Santos v Minister for Home Affairs
[2019] FCCA 2318
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANTOS & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2318 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) subclass 500 visa – Ministerial Direction No. 69 – whether the Tribunal was in error in failing to provide an interpreter – whether Tribunal considered all factors specified in the Direction 69 – No jurisdictional error on part of Tribunal – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth) Schedule 2 cls.500, 500.211, 500.212, 500.212(a) |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Uranek v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 37 D.C. Pearce and R.S. Geddes, 4th Edition, 1996 |
| First Applicant: | GUSTAVO COLOMBO SANTOS |
| Second Applicant | CAROLINA PINHEIRO BONNEL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 29 of 2018 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 22 and 26 March 2019 |
| Date of Last Submission: | 1 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the Second Applicant: | Self-Represented |
| Counsel for the Respondents: | Mr Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The first respondent file and serve short written submissions (two pages) for costs within 7 days from the date of this order.
The applicant file and serve short written submissions (two pages) in response on or before 13 September 2019.
If the first respondent fails to file within the specified period, there shall be no order for costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 29 of 2018
| GUSTAVO COLOMBO SANTOS |
First Applicant
| CAROLINA PINHEIRO BONNEL |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) that the first respondent show cause. The applicant seeks to review the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 26 March 2018 affirming the decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a student (temporary) (class TU) subclass 572 visa. The matter was heard in Canberra on 22 and 26 March 2019. The applicant represented himself with Mr Hoyle of Counsel representing the First Respondent Minister. A Portuguese interpreter assisted the applicant.
At the conclusion of the hearing on 26 March 2019 the Court made directions that the First Respondent within 14 days provide a copy of the recording of the Tribunal hearing to the Court and the applicant. Further within 28 days the applicant file submissions with respect to the recording with the First Respondent to file submissions 7 days thereafter. Directions were made addressing the issue raised by Counsel regarding Direction No 69 of the Migration Regulations.
Background
The applicant was born on 14 June 1987 in Brazil. He first arrived in Australia on a subclass 570 temporary student visa to study English on 4 April 2013. He is married to Carolina Pinheiro Bonnel (the second applicant) who was born on 5 November 1994 in Brazil. They married in Sydney on 25 September 2015. At the time of the hearing the applicant and his wife lived in Kaleen, in the Australian Capital Territory. The applicant’s wife holds a US Tourist visa valid until 2021.
Procedural history
On 18 November 2016 the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa. The Department on 25 November 2016 requested the applicant provide further information in support of his application. The applicant’s agent on 4 January 2017 requested an extension of time until 16 January 2017 to comply with the request for further information. The Department advised the applicant that further information was to be received by the Department by 16 January 2017. No further information was provided.
On 7 February 2017 the delegate for the Minister refused to grant the student visa on the basis that the applicant had failed to meet relevant criteria under 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) in particular that he had failed to provide evidence that he was enrolled in a course of study as required.[1]
[1] CB05 at #52.5
On 18 February 2017 the applicant lodged an application before the Tribunal for review of the decision of the delegate to refuse his student visa application. On 27 February 2018 the applicant was invited to attend a hearing scheduled for 23 March 2018 and provide further information to the Tribunal for review of the decision to refuse his student visa application. On 6 March 2018 the applicant wrote to the Tribunal forwarding further evidence to support his visa application including a Certificate of Enrolment.[2] He indicated that both he and his wife would participate in the hearing and that he required a Portuguese interpreter.[3]
[2] CB09 at #74 - 85
[3] CB09 Hearing compliance form at #75
On 21 March 2018 the Tribunal wrote to the applicant requesting a written statement from him addressing the genuine entry criteria under clause 500.212 and attaching Ministerial Direction No 69.[4] The applicant provided further documentary information to the Tribunal including a letter dated 22 March 2018.[5]
[4] CB12 at#87 - 95
[5] CB13 Letter of Intent at #97
On 23 March 2018 the applicant participated in the hearing by telephone without the assistance of an interpreter. On 26 March 2018 the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a student visa.
The applicant lodged his application for review of that decision on 27 April 2018. The First Respondent Minister filed a response on 10 May 2018 seeking that the application be dismissed with the applicant to pay the First Respondent’s costs. Procedural orders were made on 12 June 2018 for the filing of material.
Grounds for review
In his application for review of the Tribunal decision the applicant relied on the following grounds (inter alia):
(a)The Tribunal did not consider the course the applicant was enrolled in but only the first instalment of the course not the total amount of $9,000;
(b)The Tribunal did not take into account the applicant’s letter of intent;
(c)An interpreter was requested by the applicant and not provided.
Evidence
The Court had before it a Court Book (Exhibit C1), the affidavit of the applicant filed on 7 August 2018 which was subject to objection by the First Respondent. Rulings were made extemporary. The Court heard oral submissions from the applicant and Counsel for the First Respondent. Following the conclusion of the hearing the Court received into evidence with the consent of both parties a copy of the audio recording before the Tribunal on 23 March 2018 (Exhibit C2).
Criteria for grant of visa
The criteria for the grant of the visa are set out in Schedule 2 clause 500 of the Regulations. The primary criteria for the grant of the visa in this case include a requirement that “the applicant is enrolled in a course of study” (Clause 500.211). In addition the applicant is required to be a genuine applicant for entry in accordance with the terms of Clause 500.212 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) …..; and
(iv) any other relevant matter.”
The Ministerial Direction 69 pursuant to section 499 of Migration Act 1958 (“the Act”) provides guidance on the factors that “require consideration” when assessing Clause 500.212 (a) of the Regulations.
Applicant’s case
The applicant provided to the Tribunal documents relating to courses he had previously undertaken including a course undertaken by his wife.[6] He provided a Certificate of Enrolment for a Certificate III Business Course in Canberra with a start date of 9 April 2018 and end date of 7 April 2019. The total tuition fee was $AU9,000.[7] The applicant provided a letter[8] in which he indicated that the course he had chosen was a continuation of his last enrolment made in Sydney and he was looking for opportunities that awaited him in Brazil on his return. He wanted to acquire the best level of English by studying in Australia and his goal was to finish the course to afford him the best opportunity of returning to the Brazilian job market. He wanted to add to his knowledge and experience so he could be of greater value to Brazil on his return.
[6] CB01 at #17 - 26
[7] CB11 at #85
[8] CB13 at #97
He did not want to return to Brazil without completing his objective. His wife had completed her studies and he and his wife wished to add knowledge to the wife’s family company in the future. He was the only family member living outside Brazil and he wanted to return home. He had returned to Brazil in October 2013 and then in June 2016 (when he and his wife returned together).
He explained that he did not complete his studies earlier due to suffering from depression. Following his marriage his wife was enrolled and studying a course which she completed. He wished to complete his course in Australia rather than Brazil as the “level of qualification offered in 1 year in Australia was equivalent to more than 3 years of the same course in Brazil.” He wished to improve his English and learn about business.
In his affidavit filed on 7 August 2018 he included information not before the Tribunal which was objected to with the objections upheld. That information was not relevant to the application before me for judicial review.
The Tribunal’s decision
The Tribunal delivered its decision on 26 March 2018 indicating that the Tribunal was satisfied that the applicant had enrolled in a course of study and met the criteria under clause 500.211 of the Regulations.[9]
[9] CB15 at #24
The Tribunal referred to the requirement that the applicant needed to satisfy the Tribunal that he was a genuine applicant for entry and stay as a student in accordance with clause 500.212 of the Regulations. The Tribunal noted that in considering clause 500.212 (a) the Tribunal must have regard to Direction No 69. The Direction 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 and other countries;
·If he 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.[10]
[10] CB15 at #109 [26]
The Tribunal found that the applicant lived in Australia with his Brazilian wife but did not demonstrate strong ties to Brazil.[11] The Tribunal found that the applicant had provided no reliable evidence that he holds strong ties to his family or community in Brazil, his home country. He had declared that his parents live in Brazil and he visited his family twice in 2013 and 2016. The Tribunal formed the view that the applicant’s personal and community ties to Australia where he had lived for the past 5 years were at the time of the decision stronger than those he had to Brazil indicating a strong incentive to remain in Australia.[12] The Tribunal was not satisfied that the applicant had sufficient incentive to depart Australia.[13]
[11] CB15 at #110 [32]
[12] CB15 at #110 [34]
[13] CB12 at #93 Direction No 69 #9 (b)
The Tribunal considered the applicant’s ties to Australia finding that the applicant was 30 years old and had lived in Australia for 5 years. He married his Brazilian wife in Australia and both the applicant and his wife had held student or bridging visas during their period of residence in Australia. He had resided in Australia primarily for 5 years and his wife for 3 years. He works casually and his wife works at a carwash. They jointly earn $1,350 per week and pay rent of $300 per week.[14]
[14] CB 15 at #110 [33] and CB12 at #93 Direction No 69 #9 (c )
The Tribunal found that the applicant’s academic progress had been poor during the period 2013 to 2015. He completed 2 short courses but suffered depression causing his studies to lapse between 2014 and 2015. He did not provide independent evidence to support that claim nor any evidence of an application to defer his studies on medical grounds. From 2015 to 2016 he became the secondary applicant to his wife’s student visa and when that ceased he applied for a second student visa as the primary applicant. Though he provided a Certificate of Enrolment he did not undertake that course when his student visa was refused.[15]
[15] CB15 at #110 [35]
The Tribunal gave “negative to weight (sic)” to the applicant’s slow progress in his studies and periods of non – enrolment and/or continuation of study in 2014/2015. The Tribunal noted that the highest achievement obtained by the applicant was a Certificate II in Business. He had been residing in Australia for 5 years and had not made satisfactory academic progress to support a finding that he is a genuine applicant for entry and stay as a student. The Tribunal determined that the applicant was using the student visa programme for the primary purpose of maintaining ongoing residence in Australia and not for the primary purpose of progressing academically.[16]
[16] CB15 at #110 [36]
The Tribunal considered the applicant’s previous study and qualifications and the research undertaken when choosing a course and an education provider to enable him to reach his career goals. The Tribunal noted that when making an enquiry as to why the applicant could not undertake study in Brazil he replied “it is not a matter of can or can’t” (study in Brazil).[17] He wished to complete his course in Australia rather than Brazil as the “level of qualification offered in 1 year in Australia was equivalent to more than 3 years of the same course in Brazil.” He wanted to improve his English and learn about business.[18]
[17] CB15 at #111 [37]
[18] CB15 at #110 [37] and CB12 at 93 Direction No 69 #9 (a)
The Tribunal found that the applicant had not studied any courses in Australia since 2015 and concluded that if the applicant had been genuinely concerned about completing his studies he would have maintained his enrolment over the past 3 years. He produced no evidence of a course in Brazil equivalent to that in Australia that would take the applicant 3 years. The applicant’s wife’s academic progress was not considered relevant to the applicant.[19]
[19] CB15 at #110 [39]
The Tribunal found there was no reliable evidence adduced by the applicant that the Certificate III course in Business would be of value to his future in his home country or a third country if he completed the course. He provided no detail of his specific career goal, of remuneration expectations in his home country or any corroborative evidence as to how the Certificate III course in Business would assist him to obtain employment or improve his employment options in Brazil. The Tribunal was concerned whether the applicant would complete the course in light of his previous study history noting in the past he had undertaken “short and relatively inexpensive courses.” The Tribunal found that the applicant enrolled in the Certificate III in Business course “only a few days before the Tribunal hearing” for the purpose of strengthening his visa application. The Tribunal was not satisfied that the applicant was sufficiently engaged in his studies or had an intention to be so in the future.[20]
[20] CB15 at #110 [40] – [42] and CB12 at #94 Direction No 69 #12 (a) – (c )
The Tribunal found that the applicant had resided in Australia for nearly 5 years and had been offshore twice for a total of 8 weeks. The Tribunal did not consider 2 trips to the applicant’s home country over a period of 5 years indicated strong ties to Brazil. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found he was using the student visa for the primary purpose of maintaining residence in Australia. The Tribunal was not satisfied that the applicant met the criteria under clause 500.212(a) of the regulations.[21]
[21] CB15 at #111 [43] – [45] and CB12 at #94 Direction No 69 #13 & 14
The Tribunal noted that the applicant appeared by phone during the hearing without a representative and spoke in the English language. The Tribunal noted that the applicant spoke “excellent English” and indicated that the applicant “did not request or appear to need an interpreter.” [22]
[22] CB15 at #111 [41] the statement is incorrect – the applicant did request an interpreter
Grounds for review
(a) The Tribunal did not consider the course the applicant was enrolled in but only the first instalment of the course not the total amount of $9,000
The Tribunal was required to consider pursuant to clause 500.211 (a) whether the applicant was enrolled in a course of study at the time of the decision. The Tribunal observed that the applicant provided a Certificate of Enrolment (“COE”) for a course he intended to commence in April 2018. The Tribunal made specific reference to the Certificate of Enrolment noting that the commencement date was 9 April 2018 and the end date 7 April 2019 and found that the applicant was enrolled in a Certificate III in Business course at the Canberra Business and Technology College.[23]
[23] CB15 at #108 [23]
The Tribunal made no finding about the cost or the length of the course however the Tribunal made the following enquiry about the course as follows:
“Applicant: I enrolment for this course two weeks ago because I was waiting for the decision of the tribunal if I can study or not but anyway I did that to confirm my to (inaudible) study and that is my only reason to be here, to study.
Tribunal: Did you pay your fees? Have you paid any fees?
Applicant: Yes I have already paid that.
Tribunal: How much did you pay?
Applicant: For the moment I think it is $2750, I think that’s deposited (inaudible).”
I infer from the discussion and the evidence before the Tribunal (including the COE) that the Tribunal was aware of the total cost of the course and aware that the applicant had not paid the total amount required to complete the course.
The Tribunal found that the applicant had a poor history of completing courses, a finding that was open on the evidence. The following exchange took place:
“Tribunal: And since you have been in Australia what course have you completed?
Applicant: I did (inaudible) sports in Sydney, which I think two terms and (inaudible)
Tribunal: What year did you complete those?
Applicant: I completed those in 2014, In January 2014.
Tribunal: What other courses have you completed?
Applicant: Certificate 2 in Business in Sydney in 2015.
Tribunal: And any others?
Applicant: Not really, no.”
The reference made by the Tribunal that the applicant had undertaken “short and relatively inexpensive courses”[24] referred to the applicant’s past history of enrolment. In any event the Tribunal was satisfied that the applicant had enrolled in a course of study and met the criteria under clause 500.211 of the Regulations.[25]
[24] CB15 at 111 [42]
[25] CB15 at #24
The Tribunal noted that the applicant had not completed any study from 2015. The Tribunal went on to consider whether the applicant is a genuine applicant for entry and stay as a student under clause 200.212. The Tribunal found that the applicant enrolled in the current COE course “only a few days before the Tribunal hearing and the Tribunal’s view is that he has enrolled in the Certificate III in Business (course) to add weight to his visa application.” Such a finding was open on the evidence. The Tribunal was not satisfied that the applicant was sufficiently engaged in his studies or “that he has an intention to be in the future.” Again that finding was open on the evidence. No error is apparent on the part of the Tribunal. The ground of review is not made out.
(b) The Tribunal did not take into account the applicant’s letter of intent
On 21 March 2018 the Tribunal wrote to the applicant requesting a written statement from him addressing the genuine entry criteria under clause 500.212 and attaching Ministerial Direction No 69.[26] The applicant provided further documentary information to the Tribunal including a letter dated 22 March 2018.[27] The First Respondent complained that the applicant failed to particularise this ground of review and it was in effect a generalised complaint about the Tribunal’s decision. If that be so, this would of course amount to an impermissible merits review.[28]
[26] CB12 at#87 - 95
[27] CB13 Letter of Intent at #97
[28] See Attorney-General (NSW) v Quin (1990) 170 CLR 1
During argument the applicant was asked to identify the “letter of intent” he indicated that the Tribunal failed to take into account. He identified the letter dated 22 March 2018 provided to the Tribunal under cover of email of the same date.[29]
[29] Transcript of proceedings dated 22 March 2019 at 13.40 - 44
The Tribunal referred to the document in the reasons for decision and noted that these matters “were discussed with him at the hearing.”[30] It is apparent from the reasons for decision and the audio recording (Exhibit C2)[31] that the Tribunal took into account the applicant’s letter of intent and the information provided therein. I am satisfied that the matters raised by the applicant in his letter of intent were taken into account as reflected in the Tribunal’s reasons. This ground of review fails.
[30] CB15 at #105 [6]
[31] Attachment 1 (aide memoire transcription of the Tribunal’s audio recording on 23 March 2018)
(c) An interpreter was requested by the applicant and not provided
The applicant argued[32] that the Tribunal member was required to provide him with an interpreter following his request “to make sure” the applicant had “full understanding.” He argued that based on the audio recording “there is not enough conversation” between the applicant and the Tribunal member “which could establish his level of English.” He argued that all other applicants had the benefit of an interpreter. The only disadvantage claimed by the applicant is that an interpreter was not provided to ensure he had a full understanding of the proceedings and to enable him “to express myself better which didn’t happen.”
[32] Applicant’s submissions filed 23 April 2019
It is correct that the applicant requested an interpreter on the Completed Response to the hearing invitation on 6 March 2018[33] and one was not provided. However there is nothing in the audio recording of the hearing before the Tribunal on 23 March 2018 that would indicate that the applicant was not able to understand the questions put to him and give meaningful answers to those questions.
[33] CB09 at #75
Section 366C (2) of the Migration Act
Section 366C (2) of the Act provides:
s.366C (1) A person appearing before the Tribunal to give evidence may request the Tribunal appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
In Uranek v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 37 the Full Court of the Federal Court dealt with the appellant’s contention that the Tribunal’s failure to provide an interpreter contravened section 366C of the Act. The Court said at [19] “the refusal of an interpreter is not necessarily a breach of section 366C. It was open to the Tribunal to conclude that the applicant was ‘sufficiently proficient in English:” s366C (2).
In Pannu v Minister for Immigration & Anor [2006] FMCA 883 (“Pannu”) Emmett FM (as she then was) said at [8] with respect to the contention that the Tribunal failed to comply with the statutory requirements of section 366C of the Act “it is common ground that a breach of section 366C of the Act would be a jurisdictional error (SAAP v Minister for Immigrations and Multicultural and Indigenous Affairs (2005) 215 ALR 162).” In Pannu (supra) the applicant had requested a Punjabi interpreter in writing. At [10] Emmett FM said “In its decision the Tribunal stated that ‘an accredited interpreter assisted the review applicant throughout the hearing.’ That statement is plainly incorrect. However quite properly it is not the Tribunal’s incorrect statement upon which the applicant relies. The Tribunal’s incorrect statement has no further relevance to the application before this Court.”
Emmett FM at [13] observed from the transcript of proceedings filed by both parties in the proceedings that “there was no difficulty by either the applicant or the Tribunal in communicating with each other. At no stage of the hearing was an interpreter sought by the applicant.”
Emmett FM at [19] said “Plainly section 366C of the Act is part of the statutory scheme of the provision of procedural fairness to an applicant. The intention is to ensure that a person appearing before a Tribunal is not disadvantaged by reason of insufficient proficiency in English. Not only does the applicant not claim a disadvantage by the absence of an interpreter there was no complaint by the applicant during the hearing and no meaningful error of understanding on the part of either the Tribunal or the applicant was identified by the applicant in the transcript.” Emmett FM determined that the ground was not made out.
Audio recording of the Tribunal hearing (Exhibit C2)
The hearing before the Tribunal commenced on 23 March 2018 at around 11.42 a.m. The first stage of the hearing was brief and involved matters of procedure. The applicant appeared by phone. The Tribunal member addressed the applicant and posed the question “you haven’t requested an interpreter, is that right?” [34] The applicant answered in the affirmative. It is apparent that the Tribunal member was in error in assuming that the applicant had not requested an interpreter.
[34] Recording of the Tribunal hearing on 23 March 2018 at 4:13 – 4:14
During the first stage of the proceedings the Tribunal member was dealing with a number of applicants. It is apparent from the audio recording that other applicants had the benefit of an interpreter. The applicant did not ask the Tribunal member for confirmation that he had requested an interpreter. Contrary to his assertion that “the judge asked me if I have requested a translator and he replied ‘yes’”[35] the applicant did not indicate to the Tribunal that he had needed an interpreter nor advise the Tribunal member that he had in fact requested an interpreter.
[35] Applicant’s submissions filed 23 April 2019
During the first stage of the proceedings the Tribunal member explained to the applicants the nature of the applications before her and matters she would take into account. She advised the applicants that the Tribunal was independent of the department but was required to apply the same law and said it was “important if you don’t understand to let her know and she will repeat or rephrase the question.” She said the issue she was considering was whether the applicant was a genuine temporary entrant to study in Australia and that Direction No 69 contained information about what a genuine temporary entrant to study is. The applicant needed to provide any information he wanted her to consider. She particularised the matters she was required to consider and advised she would deliver a written decision. The applicant’s hearing was then adjourned to later that afternoon.
The second stage of the hearing commenced at about 2.00 p.m. on 23 March 2018. The Tribunal member dealt with the applicant’s application over the phone. At the outset the Tribunal member asked the applicant if he had any questions. He replied “not at all.”[36] He did not raise the issue of an interpreter, request an interpreter nor enquire why an interpreter was not present or available.
[36] Recording of the Tribunal hearing on 23 March 2018 at 1:18 – 1:19
It is apparent from the audio recording that the applicant had sufficient proficiency in English to both understand the nature of the questions asked of him and to provide meaningful and considered answers including providing additional information to assist in his case. The audio recording reveals that the applicant had no difficulty communicating with the Tribunal member.
The Tribunal member asked the applicant about his written statement and confirmation of his enrolment. He said “I enrolled 2 weeks ago. I was waiting for a decision whether I could study or not. I paid fees of $2750.” He told the Tribunal member “since coming to Australia he had completed a course 2 terms in 2014. In 2015 he finished a business course. He said he had done no other courses.”
He said “I arrived in Australia in 2013.” He said he had held a student or bridging visa since then and said “When I came to Australia I had no English. I wanted to learn the language and I did an English course from January to March which I finished. From 2014 more than 4 years I completed a 2 month English course and a 2 month business course. I then got married in September 2015. Then I held a bridging visa as her partner. She finished her courses then I applied to finish my courses.” He volunteered he did no study “from finishing the English course because he was suffering from depression.” He said he had no family and friends for support. He was dependent on his wife’s student visa from 2015 until 2016 until she finished her course then he applied for a student visa to finish the second stage of his Business course. He said he is enrolling now “I tried to enrol in Sydney. We lost the date to lodge the application.”
He said he applied for his visa in November 2016 at that time we had an agent and he said he would take over. The date to lodge the document came and we heard nothing. We were moving from Sydney. He said the Certificate II in Business course in November 2015 was the last time he studied. He said “my wife works and I have a casual job. It’s hard to find a job. My wife works at a car wash.” When asked whether they came to Australia in 2013 together he said “No I met her at the end of 2014 and she went back to Brazil and she came back in 2015. I returned to Brazil in October 2013 and then we visited Brazil together in June 2016.” He said his wife had a job 20 hours a week and he has some hours a week work. Canberra is cheaper than Sydney and they pay rent.
He was asked why he did not study in Brazil. He said “It’s not a matter of can or can’t. Overseas in Brazil there’s more violence, work is better. He said it takes one year here then two and a half years in Brazil. The course in Australia is more acceptable in Brazil.”
He was asked how much longer he intended to stay in Australia. He said “the course takes a year. He needs one more year then he will go back to Brazil. His wife has a diploma of leadership and management.”
He was asked whether he had applied for any other visas. He said “No. We pay share accommodation $300 a week ($150 each). He earns about $750 a fortnight and she earns about $600 a week. His mother visited in 2015 and she returned to Brazil and her mother came here last year.” He said he had no family members living here. He agreed he was relying on his written statement dated 22 March 2018.
He volunteered “I know I messed up in the past. The reason I did not get back to Brazil was because I didn’t finish what I came to do. To get this certificate and get back to Brazil. I have no interest in staying in Australia much longer. My wife has a family with a big company in Brazil and she intends to work with her family’s company in Brazil. I will be devastated if I don’t finish my qualifications and don’t have the certificate in my hands. I hope to work for her family company until I get experience and then try to find a job for myself and then I will work for myself.”
He said “before I left Brazil in 2013 I worked in a big company firing people. I did an accounting course in Brazil and a financial course. I worked in Brazil for 16 or 17 years.”
When asked about the course he was currently enrolled in he said “he had not started the course yet because I didn’t know if I was doing an illegal thing I was waiting for a decision of the Tribunal. I was working 20 hours a week. The agent told me I could work but told me to wait until I knew I could study.”
The audio recording indicates that the applicant gave considered answers to questions asked. There was no evidence that he misunderstood any question posed to him nor was constrained in his answers. He volunteered further information to assist his case and some of his answers were reasonably lengthy. On one occasion the Tribunal member asked the applicant about the 2 courses he had taken in “accounting and financing.” He said he was having difficulty translating the correct term. This was the only occasion when the applicant hesitated in responding to the Tribunal member’s questions.
Under subsection 366C (2) of the Act the Tribunal member was required to assess whether the applicant was sufficiently proficient in English. The applicant’s sufficiency in English may be inferred from the responses he provided to the Tribunal member and the information he volunteered during times when he expanded upon the topic in question for example he said regarding undertaking a course in Brazil “It’s not a matter of can or can’t. Overseas in Brazil there’s more violence, work is better. He said it takes one year here then two and a half years in Brazil. The course in Australia is more acceptable in Brazil.” Rather than suggesting any inability to communicate and present his case effectively the exchange between the Tribunal member and the applicant supports the Tribunal member’s assessment that “the applicant speaks excellent English. Whilst it is not possible to be sure that his written English is of equal quality, the Tribunal considers that in the circumstances it is reasonable to think his written English is at least very good indicating that he successfully completed the English course in 2013.”
The intention of section 366C of the Act is to ensure that an applicant is afforded procedural fairness and not disadvantaged due to insufficient proficiency in English. The Tribunal member found that the applicant spoke “excellent English.” That finding is supported by the evidence contained in the audio recording before the Tribunal.
The audio recording does not demonstrate any error in the Tribunal’s assessment of the applicant’s ability to communicate and respond in English in a meaningful and considered manner and effectively present his case. No error is apparent in the Tribunal’s finding that the applicant was sufficiently proficient in English such that the Tribunal was not required to comply with applicant’s request for an interpreter. This ground is not made out.
With respect to all grounds of review raised by the applicant I am satisfied that the Tribunal made no jurisdictional error.
Ministerial Direction No 69
The First Respondent raised a further issue for the Court’s consideration. Counsel submitted that the approach taken by Judge Riley in Singh v Minister for Immigration and Border Protection [2019] FCCA 3423 (“Singh”) is distinguishable from the present case. In Singh (supra) Judge Riley dealt with Ministerial Direction No 53, a Direction in similar terms to Direction No 69 but dealing with a different class of visas.
The First Respondent submitted:
(a)Direction 53, imposes a mandatory requirement on decision makers to have regard to certain factors when assessing the genuine temporary entrant criterion i.e. “decision makers must have regard to the following factors”;
(b)Direction 69 which was considered by the Tribunal in the current proceeding states that the decision maker “should” have regard to the factors to be considered;
(c)An instruction to a decision maker that he or she should consider something is a normative obligation providing an evaluative standard. It does not import any requirement to consider something. Rather it provides guidance permissive in nature, as to matters that may need to be considered depending on the circumstances of each case;
(d)The same conclusion cannot be reached with respect to a Tribunal’s consideration of the genuine temporary entrant criterion under Direction 53, which imposes a mandatory requirement and Direction 69, which is cast normatively and as a guide; and
(e)To the extent that the Tribunal in the current proceeding may be said to have had regard to Direction 69 but without expressly considering each factor contained in the Direction (which is not conceded) it did not fall into any error of the sort identified in Singh (supra).
In Singh (supra) Judge Riley considered and followed the decision of the Full Federal Court in He v Minister For Immigration and Border Protection (2017) 255 FCR 41 (“He”). The Full Court said at [78] when dealing with a regulation under the Migration Regulations “wherever a legislator prescribes a long list of factors each of which must be taken into account by a decision maker in the course of reaching an inherently evaluative conclusion the advantage will be that it ensures that a decision maker cannot overlook a consideration which the legislature has intended must be taken into account...”
Riley J observed that the Court in He (supra) at [79] said “The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. It the written statement does not set out a finding concerning any of the prescribed matters set out in regulation 1.15A (3) in Roman numerals it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case the Tribunal will not have complied with its obligations under regulation 1.15A(2) to “consider” all of the circumstances of the relationship including all the matters set out in regulation 1.15A (3).”
In Singh (supra) at [17] Judge Riley noted that the Migration Act 1958 provides in section 499 that a relevant person or body must comply with a direction made by the Minister under that section. Direction 53 was made under section 499 of the Act (as was Direction 69). She said “Direction No 53 says that decision makers must (her emphasis) consider various matters.” She said at [18] in response to the argument by the Minister that Direction 53 was not a checklist and the Tribunal need not refer to every factor mentioned in the Direction “the factors mentioned in Direction 53…..are all matters for the decision maker to think about and weigh up but they do not necessarily all have to be satisfied to any particular degree for a person to be found to be a genuine temporary entrant.”
She referred to the decision of the Full Federal Court in Minister forImmigration and Citizenship v Khadgi (2010) 190 FCR 248 (“Khadgi”) at [23] of her judgment. In Khadgi (supra) at [58] – [59] the Court said:
[58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision maker must have regard to it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision maker did not have regard to that factor at all.
[59] Similarly a decision maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand it does not follow that a decision maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.”
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], McHugh, Gummow, Kirby and Hayne JJ noted:
“[93]… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid …..”
In Mr B v Minister for Immigration and Multicultural Affairs [1997] FCA 422 Merkel J considered the principles relevant to construction of a requirement as mandatory or directory and whether non - compliance with the criterion prevents the grant of the permit. He said at p.14:
“In Statutory Interpretation in Australia, D.C. Pearce and R.S. Geddes, 4th Edition, 1996 at 264 it is suggested that the problem of classifying provisions as mandatory or directory is one of the most intractable problems encountered by the courts in the interpretation of legislation using words such as 'shall', 'must', or 'is required'.
The general principle was stated in Howard v. Bodington (1877) 2 PD 203 at 211 by Lord Penzance:
‘I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.’
“Strict compliance with a requirement that is imperative or mandatory is a precondition to the action taken. Originally substantial, rather than strict, compliance was considered to be sufficient for a directory or merely procedural provision. However, in more recent cases it has been accepted that non-compliance with a directory provision does not necessarily result in invalidity. Ultimately, the effect of non-compliance with a statutory requirement is not a question of categorisation into the mandatory/directory dichotomy. Rather, it is a question of legislative intent to be discerned in the words of the relevant statutory provision construed in the context of the statute as a whole: see Australian Broadcasting Corporation v. Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454 at 457 per Mason CJ, Deane and Gaudron JJ.
Counsel for the first respondent submitted that the use of the term “should” in Ministerial Direction 69 did not import any requirement by the Tribunal to consider something but rather was permissive in nature, giving guidance to the decision maker as to matters that may need to be considered depending on the circumstances of each case. Counsel provided no relevant authority on the point. The applicant did not assert that the Tribunal had failed to consider any matter in the Ministerial Direction that the Tribunal was bound to consider and was therefore in error. Nor did the applicant respond to Counsel’s written and/or oral submissions on this issue (noting that the applicant represented himself in the proceedings). I am not satisfied that the matter was properly argued before me.
In the recent decision of Bala v Minister for Immigration and Border Protection [2019] FCA 600 (“Bala”) Anastassiou J reviewed a decision of the Federal Circuit Court dismissing the appellants’ application for judicial review of a decision of the Tribunal refusing to grant the appellants a Student Temporary (Class TU) (subclass 572) visa. Ground Two of the appeal before Her Honour complained that the judge of the Federal Circuit Court “failed to properly and/or adequately investigate and assess the claims of the applicant and consequently overlooking the incorrect application of Ministerial Direction 53 by the AAT.” Anastassiou J referred to the decision of Judge Riley in Singh (supra) at [14] and said “Judge Riley concluded that where Direction 53 is applicable each of the criteria must be considered. It is unnecessary for me to form a view about whether the criteria prescribed in Direction 53 are mandatory as I have concluded that each criteria was considered.”
Anastassiou J indicated at [17] that “having regard to the express acknowledgement of Direction 53 and the express reference to a number of criteria in my view it is reasonable to infer that matters not mentioned were considered though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.” She indicated at [18] where there was no evidence before a Tribunal that a factor was of relevance it may be inferred that the Tribunal did not consider it necessary to refer to those factors explicitly in the Decision record. She concluded at [19] that “there is no basis to conclude that the Tribunal overlooked any mandatory relevant consideration or failed to give ‘proper, genuine and realistic consideration’ in an ‘active intellectual process’ to the evidence nor that it took into account any forbidden consideration”: He at 51 [52].
Did the Tribunal fall into jurisdictional error?
I intend to take the approach adopted by Anastassiou J in Bala (supra) and consider whether the Tribunal fell into jurisdictional error. Firstly a copy of Ministerial Direction No 69 was provided to the applicant prior to the hearing.[37] During the first stage of the hearing the Tribunal advised the applicant that “the issue she was considering was whether the applicant was a genuine temporary entrant to study in Australia” and “Direction No 69 contained information about what a genuine temporary entrant to study is” The Tribunal indicated that “the applicant needed to provide any information he wanted her to consider.” The Tribunal member particularised the matters she was required to consider and advised she would “deliver a written decision.”[38]
[37] CB12 at #87 – 95 and CB15 at 105 [6]
[38] Attachment 1
In the reasons for decision the Tribunal noted that the Tribunal “must have regard to Direction No 69”[39] and went on to consider factors the Tribunal considered it was bound to investigate and assess.[40]
[39] CB15 at #108 [26]
[40] CB 15 at #109 – 112 [27] – [44]
The Tribunal expressly assessed the applicant’s circumstances in his home country[41] both in having regard to the evidence filed before the Tribunal, the applicant’s letter of intent and oral argument[42] including the discussion between the Tribunal member and the applicant during the hearing on 23 March 2018.[43] There was no evidence before the Tribunal regarding any disincentive to the applicant to return to his home country with respect to military service commitments nor any evidence of political or civil unrest in the applicant’s home country as a motivation for applying for a student visa.[44] Those factors were not mentioned and it may be inferred the Tribunal considered that those factors were not relevant.
[41] CB 12 at 93 Direction No 69 (9) (a) – (c ) and 15 #110 [31] – [36]
[42] Attachment 1
[43] CB15 at 110 [32]
[44] CB 12 at 93 Direction No 69 (9) (d) and (e )
There was brief evidence regarding the applicant’s circumstances in his home country relative to circumstances of others in that country wherein he suggested the course he wished to complete in Australia “is of more value and he will get better work back in Brazil with an Australian qualification that the Tribunal took into account”[45] however the Tribunal noted that the applicant adduced no evidence of any comparable course of study in his home country.
[45] CB15 at 111 [38]
The Tribunal found that the applicant lived in Australia with his Brazilian wife but did not demonstrate strong ties to Brazil.[46] The Tribunal found that the applicant had provided no reliable evidence that he holds strong ties to his family or community in Brazil, his home country. He had declared that his parents live in Brazil and he visited his family twice in 2013 and 2016. The Tribunal found that during the 5 years the applicant had resided in Australia he had been offshore twice for a total of 8 weeks. The Tribunal did not consider 2 trips to the applicant’s home country over a period of 5 years indicated strong ties to Brazil. The Tribunal formed the view that the applicant’s personal and community ties to Australia where he had lived for the past 5 years were at the time of the decision stronger than those he had to Brazil indicating a strong incentive to remain in Australia.[47] The Tribunal was not satisfied that the applicant had sufficient incentive to depart Australia.[48]
[46] CB15 at #110 [32]
[47] CB15 at #110 [34]
[48] CB12 at #93 Direction No 69 #9 (b)
The Tribunal expressly considered the value of the course to the applicant’s future.[49] The Tribunal found there was no reliable evidence adduced by the applicant that the Certificate III course in Business would be of value to his future in his home country or a third country if he completed the course. He provided no detail of his specific career goal, of remuneration expectations in his home country or any corroborative evidence as to how the Certificate III course in Business would assist him to obtain employment or improve his employment options in Brazil. The Tribunal was concerned whether the applicant would if fact complete the course in light of his previous study history noting in the past he had undertaken “short and relatively inexpensive courses.”
[49] CB15 at #111 [40]
The Tribunal considered the applicant’s intended purpose of study and noted that when making an enquiry as to why the applicant could not undertake study in Brazil he replied “it is not a matter of can or can’t” (study in Brazil)[50] he simply wished to complete his course in Australia rather than Brazil. He provided no evidence of an equivalent course in Brazil and was vague regarding his employability in Brazil following obtaining qualifications in Australia. The Tribunal noted the applicant had made slow progress in his studies and had periods of non – enrolment and/or did not continue his studies from time to time. The highest achievement obtained by the applicant was a Certificate II in Business. He had not studied any courses in Australia since 2015 and the Tribunal concluded that if the applicant had been genuinely concerned about completing his studies he would have maintained his enrolment over the past 3 years.
[50] CB15 at #111 [37]
The Tribunal found that the applicant enrolled in the Certificate III in Business course “only a few days before the Tribunal hearing” for the purpose of strengthening his visa application. The Tribunal was not satisfied that the applicant was sufficiently engaged in his studies or had an intention to be so in the future.[51] He had been residing in Australia for 5 years and had not made satisfactory academic progress to support a finding that he is a genuine applicant for entry and stay as a student. The Tribunal determined that the applicant was using the student visa programme for the primary purpose of maintaining ongoing residence in Australia and not for the primary purpose of progressing academically.[52]
[51] CB15 at #110 [40] – [42] and CB12 at #94 Direction No 69 #12 (a) – (c )
[52] CB15 at #110 [36]
The Tribunal expressly considered the applicant’s immigration history, his previous travels to Australia and other countries and the amount of time he had spent in Australia.[53] The Tribunal expressly considered the applicant’s economic circumstances including the length of time the applicant had resided in Australia.[54]
[53] CB15 at #111 [43] – [44]
[54] CB 15 at #110 [33] and CB12 at #93 Direction No 69 #9 (c )
The Tribunal assessed the applicant’s potential circumstances in Australia in particular his ties with Australia which would provide an incentive to remain in Australia.[55] The Tribunal found that the applicant had remained in Australia on a student visa for 5 years visiting his home country only twice. He completed 2 short courses but suffered depression causing his studies to lapse between 2014 and 2015. The Tribunal observed that the applicant did not provide independent evidence to support that claim nor any evidence of an application to defer his studies on medical grounds. From 2015 to 2016 he became the secondary applicant to his wife’s student visa and when that ceased he applied for a second student visa as the primary applicant. Though he provided a Certificate of Enrolment he did not undertake that course when his student visa was refused.[56] The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found he was using the student visa for the primary purpose of maintaining residence in Australia.
[55] CB15 at 110 [33]
[56] CB15 at #110 [35]
Conclusion
The Tribunal considered either expressly or impliedly the factors it was required to consider in Ministerial Direction No 69 and did not fall into any error of the type identified in Singh (supra). I am satisfied that the Tribunal made no jurisdictional error. The application is dismissed.
Costs
The First Respondent sought an order that the applicant pay the first respondent’s costs in an amount fixed by the Court. The application for costs was not argued before me. In the event that the first respondent seeks to argue that the applicant pay the first respondent’s cost, the first respondent shall file short written submissions (two pages) in support of that application within 7 days from the date of this order and the applicant shall file short written submissions (two pages) in response on or before 13 September 2019. In the event that the first respondent fails to file within the specified period, there shall be no order for costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 30 August 2019
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