Singh v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1078

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – judicial review – grounds of review – actual or apprehended bias – taking irrelevant considerations into account – not taking relevant considerations into account

Legislation:

Migration Regulations 1994 (Cth), cl.500.212(a)

Cases cited:

Minister for Immigration v Jia (2001) 178 ALR 421

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCAFC 80

Applicant:

JITENDER PAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 414 of 2019

Judgment of:

Judge Jarrett

Hearing date:

21 April 2020

Date of Last Submission:

21 April 2020

Delivered at:

Brisbane

Delivered on:

7 May 2020

REPRESENTATION

The Applicant in person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 18 October 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 414 of 2019

JITENDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By his application for review filed on 18 October, 2019 the applicant seeks judicial review of a decision of the second respondent which affirmed an earlier decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
In accordance with directions made on 27 November, 2019 the first respondent has filed written submissions. The applicant has not taken the opportunity to amend his application as those orders permitted, nor has he filed any written submissions in accordance with those directions.
On 14 April, 2020, the applicant applied for an adjournment of the hearing of the application for “one month”. For reasons that I delivered on 17 April, 2020 I refused that adjournment.
For the reasons that follow, the application should be dismissed with costs.

Background

The applicant is a citizen of India. He first arrived in Australia on Australia Day 2014 as the holder of a student visa. He applied for further student visa on 13 March, 2017. It is that visa which is the subject of the present application.
On 9 August, 2017 a delegate of the first respondent refused to grant the visa. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily for study. The applicant lodged an application for review by the second respondent on 28 August, 2017.
On 6 May, 2019 the applicant appeared before the second respondent to present arguments and give evidence in support of his application. On 23 September, 2019 the second respondent affirmed the delegate’s decision to refuse the visa.
The second respondent’s decision record shows that the applicant’s visa application was assessed against subclass 500. The second respondent noted that the delegate had refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.212 of schedule 2 to the Migration Regulations 1994 (Cth) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily for study.
The second respondent’s decision record shows that the applicant was assisted in relation to the review by his registered migration agent. The reasons record that prior to the hearing the applicant provided to the second respondent:
a)confirmations of enrolment for a number of different courses;
b)a number of letters of enrolment from various education institutions;
c)a copy of his passport;
d)a personal statement, also called a statement of purpose;
e)transcripts and statements of results from completed courses; and
f)the decision record of the delegate.
After the hearing, the applicant sent to the second respondent copies of letters and emails to and from the first respondent’s department in early 2015, including a notice of intention to consider cancellation in relation to the student visa the applicant originally applied for to study in Australia. The second respondent acknowledged that the visa was not cancelled and did not place any weight on the department’s notice of intention to consider cancellation.
The second respondent’s reasons show that it also had regard to the department file and Direction No 69 entitled “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”.
After setting out the terms of cl.500.212 of the Migration Regulations, the second respondent turned to consider whether the applicant intended to genuinely stay in Australia temporarily. The second respondent considered the applicant’s circumstances in India, his education, his circumstances in Australia and his immigration and travel history. The second respondent did not consider that there were any other relevant matters in favour or against the applicant.
As to his circumstances in India, the applicant contended that there were economic reasons for him to return to India. He claimed that his family were well off and his father was a successful property developer. However the second respondent placed little weight on these matters because of a significant inconsistency in the applicant’s claims about the financial and economic circumstances of his family. It accepted that he had a family in his home country and had regular contact with them and in particular his mother. The second respondent found that there would be some incentive for him to return to his home country but gave that factor little weight.
In relation to the applicant’s education the second respondent recorded that the applicant came to Australia with the goal of completing a course in business and returning home to working in his family’s business. It recorded in considerable detail the applicant’s educational history in Australia and made specific reference to a number of matters that caused it concern. For example, initially the applicant was enrolled in a diploma of business with a view to then enrolling in and completing a bachelor of business. He failed a subject in his first semester and decided to undertake some easier courses. He studied a number of cookery, management and human resources courses, although the applicant told the second respondent that he considered enrolling in those courses was a mistake. The second respondent was not satisfied of the applicant’s explanation for following the course of study that he had. It found that the courses completed between April, 2014 and September, 2017 had no value to his expressed future career intentions. Indeed, the second respondent found that the information provided to it by the applicant was inconsistent and it could not determine what the applicant’s true intentions actually were:
37. The information that the applicant has supplied to the Tribunal is also, therefore inconsistent, and it makes it difficult to put any weight in the applicant’s favour on what his intentions are when the Tribunal cannot properly determine what those intentions actually are. Therefore, while the Tribunal acknowledges that the applicant has come back to studying a Bachelor level course in accordance with his intentions when he first arrived in Australia, the Tribunal cannot give weight to that factor in his favour because the Tribunal is not satisfied that even the Bachelor course adds value to his future prospects.
The second respondent recorded that the applicant was currently studying a bachelor of business majoring in accounting which he had started in July 2018 and was expecting to finish in December 2019.
The second respondent placed some weight on the matters concerning the applicant’s educational history in Australia, but thought that those matters weighed against the applicant being a genuine temporary student.
The second respondent found that the applicant did not appear to have any incentive to stay in Australia and gave that matter some weight in its determination in favour of the conclusion that the applicant was a genuine temporary student.
In relation to the applicant’s immigration and travel history the second respondent concluded as follows:
50.    Therefore, while there is no evidence before the Tribunal that the applicant has been in breach of any other visa conditions in Australia or elsewhere, the applicant has, at times, been in breach of condition 8516, in that he has not studied at the level for which the original visa was granted. The Tribunal has given that a little weight against him.
51.    In addition, on completion of the Bachelor of Business, the applicant will have spent 6 years completing a course which he came to complete in 3. This also adds weight to a finding that the applicant is using the student visa regime to maintain ongoing residency in Australia, and the Tribunal gives this significant weight against him having a Student visa.
52.    Having regard to the applicant’s visa and travel history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence and circumvent the intentions of Australia’s migration program.
The second respondent was not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the second respondent determined that the applicant did not meet cl.500.212(a) of the Migration Regulations. It was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl.500.212 of the Migration Regulations and found that the criteria for the grant of a Subclass 500 (Student) visa was not met. Accordingly, the second respondent affirmed the decision under review.

The grounds of review

The application for judicial review contains the following grounds of review (faithfully reproduced):
1. INDEPENDENT DECISION WAS NOT MADE ON THE CASE. BIASED DCISION
2. ALL DOCUMENTS SUBMITTED WERE NOT CONSIDERED
3. CURRENT BACHELOR STUDIES HAS NOT BEEN GIVEN ANY WEIGHTAGE WHILE MAKING THE DECISION
4. THE MONEY SPENT ON STUDIES HAS NOT BEEN GIVEN ANY WEIGHTAGE
As the first respondent submits, for an applicant to establish actual bias, they must demonstrate that the second respondent’s state of mind, in exercising the discretion, was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented. The question is not whether the decision maker’s mind is blank, but whether it is open to persuasion: Minister for Immigration v Jia (2001) 178 ALR 421 at [71]-[72]. For an applicant to establish apprehended bias, they must demonstrate that the second respondent behaved in a way which might lead a hypothetical fair-minded lay person to reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
Nothing in the applicant’s submissions directed my attention to any particular matter from which I could make a finding of actual apprehended bias. At the applicant’s urging, I have also listened to the audio recording of the second respondent’s hearing. Nothing emerges from my listening to the audio recording that suggests that a hypothetical fair-minded layperson would reasonably apprehend that the decision-maker in this case may not have brought an impartial mind to making the decision.
There is no basis to conclude that an independent decision was not made on the applicant’s case. The applicant’s assertion that it was a “biased decision” is, in my view, nothing more than an expression of dissatisfaction by the applicant with the conclusion of the review.
Nor is there any basis demonstrated in the applicant’s submissions to conclude that the second respondent did not consider all of the documents submitted to it for consideration. During the course of submissions before me, the applicant placed particular emphasis on a document entitled “statement of purpose”. The document appears at pages 153 – 160 of the court book. However there is no basis to think that the second respondent did not consider that document. It is referred to by the second respondent as “personal statement” or “statement of purpose”. For example, it is referred to in the second respondent’s reasons at [6], [32], [35] and [36]. Indeed close to the conclusion of the second respondent hearing (at 29:45), the member can be heard to say “Your statement of purpose is very lengthy and there is a lot of information in there”. The second respondent’s references to the content of the “statement of purpose” in the paragraphs that I have just identified demonstrate that the second respondent took into account and considered the applicant’s “statement of purpose” and I so find.
Insofar as the applicant submits that his current bachelor studies were not considered by the second respondent, the submission cannot be accepted. The second respondent’s reasons for decision make clear that the second respondent was well aware that the applicant had returned to study a bachelor degree and was in the last semester of that degree, according to the applicant: see for example [29] where there is express reference to the applicant undertaking a degree in business with a major in accounting.
The applicant further submits, by ground four of his application, that the second respondent did not consider the money spent on course fees. But it plainly did so. It compared the amount of money paid by him for his bachelor’s degree with the money paid by him by way of course fees for his marketing, management, human resources and cooking courses: see [30] of the reasons.
In any event, as the first respondent submits, it is not clear why the applicant says not taking into account course fees that he has paid to date amounts to jurisdictional error. There is nothing in Direction No 69, or the legislation, that requires the second respondent to specifically consider how much money the applicant has previously invested in his education.

Conclusion – grounds specified in the application for review

None of the grounds of review set out in the application demonstrate that the second respondent’s decision is affected by jurisdictional error. At best, the applicant’s complaint is with the merits of the second respondent’s decision. The conclusions reached by the second respondent in respect of the matters material to its decision were clearly open to it on the materials before it.
Shortly before the hearing before me, the applicant caused an email to be sent to my associate containing a further affidavit. The first respondent has objected to the affidavit and its use in these proceedings. It is in the nature of a submission and I gave the applicant leave to rely upon it for that purpose. In that affidavit, the applicant raises a number of matters which I will now deal with. The most convenient way to deal with them is to set each out seriatim followed by my reasons for rejecting the matters raised by the applicant.

3. The member mentioned in Decision Record Point 15 & 34 that I never mentioned about my dad’s real estate business which I did mention about during the hearing. To this point I would say that “The member has “Failed to consider a relevant consideration” as this detail was mentioned in my GTE Statement dated 25 March 2019 submitted to AAT. Thus definitely a jurisdictional error by “Failing to consider relevant information” and by “Doing Bias or apprehended bias” decision.

This point is misconceived. At [15] and [34] the second respondent said:
15. However, the Tribunal notes that in his application form for the visa the refusal for which is currently under review, the applicant says that “I intend to expand my family farming business and take it to a level higher and make good savings and profit from my family business.” The applicant has not mentioned anywhere else, and did not mention at the Tribunal, that the applicant’s family run a farm, and this is contradictory to the applicant’s evidence at the hearing that his father is a successful and wealthy property developer.
...
34. As has been noted above, in his application form for the current visa, the refusal of which is the subject of this review, the applicant said that his family have a farming business. The applicant has not explained how his father is now a wealthy property developer and real estate agent, if in fact he is.
(my emphasis)
Contrary to the applicant’s assertion, in the two extracted paragraphs the second respondent did not say that the applicant had never mentioned “about my dad’s real estate business”. Indeed, the second respondent records that the applicant said in the hearing that his father was a real estate agent and property developer. The second respondent was concerned with the applicant’s statement in his visa application that his family had a farming business and that there was no mention of that farming business in any other document. As the applicant correctly points out in his “statement of purpose” he mentions his father has a real estate business but that is not to the point. Far from not giving any consideration to the applicant’s claims about the nature of his father’s business, the second respondent’s concern was with the inconsistency between that which appeared in his visa application and the applicant’s subsequent statements about his father’s business.

4. The member mentioned in Decision Record point 19 that she does not believe the special ties between me and my mother. She made this “Subjective and Biased” decision just because I didn’t travel to india to be with her in past few years; but has ignored and not given any weightage to the fact that I speak to her daily. Thus definitely a jurisdictional error by “Failing to consider relevant information” and by “Doing Bias or apprehended bias” decision.

Paragraph [19] of the second respondent’s reasons provides as follows:
19. His relationship with his mother is very special, and he says they talk almost every day. She is urging him to come back. She even wants him to return to India without finishing his studies, however, because he is in his last semester he wants to stay. He says he will always go back to make her happy. The applicant’s brother confirmed that the applicant has a strong relationship with his mother. Despite this, the Tribunal notes that he has now been 5 years away from her, having only visited once. The Tribunal does not accept that the ties to his mother provide a significant incentive for him to return to India.
It will be observed that in that paragraph the second respondent does not say that she does not believe that the special ties between the applicant and his mother, and about which the applicant gave evidence, exist. Indeed, the tenor of that paragraph is that the second respondent accepts that such special ties exist. However, the second respondent concluded that it did not accept that those ties provided a significant incentive for him to return to India. That is a different matter to that raised by the applicant. The complaint in paragraph 4 of his affidavit is misconceived.

5. The member mentioned in Decision Record point 20 that there is no sibling; where she personally spoke to my younger brother during the hearing. This has impacted her decision making as she hypothetically believed that I had no siblings and hence again lesser ties to my home country.

Thus definitely a jurisdictional error by “Failing to consider relevant information” and by “Doing Bias or apprehended bias” decision.

This point too, is misconceived. I have set paragraph 19 out above. It contains within it clear reference to evidence given to the second respondent by the applicant’s brother. The audio recording to which I have listened, records the applicant’s brother giving evidence to the second respondent. Paragraph 20 of the second respondent’s reasons provides:
20. There are no other siblings.
It is beyond argument that the second respondent was well aware that the applicant had a brother. His own evidence to the second respondent was that he had no other brothers or sisters. The applicant’s argument pays no attention to the word “other” where it appears in paragraph 20. No jurisdictional error is demonstrated by the applicant’s submissions about this matter.

6. The member mentioned in Decision Record point 25 & 26 that “It was a mistake”. From the Audio hearing it is clear that I told that initially I didn’t want to do Commercial Cookery course although under peer pressure and misguidance by my that time agent I did enrol to do the Course.

7. I had clearly mentioned during my hearing that I always planned to do my Bachelor of Business course but was comfortable with understanding the Australian study pattern and passing all vocational courses with Distinction till date.

8. Then I did the Cert IV Commercial cookery course as a GAP filler and also to get some qualification in the industry I was working in Australia AND NOT AS AN INTENTION TO DO THE COMMERCIAL COOKERY COURSE AS MY PRIMARY COURSE.

I repeated that my course was bachelor of Business at ASM. As ASM closed, I had to do this filler course waiting for my Bachelors to start at my current college in march. This can be clearly heard in the audio recording between 8:40 and 22:51 timing of the recording.

Hence, I am assured that the member made a biased decision with some presumptions not related to the hearing.

Thus again definitely a jurisdictional error by “Failing to consider relevant information” , by “Doing Bias or apprehended bias” and by “Failure to provide natural justice (i.e. failure to provide me with a fair hearing” decision.

These matters are related. They arise from the second respondent’s consideration of the applicant’s educational history in Australia which the second respondent carefully traversed between [23] and [40] of its reasons. As the applicant submits, in [25] and [26] the second respondent recorded that the applicant said that undertaking courses in management, marketing, human resource management and commercial cookery were mistakes. The second respondent records that the applicant said that after completing his courses in management, marketing and human resource management he was going to commence his degree in business. The second respondent records that whilst the applicant was going to commence his degree in business, the college in which he was enrolled was closed. Then, at the urging of some people from a restaurant in which he was working he commenced a commercial cookery course but soon realised that it was not what he wanted to do. The second respondent had earlier recorded at [23] that after the applicant received some advice from friends to study courses at a “‘lower’ college” he took up that idea so that he could acclimatise to the Australian way of learning and then return to his business courses. That led him to enrol in some hospitality courses in 2014, but he did not undertake those courses and instead he enrolled in the management, marketing and human resource management courses.
There is nothing in the matters raised by the applicant in these paragraphs of his affidavit that demonstrates that the second respondent misapprehended the applicant’s case or his claims or evidence. Even compared to what can be heard on the audio, I cannot reach the conclusion that the second respondent has misunderstood any of the applicant’s evidence and not taken it into account.

9. The member mentioned in Decision Record point 27 to 29 that she believed my studies were a way to continue residency in Australia. There is NO MENTION OF MY BACHELORS STUDY and no consideration given to the same in decision making.

I believe that member had made up her mind with some presumptions and made a biased decision.

Thus definitely a jurisdictional error as member “Failing to consider relevant information”; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

Paragraphs [27] to [29] of the second respondent’s decision are as follows:
27. The Tribunal is not satisfied that the applicant’s reasons for embarking on and continuing either the management, human resources or the cookery courses are reasonable. The applicant has not told the Tribunal, either at the hearing or in papers filed with the Tribunal what he felt he would gain from the management and marketing and human resources courses, or the value that they would add to his current career goals. The Tribunal accepts that anyone who wishes to run their own business may need to have some knowledge of marketing or advertising their business, and of how to manage staff, should they have any, however the applicant has not given any details of his anticipated business such that the Tribunal can determine the value of those courses to his future. Without being able to determine that value, it is difficult to put any weight in his favour on his need to remain and study over that time. This is particularly so when the applicant has been offered, and has completed, introductory units in marketing and management in his current bachelor course. The courses the applicant completed between April 2014 and September 2017 had no value to his future, as he explained his future to be at the time of the hearing, and the Tribunal gives this factor some weight against him being a genuine student. Rather, his undertaking those courses adds weight to the possibility that he is using the student visa regime to maintain ongoing residence in Australia, and thereby circumvent the intentions of the migration program.
28. In any event, by saying that those courses were a mistake, the applicant has effectively said to the Tribunal that the courses do not have any value to his future. That makes it even more difficult to place any weight in his favour on him completing those courses. There would not be a difficulty with his course of conduct if the applicant genuinely had a change of interest, and, despite the false start, then commenced studying something which added value to his future. It may also be that his change in course was, genuinely, a mistake, and he has now found his way back to his original path. If that were all he had done, the Tribunal may be satisfied that that is reasonable in the circumstances, and weight would not be placed against him for that re-commencement on his original path. However, that is not what the applicant has done.
29. In between moving from marketing, management and human resources, to a degree in business with a major in accounting, the applicant received a Certificate III in Commercial Cookery through prior recognised learning, and a Certificate IV in Commercial Cookery from completing a course. The applicant agreed that these courses had no value to his future, and he completed them, firstly because he did not know what else to do when his college closed, and, secondly, because a Certificate III would be worthless without a Certificate IV qualification. Therefore, the applicant has spent another 6 months of wasted time pursuing a qualification in an area he has no interest in, according to him, other than that he worked in a restaurant. The applicant also told the Tribunal that he did look around and found that there were no Bachelor of Business courses available until 2018, so he thought he should simply complete his certificate IV in 2017. While this may partly explain why he commenced and completed the Certificate IV, it does not explain why he commenced on the cookery path at all, and as has already been discussed, the Tribunal is not satisfied that the reasons the applicant has given for commencing on the cookery path are reasonable.
(my emphasis)
The applicant’s assertion that in the above extracted paragraphs there was no mention of his bachelor degree is simply incorrect. It is mentioned in terms. The second respondent was plainly well aware that the applicant was studying a bachelor degree in business with a major in accounting. Indeed, in [36], [37] and [39] of its reasons, the second respondent records:
36. In his application for the current visa, the refusal of which is the subject of this review, the applicant says that he wants to be a business development manager or human resources manager. In his personal statement prepared for the Tribunal hearing, he says that he wants to be a senior accountant in a multinational firm. At the time of applying for the visa he was studying the human resources management course, with a view to completing a degree in Business at the Australian School of Management. He is now, at the time of the Tribunal hearing, studying a degree in Business with a major in accounting. Therefore, the applicant has changed his goals as to his future work, it appears, from time to time, to fit within the applications he is making, depending on what he is studying at the time. This adds weight to a finding that the applicant is using the student visa regime to maintain ongoing residence in Australia and by doing so, is circumventing Australia’s immigration laws, rather than him being a genuine student.
37. The information that the applicant has supplied to the Tribunal is also, therefore inconsistent, and it makes it difficult to put any weight in the applicant’s favour on what his intentions are when the Tribunal cannot properly determine what those intentions actually are. Therefore, while the Tribunal acknowledges that the applicant has come back to studying a Bachelor level course in accordance with his intentions when he first arrived in Australia, the Tribunal cannot give weight to that factor in his favour because the Tribunal is not satisfied that even the Bachelor course adds value to his future prospects.
…
39. The applicant is currently studying a Bachelor of Business majoring in accounting which he started in July 2018, and is expecting to finish in December 2019, although he explained that the course actually finishes in November, but he will not be awarded the degree until December.
(my emphasis)
There is nothing in this complaint.

10. The member mentioned in Decision Record point 32, 38 & 40 that there is mention of social worker and community work space in job search references on page 7 of my Statement. But member didn’t bother to see that there was only 1 social worker/community worker reference that too with Accounting background for the organisation. I never mentioned in my statement or during hearing about my industry preference.

Member made biased assumption that my agent who is very professional and knowledgeable has copied-pasted for me.

The member not only defamed my agent, but showed doubt on my and my agent’s integrity.

Thus again definitely a jurisdictional error by “Failing to consider relevant information” , by “Consideration of irrelevant matters”; and by “Doing Bias or apprehended bias”.

These paragraphs of the second respondent reasons for decision are as follows:
32. The applicant talks both in his Response to Request for Student Visa Information form and his personal statement provided to the Tribunal of the job market and the advantage he will have in finding jobs. In his personal statement he has copied links to, he says, jobs advertised for accounting positions, but also for an ‘estimation engineer’, and a trainee auditor. The applicant has said in the personal statement that they are jobs for “Community Welfare Worker/Social Worker jobs (few current openings)” (page 7). It may be that the personal statement was prepared by the applicant’s representative, and they have made a ‘cutting and pasting’ error, however the applicant has signed the statement and referred to it in the hearing as his own. There is no indication otherwise that he intends to work in a welfare sector or as a social worker.
…
38. The Tribunal has assumed that the reference to seeking welfare and social worker jobs is an error by his representative and places no weight on that error, although it notes it is replicated in the Response to the Request for Student Visa Information form.
…
40. The applicant has provided information to the Tribunal about his research into colleges, and the Tribunal accepts that he has a reasonable knowledge about the colleges at which he has studied. The applicant has also provided information about the salary he could expect if he completes his current course, showing some insight into his prospects, and he is to be given a little weight in his favour for this, however that factor is significantly outweighed by the other factors already discussed regarding the value of his courses to his future.
(again, my emphasis)
Whilst the applicant is correct when he says that the second respondent “didn’t bother to see that there was only one social worker/community worker reference”, given that the second respondent considered the reference to seeking welfare and social worker jobs as an error and that it did not intend to give any weight to those matters, there was no need for the second respondent to undertake any further consideration of that matter. No error is revealed by this complaint

11. The member mentioned in Decision Record point 33 that my current education is not going to help me in expansion of my dad’s business. Although during my hearing (audio recording will prove that), I clearly mentioned about the other management & Business units in the Bachelor courses that will help me to do so.

Thus definitely again a jurisdictional error as member “Failing to consider relevant information-audio recording of the hearing and documents provided”; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

In paragraph 33 of the second respondent’s reasons for the decision, the second respondent said:
33. The applicant told the Tribunal at the outset of the hearing that his intention was to open a branch of his father’s business in another town. He confirmed this later in the hearing, saying that it was 90% certain that he would work for his father, although if his father did not want him to expand the business, then he would get a job at a large multinational company.He is not training, and does not appear to have trained, in real estate, so it is difficult to see how the applicant could confidently open a branch of a real estate or property development office away from his father. It may be that the applicant means that the office would be an accounting office attached to the applicant’s father’s real estate and development business.It may also mean that the applicant will be the accountant for his father’s business, however it is unclear why the applicant would open an office away from where his father is if he was to be the accountant for the business. It seems unlikely that a person would call the accountant’s area of a business a ‘branch.’ A ‘branch’ suggests that that office will perform the same functions as other ‘branches’ or the main office, which would be real estate.
The second respondent’s reasons clearly set out the path of reasoning which led the second respondent to conclude that the applicant was not training for a role in a real estate company. This complaint does not indicate jurisdictional error on the part of the second respondent.

12. The member mentioned in Decision Record point 35, 36 and 37 that I never mentioned previously in my statement submitted in November 2019 or earlier; that I intend to expand my family / dad’s business. Does that mean that I cannot change my plans if I have submitted my statement once or do I need to keep the Tribunal or Department updated of my EVERY DISCUSSION AND PLAN with my family?

Thus again definitely a jurisdictional error by “Failing by considering irrelevant information” , and by “Doing Bias or apprehended bias”.

This matter raises no jurisdictional error. The point of the second respondent’s route of the second respondent’s reasoning in these paragraphs was to demonstrate inconsistency in the applicant’s claims. The applicant’s complaints do not answer the obvious inconsistency between what he stated in his application for the visa (that his family owned a farming business) and his subsequent statements that his father owned a real estate and property development business and was very wealthy.

13. The member mentioned in Decision Record point 20 about having NO SIBLINGS and again in Point 42 about my brother.

Hence, member’s own Decision is contradicting.

For the reasons I have set out above, there is no error or inconsistency in the second respondent’s reasons for decision concerning the applicant’s brother and how many siblings the applicant has. This argument does not demonstrate jurisdictional error

14. The member mentioned in Decision Record point 42 that both brothers will live together was mentioned in my student visa application. Member highlighted this fact but she didn’t do a research on my brother’s College details showing my address when he started studying; or my brother’s address at the time I made my student Visa application.

Member has been biased and made this statement based on her presumption about some other case.

I believe that my brother having moved out to live closer to his place of work and study had NO RELEVANCE in my case; although member did so.

Thus definitely a jurisdictional error as member “Failing to consider relevant information”; “Failing by considering irrelevant information “; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

In [42] of the second respondent’s reasons, the second respondent said:
42. While the applicant’s Response to the Request for Student Information form says they live together, the applicant and his brother said at the hearing that they do not. The Tribunal does not place weight on that inconsistency. The applicant has some house hold effects and a car here, however they do not amount to a value where they provide an incentive for him to remain in Australia and the Tribunal does not place any weight on the existence of those items.
The way in which the second respondent dealt with this matter favoured the applicant. The second respondent noted an inconsistency between the response to the request for student information and the information provided to the second respondent by the applicant and his brother at the hearing. Notwithstanding that inconsistency, the second respondent placed no weight upon it and concluded that the fact that the applicant had some household effects in the car in Australia did not provide an incentive for him to remain in Australia – something which weighed in his favour on the review. There is no jurisdictional error demonstrated by this point.

15. The member mentioned in Decision Record point 43 that I have steady income here in Australia from Subway job. Member must be having an idea of the salary scale for international students in this retail job industry and should know that a professional industry will have a 20 times better package than my current job.

But member already had made up her mind and hence, even my steady poorly paid job has been given more weightage than my future well paid professional white collared job.

Thus definitely a jurisdictional error as member “Failing to consider relevant information”;

“Failing by considering irrelevant information “; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

Paragraph [43] of the second respondent’s reasons for decision is in the following terms:
43. The applicant has had steady employment here, and although the applicant says that his family are wealthy, and that should he complete his Bachelors course and obtain a job in a multinational company, he will live well, as has been discussed above, the Tribunal is not satisfied that those are the applicant’s plans, and the Tribunal cannot be satisfied as to his family’s wealth. Although the applicant has given details about likely salaries, and copies of links to job advertisements, it is not clear from what the applicant has provided that those jobs would be suitable for him, where they are relative to where he lives or whether he is willing to move for those jobs. The Tribunal has not been able to assess in any other way the applicant’s plans or the strength of those plans, such that it can compare his prospects or potential circumstances in Australia with those in India. Nevertheless, the Tribunal accepts that the applicant would live well if he can gain the position he seeks in a multinational company, if those are his plans. The Tribunal gives the prospect of him having a good salary after he finishes the bachelor course some weight in his favour suggesting that he would have some incentive to return to India. However, given the Tribunal’s doubts about the applicant’s plans, the Tribunal can only give this factor a little weight in his favour.
It is difficult to discern the applicant’s complaint raised by this paragraph of his affidavit. In [43] the second respondent considered the weight that could be attributed to the fact that the applicant would live well if he could gain the position he seeks in a multinational company following the completion of his education in Australia. Whilst the second respondent accepted that the applicant would live well if he could gain the position he sought in a multinational company and the prospect of him having a good salary after he finished his bachelor course provided some incentive for him to return to India, it harboured doubts as discussed elsewhere in its reasons that they were, in fact, the applicant’s plans. That affected the weight that the second respondent was willing to give to that matter in the applicant’s favour when considering whether there was an incentive for him to return to India.
This submission does not expose jurisdictional error in the second respondent’s decision.

16. The member mentioned in Decision Record point 44 that my brother is here, but she outweighted this with the fact that my parents and my girl friend are in india.

Hence again definitely a jurisdictional error as member “Failing to consider relevant information”; “Failing by considering irrelevant information “; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

Paragraph [44] provides:
44. The fact that the applicant’s brother is here provides some incentive to him to remain in Australia, however it does not appear to be a strong incentive to remain in Australia, particularly if his brother only intends to be here for 2 years, and there is nothing before the tribunal to satisfy it that that is not the case. The Tribunal gives no weight to the fact that his brother is here, as while it may currently be an incentive to remain in Australia, that incentive is only temporary. The applicant does not appear to have any other ties such that they provide any incentive for him to remain here, and the Tribunal gives this some weight in his favour.
The applicant’s submissions misunderstand the second respondent’s reasons. At this point of its decision the second respondent was considering whether there was any incentive for the applicant to remain in Australia. He was considering that in the context of its ultimate determination about whether it could be satisfied that the applicant intends genuinely to stay in Australia temporarily. The second respondent thought that even though the applicant had a brother here in Australia, because that brother was only in Australia for two years and there were no other family members in Australia, there was no incentive, at least by reason of filial ties, for the applicant to remain in Australia that is a matter that counted in the applicant’s favour and the second respondent gave it weight in his favour. This submission does not demonstrate jurisdictional error.

7. The member mentioned in Decision Record point 51 and 52 about my intentions. Member didn’t give any weightage to my current studies and based her entire decision on my past mistakes.

18. Hence again definitely a jurisdictional error as member “Failing to consider relevant information”; “making references to her own assumptions and presumptions” and by “Doing Bias or apprehended bias” decision.

Paragraph [51] of the second respondent’s reasons records that the second respondent thought some weight should be attributed to the fact that it took the applicant six years to complete a course which he came to Australia to complete in three. That was a matter that the second respondent was entitled to consider when determining the review before it. Logically that the applicant has taken six years to complete a course which he came to complete in three might add weight to a finding that the applicant was using the student visa regime to maintain ongoing residency in Australia as the second respondent noted. Paragraph [52] records the second respondent’s view that having regard to the applicant’s visa and travel history weighted with the other factors that the second respondent identified earlier in its reasons, it was satisfied that the applicant was using the student visa to maintain ongoing residence and circumvent intentions of Australia’s migration program. That finding was open to the second respondent on the evidence before it.
This ground reveals no jurisdictional error.

Conclusion

Having read the second respondent’s reasons for decision, and having listened carefully to the audio of the hearing conducted by the second respondent with the applicant, I am of the view that the second respondent has not denied the applicant procedural fairness. There is no appearance of or actual bias.
The application and the additional matters set out in the applicant’s affidavit filed by leave on the day of the hearing do not demonstrate any jurisdictional error on the part of the second respondent. The application must be dismissed with costs fixed in the sum of $4,000.00.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 May, 2020.

Associate:

Date: 7 May 2020

[2020] FCCA 1078

7 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction