Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1920
•19 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1920
File number: PEG 274 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 19 August 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by jurisdictional error – whether the Tribunal denied the applicant procedural fairness – whether the applicant was given a “real opportunity” before the Tribunal – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 359, 366, 476, 499
Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZNCR [2011] FCA 369
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
SZRLO v Minister for Immigration and Citizenship [2013] FCA 825
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 89 Date of hearing: 13 August 2021 Place: Perth Applicant In person Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 274 of 2020 BETWEEN: SENA SHOJI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Japan (Court Book (“CB”) 18). She arrived in Australia on 16 December 2011 on a “working holiday visa” (CB 79 & 81). She was subsequently granted a further “working holiday visa” and three student visas (CB 81 & 108).
The applicant has completed the following courses in Australia: Certificates II, III and IV in English (CB 82). She also started, but did not complete, a Diploma of Early Childhood Education and Care (CB 82).
On 4 May 2019, the applicant applied for a Student (Temporary) (class TU) (subclass 500) visa (the “visa”) (CB 17-33). At the time of the application, the applicant was enrolled to complete a Certificate IV in Business, a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management (CB 50-52).
On 16 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 42-46). The delegate was not satisfied that the applicant met cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the applicant “intended genuinely to stay in Australia temporarily”.
On 2 August 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 47-48). She provided written submissions to the Tribunal addressing her “genuine intention to stay in Australia temporarily” and provided three confirmations of enrolment (CB 49-52).
On 10 February 2020, the Tribunal invited the applicant to provide further information in relation to her enrolment “in a registered course of study”. The applicant was also asked to address the “genuine temporary entrant” criteria (CB 67-74).
The applicant provided a written response to the Tribunal on 24 February 2020 which attached three confirmations of enrolment and a statement of enrolment (CB 75-92).
On 15 July 2020, the Tribunal invited the applicant to attend a hearing. By that invitation, the applicant was advised that that hearing was scheduled to take place on 30 July 2020 and that it would be conducted via telephone (CB 93-105).
The applicant appeared before the Tribunal via telephone on 30 July 2020 with the assistance of a Japanese interpreter (CB 115).
Following the hearing, the applicant provided a further statement to the Tribunal detailing her study history in Australia. She also provided three confirmations of enrolment for her proposed study (CB 107-111).
On 19 August 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 112-129).
On 23 September 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 16 pages long and spans 54 paragraphs. Six of those pages comprise Ministerial Direction No. 69 – “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (“Ministerial Direction”) made under s 499 of the Act.
The Tribunal first identified the type of visa the applicant was seeking (at [1]-[2]) and noted that the delegate had refused to grant the visa because the applicant “did not satisfy the requirements of cl 500.212 of Sch 2 of the Regulations” (at [3]).
The Tribunal noted that the applicant had attended a hearing before the Tribunal on 30 July 2020 with the assistance of an interpreter in the Japanese and English languages (at [4]).
The Tribunal then identified the issue before it and outlined the relevant legislative framework as follows:
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
7. Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then summarised the evidence before it as follows:
10. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate's decision dated 16 July 2019 refusing an application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
11. The applicant had provided evidence of enrolment prior to the hearing in several courses, namely a Certificate IV in Business which commenced on 12 March 2020 and is due to be completed on 9 September 2020, a Diploma of Leadership and Management which is due to commence on 5 October 2020 and be completed on 13 June 2021 and an Advanced Diploma of Leadership and Management which is due to commence on 31 July 2021 and be completed on 8 April 2022. However, the applicant had also produced a confirmation of enrolment document to the Tribunal prior to the hearing as follows: a Certificate IV in Business which was due to commence on 2 April 2019 and be completed on 30 October 2019 and an Advanced Diploma of Leadership and Management due to commence on 5 September 2020 and be completed on 14 May 2021. When asked at the outset of the hearing whether the applicant was currently enrolled she said "Yes." When asked to identify the courses she said that she was enrolled in she said that she was enrolled as follows, in a Certificate IV in Business which commenced on 23 July 2020 and is due to be completed on 20 January 2021, a Diploma of Leadership and Management which is due to commence on 8 March 2021 and be completed on 14 November 2021 and an Advanced Diploma of Leadership and Management which is due to commence on 8 January 2022 and be completed on 16 September 2022. In response to a question from the Tribunal she said that she had confirmation of enrolment documents for these courses with the commencement and conclusion dates she had identified. She was asked to provide those confirmation of enrolment documents by 12 noon on the day following the hearing.
12. After the hearing the applicant provided several confirmation of enrolment documents, an Advanced Diploma of Leadership and Management commencing on 8 January 2022 and concluding on 16 September 2022, a Certificate IV in Business commencing on 23 July 2020 and scheduled to be completed on 20 January 2021 and a Diploma of Leadership and Management due to commence on 8 March 2021 and be completed on 14 November 2021. The Tribunal accepts that the applicant is enrolled in these courses.
The Tribunal considered the information that the applicant had provided in response to the
s 359(2) request for information (and noted that the applicant had confirmed that she did not want “to add to or vary” this information) (at [13]). This information related to:
·her previous education in Japan (at [14]);
·her previous employment history (at [15]);
·her previous migration history, noting that the applicant had returned to Japan on two occasions since arriving in Australia on 16 December 2011 (at [16]);
·her visa history, which includes a “working holiday visa” and at least two student visas (at [18]);
·her study history in Australia, noting that the applicant had completed three certificates in English, a diploma in Early Childhood Education and Care (uncompleted) and a Certificate IV in business (commenced) (at [19]); and
·her employment history in Australia (at [21]).
The Tribunal noted further information provided by the applicant, including that her mother lives in Japan (at [22]), the applicant owns an apartment in Japan (at [23]) and “her future employment and remuneration plans” relate to the food and fashion industry in Japan (at [22]-[25]).
The Tribunal then summarised the questions it asked the applicant at the hearing and her responses, as follows:
26. The Tribunal proceeded to ask the applicant some questions as to issues arising from her responses paraphrased above. The questions and the applicant's responses, in summary, were as follows. The applicant said that she arrived in Australia on 16 December 2011 and is the holder of a "working holiday visa". When asked when that visa expired she said "the first working holiday visa was due to expire on 16 December 2012, but I applied for a second one". When asked when the second working holiday visa expired she said "it was due to expire on 16 December 2013". When asked what visa she had when the working holiday visa expired she said "I switched to student visa." When asked when this occurred she said "I applied onshore 17 December 2013." The Tribunal invited the applicant to explain her visa history. Her answer was long and confused, often she contradicted or corrected her own answers. In the hearing the Tribunal requested that the applicant provide details of her visa history subsequent to the oral hearing and the Tribunal proceeded to invite the applicant to explain her study history in Australia. She said "the first courses English course January 2015". She did not elaborate. When asked what she had done between the start of that course and the end of the working holiday visas she said "I applied for a student visa in 2014." Her answers quickly became confused and difficult to follow. The Tribunal invited the applicant to provide details of her study history subsequent to the conclusion of the hearing:
27. The applicant confirmed that she owns an apartment in Tokyo and she estimated its value to be approximately AU$50,000.
28. The applicant declined an opportunity to add anything further to her oral evidence.
The Tribunal also referenced a statement the applicant provided to the Tribunal on
2 August 2019 which detailed the applicant’s plans to run a business in Japan and her reasons for wanting to study in Australia (at [29]). The Tribunal noted that at the hearing the applicant did not want to add to or vary this statement. The Tribunal explained that it had regard to this statement but had determined that it did “not substantially add” to the evidence the applicant gave at the hearing (at [30]).
The Tribunal also noted that, after the hearing, the applicant had provided further information to the Tribunal which related to her visa and study history in Australia (at [31]). The Tribunal noted inconsistencies between her evidence to the Tribunal and the information provided in this subsequent document (at [32]).
The Tribunal then summarised the applicant’s evidence as follows:
33. Without wishing to diminish the applicant's evidence in any way it appears to the Tribunal that it can be summarised as follows. The applicant appears to have arrived in Australia in December 2012 rather than in December 2011 and held working holiday visas until December 2014. She has returned to Japan on two occasions since arriving in Australia. After the expiry of the working holiday visas the applicant then held a series of student visas but the most recent student visa application was made on 4 May 2019 and was refused. In her time in Australia the applicant has completed three short vocational courses in English between 19 January 2015 and 26 May 2016. She commenced a Diploma of Early Childhood Education and Care but did not complete it. She commenced, perhaps on 2 April 2019, a Certificate IV in Business but has yet to complete it. She did not explain or explain to the Tribunal's satisfaction why she abandoned the early childhood course, why she has “taken a break” from the vocational course in business, or indeed her reasons for changing her direction of study. She appears to have had several periods of non-study whilst in Australia but has not explained them. She has made vague assertions of a desire to work in the field of “food and fashion” when she returns to Japan. However she has provided no details. Further, she has not explained the relevance of her current course to her future career plans.
The Tribunal noted that, in determining whether the applicant met the genuine temporary entrant criterion, it had had regard to the factors in cl 500.212 and the relevant Ministerial Direction when weighing up the applicant’s circumstances as a whole (at [34]).
The Tribunal considered the applicant’s circumstances in her home country, noting that she is unmarried and from Japan (at [35]). The Tribunal accepted that, on the evidence before it, the applicant had demonstrated ties to her home country which act as an incentive to return to her home country at the completion of her studies (at [35]). However, the Tribunal was not satisfied that there was a significant incentive for the applicant to return to Japan (given the time she had spent in Australia and her intended period of future stay) (at [35]).
The Tribunal then considered the applicant’s “potential circumstances in Australia”, noting that the applicant first arrived in Australia in December 2012 as the holder of a “working holiday visa” (at [36]). The applicant was granted a subsequent working holiday visa which was valid until December 2014. The applicant was then granted several student visas until the visa the subject of this proceeding was refused. The Tribunal expressed its concerns about the length of the applicant’s proposed additional stay as it suggested that the applicant had “decided to extend her stay in Australia by utilising the student visa programme”.
The Tribunal did not place any weight on “the value of the applicant’s course to her future” due to the vague and limited evidence before it as to the utility of the applicant’s current study to her future plans (at [37]). The Tribunal also noted that the applicant’s study history was inconsistent with the plans she had when she initially entered Australia. Specifically, the applicant commenced with English courses, then started (but did not finish) an early childhood education course, and now wished to pursue vocational business courses (at [38]-[39]).
The Tribunal took into account, and gave appropriate weight to, a statement provided by the applicant (at [40]) and was not satisfied that the applicant had established that her study would provide additional benefits to her proposed career plans (at [41]).
The Tribunal also had regard to whether there were any other relevant matters to consider and determined that there were not (at [42]).
The Tribunal then made findings with respect to whether the applicant “genuinely intends to stay temporarily in Australia as a student” as follows:
43. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
44. The Tribunal has considered the evidence and has taken into account the applicant's economic circumstances in her home country relative to her potential circumstances in Australia. Given the disparity in economic circumstances between Japan and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Japan. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to Japan.
45. The Tribunal is concerned that the applicant's intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.
46. The Tribunal does give weight to the evidence that since the applicant's arrival in Australia, presumably in December 2012 the applicant has spent nearly 8 years in Australia and returned to Japan on two occasions which indicates that she does not appear to have strong personal ties to Japan. Based on this evidence the Tribunal assesses the applicant's incentive to return to Japan to be minimal.
The Tribunal continued:
47. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted three student visas specifically to enable her to achieve that goal. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant's intentions to stay in Australia temporarily. The Tribunal has considered all the information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant's circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
48. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not seem to have a genuine intention to stay in Australia temporarily.
The Tribunal noted that it had no evidence before it in relation to the applicant’s “economic circumstances”, any potential military service or political or civil unrest circumstances in Japan, any remuneration the applicant could expect to receive in Japan or a third country compared with Australia, the circumstances in Japan relative to Australia or any other country and the applicant’s circumstances in Japan relative to others in that country (at [49]).
The Tribunal then summarised its main concerns as follows:
50. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
On the basis of the above, the Tribunal determined that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily and did not satisfy cl 500.212 of the Regulations as the Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student (at [51]-[52]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [54]).
PROCEEDINGS IN THIS COURT
The applicant’s application for judicial review dated 23 September 2020 provides two “grounds of review”, as follows:
1.I am a genuine student.
2.I was nervous during our trial via phone hence did not provide the correct evidence of my visa history orally. However, I followed it up with a statement detailing my visa history in Australia. The consistency of my statement orally was not good because of my nervousness. I did not complete some of my courses because the level of my English then was not up to the level of Diploma of Early Childhood Education and care. I was frustrated every time I can’t pass any assessments. So I decided to change to Business courses instead. But the luck of the universe was not on my side. I had a very personal issue that affected my studies. I would like to disclose this situation if given a chance to trial. I would like to reiterate that I don’t have an intention to stay in Australia permanently. Now that everything is back in order in my life, I just want to get a qualification that will help me start a new life in Japan.
The applicant also filed an affidavit affirmed on 23 September 2020 which repeats ground 1 above and adds that she has “no intention to stay permanently in Australia”. The Court reads that affidavit evidence as seeking to particularise ground 1.
The applicant was given an opportunity to file an amended application, any supporting affidavits and written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application filed
23 September 2020, a Court Book numbering 134 pages (marked as Exhibit 1), and written submissions filed by the Minister on 29 July 2021.
The applicant appeared before this Court without legal representation. The applicant was assisted by an interpreter in the Japanese and English languages. The Minister was represented by Ms Taggart of counsel. Although a face to face hearing had been scheduled, the applicant asked that she be given leave to appear via telephone (Exhibit 2). The Court agreed to that request and the applicant appeared on the day via telephone. No issues arose in this regard.
The Court confirmed with the applicant that she had a copy of the Court Book and the Minister’s written submissions with her.
Noting that the applicant was unrepresented (and noting the principles outlined in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court gave the applicant an opportunity to elaborate on (or particularise) her grounds of review and outline any concerns she might have with the Tribunal’s decision.
To assist the applicant, the Court explained that it could only address the issue of jurisdictional error on the part of the Tribunal. The Court stressed that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, however, the Court often sees the following categories of error:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]- [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272 .
Unfortunately, despite the Court’s best efforts, the applicant did not address the issue of jurisdictional error, focussing instead on why she disagreed with the Tribunal’s decision.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has addressed all “grounds of review” as articulated and interpreted them broadly to ensure that, to the extent that possible legal error is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Ground 1 (and affidavit)
Ground 1 and the applicant’s affidavit arguably only express disagreement with the Tribunal’s conclusions. Disagreement, however strong, does not assist the applicant in relation to whether or not the Tribunal has fallen into jurisdictional error and the Court has no jurisdiction to review the factual merits of the Tribunal’s decision: Wu Shan Liang at 272.
To the extent that the applicant is suggesting that the Tribunal’s decision is illogical or not based on evidence or somehow “unfair”, the Court disagrees for the reasons that follow.
The Tribunal’s reasons for decision span 54 paragraphs over 9 pages. The Tribunal extensively considered the applicant’s claims and evidence as provided by her (at [10]-[33]). Further, the Tribunal turned its mind to the requirements in cl 500.212 of Sch 2 of the Regulations and had regard to the Ministerial Direction in assessing the applicant’s application for the visa (at [34]-[51]).
No error arises in this regard. The Tribunal’s approach is entirely sound: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] per Steward J.
Further, having noted deficiencies in the evidence before it (at [35]) the Tribunal considered the following evidence before it as it related to:
(a)the applicant’s circumstances in her home country (at [35]);
(b)the applicant’s potential circumstances in Australia and immigration history (at [36]);
(c)the value of the applicant’s course to her future (at [37]);
(d)the applicant’s study history (at [38]-[39]); and
(e)whether there were any other relevant matters that needed to be considered (at [42]).
The Tribunal’s assessment of the evidence before it is forensic (noting the Tribunal’s assessment of that evidence at [43]-[46]). The findings made on the basis of the material before the Tribunal were entirely open to it (noting the Tribunal’s findings at [47]-[51]). No issues of illogicality arise here. Nor can it be said that the Tribunal overlooked relevant material or relied on irrelevant material.
As noted by the Minister (at [17] in written submissions dated 29 July 2021), s 359 of the Act provides that the Tribunal can obtain any information it considers relevant. However, if it does so, the Tribunal 'must have regard' to that information: subsection 359(1) of the Act. In this case, by letter dated 10 February 2020, the Tribunal invited the applicant to provide information, the applicant responded, and the Tribunal had regard to that response (CB 117: [13]), thereby complying with its procedural requirements: SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49] per Barker J. No error arises in this regard.
In effect what the applicant seeks is a “merits review” of the Tribunal’s decision. While this Court may have come to a different conclusion to the Tribunal, that it is not the test relevant to proceedings of this sort. The Tribunal’s approach and reasoning is entirely sound.
Having assessed the materials before it, it cannot be said the Tribunal here fell into error in any way that the applicant arguably asserts in relation to ground 1.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2.I was nervous during our trial via phone hence did not provide the correct evidence of my visa history orally. However, I followed it up with a statement detailing my visa history in Australia. The consistency of my statement orally was not good because of my nervousness. I did not complete some of my courses because the level of my English then was not up to the level of Diploma of Early Childhood Education and care. I was frustrated every time I can’t pass any assessments. So I decided to chance to Business courses instead. But the luck of the universe was not on my side. I had a very personal issue that affected my studies. I would like to disclose this situation if given a change to trial. I would like to reiterate that I don’t have an intention to stay in Australia permanently. Now that everything is back in order in my life, I just want to get a qualification that will help me start a new life in Japan.
The applicant’s concerns here, in so far as they relate to jurisdictional error, are not entirely clear. Unfortunately, the applicant did not clarify her position before this Court when given an opportunity to do so.
On one level, ground 2 simply outlines factual information about why the applicant wanted to pursue her courses of study. This does not address jurisdictional error in the Tribunal’s decision. The applicant also seems to disagree with the Tribunal’s decision. That, again, does not assist the Court in relation to the task before it.
Reading this ground of review as widely as possible, it is arguable that the applicant is arguing that the Tribunal denied her procedural fairness because she was required to appear via telephone and because the Tribunal didn’t accommodate her “personal issues”.
In relation to whether the applicant was prejudiced because she appeared via telephone, the Court notes the Minister’s submissions as follows:
16. The Tribunal complied with its obligations under Division 5 of Part 5 of the Act. It was open to the Tribunal to conduct the hearing by telephone: section 366 of the Act.
18. By letter dated 15 July 2020, the applicant was invited to a hearing before the Tribunal which she attended, by telephone, on 30 July 2020 with the assistance of a Japanese interpreter (CB 94; CB 115: [4]). It is apparent from the delegate's decision, the Tribunal's reasons, and the applicant's own evidence, that she understood and had an opportunity to give evidence and present arguments about the determinative issue on review being whether she satisfied clause 500.212 of Schedule 2 to the Regulations (CB 116: [10]): SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
The Court agrees.
Section 366 of the Act permits the Tribunal to conduct hearings by telephone. The Tribunal exercised its discretion to do so (as per Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378 at [65] and Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44]).
In the invitation to attend the hearing dated 15 July 2020, the applicant was advised that the hearing would be conducted via telephone because of the escalating health crisis caused by the COVID-19 pandemic. That same letter advised that the applicant needed to contact the Tribunal as soon as possible if she was not able to participate in a telephone hearing (CB 94-95). The applicant was also provided with a copy of the “Response to hearing invitation” form which asked whether there were “any issues that may affect your ability … to take part in the hearing …?” and “Do you believe they you or another person will experience difficulty participating in the hearing by telephone…? (CB 102).
There is no evidence before the Court to suggest that the applicant raised any concerns in this regard. Indeed, it is noted that the applicant emailed the Tribunal on 23 July 2020 and nothing in that correspondence addressed whether the applicant would experience difficulty participating in a telephone hearing (CB 106). The applicant also emailed the Tribunal following the hearing to provide further submissions and supporting documents to the Tribunal (CB 107-111). The applicant did not inform the Tribunal in this email or in her submissions that she had any concerns about what had occurred during the telephone the hearing.
The applicant attended the hearing before the Tribunal on 30 July 2020 with an interpreter in the Japanese language (CB 115). The Court does not have a transcript of the Tribunal hearing and there is no evidence in the Court Book that can in any way be read as indicating that the applicant raised any concerns with the Tribunal about the hearing proceeding by telephone.
There is no evidence before the Court to indicate that the applicant was prejudiced by attending the hearing by telephone.
The applicant also refers to difficulties in presenting her case because she was “nervous”. She says this resulted in inconsistencies in her evidence. Arguably, the applicant is suggesting that, because she was “nervous” and/or was “suffering from personal difficulties”, she was deprived of a ‘real and meaningful’ opportunity to participate in the hearing.
An applicant must be given a real and meaningful opportunity to attend and participate at a hearing before the Tribunal. In this context, the Tribunal’s invitation cannot be seen to be a hollow shell, or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31]. Where an applicant is not mentally fit to participate in a hearing, the invitation sent to her will not be a meaningful one, and the Tribunal will, accordingly, be found to have fallen into jurisdictional error. This is so even where the Tribunal is not aware of the applicant’s mental health issues: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553.
However, the mere fact that a person has a mental illness is not enough to vitiate the Tribunal’s decision. The question is whether, on the evidence, by reason of the illness, the applicant was unable to give evidence, present arguments and answer questions: Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 at [30]-[34].
There is no medical evidence before this Court in relation to the applicant’s mental health or “personal issues”. It cannot be said here that, by reason of a mental health condition, the applicant was unable to give evidence, present arguments and answer questions.
There is also nothing credible, on the evidence, that indicates that the applicant sought an adjournment during which time she could provide further evidence in relation to any mental health condition, or, indeed, evidence that the applicant even sought an adjournment. Indeed, there is no evidence before this Court that the Tribunal was ever advised that the applicant was nervous or required an adjournment to compose herself. Further, to the extent that the applicant was facing difficult personal circumstances, there is no evidence that the Tribunal had information of this sort before it.
It is noted that in its written reasons the Tribunal writes:
10. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 16 July 2019 refusing an application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
On the basis of the evidence before it, there is no reason to doubt the Tribunal’s assessment of the applicant’s understanding of what was occurring or indeed of the issues she needed to address.
The Tribunal put questions to the applicant to address issues arising from her evidence and the applicant was given ample opportunity to address any concerns the Tribunal had in relation to her evidence (at [26]). The applicant then provided further submissions to the Tribunal after the hearing (which the Tribunal clearly considered at [31] of its reasons).
It cannot be said that the applicant failed to understand that the dispositive issue for the Tribunal was whether she was a genuine temporary entrant or that the Tribunal should have adjourned the matter so that the applicant was “better able” to address the issues before it.
Ground 2 is, accordingly, dismissed.
Otherwise
In circumstances where the applicant appears as a self-represented litigant, the Court has remained astute to any error in the Tribunal’s decision: MZAIB.
In this regard, the Court has considered the decision of Chief Justice Allsop (the “Chief Justice”) in Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061 (“Eros”) which relates to whether the Tribunal correctly construed cl 500.212(a) of the Regulations.
In Eros, the Chief Justice considered the meaning of the phrase “genuinely intends to stay in Australia temporarily” as follows:
12In Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238, Logan J dealt with cl 572.223. Significant reliance was placed on his Honour’s judgment by the Minister in this case. I will deal with those submissions in due course. As shall be seen from the discussion of the Tribunal’s reasons shortly, that decision, and this appeal, turn on the meaning of, and what can be used to inform a conclusion about the question whether, “the applicant intends genuinely to stay in Australia temporarily” in subcl (a). In Saini 245 FCR at 245 [28] Logan J said the following about that part of the equivalent provision in subcl 572.223(1)(a) (with which I agree in relation to the equivalent words in subcl 500.212(a)):
The words … are concerned with how long the visa applicant intends to stay in Australia and nothing else.
The Chief Justice continued:
21The express finding is that Ms Eros intends to remain in Australia while her daughter is here. The evidence was that this was for two years: see [20] of the reasons. On any view that is a temporary stay, by reference to the accepted meaning of the word “temporary” referred to by Wilcox J in the context of construing the phrase “temporarily absent from Australia” in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]:
The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”.
…
I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.
Here, there is no finding made by the Tribunal that the applicant intends to remain in Australia for any finite period of time, as expressed in Eros. Unlike in Eros, the Tribunal here did not make any finding that the applicant intended to stay for “at least” any fixed or temporary period of time.
Instead, the Tribunal in this matter stated that:
(a)it was concerned the applicant’s intentions in Australia were motivated by factors other than study (at [45]);
(b)the applicant had spent nearly eight years in Australia and had only returned to Japan twice, indicating no strong personal ties to Japan and minimal incentive to return (at [46]);
(c)the applicant had previously been granted three student visas to continue to study in Australia (at [47]); and
(d)the applicant appeared to have enrolled in the current course to secure a further student visa rather than out of a genuine interest in study and academic progress.
The Tribunal then concluded as follows (at [48]):
The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not seem to have a genuine intention to stay in Australia temporarily.
The Tribunal also stated:
50.The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
51.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
The Tribunal’s conclusions here differ to those of concern in Eros. Here, the Tribunal determined that the applicant was using the visa as a means of maintaining ongoing residence in Australia (and not for a temporary period of time – as was the case in Eros). There was also no reference in the Tribunal’s decision in this matter to a fixed or temporary period of time.
The Court is satisfied that the Tribunal correctly applied cl 500.212(a) of the Regulations and no error of the kind found in Eros arises in this case.
DECISION
The applicant’s application for judicial review dated 23 September 2020 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 19 August 2021
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