Sang v Minister for Immigration and Anor
[2020] FCCA 3257
•3 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3257 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the applicant meets the criteria of a genuine applicant for entry and stay on a student visa in accordance with cl 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth), – whether there is jurisdictional error on behalf of the Tribunal – no jurisdictional error made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 476, 499. Migration Regulations 1994 (Cth), Sch 2, cl 500.312. |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510. Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2678. |
| Applicant: | DENNIS KIPKORIR SANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 41 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 30 November 2020 |
| Date of Last Submission: | 30 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 3 December 2020 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Mr Morris |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAG 41 of 2019
| DENNIS KIPKORIR SANG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Kenya. The applicant first came to Australia as the holder of a Subclass 572 Student visa that was granted on 24 July 2013. The applicant was granted a further student visa on 17 November 2014. The applicant’s wife, Daisy Jerop, is currently a student and they have one child, who was born in Australia. The applicant’s wife has returned to Kenya with their child and is currently unable to return due to COVID 19 travel restrictions.
On 23 December 2016, the applicant applied for a Student (Subsequent Entrant) Class TU (Subclass 500) visa. This visa has 2 subclasses, being a Student Subclass 500 (Temporary) and a Subclass 590 (Student Guardian). The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 28 April 2017, a delegate of the then Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant a Student (Temporary) (Class TU) visa. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 4 June 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal’s Decision
The Tribunal’s decision is relatively short. In paragraph 7 of its decision, the Tribunal recounted the evidence that was submitted by the applicant in support of his claim for a further Student visa. The Tribunal noted, in paragraphs 9 and 10 of its decision, that the evidence given to it during the course of the hearing included information in regards to the applicant’s marriage, the subsequent birth of his child and the fact that his son suffers from medical issues.
The Tribunal noted, at paragraph 12 of its decision, that the applicant had a number of cancelled enrolments in his study history. The Tribunal further noted that the applicant had inquired in relation to seeking compassionate leave, but had not been given leave from his education providers at the time of his mother’s ill health. The Tribunal noted that the main claim for the applicant to stay in Australia was to look after his son, who was in need of continuing medical treatment.
At paragraph 19, the Tribunal noted that whilst the applicant’s wife was a student, the applicant had not made satisfactory academic progress despite arriving in Australia in 2013. Although the applicant had ongoing ties to his home country due to his family, the applicant did not return for a visit until 30 December 2017, more than four years after his arrival. The Tribunal was not satisfied that the applicant had demonstrated ties to Kenya that would act as an incentive for him to return.
At paragraph 20 of its decision, the Tribunal considered the applicant’s wife and son’s particular circumstances. At paragraph 21 of its decision, the Tribunal considered the value of the further proposed courses of study to the applicant’s future. Whilst the Tribunal accepted that the applicant and his wife would benefit from completing their studies and obtaining qualifications in Australia, as the applicant had only completed one diploma whilst in Australia, and a number of enrolments were cancelled. The Tribunal only gave this matter limited weight.
The Tribunal noted that the applicant had spent five years in Australia, which the Tribunal considered to be significant. Given that the applicant did not depart Australia at all until December 2017, the Tribunal found that the applicant’s immigration history weighed against him.
At paragraph 23 of its decision, the Tribunal concluded, considering all the applicant’s circumstances individually and cumulatively, that although there were some aspects in the applicant’s case that weighed somewhat in his favour, on balance, the Tribunal was satisfied that the majority of considerations weighed heavily against him in deciding whether he was a genuine temporary entrant. Accordingly, the Tribunal found that the applicant did not meet cl 500.312 of the Migration Regulations 1994 (Cth) (“the Regulations”). As a result, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
Grounds of Judicial Review
The grounds of judicial review are in narrative form as follows verbatim:
1. My name is Dennis Kipkorir Sang, D.O.B. 28 years old. I am a citizen of Kenya. I came first to Australia on a Subclass 572 Student Visa which was granted on 24 July 2013.
2. I applied for a Student (Temporary) (Class TU) Student (Subsequent Entrant) subclass 500 visa on 23 December 2016.
3. The Department of Home affairs was not satisfied that clause 500.312 in Schedule 2 of the Migration Regulations.
4. The submitted evidences in support of the application review are as follows:
a. Medical documents and leave certificates in relation to my wife Ms Daisy Joessop’s pregnancy.
b. Medical documents of my son.
c. Medical reports of my mother dated 6 December 2017.
d. Overseas Student Health Cover letter regarding the applicant dated 23 December 2016.
e. Confirmation of Enrolment Certificates (COEs) in my wife’s name Ms Daisy Joessop.
f. Certificate for Diploma of Early Childhood dated 24 April 2017.
5. I also submitted some more evidence to the Department which were not considered and the visa was refused on a Genuine Temporary Entrant criteria.
6. The visa was refused on 28 April 2017 and thereafter, I had applied to Administrative Appeal Tribunal.
7. I gave evidence and present arguments at the hearing. I also confirmed that I had come to Australia to study and had previously been working in my father’s business. I had completed a Diploma of Management while in Australia however, my mother became ill and my father’s business went down. I had intended to study a bachelor’s degree, but these events affected me. I enrolled in a Diploma of Accounting and was intending to study up to a bachelor’s degree in that field, but my visa expired in 2016.
8. I was staying with my wife by this time and she became pregnant. My wife and I met in Kenya and married in Australia in 2015. I still wanted to study and that it would be beneficial if both me and my wife obtain qualifications.
9. Evidence was provided prior to the hearing, and the applicant gave evidence that my young son who was born in 2017 suffers from a bone disease that has required treatment in hospital and the I help look after our child while my wife studies. I am also working part-time in a teaching role. I do not have family in Australia except my wife and son. I returned to Kenya in January 2018 to visit my mother who was sick.
10. I have ties to my home country due to my family and I have a house that is currently leased to a tenant. I decided to study in Australia to experience another place and to be able to develop my business when I return. The Tribunal noted that I had a number of cancelled enrolments in my study history. When asked if I sought compassionate leave from my education providers at the relevant time the I said that I had inquired but I had not been doing well due to my mother’s ill health. I was told I needed to improve my studies, but I was confused because a lot of things were happening.
11. I asked for a chance to remain in Australia to look after my son. I declared the family will leave and return to Kenya when they have achieved what they came to do but currently my son needs both parents
12. The Tribunal affirms the decision not to grant me a Student (subsequent entrant) (Class TU) visa on 4 June 2019.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter and the Court was satisfied that he was able to participate in the hearing in a meaningful way. Prior to the hearing commencing, the Court ensured that the applicant had a copy of the relevant Court Book and a copy of the first respondent’s submissions.
At the commencement of the hearing, the Court explained the process the hearing would follow. It was explained to the applicant that what the Court was undertaking was judicial review, not merits review and that the Court’s power was limited. It was explained to the applicant that the Court was unable to grant the applicant a visa. All the Court could do, if it found jurisdictional error in the Tribunal’s decision, is quash the decision and remit it back to the Tribunal for further consideration.
Despite Court orders, no written submissions were provided by the applicant in support of his case. When asked if the applicant had anything to say, the applicant told the Court that he would like to be given a second chance. The applicant stated that his submissions to the Tribunal provided an explanation as to why he did not finish his course. That reason was due to his wife’s ill health during her pregnancy and his child’s subsequent illnesses. The applicant felt that was sufficient for him to be allowed to stay and finish his studies.
Following the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant answered that he had tried to finish his studies but was prevented from doing so by his wife’s ill health.
The First Respondent’s submissions
Counsel for the first respondent first noted that the application before the Court was deficient, in that it only sought a writ of certiorari. To enliven the Court’s jurisdiction, the applicant would need to either seek a writ of mandamus or an injunction. The Court was advised that leave to amend the originating application to correct this error was not opposed. Noting s 476(1) of the Migration Act 1958 (Cth) (“the Act”), and the requirement for relief sought to include either a writ of mandamus or injunction in order to enliven the Court’s jurisdiction, leave was granted to add a writ of mandamus to the relief sought by the applicant.
In written submissions, Counsel for the first respondent noted that the issue in this case is whether the applicant meets the criteria of a genuine applicant for entry and stay on a Student visa in accordance with
cl 500.312 of Schedule 2 to the Regulations.
The Tribunal considered the issue having regard to Direction 69 “Assessing the Genuine Temporary Entrant Criterion for Student visa and Student Guardian Visa applications’ made under s 499 of the Act”.
In particular, Counsel for the first respondent noted that the applicant had not provided sufficient evidence to the Tribunal to demonstrate his ties to Kenya that would act as an incentive for him to return. On the other hand, the applicant’s circumstances in Australia included, as at the time of the decision, his spouse’s activities here and his son’s medical condition, which provided him with an incentive for him to remain. The fact that the applicant and his spouse would benefit from completing their studies and obtaining qualifications in Australia weighed only slightly in the applicant’s favour.
The Tribunal also considered the applicant’s immigration history and noted that he had previously held two student visas but did not maintain enrolment or progress as a Student as required. The applicant had spent five years in Australia without departing at all until December 2017. The Tribunal concluded that the applicant’s visa history weighed against him in the sense that the Student visa may be being used primarily for maintaining ongoing residence in Australia. Accordingly the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay within Australia within the meaning of cl 500.312 of the Regulations.
In terms of the grounds submitted by the applicant for judicial relief, the first respondent submitted that the Tribunal correctly applied the law, and took into account all relevant considerations when considering the application for the visa under the Act, the Regulations and Direction 69. It was further submitted that there is no suggestion of any procedural unfairness resulting in the applicant being unable to present such evidence and arguments before the Tribunal as he wished.
The terms of Direction 69 make it clear that the factors specified in the Direction should not be used as a checklist but as a guide. They are nevertheless all matters for a decision-maker to think about and way up, but do not necessarily all have to be satisfied to any particular degree for a person to be found to be a genuine temporary entrant: (see Singh v Minister for Immigration [2018] FCCA 3423 at [18]). The absence of an express reference to each factor and Direction 69 does not amount to a jurisdictional error, nor does it necessarily mean that the factor was not considered: (see Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2678 at [59]).
It was submitted by Counsel for the first respondent that the applicant’s grounds of review, such as they are, appears to indirectly express disagreement with the Tribunal’s conclusions and is, in substance, a request for the Court to undertake impermissible merits review: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] (“Abebe”)). It is submitted on behalf of the first respondent, that the applicant’s application does not particularise or identify any error in the Tribunal’s decision.
It was further submitted by the first respondent that the manner in which the Tribunal reached its conclusion and approached its’ task of fact finding and reasoning was entirely orthodox. The Tribunal gave such weight to the evidence proffered as it thought appropriate in all the circumstances: see Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. There is no allegation that the Tribunal failed to consider evidence that was before it, leading to jurisdictional error. Reading the Tribunal’s reasons as a whole, it was submitted that it was reasonably open to the Tribunal to weigh the evidence in the matter that it did and come to the conclusion that it did.
Consideration
The applicant’s grounds of judicial review, such as they are, are merely a restatement of the factual matters relied upon by the applicant before the Tribunal. They do not allege any particular jurisdictional error on the part of the Tribunal or provide any particulars of such an error. This, in itself, is sufficient reason for the application to be dismissed: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
The Court agrees with the first respondent that the grounds of judicial review appear more to be disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, simply invite merits review which this Court cannot undertake: (see Abebe and Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at [272]).
The Court is satisfied that the applicant had a meaningful opportunity to participate in the hearing and to put all relevant matters that he wished to put before the Tribunal. Those reasons were carefully considered by the Tribunal with reference to the relevant requirements of the Act, the Regulations and Direction 69. No procedural unfairness on the part of the Tribunal is apparent from the decision record. The Court is satisfied that the Tribunal did properly turn its’ mind to all of the criteria under Direction 69 and made findings on those matters that were relevant to this particular case.
The Court is satisfied there was nothing illogical, irrational or legally unreasonable in the conclusions reached by the Tribunal on the basis of the evidence that was before it. The migration history of the applicant was a significant matter that weighed against the applicant, bearing in mind the length of time he had been in Australia and his lack of academic progress. This included the fact that the applicant had only achieved one diploma while a number of enrolments were cancelled. The Tribunal was entitled to give this issue significant weight. The issues of his wife and child’s illness were also matters the Tribunal were entitled to take account of and give weight to.
The conclusion that the applicant was not a genuine applicant for entry and stay temporarily as a student was a conclusion that was reasonably open to the Tribunal based on the evidence that was before it.
As the applicant was unrepresented, The Court perused the Tribunal decision carefully but was unable to detect any jurisdictional error that was not articulated by the applicant.
Conclusion
No jurisdictional error is made out and the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 3 December 2020.
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