Singh v Minister for Home Affairs
[2019] FCCA 1401
•24 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1401 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal not to grant a student visa – whether the Tribunal relied on irrelevant material – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 Migration Regulations 1994 (Cth), cl.572.223, sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | RANA PARTAP SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 160 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 May 2019 |
| Date of Last Submission: | 23 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 24 May 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS (as made 23 May 2019)
The application be dismissed.
Formal written Reasons for Judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 160 of 2018
| RANA PARTAP SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 23 May 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs in the sum of $6000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 23 May 2019.
By application filed in this Court on 26 March 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 7 March 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) not to grant the applicant a Student (Temporary) (Class TU) Higher Education Sector (subclass 572) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court marked what is known as the “Court Book” (“CB”) (a bundle of relevant documents numbering 203 pages) as Exhibit 1. The Court reviewed this extensive material in preparation for the hearing.
Factual background
The factual background for this matter was outlined in written submissions from the Minister filed on 2 May 2019 at [3]-[10]. The Court adopts this summary as its own. But for minor amendments, this background summary provides as follows.
The applicant is a citizen of India who arrived in Australia on 12 July 2009 on a student visa. The applicant subsequently held 4 further student visas. The studies the applicant undertook pursuant to those visas included an English Language Intensive Course (2009), Certificate III in Civil and Structural Engineering (2011), Diploma of Technical Engineering (2011), Advanced Diploma of Mechanical Engineering (2012), Diploma of Business (2014), Diploma of Management (2015) and Diploma of Marketing (2015) in Australia. The applicant also completed some units in a Diploma of Horticulture course (2011).
On 12 March 2016, the applicant applied for a student visa to undertake study in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality. The applicant subsequently provided information in support of his application on around 8 April 2016. This information included health insurance confirmation, a personal statement, supporting statements, pay slips and other financial documents and English language test results.
On 12 September 2016 a delegate of the Minister refused to grant the applicant a student visa on the basis that the applicant did not satisfy cl.572.223(2) of the MigrationRegulations1994 (Cth) (the “Regulations”). The delegate was not satisfied that the applicant met the “financial capacity requirements” of cl.572.223(2).
On 16 September 2016, the applicant’s representative notified the Department that an administrative error had been made. The Department accepted the error as identified and vacated the decision of 12 September 2016.
On 4 October 2016, a delegate of the Minister refused to grant the applicant a student visa (the “Second Delegate’s Decision”). The delegate did so because she was not satisfied that the applicant “genuinely intended to stay in Australia temporarily”.
On 18 October 2016, the applicant lodged an application with the Tribunal seeking review of the Second Delegate’s Decision. The applicant was represented by a registered migration agent in relation to that application.
On 16 January 2018, the applicant was invited to attend a hearing before the Tribunal. The invitation letter advised that the Tribunal would “assess whether you intend genuinely to stay in Australia temporarily” and attached a copy of Direction Number 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (“Direction 53”), issued under s.499 of the Act. The letter also asked the applicant to provide a written statement addressing the issue of whether he is a genuine temporary entrant as per Direction 53.
The applicant’s migration agent provided a statement, submissions and evidence to the Tribunal on 5 February 2018. Relevantly, the applicant provided evidence that he was now enrolled in a Bachelor of Tourism and Hospitality Management. He indicated that he had successfully completed two certificates in hospitality and was close to completing the relevant diploma.
The applicant appeared before the Tribunal to give evidence and present arguments on 12 February 2018. He did so with the assistance of his migration agent. He was not assisted by an interpreter and had not requested that an interpreter attend (CB 124).
Following the hearing (and on that same day), the applicant’s representative sent an email to the Tribunal seeking to clarify the applicant’s responses to two questions that were put to him by the Tribunal at the hearing. This issue is discussed further below.
On 7 March 2018, the Tribunal affirmed the decision not to grant the applicant a student visa.
Tribunal Decision
The Court notes that the cover page of the Tribunal decision is dated 7 March 2017. Clearly, this is incorrect. The correct date is 7 March 2018. Nothing turns on this point. It is a typographical error. The Court only notes it to explain to the applicant, who was unrepresented before this Court, that, while this date is plainly incorrect, it is not an error of the sort that attracts this Court’s attention and invites relief: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Marshall J.
Moving to the substantive matters in the Tribunal decision, the decision is 6 pages in length and spans 32 paragraphs. In essence, the Tribunal was not satisfied that the applicant was “a genuine temporary entrant” as per cl.573.223(1)(a) of the Regulations.
The Court again references the Minister’s summary of the Tribunal decision in written submissions at [17]-[21].
The Court has reviewed the Tribunal decision in detail. The Minister’s summary accurately summarises the Tribunal’s decision as follows.
The issue before the Tribunal was whether the applicant satisfied the criteria in cl.573.223(1)(a) of Schedule 2 of the Regulations regarding being a genuine applicant for temporary stay and entry as a student (CB 192-193 at [15]).
One of the primary criteria for a student visa is detailed in cl.572.223(1), which provides as follows:
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
a)the Minister is satisfied that 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…
In assessing cl.572.223, a decision-maker is bound to apply Direction 53, which outlines factors a decision-maker should have regard to when considering sub-cl.572.223(1)(a). Direction 53 provides a list of factors that may be relevant to considering the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia and the value of the course to the applicant’s future, as well as the applicant’s immigration history and any other relevant information provided by the applicant or otherwise available to the decision-maker.
At the time of the Tribunal hearing, the applicant was enrolled in a Diploma of Hospitality, with a course end date of 9 February 2018. The applicant also provided a confirmation of enrolment in a Bachelor of Tourism and Hospitality Management, with course dates from 19 March 2018 to 8 November 2019.
The Tribunal observed that the applicant had successfully completed an English language course, three qualifications in engineering, three qualifications in business, management and marketing, and two qualifications in cookery. The applicant completed some units in a Diploma of Horticulture and, as noted above, was seeking to obtain a tourism and hospitality qualification (CB 190-191 at [9] and [12]).
The Tribunal considered the factors in Direction 53 and noted the applicant’s circumstances as follows:
a)the applicant’s circumstances in Australia: The proposed further study would see the applicant remain onshore for in excess of 10 years, suggesting that he saw Australia as a place to live and not just study. The Tribunal considered that the applicant’s circumstances in Australia and his desire to work and improve his career prospects onshore, may provide incentives for him to remain other than for the purpose of study (CB193 at [20]). Up until the current proposed course, the applicant had for the previous 9 years maintained study at the vocational education and training level in a wide variety of short inexpensive courses. The Tribunal considered that the applicant’s lack of direction in studying until he applied for the visa under review suggested that the applicant was using the student visa system as a means of maintaining ongoing residence in Australia (CB 194 at [22]). The applicant had a cousin and friends from his hometown village in Australia, and it was also expected that during his period of residence he would have established social and community ties (CB 195 at [28]);
b)the value of the course to the applicant’s future: The Tribunal questioned the applicant about his proposed business of an organic restaurant in India, the amount of research that he had undertaken for the business, the delay the course would cause him in starting his business and the actual economic incentive it presented for the applicant to return to India. It expressed doubts about the reliability of the applicant’s proposed business claims. The Tribunal was not satisfied of the value of his proposed course to his stated career aim and was not satisfied that the applicant had established a genuine reason, given his stated career aim, for undertaking further study in Australia (CB194-195 at [22]-[26]); and
c)the applicant’s circumstances in his home country and immigration history: The Tribunal accepted that the applicant’s family, and the fact that his father had a reasonable income and owned property in India, may serve as an incentive for the applicant to return. The Tribunal balanced this with the fact that the applicant had only returned to India on two occasions since 2009 and since that time had been living in Australia independently (CB 195 at [26]). There was no evidence of any civil or military disturbances in India and no evidence of any military service commitments (CB 195 at [27]).
The Tribunal did not accept that the applicant was undertaking current study or future study for the reasons he claimed but, rather, was using it as a pathway to maintain residence in Australia (CB 195 at [29]).
The Tribunal concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily and, as such, did not meet cl.573.223(1)(a) of the Regulations (CB 195 at [30]).
Accordingly, the Tribunal affirmed the decision not to grant the applicant the student visa he was seeking (CB 195 at [32]).
Proceedings in this Court
The applicant filed his application in this Court on 26 March 2018. The application states that the applicant seeks review of a decision of the Administrative Appeals Tribunal dated 8 March 2018. The applicant was not the subject of a decision dated 8 March 2018. The correct date is 7 March 2018. Again, this is no more than a typographical error. No issue was taken by the Minister as to competence etc. and the Court has no concerns in this regard.
In his judicial review application, the applicant relies on two grounds of review.
1. The Tribunal’s reason was tainted by jurisdictional error when finding that the applicant’s desire to work and improve his career prospects onshore in Australia may provide incentives for him to remain in Australia other than for the purpose of study. In making this finding, the Tribunal relied substantially on the answers to the questions it put to the applicant, namely:
• Whether the applicant was undertaking further study for the purposes of extending his stay in Australia. The applicant’s answer was ‘Yes’.
• Whether the applicant was undertaking his studies to improve his employment prospects in Australia. The applicant’s answer was ‘Yes’.
without considering the applicant’s subsequent clarifications.
2. The Tribunal fell into jurisdictional error in the following instance. Whilst acknowledging the following factors in favour of the applicant in assessing whether he intends to genuinely stay in Australia temporarily:
• That the majority of the applicant’s family was in India and his father has reasonable income and owns property in India, and accepting these ties serve as an incentive for the applicant to return to India
• That there is no evidence of any civil or military disturbances in the applicant’s country that would act as an incentive for the applicant to remain in Australia
• That there is no evidence of any military service commitments in his country
• That the applicant is currently enrolled and had previously successfully completed all the courses he had been enrolled in since coming to Australia,
the Tribunal took into account irrelevant facts and found that the applicant was not undertaking the course of current study or future study for the reasons claimed, but rather using it ‘a pathway to maintain residence in Australia’.
In support of his application, the applicant filed an Affidavit affirmed on 26 March 2018. The affidavit largely refers to factual matters. Insofar as anything in the Affidavit can be seen to constitute a ground of review, the Court will address these grounds below.
The applicant was unrepresented before the Court. He asked for the assistance of an interpreter and one was provided. The applicant indicated that he was, in effect, fluent in the English language but might require translation assistance if legal language was referred to that he did not understand. This is an appropriate request. The applicant did not seek any assistance from the interpreter at any point in the hearing and the Court is satisfied that the applicant, who spoke fluently and with confidence, understood the Minister’s case and was able to articulate his concerns.
In relation to the grounds of review, the applicant’s grounds of review are not particularised. Despite being given an opportunity to provide written submissions and further evidence by orders of a Registrar of this Court, no further information was provided by the applicant.
This failure to provide particulars and submissions is not uncommon in relation to unrepresented applicants in migration matters. Noting the recent decision of Anastassiou J in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the applicant was given an opportunity to explain in detail any concerns he had with the Tribunal’s decision.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly include, but are not limited to, the following categories:
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]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] (“Singh”).
It was also explained to the applicant that this Court cannot review the merits of the Tribunal decision or grant him a student visa. Rather, the role of the Court is confined to determining if the Tribunal made a material error in arriving at the decision it arrived at on the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
The applicant was asked to elaborate on his two grounds of review and explain what he thinks the Tribunal “did wrong”.
In effect, the applicant told the Court that the Tribunal did not properly understand why he had changed from one type of course to another and, further, that he did not understand the Tribunal member because he did not have the assistance of an interpreter.
On one level, it is arguable that what the applicant seeks is for the Court to engage in a merits review of the Tribunal decision. He would like the Court to review the evidence before the Tribunal and come to a different conclusion. It was explained to the applicant that the Court cannot assist him in that regard.
In so far as the applicant’s oral evidence goes to possible jurisdictional error, this is addressed below.
Consideration
Ground 1
The Tribunal’s reason was tainted by jurisdictional error when finding that the applicant’s desire to work and improve his career prospects onshore in Australia may provide incentives for him to remain in Australia other than for the purpose of study. In making this finding, the Tribunal relied substantially on the answers to the questions it put to the applicant, namely:
• Whether the applicant was undertaking further study for the purposes of extending his stay in Australia. The applicant’s answer was ‘Yes’.
• Whether the applicant was undertaking his studies to improve his employment prospects in Australia. The applicant’s answer was ‘Yes’.
without considering the applicant’s subsequent clarifications.
The Court notes the Minister’s written submissions at [23]-[28] as follows:
23.The applicant alleges that the Tribunal relied substantially on the applicant’s answers to two questions that were put to him in finding that the applicant’s desire to work and improve his career prospects in Australia may provide incentives for him to remain in Australia for purposes other than study. The applicant claims that reliance on his responses to the 2 questions was in error because the Tribunal failed to consider the applicant’s subsequent clarifications, which the Minister takes to mean the email from the applicant’s migration agent following the hearing dated 12 February 2018.
24.The Tribunal stated in its decision record at [20] that it questioned the applicant as follows:
24.1. whether the applicant was undertaking further study for the purposes of extending his stay in Australia, to which the applicant answered ‘Yes’, and
24.2. whether the applicant was undertaking his studies to improve his employment prospects in Australia, to which the applicant answered ‘Yes’.
25.The Tribunal considered the applicant’s length of stay in Australia and his resume, which showed that he had progressed through employment in his chosen career. The Tribunal’s reasons record the above two questions and answers and that, following submissions from the applicant’s representative, the Tribunal again repeated similar questions to the applicant and he responded that he wanted to stay in Australia to work and also for the purpose of study (CB 193 at [20]).
26.The Tribunal specifically referred at [20] to the post hearing submission made by the applicant’s representative that sought to clarify the applicant’s answers. However, the Tribunal stated that it preferred the spontaneous oral evidence of the applicant rather than the post hearing summary of what the applicant’s agent represented the applicant meant to say. It also noted that it had clarified the applicant’s responses with him at the hearing (CB 193 at [20]).
27.It is evident from the above that the Tribunal expressly considered the applicant’s subsequent clarifications. It is clear on the face of the decision record that the Tribunal considered both the applicant’s responses to the Tribunal’s clarification questions and the applicant’s representative’s post hearing submission.
28.It was open to the Tribunal to make the finding that the applicant’s circumstances in Australia and his desire to work and improve his career prospects onshore may provide incentives for him to remain in Australia for reasons other than study. The Tribunal gave logical reasons for preferring the applicant’s responses at the hearing and it was for it to accept or reject evidence as it thinks proper in all the circumstances.
Although not entirely clear, what the applicant appeared to be arguing before this Court is that the Tribunal failed to properly consider his evidence or “clarifications” in relation to two questions that were put to him in the course of the Tribunal hearing.
The questions the applicant appears to take issue with are, inferably, referred to at [20] of the Tribunal decision:
The Tribunal asked the applicant at the hearing whether he was undertaking further study for the purposes of extending his stay in Australia and he replied, yes. The Tribunal also questioned the applicant as to whether he was undertaking his studies to improve his employment prospects in Australia, and again the applicant replied yes. Following submissions from his agent, the Tribunal again repeated similar questions to the applicant. He responded that he wanted to stay in Australia to work and also for the purpose of study.
The applicant states that the Tribunal failed to consider the “subsequent clarifications”. This could reference one of two things:
a)clarifications made at the Tribunal hearing to this line of questioning; or
b)clarifications provided subsequently by his migration agent.
The Court notes that there is no transcript of the Tribunal hearing in evidence. To the extent the applicant is relying on what he says he said at the Tribunal hearing, the Court relies heavily on the matters that are actually stated in the Tribunal decision.
The Tribunal notes at [20] that it had “clarified the responses with the applicant at the hearing”.
The only “clarification” the applicant seemed to offer during the hearing was that he wanted to stay in Australia “…also for the purpose of study”.
That the applicant purportedly clarified that he “wanted to stay in Australia for work and also for the purpose of study” does not demonstrate that the Tribunal failed to consider that one “motivation for staying” was that he wanted to study, as seems to be alleged by the applicant here.
Further, the clarification offered by the migration agent was addressed in an email sent after the Tribunal hearing had finished.
That email stated:
Mr Singh has just spoken to me and he has asked if member Hunter would be prepared to accept some further information. Mr Singh is very concerned that he may have misunderstood two final questions in relation to his applying for a visa for further stay in Australia and his intention to work
Mr Singh wishes to confirm that:
[1] he is applying for a further student visa in order to complete the bachelor degree course which is for a further 2 years This is the sole reason for applying for the visa.
[2] Mr Singh also answered yes to the member's question regarding his intention to work while on the student visa. His intention is to obtain the relevant work experience he believes is necessary as he described in answer to an earlier question asked during the hearing.
The Tribunal proceeded to address these “further clarifications” at [20]. It then explained why it did not accept these further clarifications as follows:
The Tribunal has considered that the migration agent for the applicant has sought again to clarify this evidence in later submissions. However the Tribunal prefers the spontaneous oral evidence of the applicant, than the post hearing summary of what the applicant's agent represents the applicant meant to say. Additionally, the Tribunal had clarified the responses with the applicant at the hearing.
The Tribunal considered the post-hearing clarifications and chose not to accept them. While this Court might have come to a different conclusion, the Tribunal is entitled to accept or reject or give such weight to the evidence given as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
In the circumstances of this case, the Tribunal relied on the fact that, during the hearing, the applicant had, seemingly at least twice, provided responses that indicated that his reason for undertaking study was to prolong his stay in Australia, to better equip or qualify him for employment prospects in Australia and that he wanted to stay in Australia for the purpose of work and “also” study.
It appears by the use of the word “spontaneous” above that the Tribunal felt that that evidence was more truthful – particularly when, seen contextually, the questions were twice asked during the hearing and the applicant gave similar answers on each occasion.
In these circumstances, the fact that the Tribunal rejected the evidence provided by the applicant’s migration agent after the hearing (evidence that, arguably, better suited the applicant’s case as to the “genuine entrant criterion”) is a determination that was reasonably open to the Tribunal to make.
Lest it be suggested that the migration agent’s email points to a misunderstanding on the part of the applicant because of a failure to properly understand English or due to the lack of interpretation services (a submission the applicant seemed to suggest before this Court), there is no evidence that a failure to understand was ever raised before the Tribunal. Nor was it raised in the judicial review application before this Court. There is simply no evidence that the applicant was unable to engage with the Tribunal or understand what was being put to him. The applicant did not request an interpreter for the hearing. The Tribunal’s written decision reveals an applicant who was capable of providing a variety of evidence that he felt assisted his case. No jurisdictional error can be seen in this context.
Overall, while sympathetic to the applicant’s concerns generally, the Court cannot seen anything irrational, illogical or unreasonable (as those terms are defined in the relevant authorities – including SZMDS, Singh and Li) in the Tribunal’s reasoning as to why it preferred the applicant’s oral evidence over his migration agent’s post hearing submissions.
Ground 1, accordingly, fails to disclose any jurisdictional error.
Ground 2
The Tribunal fell into jurisdictional error in the following instance. Whilst acknowledging the following factors in favour of the applicant in assessing whether he intends to genuinely stay in Australia temporarily:
• That the majority of the applicant’s family was in India and his father has reasonable income and owns property in India, and accepting these ties serve as an incentive for the applicant to return to India
• That there is no evidence of any civil or military disturbances in the applicant’s country that would act as an incentive for the applicant to remain in Australia
• That there is no evidence of any military service commitments in his country
• That the applicant is currently enrolled and had previously successfully completed all the courses he had been enrolled in since coming to Australia,
the Tribunal took into account irrelevant facts and found that the applicant was not undertaking the course of current study or future study for the reasons claimed, but rather using it ‘a pathway to maintain residence in Australia’.
The Court notes the Minister’s submissions in relation to ground 2 as follows:
30.By ground 2 the applicant contends that the Tribunal found that certain Direction 53 factors were in his favour, but the Tribunal took into account ‘irrelevant facts’ and found that the applicant was not undertaking the course of current study or future study for the reasons claimed, but rather using it ‘a pathway to maintain residence in Australia’. The Minister contends that the balancing of the Direction 53 factors was a matter for the Tribunal and no error is established by this ground.
31.The applicant is correct to state in his particulars that the Tribunal found that the following facts weighed in his favour:
31.1the majority of the applicant’s family was in India and his father had a reasonable income and owned property (CB 195 [26]),
31.2there was no evidence of any civil or military disturbances in India nor any military service commitments (CB 195 [27]), and
31.3that the applicant had undertaken and completed several courses of study while in Australia (CB 193 at [19]).
32.However, these factors were balanced against considerations that suggested the applicant did not intend to genuinely stay in Australia temporarily, including the applicant’s length of stay in Australia (CB 193 [20]), his lack of direction (CB 194 [22]), his immigration history (CB 195 [26]), his social and community ties in Australia (CB 195 at [28]) and the Tribunal’s assessment that it was not satisfied as to the value of the proposed course of study to his stated career aim of opening an organic restaurant in India (CB 194-195 at [22]-[25]).
33.It is part of the Tribunal’s fact finding function to give weight to such matters as it thinks appropriate in all the circumstances.
34.The weight to be given to each of the factors in Direction 53, and the weight accorded to the evidence presented in support of such considerations, is clearly a matter of fact for the Tribunal. In Ghimire, Gilmour J observed that the factors specified in Direction 53 ‘are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding as to whether the applicant satisfies the genuine temporary entrant criterion’.
35.Here, the Tribunal’s reasons make it clear that it carefully weighed all the factors relevant to its decision and its conclusion that the applicant did not intend to genuinely stay in Australia temporarily was open to it. Further, it cannot be said that the conclusion was irrational or illogical: Khan at [116].
36.The applicant does not specify what ‘irrelevant facts’ the Tribunal took into account. The factors that the Tribunal considered arise from clause 573.223(1)(a) and Direction 53, which were relevant considerations. Accordingly, it cannot be accepted that these were ‘irrelevant facts’.
37.This Court cannot intrude on the role of the Tribunal, which was to weigh the factors for and against the applicant and come to an evaluative conclusion as to whether the applicant was a genuine temporary entrant. The Court cannot perform this exercise as it would amount to an impermissible merits review: Surjit v Minister for Home Affairs [2018] FCCA 2310 at [69].
At [16]-[17], the Tribunal referred to Direction 53 and the “factors” that it is to have regard to.
The Court notes that, in line with what was said by Gilmour J in Ghimire v Minister for Immigration & Border Protection [2014] FCA 899, Direction 53 is not a “checklist” and the Tribunal should assess the applicant’ circumstances as a whole.
Here, by Ground 2, the applicant appears to contend that the Tribunal took into account “irrelevant facts”. Alternatively, he seems to suggest that, given that the Tribunal had found that some facts weighed in his favour, it was illogical for the Tribunal to conclude that he was not a genuine temporary entrant.
The applicant seems to suggest that these “irrelevant facts” lead the Tribunal to find that the applicant was not a genuine temporary entrant and was, instead, using the student visa as a pathway to maintain residence in Australia.
The applicant has not identified what “irrelevant facts” the Tribunal is alleged to have relied on.
On one level, it is arguable that the applicant is simply asking the Court to review the merits of the Tribunal’s findings and re-assess those facts that the Tribunal determined were “facts” that were adverse to him.
If this is what the applicant is arguing, no jurisdictional error is identified. As noted above, the Court cannot engage in an impermissible merits review: Wu Shan Liang. Further, the fact that the Tribunal made adverse findings or drew conclusions unfavourable to the applicant does not make them “irrelevant”.
Turning to the specific matters the applicant has identified as being in his favour, the Tribunal found (at [26]-[27]) that this included the following matters:
a)the majority of the applicant’s family was in India and his father has reasonable income and owns property in India. These ties serve as an incentive for the applicant to return to India;
b)there is no evidence of any civil or military disturbances in the applicant’s country that would act as an incentive for the applicant to remain in Australia;
c)there is no evidence of any military service commitments in his country; and
d)the applicant is currently enrolled and had previously successfully completed all the courses he had been enrolled in since coming to Australia.
Despite these “positives”, at [20]-[26] the Tribunal outlined why it believed the applicant did not intend to genuinely stay in Australia temporarily. The matters addressed by the Tribunal included:
a)the applicant’s responses at the hearing (as discussed above in relation to ground 1);
b)the applicant’s length of stay in Australia (nine years) and the fact that he had only returned to India on two occasions;
c)allowing for genuine career changes, his lack of direction and the variety of short courses he had undertaken in a nine year period;
d)the fact that the Tribunal was not satisfied as to the value of the proposed course of study to his stated career objective of opening an organic restaurant in India;
e)the fact that the applicant was proposing to take a course that he stated would enable him to learn about “hygiene techniques and use of seasonal vegetables” that would assist his business but noting that the proposed course of study would likely not assist him with developing these skills;
f)given the applicant said he was conscious of the costs of setting up and running a business, whether, with fees of approximately $30,000, the applicant was genuine in his intention to start a business; and
g)the applicant had been studying for nearly a decade, had taken no actual steps to establish his business and his knowledge of hospitality and business regulation in his home country was limited. This raised doubts as to the reliability of his claims to be opening a proposed business.
Each of these matters was a “relevant factor” that the Tribunal was entitled to assess, having regard to Direction 53.
The role of the Tribunal was to weigh the factors for and against the applicant and evaluate whether the applicant was a genuine temporary entrant. The Tribunal did this. This is evident at [20]-[28] in the Tribunal’s decision.
Having weighed up all of the evidence, for an against, the Tribunal concluded:
29. The Tribunal has assessed all of the evidence before it overall, including that he is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family ties in India and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study or future study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
It is a matter for the Tribunal as to the weight to be given to each of the factors in Direction 53 and the weight accorded to the evidence proffered by an applicant in support of these factors: Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [29].
Here, the Tribunal took into account the relevant considerations and evidence. There is nothing on the face of the Tribunal decision, nor expressly referred to by the applicant, that can be seen to be an irrelevant consideration. There was also nothing illogical or unreasonable inherent in the reasoning provided by the Tribunal. There was nothing arbitrary or capricious in the findings or the Tribunal’s consideration of and weight attributed to the matters it discussed – all derived from the factors outlined in Direction 53.
No error is identified in ground 2.
The applicant’s affidavit
As noted above, in support his application, the applicant filed an affidavit affirmed on 26 March 2018. That affidavit relevantly provides:
1. I am the applicant in this review application.
2. I am dissatisfied by the decision of the second respondent made on 8 March 2018 affirming the decision of the delegate of the first respondent in not granting my application for a Student (Temporary) (Class TU) visa.
3.I hereby provide the facts and circumstances relating to my student visa application lodged with the Department of Immigration and Border Protection on 12 March 2016.
4. I first came to Australia on a student visa on 12 July 2009. Since then I have completed the following courses successfully and with excellent attendances:
• English Language course completed in 2009
• Certificate II in Horticulture completed in 2010
• Certificates III in Civil Structural Engineering completed in 2011
• Diploma of Mechanical Engineering completed in 2011
• Advanced Diploma of Mechanical Engineering completed in 2013
• Diploma of Business completed in 2014
• Diploma of Management completed in 2015
• Diploma of Marketing completed in 2015
• Certificate III in Commercial Cookery completed in 2016
• Certificate IV in Commercial Cookery completed in 2017
• Diploma of Hospitality completed in 2018
5.On 4 October 2016, the first respondent refused my visa to complete Certificates III and IV in Commercial Cookery and Diploma of Hospitality. I applied for review to the Tribunal of this refusal decision. The Tribunal heard my application on 12 March 2018. In the meantime, I completed these courses anyway. At the Tribunal hearing, I sought to be granted the student visa to complete the Bachelor of Tourism and Hospitality in which I was enrolled. The course was to commence on 19 March 2018 and would be completed in November 2019. The Tribunal decided that I did not intend to genuinely stay in Australia temporarily and affirmed the decision of the delegate of the first respondent.
6.I have provided the reasons as to my desire and intention to complete the Bachelor's degree in my statement to the Tribunal.
Much of the affidavit is factual in nature.
Paragraphs 1 and 3 are irrelevant to the issue of jurisdictional error.
Paragraph 2 states that the applicant is dissatisfied with the Tribunal’s decision. Dissatisfaction does not point to jurisdictional error. Rather, it points to a request for merits review.
Paragraph 4 lists the courses the applicant has undertaken since 2009. The Court has no reason to doubt that the applicant has studied successfully and had an excellent attendance record. However, this is irrelevant to the Court’s task.
Paragraph 5 simply details the history before the delegate and the Tribunal.
Paragraph 6 indicates that the applicant provided reasons to the Tribunal as his intention to complete the Bachelor of Hospitality and Tourism.
The applicant did provide a statement and evidence to that effect.
However, the question for the Tribunal was whether it was satisfied the applicant was a “genuine temporary entrant” for a student visa. It was not so satisfied, even having taken into account the applicant’s “desire and intention to complete the Bachelor’s degree”. That finding was, as indicated above, open to it.
Paragraph 7 urges the Court to grant the applicant the relief he seeks. For the reasons already given above, there is no basis for the Court to do so.
The affidavit fails to identify any jurisdictional error.
Conclusion
Overall, the Court is satisfied that the Tribunal considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicant. All relevant evidence was assessed. No irrelevant evidence was relied on. The Tribunal’s decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal. The conclusions drawn were entirely logical.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 24 May 2019
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