Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 345
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 345
File number(s): MLG 824 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 13 May 2022 Catchwords: MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (subclass 572) visa – application of clauses 572.222 and 572.223 of schedule 2 Migration Regulations 1994 – consideration of whether the Tribunal’s error was material – where the applicant did not provide a current certificate of enrolment as required by the Regulations – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 359, 362A, 366C, 499
Migration Regulations 1994, sch 2, cls 572.222, 572.223
Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Kaur v Minister for Home Affairs [2019] FCA 2026
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Re Refugee Review Tribunal; ex parte H (2001) 179 425
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 25 January 2022 Date of hearing: 25 January 2022 Place: Melbourne Solicitors for the Applicant: The Applicant appeared in person Solicitors for the Respondent: Ms O’Grady of Mills Oakley Lawyers ORDERS
MLG 824 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGSIR SINGH
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application be dismissed.
3.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). By its decision, the Tribunal affirmed a decision by a delegate of the then Minister for Home Affairs (‘the Minister’) refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 572) visa (‘subclass 572 visa’).
BACKGROUND
The factual background is not largely in dispute in this matter.
The applicant, who is an Indian citizen, initially came to Australia with his wife. His wife was granted a Student (subclass 573) visa and the applicant came to Australia on 16 August 2014 on a dependant student visa, which was valid until 16 September 2015. Following the breakdown of his relationship with his wife, on 27 August 2015, the applicant was issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his dependent visa.[1]
[1] Court book at page 107.
Subclass 572 visa application of 2 September 2015
On 2 September 2015, the applicant applied for a subclass 572 visa. At the time of the applicant’s student visa application, he was enrolled in a Diploma of Business[2] and an Advanced Diploma of Business course[3] at Acumen Education Pty Ltd.
[2] Court book at page 20.
[3] Court book at page 18.
Also on 2 September 2015, the applicant was granted a bridging visa.[4] There appears to have been some confusion before the Tribunal about the applicable bridging visa which applied, and whether there are restrictions which applied on the applicant’s ability to undertake study. The Minister concedes that the Tribunal operated under the misapprehension that the applicant was not limited in his ability to undertake study whilst on a bridging visa. As will be seen, however, it is submitted for the Minister that this error on the part of the Tribunal was not material to its ultimate decision. I will deal with this issue further below.
[4] Court book at pages 29 to 33.
Request for further information on 16 October 2015
On 16 October 2015, the applicant, via his migration agent, was asked to comment, among other things, on his circumstances in relation to the genuine temporary entrant (‘GTE’) criterion and to provide relevant documentation.[5]
[5] Court book at pages 41 to 49.
In response, by email dated 6 November 2015, the applicant provide a response addressing, among other things, the GTE criterion.[6] He also provide documents which showed that on 30 August 2015, he had completed a Certificate VI in English. The applicant also provided a statutory declaration dated 4 November 2015 regarding the breakdown of his relationship with his former wife. It is common ground that the further material provided did not include a current Certificate of Enrolment (‘COE’).
[6] Court book at pages 53 to 54.
Refusal of subclass 572 application on 7 June 2016
On 7 June 2016, a delegate of the Minister refused the applicant’s application for a student visa. The delegate’s reasons are set out at pages 105 to 109 of the Court Book.
Application to the Tribunal on 30 June 2016
On 30 June 2016, the applicant filed an application for review of the delegate’s decision.[7]
[7] Court book at page 121.
By letter dated 7 February 2018, the applicant was invited to attend a hearing before the Tribunal, initially scheduled for 23 February 2018. This date was adjourned to the 28 February 2018 at the applicant’s request.[8]
[8] Court book at pages 126 to 136.
In the invitation letter, the applicant was requested to provide all documents upon which he would seek to rely. In addition, the applicant was requested to provide a copy of his current COE ‘as required for the grant of a student visa’.[9]
[9] Court book at page 135.
The invitation letter also attached a copy of Direction No. 53, made under section 499 of the Migration Act 1958 (Cth) (‘the Act’), which sets out the matters relevant to the determination of whether the applicant met the GTE criterion.[10] It is not in dispute that the factors set out in Direction No. 53 are not to be used as a checklist, but rather, should guide decision makers in weighing the applicant’s circumstances as a whole.
[10] Court book at pages 137 to 141.
On 28 February 2018, the applicant appointed a new migration agent to assist in his application.[11] At the Tribunal hearing on 28 February 2018, the applicant was accompanied by his representative and assisted by an interpreter in the Punjabi language.
[11] Court book at page 142.
On 2 March 2018, the applicant’s representative provided a post-hearing submission, as well as a series of further documents in support of the applicant’s application.[12] Again, it is not in dispute that these documents did not include a current COE.
[12] Court book at pages 156 to 178.
Relevantly, in the post-hearing submission it was submitted that the applicant’s initial dependent visa had certain limitations on his ability to study and work. In particular, it was submitted that ‘visa condition 8201 … was imposed to his visa only allowed him to study a kind of course that is for the duration of 3 months or less’.[13]
[13] Court book at page 158.
The applicant further explained that the COEs which he had provided in support of his initial application for a student visa made on 2 September 2015 expired after 60 days, as it was conditional upon a student visa being granted.[14]
[14] Court book at page 159.
Attached to the post-hearing submission was a current ‘letter of offer’ in a registered course, being the ‘Diploma of Leadership and Management’ at the Australian College of Trade.[15]
[15] Court book at page 166.
This letter of offer went on to say:
To confirm your acceptance of this offer, complete and return the attached International Student Acceptance Agreement along with payment as outlined. Once your initial payment has been received, we will issue you with an Electronic Confirmation of Enrolment (eCOE). The eCOE is required by the Department of Immigration & Citizenship for processing your Student Visa. …
Annexed to the offer letter, as indicated, is an International Student Enrolment Acceptance Agreement which appears to have been signed by the applicant on 28 February 2018, being the same day as the Tribunal hearing. Notwithstanding the applicant having been given additional time to provide further information, there is no explanation in the post-hearing submission as to why a further and current COE was not provided.
Tribunal decision on 7 March 2018
In its decision record dated 7 March 2018, the Tribunal set out the background to this matter, including a summary of the delegate’s findings and the Tribunal hearing.[16]
[16] AAT decision record dated 7 March 2018 at paragraphs [1] to [6].
The Tribunal then set out its considerations of the applicant’s claims and the evidence at paragraph [7] onwards. Relevantly, the Tribunal noted that the issue before it was whether the applicant satisfied the criterion in clause 572.223 of schedule 2 of the Migration Regulations 1994 (‘the Regulations’). The Tribunal noted that in considering whether this criterion was met, it was required to have regard to Direction No. 53.
At paragraph [16] of its reasons, the Tribunal records that it sought clarification from the applicant as to whether he had a current COE. In this regard, the Tribunal notes that the applicant said that he did not and that he was in the process of obtaining one, but that he did have an offer of enrolment. Relevantly, the Tribunal noted that the offer of enrolment:
… provided to the Tribunal on 2 March 2018 showed that the applicant had been offered enrolment by the Australian College of Trade to undertake a Diploma of Leadership and Management, however, in the context of the extension of time granted by the Tribunal until the close of business on Friday 2 March 2018, the applicant did not produce a valid certificate of enrolment, as required under cl 500.211 of Schedule 2 of the Regulations.
The Tribunal then at paragraphs [18] to [19] of its decision record dealt with the fact that the applicant had not engaged in any formal course of study other than the Certificate IV in Business, which he completed on 21 March 2016.
At paragraphs [21] to [22], the Tribunal set out its exchange with the applicant about its understanding that he had study rights under his bridging visa which he had not appeared to have taken up. As stated, counsel for the Minster conceded that the Tribunal was under a misapprehension that the applicant did, in fact, have the right to engage in study whilst on a bridging visa whereas he in fact did not. I will address this issue further below in dealing with the applicant’s grounds of review.
The Tribunal decision record then sets out relevant information about the applicant’s living arrangements in Australia, his connections in India and his previous study whilst in Australia.[17]
[17] AAT decision record dated 7 March 2018 at paragraphs [24] to [30].
At paragraphs [32] to [37], the Tribunal sets out a summary of the submission made on the applicant’s behalf by his representative. Relevantly, the Tribunal records at paragraph [32] that a further opportunity was provided to the applicant’s representative to submit any other material relevant to the applicant’s review application and that a post-hearing submission was received by the Tribunal on 2 March 2018.
At paragraphs [38] to [40] of its decision record, the Tribunal sets out its reasoning in relation to the applicant’s claim, concluding that the applicant does not meet the criterion to establish that he was a genuine temporary entrant.
Relevantly, the Tribunal based this conclusion on the following factors:
·the applicant made his application for a student visa six days after he was served with a NOICC of his dependent student visa. The Tribunal relevantly stated that it:[18]
[18] AAT decision record dated 7 March 2018 at paragraph [38(a)].
… is of the view that this was an impulsive decision, without any background of an intention to study in Australia and was initiated for the purposes of retaining residency in Australia;
·the applicant did not have a current COE despite having been provided with an opportunity to obtain one post-hearing, and therefore, the applicant did not meet the requirements of clause 500.211 of schedule 2 of the Regulations;[19]
·in the course of discussing the absence of a COE, the Tribunal member also noted that the applicant had not studied whilst in Australia other than undertaking a Certificate IV course in Business which he completed in 21 March 2016. In this context, the Tribunal noted:
This represents a period of almost two years, without undertaking any study. In this regard, the Tribunal does not accept the claim that there was confusion regarding the applicant’s status regarding ‘permission to study’ as the Bridging visa clearly provided that right.[20]
·the applicant had not maintained substantive ties with his country of residence;[21]
·the applicant’s plans to support his parents’ business on his return was not well thought through;[22]
·the applicant’s behaviours since his arrival in Australia were not consistent with the behaviours expected of a temporary entrant and the Tribunal formed the view:
... that the applicant is using the Student visa education program to circumvent permanent entry programs available for that purpose.[23]
[19] AAT decision record dated 7 March 2018 at paragraph [38(b)].
[20] AAT decision record dated 7 March 2018 at paragraph [38(b)].
[21] AAT decision record dated 7 March 2018 at paragraph [38(c)].
[22] AAT decision record dated 7 March 2018 at paragraph [38(d)].
[23] AAT decision record dated 7 March 2018 at paragraph [32].
Consequently, the Tribunal concluded that the applicant did not meet the temporary entrant criterion in clause 572.233 of the Regulations.
In addition, the Tribunal was not satisfied that the requirements of clause 500.211 were met. It is submitted for the Minister that although the Tribunal member referred to clause 500.211, this was a typographical error and it should be read as a reference to clause 572.222, which was the applicable regulation, and relevantly, in the same terms.
At paragraph [40] of its decision record, the Tribunal considered whether the applicant met the requirements for any other subclass and concluded that he did not. Therefore, the Tribunal concluded that as the applicant did not meet the criterion for the grant of a student visa, the Tribunal was required to affirm the delegate’s decision, and it did so.
GROUNDS OF REVIEW
In his application to this court, the applicant raised the following grounds of review:[24]
1.The decision has been heavily influenced with bias towards my circumstances and the member failed to consider the case on its merits and the decision is affected by judicial errors.
2.The member made judicial error in interpreting the ‘genuine student’ term and had total disregard to the fact that I did complete one certificate IV in Business. The member based the decision on his assumption of my intention rather than evidence.
3.I request you to kindly consider this matter and allow me to complete my course so that I could return home with some pride.
[24] Application filed on 29 March 2018.
Notwithstanding the orders made by Registrar Van der Westhuizen on 5 November 2021, permitting the applicant to file any amended application with proper particulars 28 days prior to the hearing in this matter, the applicant did not file any amended application.
He did, however, file an affidavit on 29 December 2021 which is headed ‘Jagsir Singh Written Submission and Grounds details’. In that affidavit, which is really in the nature of written submissions, the applicant raises the following additional possible grounds of review:
·the Tribunal erred in concluding that the applicant did have study rights whilst on a bridging visa when in reality he did not:
·the Tribunal relied upon the fact that the applicant had not undertaken any course of study other than the Certificate IV in Business as a basis to find that he was not a genuine temporary entrant;
·in failing to make available information to the applicant which made it clear that he was the holder of a Bridging Visa E which had a restriction on his ability to study at the relevant time, the Tribunal breached sections 359 and 362A of the Act; and
·the applicant further submits that the manner in which the Tribunal addressed the issue of the applicant’s study rights is further evidence that the Tribunal’s decision was ‘biased’ and based on ‘unrealistic, wrong facts’ and ultimately that the Tribunal failed to give him a proper hearing;[25]
·the applicant asserts that the Punjabi interpreter was not NAATI accredited and did not properly interpret during the Tribunal hearing:
·the applicant asserts that the Tribunal was putting words in his mouth and breached section 366C of the Act;[26]
·the Tribunal’s application of Direction No. 53 was ambiguous and illogical: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31];[27]
·the Tribunal’s decision is affected by jurisdictional error insofar as it failed to consider a submission of substance and ignored the applicant’s evidence about his intended studies and the application to which he intended to put these studies when he returned home: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863;[28]
·the Tribunal failed to provide the applicant with a fair hearing and its decision was based on irrelevant or wrong facts.[29]
CONSIDERATION
[25] Applicant’s affidavit affirmed on 28 December 2021 and filed on 29 December 2021 at paragraph [7].
[26] Applicant’s affidavit affirmed on 28 December 2021 and filed on 29 December 2021 at paragraph [8].
[27] Applicant’s affidavit affirmed on 28 December 2021 and filed on 29 December 2021 at paragraph [11].
[28] Applicant’s affidavit affirmed on 28 December 2021 and filed on 29 December 2021 at paragraph [12].
[29] Applicant’s affidavit affirmed on 28 December 2021 and filed on 29 December 2021 at paragraph [13].
Ground 1
An allegation of bias is a serious one. In order to make it out in the context of proceedings before the Tribunal, the applicant must show that a fair-minded lay observer, properly informed, might reasonably apprehend that the Tribunal might not have bought an impartial mind to the decision before it.[30]
[30] Re Refugee Review Tribunal; ex parte H (2001) 179 425 at [27]-[28].
The applicant has not put the transcript of proceedings before the Tribunal before this court. In the absence of that, or indeed any other evidence as to what occurred before the Tribunal, the applicant’s claim of bias cannot be made out.
The mere fact that the Tribunal came to an adverse view itself is not evidence of bias. Nor is the fact that the Tribunal was operating under a mistaken understanding that the applicant had study rights under his bridging visa. The bridging visa issued on 2 September 2015, on its face, did seem to have such rights attached. An error of this nature of itself is not evidence to support a claim of apprehended bias. This is particularly so given that an allegation of bias must be ‘distinctly made and clearly proved’.[31]
[31] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]
Ground 1 is therefore not made out.
Ground 2
By ground 2, the applicant asserts that the Tribunal misinterpreted the ‘genuine student’[32] term, disregarded that the applicant had undertaken a Certificate IV course and otherwise did not rely on the evidence before him. I understand this to be a claim that the Tribunal misinterpreted the ‘genuine temporary entrant’ criteria.
[32] I understand this to be a reference to the requirement that the applicant demonstrate that he was a ‘genuine temporary entrant’.
A fair reading of the Tribunal’s reasons for decision make it clear that the Tribunal did not misinterpret the requirements to establish that the applicant was a ‘genuine temporary entrant’. The Tribunal properly identified the issues before it and the appropriate provisions that it had to consider.[33] It then identified the relevant evidence at paragraphs [19], [23] to [29] and [31]. The Tribunal then assessed the evidence before it against this criteria at paragraph [38].
[33] See paragraphs [8] to [10] of the AAT decision record dated 7 March 2018.
In relation to the Certificate IV course, the Tribunal accepted that the applicant had undertaken this course at paragraph [38(b)] where the Tribunal noted:
…the applicant has not been enrolled in any course of study since engaging in a certificate IV in Business, which finished on 21 March 2016…
It is clear that the Tribunal accepted that the applicant had undertaken this course, but that the Tribunal was concerned that he had not undertaken any course since. I will deal with this issue further below.
To the extent that the applicant claims that the Tribunal did not have regard to evidence, but rather, relied upon assumptions, I understand this to be a challenge to the Tribunal’s rejection of the applicant’s evidence that it was his genuine intention to undertake further study in Australia. Ultimately, this was a key issue before the Tribunal, and in respect of which the Tribunal had to make a determination based, not only on the applicant’s evidence that this was his intention, but on the totality of the evidence before him, and in particular, balancing the factors identified in Direction No. 53. It was open to the Tribunal to weigh the applicant’s evidence together with other evidence and inferences properly drawn.
In effect, this aspect of ground 2 takes issue with the conclusion reached by the Tribunal and seeks impermissible merits review.
For each of these reasons, ground 2 does not disclose any jurisdictional error and is therefore not made out.
Ground 3
Ground 3 does not identify any jurisdictional error and simply invites the court to conduct a review. It therefore does not indicate any jurisdictional error on the part of the Tribunal.
Further grounds of review
I will now address the further ‘grounds’ to the extent that they are raised in the applicant’s affidavit filed on 29 December 2021.
Applicant’s study rights
In relation to the applicant’s study rights, it is conceded by the Minister that the Tribunal erred in its understanding that the applicant was the holder of a bridging visa which permitted him to study. However, it is further submitted that this error is not material.
As noted by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (excluding cases referred to):
29.That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
30.Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’ or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made.
In this case, it is clear that the Tribunal placed some weight in determining whether the applicant met the genuine temporary entrant criterion on the fact that the applicant had not undertaken any study whilst in Australia in the period after August 2015, in circumstances where the Tribunal was under the impression that he had the right to do so.
Having said that, however, it is also clear from a fair reading of the Tribunal’s reasons that there were other significant factors which also weighed against a conclusion that the applicant satisfied the criterion of a genuine temporary entrant.
As noted above, in particular, the Tribunal also had regard to:
·the timing of the applicant’s application for a student visa;
·the lack of thought through plan regarding how the applicant proposed to put his education to use on his return to his country of residence;
·the lack of clarity around when he intended to return to his country of residence; and
·the fact that he had not maintained strong ties with his country of residence.
When viewed in context, the applicant has not demonstrated that if the Tribunal had not made a mistake about whether or not he had the ability to study whilst on a bridging visa, there was a reasonable prospect of a different outcome.
In any event, even if I am wrong about this, the Tribunal’s decision could properly be upheld on a separate and distinct basis, namely that the applicant did not, at the time of the Tribunal’s decision, have a valid Certificate of Enrolment. As such, the applicant did not satisfy, and was not capable of satisfying, the primary criteria of clause 572.222 of schedule 2 of the Regulations. As such, this provided a separate basis for the Tribunal’s decision and therefore any error arising from the Tribunal’s misunderstanding of the applicant’s study rights was not material to the ultimate decision made.
The applicant has also made reference to an alleged breach of sections 359 and 362A of the Act and asserts that in failing to make available material which established that he had been issued a visa which did not have study rights attached, the Tribunal breached these provisions.
Section 359 of the Act provides that the Tribunal may, in conducting a review, get any information that it considers relevant. It is not required to do so. There is no evidence before the court which establishes that the Tribunal had information about the applicant having been issued with a Bridging Visa E. Indeed, it is clear from the Tribunal’s reasons that the Tribunal believed, incorrectly as it transpires, that it had access to this information at the time that it made its decision. The applicant has therefore not established any breach of section 359.
Similarly, section 362A of the Act provides that the applicant is entitled to access to any material before the Tribunal. For similar reasons, there is no evidence that this material was, in fact, before the Tribunal.
Interpreter issue
The applicant raises concerns about the quality of the interpreter services provided in the Tribunal hearing. It is clear from the Hearing Record at page 147 of the Court Book that an interpreter was present and the record indicates that the interpreter was not NAATI accredited.
It is not apparent from the material contained in the Court Book or the decision record itself that the applicant was unable to understand the Tribunal member, or indeed, convey his views to the Tribunal member. Moreover, the applicant was represented at the Tribunal hearing and it appears from the decision record that submissions were made on his behalf by his representative. There is no evidence in the decision record itself that the applicant or his representative had difficulties with the interpreter service provided.
Moreover, as noted, the applicant’s representative provided a post-hearing submission in writing dated 2 March 2018. At no stage in that written submission was any issue raised about the quality of the interpreting provided at the hearing.
In the absence of any evidence, including, for example, a transcript of the hearing, the applicant has not established that the quality of the interpreting provided, in effect, denied the applicant a proper hearing, or that it was otherwise deficient. The mere fact that an interpreter is not NAATI accredited does not establish error.
The applicant also asserts that the Tribunal failed to comply with the requirements of section 366C of the Act. That section requires that if an applicant requests an interpreter for the purposes of a hearing before the Tribunal, the Tribunal must comply with that request, unless the Tribunal forms the view that the person is sufficiently proficient in English. In this case, the applicant made a request for an interpreter in the Punjabi language and an interpreter in the Punjabi language was provided. As such, there has been no breach of section 366C.
This allegation has therefore not been made out.
Failure to consider the applicant’s evidence
The applicant further submits that the Tribunal’s decision is affected by jurisdictional error insofar as it failed to consider a submission of substance and ignored the applicant’s evidence about his intended studies and the application to which he intended to put these studies when he returned home: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 (‘SZSSC’).
In SZSSC, a case which arose in the context of a protection visa application, Griffiths J noted at [56]:
[56]In my opinion, the statutory obligation on the Tribunal to invite an applicant to present arguments i.e. make submissions, relating to the issues arising in relation to the decision under review indicates that, in conducting such a review, the Tribunal must consider any such arguments or submissions, at least those which are of substance and are clearly articulated.
In that case, the court considered the authorities on illogicality and irrationality and concluded that the Tribunal’s reasoning in that case was illogical or irrational.
To the extent that the applicant asserts that the Tribunal’s reasoning in relation to whether he met the genuine temporary entrant criterion in circumstances where it had incorrectly proceeded on the basis that he had not engaged in any study for over two years when he had the right to do so, for the reasons set out above, it is not necessary for me to determine that issue in circumstances where the Tribunal also found that the applicant did not have a current enrolment as required. In those circumstances, the applicant did not meet the criteria for the grant of a student visa, even if the Tribunal had accepted the applicant’s reasons for not having undertaken study since completing the Certificate IV course.
For each of these reasons, this aspect of the applicant’s grounds of review is not made out.
Application of Direction No. 53
The applicant also claims that the Tribunal’s application of Direction No. 53 was ambiguous and illogical.
As stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]:
[130]In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words … an allegation of illogicality or irrationality … is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.
[131]… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But the test of illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In this case, the Tribunal referred to the factors to which it needed to have regard in determining whether the genuine temporary entrant criterion had been met as set out in Direction No. 53 at paragraph [9] of its decision record. The Tribunal then went on to consider each of those matters, having noted that the factors set out in Direction No. 53 are not to be used as a checklist, but rather, are to be used as a guide.
Moreover, the Tribunal also had regard to a range of factors, other than the applicant’s lack of engagement with study, which ultimately weighed against a finding that the applicant was a genuine temporary entrant. In particular, the Tribunal considered the:
·circumstances in which the application for a student visa was made, namely six days after he was issued with a NOICC;
·his evidence about the lengths the applicant had gone to in maintaining substantive ties with his country of residence; and
·the applicant’s evidence about his plans to return to his country of residence and the changes to his plans to support his father’s business.
In any event, even if it could be said that the error made by the Tribunal in believing that the applicant had not undertaken study for two years when he could have was irrational or illogical, it remains the case that the Tribunal concluded as a threshold matter that the applicant did not have a current Certificate of Enrolment. Therefore, even if the Tribunal had not made this mistake, it would have come to the same conclusion, namely that the applicant did not meet the requirements for the issuing of a student visa.[34]
[34] See paragraphs [38(b)] and [39] of the AAT decision record dated 7 March 2018.
In those circumstances, it cannot be said that the Tribunal’s dispositive findings were illogical or irrational.
For each of these reasons, this ground of review is not made out.
CONCLUSION
As none of the applicant’s grounds of review have been established, the applicant must be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 13 May 2022
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