Australia temporarily. The first respondent submitted that it follows that even if this aspect of the Tribunal’s reasoning could be said to have been unreasonable, this would not be sufficient to render the entire decision invalid.
In oral submissions the first respondent submitted that it was open to the Tribunal to not uncritically accept the applicant’s assertion that he would earn six to seven times the average salary in India.
The first respondent submitted that the Tribunal had regard to the evidence and material submitted by the applicant, assessed the circumstances by reference to Direction 69 and provided cogent reasons for its findings. The first respondent submitted that having considered all the applicant’s evidence it was reasonably open for the Tribunal to find he did not satisfy the genuine temporary entrant criterion.
CONSIDERATION PARTICULAR 2
I agree with the submission of the applicant that the Tribunal disregarded relevant evidence without a proper basis.
I do not agree with the first respondent’s submission that the applicant’s assertion that the information relied upon by the Tribunal was meaningless – is no more than invitation to engage in merits review.
The use of an average per capita earning of a country as a general comparator to expected earnings in a particular industry in that country is like comparing apples with oranges. As I understand, “average per capita earning” in this context refers to the average income earned per person in India, calculated by dividing the total income of the country by the total number of people in the country. Obviously, it does not consider specific income distribution within an industry or demographic, environmental and economic factors. No doubt it is a useful metric to provide an overview of the economic performance of a country, but it cannot accurately, and therefore logically, represent what people earn in a particular industry. The problem with using this average is that it does not reflect the actual income.
I agree with the first respondent that it was open to the Tribunal to not uncritically accept the applicant’s assertion as to his earnings in India. However, there is no logical connection between the evidence given as to actual earnings and the finding made as to average per capita earnings such that the Tribunal has failed to give proper, genuine and realistic consideration to the evidence.
I also agree with the first respondent’s submission that the disparity between the applicant claimed expected annual earnings and the average earnings in India was not a matter that the Tribunal ultimately placed weight upon in finding that the applicant did not genuinely intend to stay in Australia temporarily.
Such finding on its own would not be sufficiently material to render the entire decision invalid.
CONCLUSION
Given the conclusion I have reached in relation to Particular 1, the applicant has established that the Tribunal decision is affected by jurisdictional error. It follows that the application to this court is granted.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Dated: 9 May 2024
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