Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 676
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 676
File number: PEG 137 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 1 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in law in making its decision – whether the Tribunal failed to accord the applicants procedural fairness – whether the Tribunal failed to consider all of the first applicant’s circumstances – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 357A, 359, 359AA, 359B, 360 & 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cl 500.212 & 500.311 in Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
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 & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 28 June 2023 Place: Perth Applicants: The applicants appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 137 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAWINDER SINGH
First Applicant
NEHA SANDHU
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
1 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first and second applicants are both citizens of India (Court Book (“CB”) 21-24 & 69-72). They are husband and wife respectively (CB 23-24 & 67).
The first applicant arrived in Australia in August 2014 as the holder of a student visa which was granted while he was offshore (CB 213 & 277-278). Since that time, the first applicant has held a further student visa, a subclass 485 work visa and associated bridging visas (CB 147-148 & 277-278).
On 19 August 2021, the first applicant applied for Student (Temporary) (Class TU) (Subclass 500) visa (CB 20-39) (the “visa”). The second applicant was included in the visa application as a member of the first applicant’s family unit (CB 23). Attached to that application were a number of supporting documents, including academic records and documentation for the first applicant and confirmation of overseas health cover, a marriage certificate and identity documents for the applicants (CB 40-72).
In that visa application, the first applicant listed his intended study as a Diploma of Leadership and Management (to be undertaken from 4 October 2021 to 2 October 2022; CB 20-21). The applicants were assisted with the visa application by a migration agent (the “representative”) (CB 26-27 & 76-78).
Further supporting documents were later provided to the Department of Home Affairs (the “Department”), including a completed Form 956 – Appointment of a registered migration agent, legal practitioner or exempt person, confirmation of overseas health cover documents, an Overseas Student Confirmation-of-Enrolment (“COE”) form, a Genuine Temporary Entrant statement from the first applicant, financial documents and an affidavit from the first applicant’s father in relation to “financial support” (CB 76-94).
On 26 October 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 101-106). The delegate determined that the first applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the first applicant “genuinely intended to stay in Australia temporarily” (CB 104). The delegate also found that the second applicant did not meet cl 500.311 in Schedule 2 of the Regulations because she was not a member of the family unit of a person who held a student visa (CB 105-106).
On 15 November 2021, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 107-114). The applicants were assisted with their review application by their representative (CB 112).
On 17 November 2021, the Tribunal invited the applicants (through their representative) to provide information (pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”)) in relation to the requirement that the first applicant to be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 132-140). Specifically, the Tribunal invitation letter stated (CB 134-135):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
On 6 April 2022, the applicants’ representative provided the Tribunal with a completed Request for Student Visa Information form (CB 141-155).
On 3 May 2022, the Tribunal wrote to the applicants’ representative to request a contact phone number for the first applicant (CB 156). Later that day, the applicants’ representative provided a relevant contact number to the Tribunal (CB 157-159).
On 10 May 2022, the Tribunal invited the applicants (through their representative) to appear at a hearing before it (by telephone) scheduled for 26 May 2022 (CB 160-174).
On 13 May 2022, the Tribunal advised the applicants (through their representative) that the hearing had been rescheduled and would instead be held on 31 May 2022 (by telephone) (CB 182-191).
On 26 May 2022, the applicants’ representative provided the Tribunal with written submissions and further documents in support of the applicants’ review application (CB 211-140).
On 30 May 2022, the applicants’ representative provided the Tribunal with additional supporting documents on behalf of the applicants (CB 241-257).
On 31 May 2022 (at 10.09am), the applicants provided the Tribunal with copies of their passports (CB 256-263).
Later that same day (on 31 May 2022 at 2.35pm), the first applicant appeared at the Tribunal hearing (via telephone) to give evidence and present arguments. He was assisted at that hearing by his representative (CB 266-268).
On 29 June 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 275-289).
On 15 July 2022, the applicants sought judicial review of the Tribunal’s decision in this Court (CB 1-6). That application is brought pursuant to s 476 of the Act. They also filed an affidavit in support of that application (deposed by the first applicant on 13 July 2022 and annexing a copy of the Tribunal’s decision, notification letters and an information sheet) (CB 7-10).
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL DECISION
In determining whether the Tribunal fell into jurisdictional error, it is helpful to first outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 15 pages long and spans 43 paragraphs. The final six pages include a copy of Ministerial Direction No. 69 (“Direction 69”).
The Tribunal began by explaining that the applicants had applied for the visas on 19 August 2021. The Tribunal noted that a delegate of the Minister had refused to grant the applicants the visas (on 26 October 2021) because the delegate was not satisfied that the first applicant met the requirements set out in cl 500.212 in Schedule 2 of the Regulations (at [1]-[3]).
The Tribunal confirmed that a hearing took place on 31 May 2022 and that the applicants were assisted in relation to the Tribunal review by their representative (at [4]-[5]).
The Tribunal then outlined the legislative framework that the first applicant was required to satisfy (set out in cl 500.212 in Schedule 2 of the Regulations) – being the requirement to be a genuine applicant for entry and stay as a student. The Tribunal also explained that it was required to have regard to the factors set out in Direction 69 – noting, in particular, that Direction 69 was only intended to guide a decision-maker and that it should not be used at a checklist (at [7]-[10]).
The Tribunal confirmed that, in addition to the material that was before the delegate, it had read and had regard to the following materials (at [11]-[12]):
•COE for a Diploma of Leadership and Management;
•A Response to Request for Student Visa Information (s 359(2) of the Act);
•Job ready final assessment dated 11 December 2020 (qualification Certificate III in Light Vehicle Mechanical Technology);
•Offer of employment (Service Technician) dated 12 May 2022 from Eager Automotive (signed);
•Documents evidencing land holdings;
•Written submissions; and
•The delegate’s decision record.
The Tribunal explained that the first applicant had arrived in Australia in August 2014 as the holder of a student visa and that, since that time, he had held a further student visa, a Subclass 485 work visa and associated bridging visas (at [13]).
The Tribunal noted that the second applicant was included as a dependent in the visa application. Further, the Tribunal noted that the first applicant was enrolled in a Diploma of Leadership and Management which was scheduled to conclude in October 2022 and that completion of the course would extend his time in Australia to approximately eight years (at [14]-[15]).
The Tribunal acknowledged that the first applicant had completed high school in his home country, had not worked in paid employment before arriving in Australia and had been enrolled in the following courses in Australia (at [16]-[17]):
•A Bachelor of Accounting which he did not complete;
•A Certificate IV, Diploma and Bachelor of Accounting which he completed;
•A Certificate III in Light Vehicle Mechanical Technology which he completed;
•A Diploma of Leadership and Management which he completed; and
•A Diploma of Leadership and Management which the applicant is studying presently and which is scheduled to conclude in October 2022.
The Tribunal then had regard to the first applicant’s “circumstances in [his] home country” (at [18]-[27]). In particular, the Tribunal considered the first applicant’s “reasons for not studying in his home country”, finding as follows:
(a)the first applicant had claimed that institutions offering similar courses in India were “money-making businesses” and did not “provide good practical knowledge and exposure” and did not “have industrial tie[s]” (at [18]); and
(b)the Tribunal did not accept those reasons and considered that the first applicant’s evidence did not demonstrate that he had undertaken a reasonable amount of research in relation to course availability in India (at [19]).
The Tribunal then considered the first applicant’s “personal ties to [his] home country”, noting as follows:
(a)the first applicant’s wife lived in Australia with him, while his parents and one brother lived in India. The first applicant had not returned to visit his family since arriving in Australia in 2014 and kept in touch with family and friends via video chat (at [18]);
(b)the first applicant expects to inherit a house and land worth $700,000 (at [18]);
(c)the Tribunal found that the first applicant’s family ties in India, when considered against his circumstances in Australia (noting, in particular, his wife and ongoing employment), did not provide a significant incentive for him to return (at [20]);
(d)the Tribunal did not find that the first applicant’s financial ties to India presented a significant incentive for him to return given that the first applicant had not provided any evidence of potential employment in his home country (at [21]); and
(e)the Tribunal inferred that, given the first applicant had not returned home since 2014, the first applicant appeared “motivated to remain in Australia on a more permanent basis” (at [22]).
The Tribunal also considered the first applicant’s “economic circumstances in Australia as [an] incentive not to return home”, noting as follows:
(a)the first applicant told the Tribunal that he had worked for four separate employers as a motor mechanic (from 2019 to 2021) and was working at a dealership for 38 hours per week (as permitted by his bridging visa) (at [18]);
(b)the Tribunal found that the first applicant’s “strong working history and current ongoing employment” served as a significant incentive for him to remain in Australia for economic reasons (instead of a genuine desire to temporarily reside in Australia as a student). The Tribunal also noted that no evidence had been provided of economic opportunities in the first applicant’s home country (at [23]);
(c)the Tribunal placed significant weight on the fact that the first applicant had been in Australia since 2014, had studied a “high level bachelor degree … in accounting,” subsequently “regressed [to] undertake a low level vocational course” and was seeking to change course direction again and study “another vocational course’. The Tribunal explained that it had told the first applicant that his study history may be part of the reason for affirming the delegate’s decision and, at the first applicant’s request, adjourned the hearing for approximately 20 minutes (at [24]);
(d)the first applicant explained (when the hearing resumed) that he had completed his bachelor studies while he held his Subclass 485 visa and that, during that time, he was working on cars. The first applicant also stated that he thought he needed knowledge of management which he had not obtained through his accounting course and considered that he could only obtain that management knowledge by completing the course (at [25]); and
(e)the Tribunal accepted that areas of study might change to acquire more practical skills, however, the Tribunal was not satisfied that the Diploma of Leadership and Management would further assist the first applicant’s career development or earning potential (at [26]).
Having considered the information above, the Tribunal found that the first applicant’s circumstances in his home country did not provide a significant incentive for him to return (at [27]).
The Tribunal then had regard to the first applicant’s “potential circumstances in Australia” (at [28]-[31]).
The Tribunal noted that the first applicant’s wife resides in Australia with him and was included (as a dependent) in the visa application (at [28]).
The Tribunal then considered the first “applicant’s knowledge of living in Australia, [his] intended course and level of research into [his] intended course”, as follows:
(a)the Tribunal set out the first applicant’s evidence in this regard (at [28]):
“My career is my passion, which holds full devotion, dedication, and commitment. To add more value to the same, I decided with the best thought of doing my further studies from a reputed institute, which would give me in-depth learning with international standards, innovative methods of self-development skills and the ability of survival among the fittest. This was the foremost reason for me to opt for Orange International College. I have explored other education providers in Melbourne such, Gen Institute, KOI, Canterbury college and Queens college but the feel of repute and the impression created by Orange International College was supreme. The second most important reason to choose Orange International College was its diversity. I experienced a close-knit multicultural environment where I could build personality, distinctive interest and with enthusiasm to learn and prepare for life in a multicultural world. This institute has provided thousands of students and trainees with quality Higher education programs. Their courses are designed by highly qualified staff with extensive industry and teaching experience ensuring that learning experience of students is of the highest quality. They also provide student support services and opportunities to participate in social activities. I believe studying from Orange International College will provide me advanced skills and lead me towards the progress in the modern globalized cultures, and era. I would like to add some factors that encouraged me to choose this institute as a choice for Learning Destination
•Excellent Study environment;
•Supportive staff and teachers;
•Excellent practical sessions;
•Great infrastructure and materials for coursework; and
•More opportunities to get involved and makes friends.
All courses have been carefully researched and designed to deliver high quality, effective and relevant education. I firmly believe that “the best way to learn is to learn from the best” and this constitutes the true motivation behind studying from Orange International College which is known for its excellence in education.”
(b)the Tribunal found that, based on the “generalised statements” provided by the first applicant, he had not demonstrated an “objectively reasonable amount of research into his proposed course, course contents, education provider [or] educational objectives” (at [29]);
(c)the Tribunal acknowledged that the first applicant had provided reasons for “downgrading his course”. However, the Tribunal found that the first applicant had enrolled in his course of study to circumvent the intention of the student migration program and not out of a genuine desire to undertake further vocational studies (at [30]); and
(d)noting the first applicant’s wife was in Australia and his ongoing economic ties (in the form of his employment) the Tribunal concluded that the first applicant’s study in Australia was secondary to his intention to remain in Australia “on a more permanent basis” (at [31]).
The Tribunal the considered the “value of the course to the [first] applicant’s future”
(at [32]-[35]), as follows:
(a)the Tribunal noted that the first applicant’s intended course was an academic regression from the bachelor degree and was not directly related to his previous studies (at [32]);
(b)the Tribunal also noted that the first applicant had provided evidence that he wanted to start his own automotive workshop in his home country and become a successful businessman (at [32]);
(c)the Tribunal was not satisfied that he first applicant had “demonstrated the value of the course to his future” and noted that the first applicant’s written submissions did not include any objective evidence that the course was necessary to improve his employment prospects or to increase his earning capacity (noting the qualifications and work experience already held by the first applicant). The Tribunal also found that there was no evidence in relation to whether the first applicant intended to start his own business. Ultimately, the Tribunal placed little weight on the first applicant’s claimed desire to do so (at [33]);
(d)the Tribunal found that it was inconsistent with the behaviour of a genuine student to “academically regress to the extent that the [first] applicant ha[d]”, particularly where the first applicant had not demonstrated that the benefit of those pathway changes would outweigh the financial commitment of the further study (at [34]); and
(e)the Tribunal ultimately found that, based on the first applicant’s qualifications and work history, he had demonstrated that he was “more than qualified to return home and seek employment in India” (at [35]).
The Tribunal then considered the first applicant’s “immigration history”, as follows:
(a)the Tribunal determined that there was no evidence of any visa refusals or cancellations (noting that the initial refusal of the first applicant’s Subclass 485 visa was ultimately reversed). The Tribunal accepted that the first applicant had complied with his previous visa conditions (at [36]); and
(b)noting the first applicant’s time in Australia and the lack of evidence of value of the proposed course of study to the first applicant’s future, the Tribunal found that the first applicant’s behaviour was inconsistent with that of a genuine student (at [37]).
Having considered all of the circumstances and evidence before it, the Tribunal did not accept that the first applicant was a genuine temporary entrant. The Tribunal was also not satisfied that the first applicant genuinely intended to stay in Australia temporarily and, accordingly, did not satisfy cl 500.212 in Schedule 2 of the Regulations. The Tribunal also found that the second applicant did not satisfy cl 500.311 in Schedule 2 of the Regulations (at [39]-[42])
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [43]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 15 July 2022) contains three grounds of review which provide as follows (without alteration):
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal failed to accord procedural fairness and thereby erred in the exercise of its jurisdiction to review the decision of the delegate.
3.The Administrative Appeals Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.
The applicants also filed an affidavit in support of their review application. That affidavit (sworn by the first applicant on 13 July 2022) annexed a copy of the Tribunal’s decision, notification letter and an information sheet and, relevantly, stated:
5. Administrative Appeals Tribunal erred in law.
On 23 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicants on 15 July 2022, a Court Book numbering 289 pages (marked as Exhibit 1), written submissions filed by the Minister on 26 April 2023 and an affidavit of service of Ms Grace Mickle affirmed on 4 May 2023 (and filed on 5 May 2023).
On 28 June 2023, the applicants appeared before this Court (via video link) without legal representation. The first applicant spoke on behalf of his wife. An interpreter was made available to the applicants at the hearing (at their request) but the first applicant confirmed that he was content to proceed in English and without the assistance of an interpreter. The Court is satisfied that the first applicant was able to articulate his concerns without difficulty. The Court confirmed that he had received copies of the Court Book and Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”).
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include 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 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that he had “always been a genuine student in Australia” and that he had completed all of his studies. He also explained that, although the Tribunal had found that he “wanted to stay here permanently or was just seeking more time,” he had provided the Tribunal with everything that they had asked for and he “could not figure out what [he] had missed in the documents”.
When asked about the circumstances or evidence that he thought the Tribunal had overlooked, the first applicant told the Court that his brother had started a business in his home country and that he intended to assist him with that business.
The first applicant also stressed that the management and leadership course he intended to study was “totally different” to his previous study and that he would “learn something new in that course that [he] hadn’t learned in the bachelor of accounting course”. Further, he explained that this would “polish his skills” and that he could not understand why the Tribunal did not accept that evidence.
To the extent that the first applicant’s oral submissions raise the possibility of jurisdictional error on the part of the Tribunal, they will be considered below.
CONSIDERATION
Ground 1 and the first applicant’s affidavit
Ground 1 states:
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
As outlined above, the first applicant’s affidavit (filed in support of the judicial review application) relevantly provides:
5. Administrative Appeals Tribunal erred in law.
The Court notes that the applicants did not provide any particulars in relation to ground 1 or in relation to the statement included in the first applicant’s affidavit.
The Minister submitted (both in oral submissions before the Court and at [17] in written submissions filed in this Court on 26 April 2023) that “[g]round 1 is a bare, unparticularised assertion of jurisdictional error, and is capable of being dismissed for [that] reason alone”.
The Court disagrees.
As this Court has emphasised previously, while there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach is to be mindful that, where applicants are unrepresented and may not have adequate knowledge of or the ability to prepare for and understand what is required of them, the Court will read any grounds of review as broadly as possible and, further, will remain astute to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Such an approach was recently supported by the Federal Court in BKT17. In that case, Justice Feutrill explained that a primary judge is obliged to explain the nature of judicial review to, and make sufficient enquiries of, applicants in order to be satisfied that they understand how to identify and particularise grounds of review. Further, it is noted that the Court should provide a reasonable opportunity to applicants to remedy any deficiencies in their grounds of review: BKT17 at [33].
As set out above, the Court explained the concept of jurisdictional error to the first applicant and outlined some of the categories of jurisdictional error that often arise in matters of this sort. The Court also gave the first applicant an opportunity to expand on the grounds of review contained in the judicial review application.
The first applicant explained his concerns to the Court and those concerns, to the extent that they indicate any issue of jurisdictional error, are considered below in relation to ground 3.
The Court is satisfied that the first applicant was given an adequate opportunity to explain his concerns and detail any issues he had with the Tribunal’s decision.
The Court will consider whether the Tribunal afforded the applicants procedural fairness in its assessment of ground 2 below.
The Court is otherwise satisfied that the Tribunal conducted its review according to law and no jurisdictional error arises in relation to ground 1.
Ground 2
Ground 2 is provided in the application for judicial review as follows:
2.The Administrative Appeals Tribunal failed to accord procedural fairness and thereby erred in the exercise of its jurisdiction to review the decision of the delegate.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes that:
(a)the Tribunal exercised its power under s 359 of the Act to get information from the applicants (CB 132-140). The Tribunal’s invitation in that regard complied with the requirements set out in s 359B of the Act and a response to that invitation was received from the applicants’ representative (CB 141-155);
(b)the Tribunal invited the applicants to attend a hearing before it and the first applicant did so. The first applicant gave evidence at the hearing in support of his visa application. Accordingly, the Tribunal complied with s 360 of the Act;
(c)during the course of the hearing, the Tribunal put information to the first applicant about his study history and asked him to provide comment in that regard. To enable him to do so, the Tribunal adjourned the hearing for a period of approximately 20 minutes to allow the first applicant time to consider his response. There is no evidence to suggest that the first applicant (or his representative) requested additional time or that he was unable to respond to the information because he was not given sufficient time to do so. The Tribunal thus complied with s 359AA of the Act;
(d)the dispositive issue before the Tribunal (being whether the first applicant was a genuine temporary entrant as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter and the Tribunal complied with s 360 of the Act; and
(e)the Tribunal questioned the first applicant, listened to his responses and actively sought further information from him about his circumstances. There is nothing to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
No jurisdictional error arises in relation to ground 2.
Ground 3
Ground 3 states:
3.The Administrative Appeals Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.
As outlined above, when asked about the circumstances or evidence that he thought the Tribunal had overlooked, the first applicant told the Court that his brother had started a business in his home country and that he intended to assist him with that business.
The first applicant also explained that the management and leadership course he intended to study was “totally different” to his bachelor of accounting course and he would “learn something new” in the management course that he had not learned in the accounting course.
To the extent that the first applicant takes issue with the Tribunal’s failure to consider that the first applicant would assist with his brother’s business in India, the Court disagrees.
There is no evidence before the Court that the first applicant mentioned his “brother’s business” to the Tribunal. In circumstances where the information was not before the Tribunal, no error can arise from the Tribunal not considering such information.
Insofar as the first applicant claims that the Tribunal failed to consider that he would gain different knowledge or skills from the management course, this fails at a factual level. The Tribunal specifically referenced the first applicant’s evidence in this regard as follows (emphasis added):
25.At the resumption of the hearing, the applicant stated that he completed his Bachelor studies and his 485 visa was cancelled. He was working on cars while on the 485 visa and thought he needed some knowledge of management which he missed in accounting. He can only obtain management knowledge by doing to the course.
26.While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course or to acquire more practical skills, in this case, management skills, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled, being a Diploma of Leadership and Management, will further assist his career development or earning potential in view of the qualifications he already holds and the practical work experience he already has completed.
As outlined above, the Tribunal acknowledged that the first applicant may acquire more “practical skills” (and, in particular, management skills) by completing the Diploma of Leadership and Management. However, the Tribunal was ultimately not satisfied that the course would assist with the first applicant’s career development or future earning potential.
Whilst the applicants may not agree with the Tribunal’s assessment, it cannot be said that the Tribunal failed to consider the information provided to it.
The Court also notes that the Tribunal specifically referenced the materials it had considered (including the materials before the delegate and the materials provided by or on behalf of the applicants) at [11] in its written reasons. The Minister submitted (at [24] in written submissions filed in this Court on 26 April 2023) that it was unable to identify any critical piece of evidence that the Tribunal had not considered. The Court is also unable to identify any such evidence.
No jurisdictional error arises in relation to ground 3.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 15 July 2022 have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 August 2023
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