Sultana v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 128
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sultana v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 128
File number: SYG 1645 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 February 2025 Catchwords: MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (Class TU) (subclass 500) visa – s 359 request - allegation that the Tribunal should have requested ‘specific’ information rather than ‘general’ information – illogicality or irrationality in the Tribunal decision – no jurisdictional error established – application dismissed – costs. Legislation: Migration Act 1958 (Cth) ss 359, (1), 359(2), 359(3)(a), 359B(2), 359C, 359C(1), 360, 360(3), 363A, 379A, 379A(5), 379G, 499.
Migration Regulations 1994 (Cth) regs 4.17(b)(i), 4.17(4)(b)(i), sch 2 cls 500.211 - 500.218.
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 23 January 2025 Place: Parramatta Solicitor for the First, Second and Third Applicants: Mr Turner (Ray Turner Lawyers) Solicitor for the First Respondent: Ms Evans (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1645 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAHSEEN SULTANA
First Applicant
KHAJA NAYEEM ULLAH KHAJA NAYEEM ULLAH
Second Applicant
KHAJA MUZAMMIL ULLAH KHAJA MUZAMMIL ULLAH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The application is dismissed.
3.The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $ 8,371.30.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”), as it was then, dated 3 June 2020 affirming the decision of a delegate of the Minister for Home Affairs (“delegate”) to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (“the visa”).
For the reasons set out below, the application must be refused.
BACKGROUND
The applicant (“first applicant”) is a citizen of India. She first arrived in Australia on 10 April 2016 and was listed as a dependent on her husband’s student visa.
On 27 November 2018, the first applicant applied for a student visa to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management with a completion date of 11 October 2020. The first applicant listed her husband and son, the second and third applicants in this matter, as dependants.
A delegate refused the grant of the visa on 26 March 2019. On 12 April 2019, the applicants applied to the Tribunal for merits review.
On 23 April 2020, the Tribunal, pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) by way of email addressed to the applicant’s Migration Agent (“s 359 letter”), invited the applicants to provide information that she met the requirements of the visa, including that she was enrolled in a registered course of study and met the criteria for a genuine applicant for entry and stay as a student. The s 359 letter provided that the information should be received by the Tribunal by 7 May 2020. Further, the letter stated that in the event the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review and the applicants would lose the right to appear at a hearing.
On 24 May 2020, the first applicant wrote to the Tribunal for an extension to provide the requested information because her “agent forget to send me the email from the AAT” (CB, 100).
On 25 May 2020, the Tribunal informed the applicants that they had lost their right to a hearing due to a failure to respond within the prescribed time. They were to provide any information relevant to the review as soon as possible as a decision could be made at any time (CB,104). The first applicant provided a completed ‘Request for Student Visa Information’ form and two confirmations of enrolment (COE).
On 3 June 2020, the Tribunal affirmed the delegate’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal set out that in accordance with s 360(3), the first applicant was not entitled to appear before the Tribunal in circumstances where she did not respond to the Tribunal’s invitation to provide information within the time required. Thus the effect of s 363A of the Act was that the Tribunal has no power to permit the review applicant to appear; (see: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”)).
The Tribunal noted that although the applicant’s request for an extension of time was refused, the Tribunal still had regard to the material filed out of time, being a written response to the s 359 letter and two COE’s.
The Tribunal then instructed itself as to the legislative criteria that the applicant must satisfy for the grant of a Student (subclass 500) visa as set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), clause 500.211 to cl 500.218. The Tribunal also had regard to Direction No. 69, made under s 499 of the Act.
The critical issue for this review was whether the applicant satisfied the primary criteria set out in cl 500.212.
In considering the applicant’s evidence, the Tribunal made the following findings:
·The applicant stated in her genuine temporary entrant (“GTE”) criterion statement that she returned to Australia in December 2017 and applied for a student visa hoping to make a career in the hospitality industry when she returned to India. The Tribunal noted at [20] that the applicant’s evidence as to what she wanted to do when she returned to India was vague and unclear other than referencing work that she sought in the hospitality industry.
·The Tribunal regarded the applicant’s career goals as being not well developed, as she did not provide an explanation, noting that she was not required to provide one, for her change from science to business related studies to hospitality [21].
·The Tribunal did not consider a letter provided by the applicant from the 4 Seasons multi cuisine Restaurant and Caterers dated 14 February 2019 to be a job offer [22].
·Without further evidence to suggest otherwise, it was not likely the applicant would be in a better position to secure her employment or increase her remuneration in her home country or a third country if she completed the proposed course.
·The Tribunal considered that the applicant’s proposed course of study was being used as a mechanism to remain in Australia as she was enrolling in courses at a lower level than her overseas university accomplishments [24]. Further, the Tribunal did not find that the applicant demonstrated a need to study a further Diploma course after completing a Certificate IV in Commercial Cookery which should be sufficient for her to find suitable employment in India [25].
·The applicant’s family ties to India did not operate as an incentive for her to return home. The applicant’s immediate family and brother were present in Australia. She had only travelled to her home country twice and she was seeking to extend her time in Australia. This presented as strong incentives to remain in Australia.[27]-[28].
·With regard to the applicant’s economic circumstances, the Tribunal did not regard that the overseas property she owned, valued at $50,000.00 AUD, the economic disparity between Australia and the applicant home country, India, the potential for the applicant and her husband to find ordinary employment and earn Australian dollars as strong incentives to return home. The Court notes there is a reference to Nepal at [34] rather than India. Both parties agree this is an error in the decision record.
The Tribunal considered the evidence cumulatively and concluded that the applicant was trying to maintain ongoing residence in Australia via the student visa schemes. As such the decision of the delegate as to the first applicant was affirmed.
On the basis that the applicant did not meet the primary criteria, the applicant’s husband and son as secondary listed applicants did not meet the criteria for the grant of the visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Amended Originating Application filed in Court, without objection, on 23 January 2025. The grounds are as follows (less particulars):
1.The Tribunal denied the Applicants procedural fairness.
2.The Tribunal decision was illogical and irrational.
THE APPLICANT’S SUBMISSIONS
The applicant’s initial written submissions were filed on 28 October 2020. Upon procedural orders made by a Registrar of the Court, the applicant’s filed supplementary submissions on 19 December 2024 and continue to rely upon the 28 October 2020 submissions.
Ground one contends that the applicants were denied procedural fairness because the s 359 letter was invalid, and the Tribunal relied on the alleged invalid notice to deny the applicant’s a hearing.
The applicants submits that the Request for Student Visa Information form only requested generic information about the application and did not ask specific questions. This allegedly invalid invitation purportedly to seek information under s 359 amounted to a “fishing expedition” to identify information that could be used adversely against the applicant.
The invitation cannot be regarded as proper where the Tribunal has access to information about the applicant held by the Department of Home Affairs and proceeded to ask for more generic information about the student visa. The applicant submits “the relevance of the generic information to the decision under review is not apparent”.
The applicant cites Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [33] for the High Court’s explanation of procedural fairness. The applicant complains that only “generic information” was requested and not “specific information” with no explanation of the relevance. In this way, the invitation failed to comply with s 359 and denied the applicants procedural fairness by further denying them an opportunity to attend a hearing.
In supplementary submissions, the applicant maintains the argument that the invitation was not a valid request for information, it did not mention s 359 and the time given to the applicants to respond had no “legislative foundation”.
It is contended, in the alternative, even if the invitation was valid, the applicant’s failure to comply with the request did not warrant them to lose their right to a hearing and ss 359 and 360 read together do not bar the applicant from a hearing.
In the new ground two, the applicants submit that the Tribunal decision is illogical and irrational to find that Bachelor of Science was relevant to a job in hospitality and a Diploma in Hospitality is not of any “real value”.
The applicant submits that the finding of the Tribunal is illogical or irrational as the applicant had set out her desire to work in the hospitality industry (CB, 123 [20]) and asks the Court to read [23] and [38] of the Tribunal decision in isolation.
THE FIRST RESPONDENT’S SUBMISSIONS
As to ground one, the submission that the Tribunal should have requested specific information rather than generic information stands in apparent ignorance with the first words of s 359(1) that, “In conducting the review, the Tribunal may get any information that it considers relevant”. The power in this section is well-settled as a general power. The only limitation placed upon that power is that the Tribunal must have regard to that information in making its decision. The information considered in making the decision is a matter for the Tribunal and is not dependent upon a taxonomy that is invented by the applicants to distinguish “generic” or “specific” information.
The information sought in the s 359 letter was plainly relevant to the criteria used in assessing the grant of the visa.
The first respondent contends that the letter was in compliance with the relevant legislative requirement as it:
a. Specified that the information was to be given in writing;
b. Was given to the applicants’ authorised recipient by one of the methods specified in s 379A of the Act, namely by email to the email address provided to the Tribunal in connection with the review; s 359(3)(a), s 379A(5) and s 379G; and
c. Specified the period of time in which the applicants were required to provide the information requested being the prescribed period of 14 days from when the invitation was received:
Additionally, in circumstances where the applicants did not respond to the Tribunal’s invitation, they lost their entitlement to a hearing pursuant to ss 359C(1) and 360(3) of the Act and were no longer permitted to appear for a hearing. There is no jurisdictional error in these circumstances.
In relation to the applicant’s submission that the time period prescribed to the applicants had no legislative foundation, it was submitted that reg 4.17(4)(b)(i) of the Regulations applied at the time of the Tribunal’s decision and read together with s 359B(2) of the Act, required that the Tribunal provide a 14-day period for the applicant to respond to the invitation. This was not complied with. The applicants responded to the invitation on 14 July 2020 which was 68 days late.
As to the applicant’s submission that the Tribunal already had information on the applicants provided by the Department, this contention cannot stand as it asks the Court to read into the terms of the legislation any limitations on the types of information that can be requested by the Tribunal. The words of the legislation cannot support this reading. Section 359 provides a general power for the Tribunal.
Further, the information sought by the Tribunal in its s 359 letter was plainly relevant to it as demonstrated in its decision at [7], [18]-[19] and [27].
As to the alternative argument advanced by the applicants of the validity of the notice, the consequence of failing to provide the requested information specified in the letter was the loss of any entitlement to a hearing. The applicants were plainly put on notice of that risk in the invitation letter. The applicant’s exclusion from the hearing was not a discretionary power exercised by the Tribunal, but the consequence of their failure to respond. The Tribunal had no power to permit the applicant to attend a hearing. The Tribunal complied with their procedural fairness obligations.
Ground two contends illogicality or irrationality in the Tribunal’s finding that the applicant’s Bachelor of Science was not of any “real value” to her desire to work in hospitality. The applicant must show more than emphatic disagreement with the reasoning of the Tribunal; (see: Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [124], [129] (Crennan and Bell JJ); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [126] (Gummow J). It must be demonstrated that the decision made is one that no rational or logical decision maker could also have arrived at based on the same evidence; (see: SZMDS at [130]).
Although the applicant referenced parts of the decision in isolation to demonstrate illogicality or irrationality, when read together and considered in light of the Tribunal’s findings as a whole, ground two has a misconceived nature.
The Tribunal made findings that were open to it for the reasons given regarding the applicant’s vague intentions to switch from science to business to hospitality. Further, it noted that the first applicant would have developed skills in her Bachelor of Science degree that would have been well placed for employment upon her return to India. The Tribunal had already found that the applicant completed a certificate in commercial cookery.
When regarded together, the Tribunal had an open and logical basis to find that the applicant’s proposed future courses would not support her employment when compared with the successful study she had already undertaken. This is the basis upon which the finding that the proposed study would not offer any real value was made. The applicant’s complaint can be taken as a mere disagreement with the merits of the Tribunal’s factual findings and the Court has no jurisdiction to conduct merits review.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).
In SZMDS, the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for 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.
Ground One
Ground one is a complaint of a denial of procedural fairness involving multiple particulars. The first is that the letter sent requesting further information is invalid as it did not comply with s 359 of the Act.
The Tribunal provided the applicants with a written invitation to provide information dated 23 April 2020 and provided a link to a form titled “Request for Student Visa Information” which could be accessed by clicking a link provided in the letter. It is contended that form only requested generic information and failed to ask specific questions requesting information relevant to the review. It is contended this was not a valid invitation to seek information under s 359 and all the Tribunal did was to engage in a ‘fishing expedition” to identify information that could be used adversely against the applicant. The Court does not accept this submission. No authority was put to the Court to support this interpretation of the power in s 359.
A fair reading of s 359 reveals it is a general power which is not subject to any specified limits. While it may be the case that some of the information requested was already before the Tribunal, given the time delay between any delegate’s decision and a Tribunal hearing, updating all the relevant information in a manner that is readily useable by the Tribunal in conducting its review is both appropriate and a proper exercise of the power in s 359. This aspect of the grounds has no merit.
The next complaint is that even if the invitation was valid, the applicant’s failure to provide the information requested did not mean they lost their entitlement to a hearing. Sections 359, 359C and 360 of the Act, as at the time of the Tribunal decision, read relevantly as follows:
359 Tribunal may seek information
(2) Without limiting subsection (1), the Tribunal may invite either orally (including by telephone) or in writing, a person to give information.
359C Failure to give information, comments or response in response to written invitation
If a person:
(a)is invited in writing under section 359 to give information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
360 Tribunal must invite applicant to appear
(2) Subsection (1) [being the duty to invite the applicant to a hearing] does not apply if:
…..
(c) subsection 359C(1) or (2) applies to the applicant.
The applicant contends that the effect of ss 359 and 360 does not have the result of barring an applicant from a hearing. The Court does not agree with this interpretation. The applicants had not provided the information sought within the time period set. Subsection (3) of s 360 clearly states that if any of the paragraphs of subsection 360(2) apply “the applicant is not entitled to appear before the Tribunal”. This is not a discretionary power, and the Tribunal has no power to permit the applicant to appear before it; (see: Hasran at [25] – [32]).
Ground Two
Ground two is a complaint that the Tribunal decision is illogical and irrational. It was contended that the applicant held a Bachelor of Science. At [23], the Tribunal found the applicant would be well placed to find employment in her home country upon return. At [38] the Tribunal found that the proposed courses did not offer any real value to the applicant’s future employment. It is contended that the applicant had expressed a desire to work in the hospitality industry. In these circumstances it was illogical to find that while the applicant held a Bachelor of Science, a Diploma of Hospitality was not of “any real value”. The Tribunal was not required to accept uncritically the assertion the additional course was necessary for the applicant to find employment or work in the hospitality field in India .
As noted by the first respondent, a finding of illogicality or irrationality is a high bar and will not include circumstances where a decision maker might adopt a reasonable, but different reasoning process to arrive at another conclusion. In these circumstances, it is insufficient to conclude the finding arrived at is irrational or illogical.
In considering this ground, the Tribunal decision should be read as a whole in order to understand the reasoning process used by the Tribunal. The Tribunal at [24] noted the applicant’s university degree would provide her with ‘skills in critical thinking’. Further she had already completed a Certificate IV in Commercial Cookery. The Tribunal found at [25] that the applicant had not ‘really demonstrated why she required the additional Diploma in order to find employment’, and at [23] the proposed course would not improve her employment prospects or her potential remuneration on return to India. The Court is satisfied these findings were open to the Tribunal, based on the evidence that was before it and for the reasons it gave. The contention that the findings were illogical or irrational cannot be sustained. Ground two has no merit.
In the applicant’s further written submission, the legal representative for the applicant contended that the 14-day time frame in the s 359 letter for the provision of the information requested had no legislative foundation. The Court does not accept this contention. Regulation 4.17(b)(i) of the Regulations applied as at the time of the decision. The Court accepts the first respondents submission that when read with s 359B(2) of the Act, it required the Tribunal to provide a 14-day time period for the provision of the information.
The Court further notes that the request for an extension of time was received some 17 days after the 14-day time period expired. This ground has not merit.
DISPOSITION
None of the grounds of judicial review have any merit. The application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 February 2025
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