Seeboruth v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 75
Federal Circuit and Family Court of Australia
(DIVISION 2)
Seeboruth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 75
File number: MLG 641 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant Student (Temporary) (Class TU) visa – whether Tribunal afforded applicant a real and meaningful opportunity to present his evidence – whether Tribunal afforded appropriate weight to evidence – whether Tribunal failed to take into account all relevant considerations – whether Tribunal took into account irrelevant considerations – whether Tribunal had regard to the whole of applicant’s evidence – whether Tribunal decision was affected by actual or apprehended bias – whether Tribunal decision was unreasonable, illogical or irrational – whether Tribunal failed to discharge its obligations under s 368D of the Migration Act 1958 (Cth) – whether Tribunal afforded applicant procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 360, 368, 368D, 476, 477
Migration Regulations 1994 (Cth) cl 572.223
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 20 January 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 641 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAKESH SEEBORUTH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
9 February 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
This is an application in which the applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) of a decision made by the Administrative Appeals Tribunal (Tribunal). On 15 February 2018 the Tribunal affirmed an earlier decision made by a delegate of the Minister not grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa (student visa).
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Tribunal decision and the application for judicial review is therefore dismissed.
Background
The applicant is a non-citizen who first arrived in Australia in October 2009 as the holder of a student visa.
On 5 April 2016 the applicant applied for the student visa the subject of this application on the basis of his enrolment in an Advanced Diploma of Hospitality and an Advanced Diploma of Management.
On 3 May 2016 the Minister’s Department sent a letter to the applicant which relevantly requested that he provide more information in relation to whether he met the genuine temporary entrant criterion. The applicant provided information in response to this letter on 31 May 2016, including a statutory declaration, payslips and copies of his academic transcripts and certificates.
On 16 September 2016 a delegate of the Minister refused to grant the applicant a student visa. The delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily as required by cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 6 October 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 16 January 2018 the Tribunal sent an invitation to the applicant to attend a hearing scheduled for 15 February 2018. That invitation required, amongst other things, the applicant to provide a written statement addressing the issue of whether he intended genuinely to stay in Australia temporarily.
On 14 February 2018 the applicant appointed an authorised representative who sent an Appointment of Representative, Appointment of Authorised Recipient form to the Tribunal.
The applicant and his representative attended the Tribunal hearing on 15 February 2018. At the hearing, the applicant’s representative provided a statement made by the applicant and other documentation in support of the application. At the end of the hearing, the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a student visa and gave oral reasons for that decision. A written statement of the Tribunal’s reasons for decision was subsequently provided to the applicant on 29 March 2018.
Tribunal decision
The Tribunal acknowledged that it was required to have regard to Ministerial Direction No 53 in assessing whether the applicant met the genuine temporary entrant criterion in cl 572.223 in Schedule 2 to the Regulations.
The Tribunal had regard to the applicant’s statement that he provided at the hearing and noted that it included information that was contradictory to the applicant’s circumstances and was not convinced that the statement was authored by him. The Tribunal also found based on conflicting evidence provided by the applicant that he was not a reliable witness.
The Tribunal considered the applicant’s enrolment history, noting that he was at the time of the hearing enrolled in an Advanced Diploma of Hospitality Management, and that the applicant had held three separate enrolments in this same course between October 2009 and February 2012. The Tribunal also had regard to the evidence that the applicant had completed a Diploma of Business between November 2013 and November 2014 and an Advanced Diploma of Management between January 2015 and June 2016. The Tribunal did not consider this progress to be that of a genuine student in circumstances where the applicant had been in Australia for over eight years and had only completed two courses of study which would normally be completed in two years.
The Tribunal identified that the applicant had a history of enrolling in various courses since he came to Australia in October 2009, including courses that did he not start, or which he started and cancelled. The Tribunal found that the applicant did not provide any satisfactory explanation or reasons for his continued habit of enrolling in courses he had previously studied and considered that this behaviour was not that of a genuine student.
The Tribunal was not satisfied by the applicant’s explanation that the gaps in his studies were attributable to his health problems, noting that the medical documents he provided were dated four years after he was enrolled and not studying. The Tribunal found that the applicant’s medical condition did not impact on his studies. The Tribunal further found that the applicant’s history of enrolments were an attempt to maintain residence in Australia.
The Tribunal accepted that some educational and career pathways require extensive study, but was not satisfied that the applicant’s future goals fell into this category. The Tribunal noted that there was nothing to support the applicant’s proposal to study a ‘degree programme’ and found that he did not research the courses he had chosen to study. The Tribunal also found that the applicant had no business plan as the basis of his studies and found his claim that his previous study experience would guide and help him study up to the standard sought by Australian education providers to be implausible.
The Tribunal acknowledged that the applicant has family in his home country which may provide some incentive for him to return. However, the Tribunal considered that the applicant appeared settled in Australia and found that his circumstances presented a strong incentive to remain in Australia. The Tribunal was not satisfied that the applicant had provided evidence of any incentive to return to his home country which outweighed its other concerns.
Having considered the applicant’s circumstances as a whole, including the factors in Ministerial Direction No 53, the Tribunal was not satisfied that the applicant was a genuine student who intended to stay temporarily in Australia and therefore found that he did not meet cl 572.223(1)(a) in Schedule 2 to the Regulations.
Judicial Review Application
The application for judicial review was filed on 15 March 2018 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises 19 grounds of application, reproduced below without alteration:
1.The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
2.Tribunal did not give consideration to the evidence provided so it has fall into “jurisdiction error”.
3.Tribunal was merely focused on an error in the GTE which was not fatal to the hearing but was rather an oversight on the part of the writer.
4.The GTE should have been taken into serious consideration in its totality and the substance rather than the mere oversight on the part of the writer.
5.The Tribunal Member had prematurely decided to dispose of the hearing with a predetermined mind with a preconceived outcome of having the matter concluded without the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member.
6.In the context of what the Tribunal had described and what amounts to a period of considerable uncertainty in relation to my gap study which was earlier overturned by the Tribunal in the previous hearing.
7.The decision to give a decision at the conclusion of the hearing was a rational or arbitrary or otherwise vitiated by jurisdictional error.
8.The disadvantage to the applicant inuring to him on account of the decision to proceed to give a decision is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing COE enrolment in the relevant course of study which would remedy further issues and doubts.
9.I do have exceptional circumstances beyond the application lodgement previously
10.I have been denied procedural fairness
11.I have completed some studies to further my education and that the breaches of condition were as a result of matters outside of my control
12.The Tribunal fell in error by not considering that Applicant had completed his studies from 13 June 2016 to 10 June 2018 and even if he had not studied for few months he had still substantially complied with student visa condition keeping in view the total period of study completed by the applicant.
13.The Tribunal failed to exercise its jurisdiction while affirming the decision of the delegate even after accepting that the gap in applicant’s study for few months was because of one of other factors including producing evidence of funds.
14.The Tribunal failed to consider relevant considerations in deciding the GTE is not genuine solely hinges on the fate and outcome of the whole Hearing;
15.The Tribunal failed to exercise its decision making power unreasonably;
16.The Tribunal relied upon irrelevant considerations to conclude the genuineness of a student hinges on the GTE presented which had slight unintentional errors;
17.The Tribunal failed under 368D of the Migration Act 1958 (Cth) to “..Notify parties when Tribunal gives an oral decision.
18.There was no evidence to support the decision that the GTE was not factually genuine;
19.The decision is based on mistaken presumptions and/or erroneous findings;
Following these 19 grounds in the application, the application contains an additional 22 paragraphs which refer to factual background and statements of law. At the hearing, the applicant confirmed that it is appropriate for the Court to treat these paragraphs as submissions and I have proceeded on that basis.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit filed by the applicant in support of his application on 15 March 2018 which contains the same grounds and submissions raised in the application, and annexes the Tribunal decision;
(c)an affidavit of Ms Julia Hodkinson filed on behalf of the Minister on 21 September 2022 which annexes a copy of the applicant’s Provider Registration and International Student Management System (PRISMS) records which were before the Tribunal; and
(d)an affidavit of Mr Cohen Dietrich filed on behalf of the Minister on 28 September 2022 which annexes email correspondence attaching an updated version of the applicant’s PRISMS records, relied on to support a submission (that I have not had to consider) that it would be futile to grant relief to the applicant even if I were to find jurisdictional error in the Tribunal decision.
An Order was made by a Registrar of this Court on 20 February 2019. The Order required, amongst other things, that the applicant file and serve any amended application with proper particulars of the grounds of the application, any affidavits, any supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 20 December 2022 in accordance with the Order.
I have had regard to the submissions advanced by both parties, including the oral submissions made at the hearing. The applicant raised a number of matters at the hearing that are appropriately seen as factual background or otherwise matters that relate only to whether he should be entitled to a visa, including matters such as the applicant’s study history and the reasons he was late for the Tribunal hearing. In the consideration of the applicant’s grounds below, I have only expressly referred to the applicant’s submissions that directly relate to his assertions of jurisdictional error.
Consideration
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a different outcome: SZMTA at [45].
This Court does not have jurisdiction to consider the factual merits of the Tribunal decision or to decide for itself whether the applicant meets the criteria for a student visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Ground 1
Ground 1 asserts that the Tribunal did not give enough weight to the situation the applicant tried to explain, and was more concerned with disposing of the case quickly than exercising its fact-finding functions and gathering evidence from him.
The applicant has not in his application explained what he means by this ground.
To the extent that this ground might be seen as an assertion that the applicant was denied procedural fairness because the Tribunal did not afford him a real and meaningful opportunity to present his evidence at the hearing, it overlaps with grounds 8 and 10 below and for the reasons explained in relation to those grounds, I am not satisfied that the applicant was denied procedural fairness.
It is also possible that by this ground, the applicant is asserting that the Tribunal did not afford appropriate weight to the evidence he gave. This ground cannot succeed on that basis. As a general proposition, the weight to be given to the applicant’s evidence or circumstances is a matter for the Tribunal: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [95]. There is nothing in the Tribunal reasons to suggest that the weight it gave to any particular consideration or piece of evidence caused it to make a decision that was unreasonable, illogical or irrational.
Ground 1 is not established.
Grounds 2 and 14
By ground 2, the applicant asserts that the Tribunal did not give consideration to the evidence he provided.
By ground 14, I understand the applicant to be asserting that the Tribunal failed to consider relevant considerations in deciding that he did not meet the genuine temporary entrant criterion and this affected the outcome of the whole hearing.
It is convenient to address these grounds together as they raise similar issues.
The applicant has not identified any particular evidence that he believes the Tribunal was required to, but failed to, take into account and he has not identified any mandatory relevant considerations that the Tribunal failed to consider.
When I asked him about this at the hearing, the applicant submitted that the main issue was the unfairness because he was late for the hearing, and that the Tribunal member then accused him of lying, which caused him to be unable to speak. These matters relate more to the applicant’s procedural fairness grounds than to his assertion that the Tribunal failed to consider evidence. In any event, the Tribunal was clearly aware that the applicant was late to the hearing, having referred to this several times in its reasons. While there is no evidence before the Court that the Tribunal called the applicant a liar and that, as a result of this, the applicant did not provide all relevant evidence, those matters would not in any event establish grounds 2 or 14. The Tribunal’s concerns about the applicant’s credibility are set out in its reasons and it is clear that the Tribunal considered the applicant’s credibility in reaching its decision. The Tribunal was required to consider the evidence before it, but not evidence that the applicant might have, but chose not to, put before the Tribunal.
It is otherwise clear from reviewing the Tribunal’s reasons that the Tribunal considered documentary and oral evidence provided by the applicant at the hearing and documents in the Department file. In reaching its decision, the Tribunal had regard to Ministerial Direction No 53, as it was required to do. It made findings that are relevant to many of the paragraphs within that direction. The applicant has not identified any factor that is referred to in Ministerial Direction No 53 that he believes the Tribunal overlooked.
Grounds 2 and 14 are not established.
Grounds 3 and 16
By ground 3, the applicant asserts that the Tribunal focused on an ‘error in the GTE’ which was not fatal to the hearing, but was rather an oversight on the part of the writer.
By ground 16, I understand the applicant to be asserting that the Tribunal relied on irrelevant considerations by concluding that he was not a genuine temporary entrant based on his genuine temporary entrant statement which contained ‘slight unintentional errors’.
Given that both of these grounds arise from the same factual background, namely, that the applicant provided a genuine temporary entrant statement to the Tribunal which he asserts contained errors, it is convenient to address them together.
On one view, it may appear by ground 3 that the applicant is asserting that the Tribunal erred by affirming the delegate’s decision on the basis that he did not meet the genuine temporary entrant criterion in cl 572.223(1)(a) without considering whether he met the other criteria for a student visa. If this is the case, the ground cannot succeed. The genuine temporary entrant criterion is a mandatory criterion. If the applicant did not meet the requirements of that criterion, he could not satisfy the requirements for the grant of a student visa even if he satisfied all other criteria.
However, based on the applicant’s oral submissions to the Court, ground 3 might more appropriately be viewed as an assertion that the Tribunal gave weight to errors in the written statement the applicant provided to the Tribunal on the day of the hearing addressing the genuine temporary entrant criterion, and this is similar to the error alleged in ground 16.
The Tribunal clearly had some concerns about the content of the applicant’s statement, commenting at [16] of its reasons that the ‘statement raises some significant questions because there are elements of it that are contradictory and there are other elements of it that are clearly wrong’. The Tribunal gave some more specific examples of its concerns in subsequent paragraphs, including at [17] and [30], where it said:
17.For example, at one stage you said your desire was to head a department in the nursing field. When the Tribunal observed that you had never studied nursing, you responded that it was just an error. As I said to you then and I say now, I do not believe that these are your words but that you have cut and pasted them from someone else’s statement.
…
30.Another issue is that in a statement detailing your background you spoke of having worked on a ship which you say gave you a perspective that made you see diversity in food and tourism through different cuisines available all over the world. Today you told the Tribunal you had never worked on a ship that it was just a dream. The Tribunal finds this is another example of you giving conflicting evidence and is just one example of a number of occasions where you have provided conflicting evidence which leads the Tribunal to find you are not a reliable witness.
The applicant submitted to the Court that his lawyer had prepared the statement after speaking with the applicant, but because the applicant was running late on the day of the hearing, the applicant did not have an opportunity to read the statement before the Tribunal hearing. There were a number of errors in the statement that the applicant did not identify before the hearing.
There is no evidence before the Court to confirm the manner in which the applicant submitted that the statement was prepared and there is no evidence that the explanation the applicant provided to the Court was ever provided to the Tribunal.
It was open to the Tribunal to have regard to inconsistencies in the applicant’s evidence and to test those inconsistencies. It seems apparent from the Tribunal’s reasons that the Tribunal invited the applicant to comment on the inconsistencies it identified and the Tribunal took the applicant’s comments into account, including his explanation that the reference to nursing was just an error. Having identified the inconsistencies and considered the applicant’s responses to those inconsistencies, it was open to the Tribunal to rely on inconsistencies in the applicant’s genuine temporary entrant statement to make adverse credibility findings against him.
The genuine temporary entrant statement and any inconsistencies that the Tribunal identified in that statement cannot be said to be irrelevant considerations that the Tribunal was precluded from taking into account. Quite plainly, the genuine temporary entrant statement purported to address matters that would be relevant to the Tribunal’s consideration of whether the applicant met the genuine temporary entrant criterion and were relevant to the decision made by the Tribunal. As discussed in relation to ground 1 above, the weight that the Tribunal gave to the evidence, including the weight given to any inconsistencies it identified in the genuine temporary entrant statement, was a matter for the Tribunal as part of its fact-finding function.
Grounds 3 and 16 are not established.
Ground 4
By ground 4, the applicant asserts that the genuine temporary entrant statement should have been taken into serious consideration in its totality and substance, rather than focusing on the oversight on the part of the writer.
The matters raised by the applicant at the hearing which are discussed in grounds 3 and 16 above are also relevant to the consideration of ground 4. While the Tribunal did identify inconsistencies in the applicant’s genuine temporary entrant statement, there is nothing in the Tribunal reasons to suggest that it did not have regard to the whole statement. The Tribunal is not required to refer to every piece of evidence or every contention made by the applicant in its reasons: see for example, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
In any event, the Tribunal has, in other parts of its reasons, referred to matters that are set out in the applicant’s statement, without expressly acknowledging that the source of the evidence is the statement. The reference to matters in the statement that were not identified as inconsistencies suggests that the Tribunal did consider the statement in its totality.
The applicant has not established that the Tribunal did not have regard to the whole of his genuine temporary entrant statement. Ground 4 therefore fails.
Ground 5
By ground 5, the applicant alleges that the Tribunal was biased because it prejudged the matter. As identified by the Minister in his written submissions, the applicant appears to plead actual or apprehended bias.
Any allegation of bias must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. To establish that the Tribunal was biased, the onus is on the applicant to prove that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the materials before it, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 (Ex Parte H) at [27]; Jia Legeng at [35].
The applicant has not established that the Tribunal was biased in this matter. While it may appear from reviewing the Tribunal decision that the Tribunal had a number of concerns about the applicant’s evidence that it raised with the applicant throughout the hearing, this does not indicate that it prejudged the matter. Part of the applicant’s assertion of bias appears to be based on his perception that the Tribunal member thought he was a liar based on the questioning of the applicant at the hearing. The Tribunal is entitled to test the applicant’s evidence and doing this, even vigorously, does not of itself demonstrate bias on the part of the Tribunal: see Ex parte H at [30]-[31]. While there may be some cases, such as Ex parte H, where a Tribunal member’s ‘vigorous testing of the evidence and frank exposure of its weaknesses’ might result in an applicant being ‘overborne or intimidated’ in a way that might cause a fair-minded lay observer to infer that there is no evidence the witness can give that might change the decision-maker’s view, the applicant has not established that this is such a case: see Ex parte H at [31].
There is no transcript or other evidence before the Court to show precisely what was said at the Tribunal hearing. In the absence of evidence, I am unable to find that the Tribunal prejudged the matter and approached the review with a mind that was not open to persuasion, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review.
Ground 5 is not established.
Ground 6
Ground 6 is difficult to comprehend. I understand the applicant to be asserting that the Tribunal’s finding at [34] that his explanation did not satisfactorily explain gaps in his studies was contrary to a finding made in an earlier Tribunal matter.
Based on the evidence before the Court, I do not know whether or not the applicant has previously had any other visa application proceed to a hearing before the Tribunal and, even if he did, I have no evidence before me of what findings the Tribunal made.
In any event, the Tribunal was required to conduct a review of the delegate’s decision in relation to the application for the student visa that was considered by the delegate. Part of this process required the Tribunal to make findings of fact based on the evidence before it. The Tribunal was not bound by any previous finding that might have been made by a tribunal considering an application for review in relation to a different visa.
Ground 6 is not established.
Grounds 7, 8 and 17
I address grounds 7, 8 and 17 together because they all relate to the Tribunal giving an oral decision at the conclusion of the hearing.
Ground 7 asserts that it was irrational or arbitrary for the Tribunal to give a decision at the conclusion of the hearing. Sections 368 and 368D of the Migration Act make clear that the Tribunal can make a decision on a review setting out its reasons in a written statement or it may choose to make a decision orally. In the present matter, the Tribunal at the conclusion of the hearing had all of the evidence before it and was not awaiting any further evidence or submissions from the applicant. Therefore, the Tribunal had available to it all of the relevant evidence and information on which to base its decision.
In these circumstances, the Tribunal gave an oral decision at the conclusion of the hearing. The oral reasons were subsequently reduced to writing. It is clear from a review of the reasons as reduced to writing that the Tribunal in making this oral decision took into account the applicant’s oral evidence given at the hearing as well as the documentary material available to it before the hearing. There was nothing irrational or unreasonable in the Tribunal proceeding to make an oral decision at the conclusion of the hearing.
Ground 8 asserts that the Tribunal’s decision to give an oral decision on the day of the hearing deprived the applicant of the opportunity to have a further period of time to ‘make right with his existing COE enrolment in the relevant course of study which would remedy further issues and doubts’. There is no evidence before the Court to suggest that the applicant sought further time to provide additional documents to the Tribunal and there is nothing before the Court to suggest that the Tribunal did not have before it when it made its decision all of the relevant evidence and information. In any event, the Tribunal accepted on the evidence before it that the applicant was, at the time of its decision, enrolled in an Advanced Diploma of Hospitality Management and the decision was not in any way based on the applicant not holding a current confirmation of enrolment.
Ground 17 asserts that the Tribunal failed under s 368D of the Migration Act to notify the parties when it gave its oral decision.
Section 368D(1) provides that a decision on a review that is given orally by the Tribunal is taken to have been made and notified to the applicant on the day and at the time the decision is given orally. The Tribunal’s hearing record shows that an oral decision was made at 12:52 pm on the day of the hearing, namely 15 February 2018. In the absence of any evidence to the contrary, I find that the applicant was notified of the oral decision at 12.52 pm on 15 February 2018 and I do not accept that the Tribunal failed to notify the applicant of that decision.
It is also clear from the material in the court book that the Tribunal gave to the applicant on 15 February 2018 written notification of the outcome of the review. This did not include the Tribunal’s oral reasons for the decision and it was not required to.
A written statement of the decision and the reasons given orally at the hearing was subsequently given to the applicant under the cover of a letter dated 29 March 2018. That letter indicates that the Tribunal received a request on 27 March 2018 for a written statement of the decision and reasons given orally at the hearing.
In providing this written statement of the decision, the Tribunal has acted pursuant to the requirements in s 368D(4) which relevantly require that where an applicant makes a written request for the oral statement to be provided in writing, the Tribunal must reduce the oral statement to writing and give a copy of the written statement to the applicant within 14 days of the date of the request.
Grounds 7, 8 and 17 do not establish jurisdictional error.
Ground 9
By ground 9 the applicant asserts that he had ‘exceptional circumstances beyond the application lodgement previously’.
I am unable to ascertain what the applicant means by this ground and nothing that he said in his oral submissions clarifies the error asserted in this ground. The ground does not appear to assert any jurisdictional error in the Tribunal decision and no aspect of the Tribunal decision turned on whether or not the applicant had ‘exceptional circumstances’ of any kind.
Ground 9 is not established.
Ground 10
By ground 10, the applicant asserts that the Tribunal denied him procedural fairness. No explanation is provided in the application to explain the applicant’s basis for the assertion that he was denied procedural fairness.
The applicant made oral submissions to the Court which might shed some light on his allegation that he was denied procedural fairness. The applicant arrived at the Tribunal hearing over one hour late. There is evidence in the court book to support this, including the Tribunal’s hearing record which shows the scheduled start time and the actual start time as well as a number of paragraphs in the Tribunal reasons where the Tribunal commented on the applicant’s late arrival at the hearing.
The applicant gave detailed submissions from the bar table about the reasons he was late. I do not set out those reasons in this judgment because the reasons the applicant gave about why he was late to the Tribunal hearing are not relevant to his assertions as to what happened at the hearing. The applicant submitted that because he was late to the hearing he did not have the opportunity before the hearing to review the genuine temporary entrant statement that his lawyer had prepared for him and to correct any errors. The applicant submitted that when the hearing started, he couldn’t speak properly because he was stressed from being late and he had diabetes. The applicant submitted that when he gave his evidence, the Tribunal member said that he was lying and because of this, he stopped talking.
There is no evidence before the Court from which I can conclude that the applicant has been denied procedural fairness based on the matters raised in his oral submissions.
The Tribunal’s procedural fairness obligations are set out in Division 5 of Part 5 of the Migration Act. Pursuant to s 360, the Tribunal was required to invite the applicant to attend a hearing to give evidence and present arguments in relation to the issues arising from the decision under review. It is well-established that the opportunity to attend a hearing to give evidence and present arguments must be a ‘real and meaningful’ opportunity: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 (SCAR) at [37].
In the absence of any transcript or other evidence of what was said at the Tribunal hearing, there is no basis to find that any comments made by the Tribunal at the hearing resulted in the invitation to attend a hearing being anything other than real and meaningful. There is no evidence before the Court to support the applicant’s assertion that stress or his diabetes impeded his ability to give evidence in a way that would mean that he was not afforded a real and meaningful opportunity to give evidence and make arguments. The applicant’s choice not to provide further oral evidence to the Tribunal because he did not like the comments the Tribunal was making to him does not establish that the Tribunal failed to afford the applicant a real and meaningful opportunity to give his evidence.
I am not satisfied that the Tribunal has breached s 360 of the Migration Act in any way.
The applicant has not submitted that the Tribunal failed to comply with any other provision in Division 5 of Part 5 of the Migration Act and there is nothing in the evidence before the Court to suggest that the applicant was denied procedural fairness.
Ground 10 is not established.
Ground 11
By ground 11, the applicant asserts that he has completed some studies to further his education and the breaches of conditions on his visa were the result of matters outside of his control.
This ground does not assert any jurisdictional error in the Tribunal decision. It is an assertion of the fact that goes to the merits of the Tribunal decision and, as discussed above, the Court does not have jurisdiction to consider the factual merits of the Tribunal decision.
Ground 11 is not established.
Ground 12
By ground 12, the applicant asserts that the Tribunal failed to consider that he had completed his studies from June 2016 to June 2018, and even if he did not study for a few months he had still substantially complied with the student visa conditions over the whole of the period of his study.
It appears from the evidence before the Court that the course the applicant was enrolled in to study until June 2018 was the Advanced Diploma of Hospitality Management that he was studying at the time of the Tribunal’s decision in February 2018. The Tribunal clearly had regard to the applicant being enrolled in and studying this course. This can be seen most clearly at [21] of the Tribunal’s reasons. The applicant’s assertion that the Tribunal did not take into account his studies in the period from 2016 to 2018 is therefore not established.
It was otherwise open to the Tribunal to have regard to the applicant’s enrolment history and the gaps in his study in reaching its decision.
Ground 12 does not establish jurisdictional error.
Ground 13
By ground 13, the applicant asserts that the Tribunal failed to exercise its jurisdiction by affirming the delegate’s decision even after accepting that the gap in the applicant’s study was because of other factors such as producing evidence of funds. The applicant has not explained this ground to the Court in a way that enables the Court to meaningfully consider the ground, and it appears to be based on a misunderstanding of the Tribunal’s reasons for decision.
The Tribunal in its reasons considered a six-month period between May and November 2013 where the applicant did not study and noted that there were other apparent gaps in his studies. The applicant attempted to explain these gaps by providing evidence in relation to his medical condition. The Tribunal considered this evidence and found that the applicant’s medical condition did not impact his ability to study and therefore the Tribunal did not believe the applicant’s explanation of the gaps in his study. The Tribunal’s findings in this regard were open to it on the evidence.
The Tribunal did not make any finding that the applicant had gaps in his studies because of the need to produce evidence of funds.
Ground 13 is not established.
Ground 15
By ground 15, the applicant asserts that the Tribunal failed to exercise its decision-making power reasonably. It is unclear from the ground as pleaded whether the applicant is referring to unreasonableness in the fact-finding and substantive decision made by the Tribunal or whether the asserted unreasonableness relates to the Tribunal’s exercise of its procedural powers.
In either case, the applicant has not identified with precision any matter that he says gives rise to legal unreasonableness.
None of the oral submissions made by the applicant at the hearing suggest that he is asserting any unreasonableness in relation to any exercise or non-exercise by the Tribunal of its procedural powers and discretions, and the applicant has not established that the Tribunal acted unreasonably in this regard.
I acknowledge that many of the applicant’s oral submissions focused on the weight given to the inconsistencies identified by the Tribunal in his genuine temporary entrant statement. I have set out above that I consider the weight afforded by the Tribunal to the applicant’s evidence to be a matter for the Tribunal. Taking into account the principles relating to legal unreasonableness in fact-finding set out in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 at [30], I am not satisfied that the Tribunal’s decision overall, or any findings of fact it made in relation to the applicant’s credibility or the inconsistency in his evidence were legally unreasonable.
Ground 15 is not established.
Ground 18
By ground 18, the applicant asserts that there was no evidence to support the decision that ‘the GTE was not factually genuine’.
It is not immediately apparent whether the applicant’s assertion is that:
(a)there was no evidence to support the Tribunal’s finding that the applicant did not meet the genuine temporary protection criterion; or
(b)there was no evidence from which the Tribunal could conclude that the matters set out in the applicant’s genuine temporary entrant statement were not correct.
In either case, the ground is not established.
The Tribunal had before it evidence in relation to a number of matters relevant to its consideration of whether the applicant met the genuine temporary entrant criterion. As discussed above the Tribunal considered that evidence and, after giving weight to that evidence in accordance with its fact-finding function, found that the applicant did not meet the genuine temporary entrant criterion. It cannot be said that there was no evidence to support the Tribunal’s finding.
There was also evidence before the Tribunal to support its finding that there were inconsistencies and inaccuracies in the applicant’s genuine temporary entrant statement provided to the Tribunal on the day of the hearing. The Tribunal identified inconsistencies that were both internal on the face of the document and inconsistent with evidence already before the Tribunal. Some of these are discussed above. The Tribunal also had before it the applicant’s oral evidence given at the hearing where he admitted that there were errors in the content of some aspects of the statement.
Ground 19
By ground 19, the applicant asserts that the Tribunal decision is based on mistaken presumptions and/or erroneous findings.
The applicant has not identified any mistaken presumptions or erroneous findings that he says give rise to jurisdictional error. While it is clear that the applicant disagrees with the Tribunal decision, mere disagreement, no matter how emphatic, is not sufficient to establish jurisdictional error.
Ground 19 is not established.
Conclusion
I have found that none of the applicant’s 19 grounds establish jurisdictional error in the Tribunal decision. The applicant has not shown that he is entitled to the relief that he seeks and it is therefore appropriate that the judicial review application is dismissed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Dated: 9 February 2023
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