Surjit v Minister for Home Affairs
[2018] FCCA 2310
•26 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SURJIT & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2310 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – Student Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.359AA, 476, 477 Migration Regulations 1994 (Cth) cl. 572.223(1)(a), 573.223(1)(a) |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 |
| First Applicant: | BEYANT SURJIT |
| Second Applicant: | NARINDER KUMAR |
| Third Applicant: | HARPREET VIRDI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 8 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 14 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 September 2018 |
REPRESENTATION
| The Applicant | In person with the assistance of an interpreter |
| Counsel for the Respondent: | Mr Lettenmaier |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applicant’s application is dismissed.
The applicant is to pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 8 of 2018
| BEYANT SURJIT |
First Applicant
| NARINDER KUMAR |
Second Applicant
| HARPREET VIRDI |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 4 January 2018, the first applicant (the “applicant”) seeks judicial review of a decision of the Administrative Appeals Tribunal (the “AAT”) dated 11 December 2017, affirming a decision of a delegate of the first respondent (the “delegate”) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (the “visa”). The second and third applicants are members of the applicant’s family unit.
The applicant seeks judicial review in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
The applicant has applied for an extension of time under s.477 of the Act. As the application was made within 35 days of the date of the migration decision, it is not necessary for the Court to consider this issue.
The applicant’s application does not outline what orders she seeks. The Court assumes that she seeks an order that the decision of the AAT be quashed and a writ of mandamus requiring the AAT to determine the applicant’s application according to law.
To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision.
Synopsis
For the reasons set out below the Court finds that the applicant has failed to show that the AAT fell into jurisdictional error. Consequently, the applicant’s application for judicial review is dismissed.
Preliminary Issue: request for an adjournment
Approximately 15 minutes before this hearing was scheduled to commence, the Court was advised that the applicant’s husband (the “second applicant”) had provided the Court Registry with a medical certificate from the applicant’s medical practitioner. The second applicant indicated that he was seeking an adjournment on behalf of his wife because she was too ill to attend.
At the commencement of the hearing, the Court advised the legal representative for the Minister that the applicant was now seeking an adjournment. Counsel for the Minister was aware that a request had been sought and provided the Court with other medical records in relation to the applicant’s medical history.
The applicant’s medical certificate was dated 13 August 2018. It provided as follows:
We write to you today to inform you that Mrs Beyant Surjit … has a medical condition. She is taking regular medications which have potential side effects including, but not limited to, drowsiness, nausea, vomiting, malaise and headaches. She will be unfit for work and travel from 13/08/2018 to 17/08/2018 inclusive. If you have any queries, please don’t hesitate to contact us.
The applicant was not present in Court. Her husband spoke on her behalf through an interpreter in the Punjabi language. He indicated that his wife was sick and sought an adjournment of approximately one month.
Counsel for the Minister objected to an adjournment being granted. He did so on the basis that the medical evidence did not sufficiently outline why an adjournment should be granted. Specifically, counsel argued that:
(a) the contents of the medical certificate are vague and do not specifically indicate why the applicant is unable to appear in Court; and
(b) the other medical evidence filed on the applicant’s behalf does not adequately explain what the applicant’s medical condition is and, importantly, why she is unable to give evidence to the Court either in person or otherwise.
In relation to whether or not an adjournment should be granted for medical reasons, the Court notes the reasons of Judge Lucev in Mohammed Zubair v Minister for Immigration & Border Protection & Anor (2017) FCA 2905 at [7], [11], [12], [13], [14] and [15] as follows:
7.In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
11.Any adjournment application in this Court must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a) as informal as possible in the exercise of judicial power;
b) which is not protracted in its proceedings;
c) which resolves proceedings justly, efficiently and economically;
d) which uses streamlined procedures; and
e) that avoids undue delay, expense and technicality:
Sandeep v The Minister for Immigration [2016] FCCA 3339 at [23] per Judge Lucev, and the cases there cited.
12.The Court must also take into account, when determining whether or not to grant leave to allow an adjournment:
a) that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b) modern principles of case management;
c) the avoidance of undue delay; and
d) the wastage of public resources;
and the Court refers to Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ, and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
13.The Court also notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers (1969) WAR 19 at [21] per Jackson J; MZZZL v Minister for Immigration and Another [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
The second applicant was asked why the medical certificate in question does not address whether or not the applicant is able to attend or present evidence in a court proceeding. He indicated that he and his wife are not legally trained and that, as a consequence, they did not understand that the letter needed to specifically address the notice of Court proceedings.
This strikes the Court as a fair enough comment. While it is one thing to expect someone who has legal representation and who is fluent in the English language to understand legal intricacies, it is quite another to expect an unrepresented litigant who does not have a firm grasp on the English language to understand what she should ask of a medical practitioner writing a medical report on her behalf. The Court is sympathetic to the frustrations felt by the applicants in this regard.
The second applicant was asked by the Court whether his wife might be able to attend via telephone. He indicated, that in his opinion, she would be able to do so. In the circumstances, the Court made arrangements to telephone the first applicant and then determine whether or not the proceedings could continue.
The applicant spoke to the Court via telephone. She indicated that she was indeed sick, suffered from a very bad cough, was nauseous and could not travel to the Court. The Court accepts this to be the case.
The applicant was then asked whether she would be able to proceed via telephone if the Court took her through the legal complexities in question in relation to her substantive matter and if she were given opportunities to take breaks when needed.
The applicant agreed to proceed on this basis.
In the circumstances, the Court is of the view that the request for an adjournment was withdrawn. The Court should state, however, that even if the applicant had not formally withdrawn her request for an adjournment (and the Court does not believe that to have been the case here) the Court would not have granted the adjournment. On the basis of the case law outlined above, the Court is not satisfied on the evidence that this was an appropriate case in which to exercise its discretion to adjourn. The applicant was clearly capable of giving evidence via telephone.
The Court initially queried why the applicant, who appeared to be fluent in the English language and who had been studying in Australia for almost eight years, required an interpreter. The applicant explained that because of the “complex legal nature” of these court proceedings, she would be better able to express her concerns if she spoke in Punjabi. The Court has no concerns in this regard and notes, as evidenced below, that the evidence that was given by the applicant via telephone throughout the course of the hearing was helpful, clear and articulate.
The Court thanks the first applicant for her assistance today. The Court notes that she was unwell and appreciates the assistance she provided the Court in what were difficult circumstances.
The Court had before it a Court Book (“CB”) numbering 159 pages. The Court also had written submissions from the Minister dated 3 August 2018.
Background Facts
The Court notes the factual and procedural overview provided in the Minister’s written submissions at paragraphs [3]–[10] and adopts this outline as its own. This overview was not in dispute and provides, relevantly, as follows.
The applicant is a citizen of India who arrived in Australia in 2009 on a student visa. On 11 March 2016 the applicant made an application for the visa (CB 1-11). The application was made on the basis that the applicant intended to study a Certificate IV in Marketing and a Bachelor of Business at Cambridge International College (CB 2 and 37-40). The applicant's husband (second applicant) and her child (third applicant) were included in the visa application as members of her family unit (CB 2-3).
On 14 March 2016, the Department of Immigration and Border Protection (Department) wrote to the applicant seeking further information in relation to whether she met the “genuine temporary entrant criterion” (CB 47-55). On 8 April 2016, the applicant responded and submitted a statement and other supporting documents (CB 56-66).
On 25 July 2016, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia and found that she did not meet cl 573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 69-84).
On 10 August 2016, the applicant applied to the AAT for review of the delegate's decision (CB 85-87). A copy of the delegate’s decision was uploaded with that application (CB 87).
On 16 November 2017, the Tribunal invited the applicant to attend a hearing scheduled for 11 December 2017. The hearing invitation requested that the applicant provide a copy of her current Certificate of Enrolment, documents that showed the applicant was currently enrolled in a course or had an offer of enrolment, documents that showed the applicant's past studies in Australia, and an explanation of any study gaps in the applicant's enrolment. The hearing invitation also attached a copy of Direction No. 53 (Direction 53) (CB 93-96).
On 5 December 2017, the applicant's representative provided a written statement by the applicant to the AAT and further evidence of the applicant's past studies in Australia (CB 111-129). On 8 December 2017, the applicant's representative provided a letter from Murdoch University confirming that because the applicant did not hold a student visa they would not issue a confirmation of enrolment (CB 130-131).
On 11 December 2017, the applicant and her representative attended a hearing before the AAT (CB 132-133). At the hearing, the applicant provided documents showing her conditional offer of admission, subsequent confirmation of offer, and confirmation of enrolment in a Bachelors of Business at an Australian tertiary institution (CB 134-144).
The AAT made an oral decision at the hearing affirming the delegate's decision not to grant the applicant the visa (CB 146-148). On 13 February 2018, the Tribunal published written reasons (CB 149-158).
The AAT’s Decision
The AAT’s decision appears at pages 152–158 in the Court Book. The Court has reviewed the Tribunal’s decision in detail and adopts the Minister’s summary of that decision at [11]-[22] in the Minister’s written submissions.
The AAT noted that in order to be eligible for the grant of the visa, the applicant's circumstances must demonstrate a genuine intention to study in Australia temporarily (CB 153 at [3]).
The AAT explained that, in considering whether the applicant was a genuine temporary entrant, it must have regard to Direction 53. It then outlined that the factors provided in Direction 53 were intended to guide decision makers to reach a finding as to whether the applicant satisfied the genuine temporary entrant criterion. The factors include the applicant’s circumstances, the value of her courses to her intended future, her immigration history, her incentive to stay in Australia or return home, whether she was using the student program to maintain ongoing residence in Australia, and any other relevant matter as determined by the decision-maker (CB 153 at [5]-[6]).
The AAT noted that it had sent the applicant information about Direction 53 and had asked her to provide the AAT with further information. In response, the applicant provided further documentation. At the hearing before the AAT the applicant responded to a range of questions that went to those issues (CB 153 at [7]).
The AAT then summarised the applicant’s educational, work and history, relationship with her family in India and long-term plans:
7. Before coming to Australia, you told the Tribunal, that you completed a Bachelor's degree in Arts, majoring in Computer Applications.
8. You also told the Tribunal that you worked in a receptionist role in an import/export company in India prior to coming to Australia. You came to Australia in June 2009 where you proposed to study a Certificate 3 in Printing and Graphic Arts, Graphic Printing Press. You completed this qualification at the Cambridge International College in 2010. You told the Tribunal about your plan for the future. You also told the Tribunal about your circumstances here in Australia. You told the Tribunal that you were living in Perth, Western Australia, and you worked at an IGA store on weekends where you earn between $300 and $400 AUD per week.
9. You told the Tribunal that your husband also works as a storeman at the same IGA, and earns approximately $400 AUD per week, or $800 AUD per fortnight. You told the Tribunal that your long-term plan is to set up a business. In describing this plan you said that you have "many thoughts in my mind". When the Tribunal questioned you further, and asked you to be more specific about the type of business that you proposed to establish in the future, you said that it could either be in the multi-media field or as an event organiser.
10. You told the Tribunal that you have eight siblings in India, together with your mother and your father. You told the Tribunal that you were now proposing to study a Bachelor of Business at Murdoch University in Western Australia. You told the Tribunal that you have been interested in your current plan, that is multi-media or an event organiser business, since when you started your graphic press course back in 2009. At this point the Tribunal observes that it considers that your plan was vague and imprecise. The Tribunal does not find that you were able to demonstrate any previous meaningful consideration as to what your long-term plan and career ambitions really are.
11. You told the Tribunal that you had been back to India three times since you first arrived in Australia in 2009. You told the Tribunal that your mother-in-law has come to visit you and your husband here in Australia. You told the Tribunal that you initially enrolled in a Bachelor of Business program at the Cambridge International College Australia, and that you later transferred to the Australian School of Management, which also offered a Bachelor of Business program, in February 2017.
12. You told the Tribunal, however, you were impacted by the sudden closure of the Australian School of Management. You told the Tribunal how in May or June 2017 you were forced to find another education provider when the Australian School of Management closed. You told the Tribunal that at the time you transferred to Murdoch University Western Australia. You provided the Tribunal with documentation evidencing that you have completed a number of subjects in the Cambridge International College Bachelor of Business, also in the Bachelor of Business at the Australian School of Management, and that you are enrolled in subjects in the Bachelor of Business at the Murdoch University.
Significantly, the AAT discussed the applicant’s plans to set up a business in India and concluded that those plans were “vague and imprecise”.
The Tribunal then questioned the applicant in relation to why she needed a Bachelor of Business degree from Murdoch University to achieve her long-term goals, as follows:
13. The Tribunal accepts that you have made some progress in your Bachelor of Business course. The Tribunal questioned you as to why you need a Bachelor of Business from Australia to pursue your stated plan. You told the Tribunal that a Bachelor of Business from Australia in India is considered similar to a Master of Business Administration degree. You told the Tribunal that a Bachelor of Business in India is considered a lower level course, and that your parents would like you to achieve a bachelor degree from another country.
14. You told the Tribunal that you planned to return to India as soon as you finished your Bachelor of Business in Australia. The Tribunal queried whether you had considered studying a Bachelor of Business from Australia via correspondence. You told the Tribunal, which the Tribunal accepts may be so, that a Bachelor of Business is not, "as effective practically" as an on-campus degree. You told the Tribunal that studying on-campus gives you the benefit of being able to access a lecturer and a tutor.
The AAT expressed concern over the applicant's “lengthy study history in Australia” (some 8 years) and concluded that the progression of her studies was mostly “sideways” (CB 154 at [15]). In relation to that issue, the Tribunal then canvassed the applicant’s educational history in Australia between 2009 and 2017 (CB 155 at [16] to [22]).
Significantly, the AAT found that the documents submitted in support and the applicant's study progression indicated that some courses were superfluous (CB 155 at [20]), particularly in relation to achieving the applicant's claimed objective of setting up a multi-media business or an event organiser business in India (CB 156 at [25]-[26]).
In relation to the Bachelor of Business studies at Murdoch University, the AAT expressed concern about the value of such a degree in relation to the applicant’s stated reasons for studying in Australia. The AAT was concerned that the applicant had only demonstrated progress and advancement in the Murdoch course after she was refused a student visa:
23. The Tribunal has already observed that you have made progress to date towards your current Bachelor of Business studies. The Tribunal is concerned, however, that you have previously had opportunities to pursue a Bachelor of Business well before now and have chosen not to, and have instead chosen to continue a number of lower level similar TAFENET level courses. For instance, you provided the Tribunal with a certificate from the Cambridge International College which states that you were awarded a Diploma of Management on 2 August 2015.
24. This of course is after you had previously enrolled in a Bachelor of Business course. Further, in 2016 you went on to study a Certificate 4 in Marketing as a fulltime student. You were awarded this certificate on 8 May 2016. The Tribunal is concerned that you have only demonstrated progress and advancement in a Bachelor of Business level course after you were refused a student visa. You have a history of completing lower level TAFENET business type courses, and you have completed many of them. The Tribunal is concerned that your interest in the Bachelor of Business program may be to maintain residence in Australia as opposed to the course itself.
25. It is difficult for the Tribunal to clearly identify the specific added value that a further generalised business course, even at a tertiary level, will add to achieving your stated ambition. The Tribunal considers that when you completed the diplomas in business and management, including the certificate in frontline management several years ago, you would have had the skills and knowledge necessary to establish your multi-media business, or set up a business as an event organiser, as you have claimed that you wish to do.
26. As I have already said, you retain certain incentives to cease residence in Australia and to return to your home country where you say your personal and professional ties lie. However, the Tribunal finds that in 2013 when you had achieved an Advanced Diploma of Business, and certainly in 2015 when you had achieved a Certificate 4 in Frontline Management, and also a Diploma of Management, along with various other qualifications, you had a very definite choice.
27. By those times you had sufficient skills, knowledge and qualifications to undertake the stated plan that you told the Tribunal, which supposedly lies outside Australia. That is, in as early as 2015 you had every professional and personal reason and incentive to depart Australia. You chose, however, not to. Instead, you have proposed yet further study and further study which has had the effect of prolonging an already significant time in Australia, prolonging your separation from your claimed personal ties in your home country and incurring significant additional expense in the form of tuition fees and living costs.
28. As the Tribunal finds that as early as 2015 you already had sufficient skills, knowledge and qualifications for your stated plan, that being the plan that you told the Tribunal about today, significant doubt is cast on the value of the study proposed thereafter and presently. Your own conduct in proposing a further stay to study of little obvious value to your future plan suggests that you will not yield to the array of claimed incentives to leave Australia, but rather that you intend to stay on in Australia, despite your claimed future plan lying outside Australia.
At paragraph [29] in its written decision, the AAT then queried the applicant’s commitment to remaining in Australia temporarily:
29. It is your claim that your intention has always been to stay in Australia temporarily, and that that intention is still held. If that is and was so, the Tribunal finds that you would have departed Australia to be reunited with your personal ties to your home country, and to set in motion your claimed future plan to establish a multi-media business, or to work as an event organiser in India in 2015 or thereabouts.
In accordance with s.359AA of the Act, the AAT then put the applicant's PRISMS and movement records to her for comment. The Tribunal explained the relevance of the information and the consequences of the information being relied upon by the Tribunal. The Tribunal gave the applicant an opportunity to seek additional time before commenting on or responding to the information. The applicant chose to respond at the hearing (CB 156 at [30]).
The applicant stressed that her choice of course had never opened up eligibility for a work-related visa and that this was evidence that she wished to remain in Australia temporarily (CB 157 at [31]). To this, the AAT responded:
32. The Tribunal acknowledges that this may be so, at least the observation that your study choices in Australia do not, on their face, appear to make you eligible for a work-related visa, but that you could at the same time have easily been sponsored for a reception or secretarial regionally based position, so your answer in this respect is not entirely accurate, however well-intended the claim that you made was.
The AAT then observed that, since 2009, the majority of the applicant's study had been in the TAFE/VET sector and concluded that that it could not on the evidence before it be satisfied that her reasons for entering the higher education sector were not to “alleviate concerns in relation to your status as a long-term student in the TAFE/VET sector” (CB 157 at [33]).
The AAT then considered documentation from Murdoch University and submissions from the applicant’s migration agent and concluded that none of the documentation evidenced a distinct incentive for the applicant to cease residence in Australia:
34. The Tribunal has had regard to all of the documentation that you have put before it, including further documentation from Murdoch University, which you provided at the hearing. It includes a conditional offer of admission, and a student card, and a confirmation of enrolment document. The Tribunal has also had regard to various correspondence from your migration agent in recent times, attaching the various certificates and diplomas which I have already mentioned, and to an undated document entitled "Dear Officer" and addressed to the Concerned Officer at the Migration Refugee Division of the AAT.
35. This document outlines your circumstances in your home country. In the document you talk about the reasons you came to Australia in 2009 to study the Certificate 3 in Printing and Graphic Arts. You talked about your husband's family and the strong bond that he shares with his mother. The Tribunal observes, however, that it appears that both you and your husband have been able to manage your claimed close ties with your relatives overseas whilst you have been resident in Australia. That is, it appears that by ordinary means of communication you have been able to continue meaningful relationships with those important to you.
36. As suggested, the Tribunal does not consider your personal connections overseas to be a distinct incentive for you to cease residence in Australia. In the aforementioned documents you also make reference to the fact that you were due to commence a bachelor course in Australia in August 2014, and you state the various reasons that you did not commence that course. You state that one of the reasons was that enrolment for the August 2014 intake was for the Melbourne intake, and at that time you were living in Perth.
37. You said that you had enrolled in that course and the Institute had made representations to you that the course was soon going to commence in Perth. Ultimately the Tribunal observes that, as has already been mentioned, it cannot be satisfied that you did not enrol in the bachelor program in 2014 simply to address and be able to confidently reject any criticism that you had remained in the TAFENET sector for more than five years at that time.
The AAT also considered the weekend jobs the applicant and her husband had held at IGA and the oral evidence given by the applicant that she can earn three to four hundred AUD per week. The AAT found that the applicant's incentive to remain working in Australia and earning Australian dollars was significant and was one factor amongst others which remained a real incentive for her to continue to prolong her residence in Australia (CB 157 at [38]-[39]).
The AAT then found that the fact that the applicant had not applied to any other country for a visa or to travel to any other country to be “unremarkable” in relation to the question of whether she intended to stay in Australia (CB 158 at [40]). Ultimately, the AAT found that the applicant had been in Australia for over several thousand days, possessed a number of similar VET level qualifications and had only progressed academically in the higher education sector in recent years, mostly during the time when her visa application had been the subject of review (CB 158 at [41]). The AAT found that the applicant had prolonged her stay in Australia and concluded that she had an economic incentive to remain in Australia (CB 158 at [42]).
Overall, the AAT found that the applicant was not a genuine student who intended to stay temporarily in Australia and that, accordingly, she did not meet cl.572.223(1)(a) (incorrectly referring to cl.572 rather than cl.573) of Schedule 2 to the Regulations (CB 158, [43] – an error discussed further below.
Application for Judicial Review
In her judicial review application the applicant set out her grounds of review as follows:
I, Beyant Surjit made a review application for student visa to the Administrative Appeals Tribunal (AAT). AAT affirm the decision of Department of Immigration and Border Protection (DIBP) on 11 December 2017. I believe there are compelling and compassionate grounds to grant me student visa application and we are not satisfied with the decision of AAT. Therefore, I like to appeal to the Federal Circuit Court to consider my student visa application. Please refer to my statement on the next page
The statement referred to above contains an explanation of the applicant’s study history, her reasons for wanting to pursue tertiary studies in Australia, and an allegation that the Tribunal decision was affected by bias. It reads:
I, Beyant Surjit (DOB - 22/09/1984), came to Australia in 2009 on student visa subclass 572. I was enrolled to study Certificate 111 in Printing & Graphic Arts and Diploma of Interactive digital Media. My husband Narinder Kumar joined me on a student dependent visa, which was mentioned in the application to DIBP.
Due to unique and exceptional circumstances involved in my case considering my whole situation where I only want to complete my remaining studies and get a degree from Australian Universities and return with an overseas degrees which is a great honor and prestige for me and my family. Moreover, it is a very common practice for enterprise owners and big companies to always choose and pick new employees with overseas Degrees and are prioritized in selection process.
Being a child, I used to devote a lot of time for my school work, study and the desire for knowledge grew bigger and bigger day by day. I had an opportunity to interact and gain knowledge from trades people in my village which were from agriculture, automotive and agriculture irrigation but my passion was to be a professional and have ended up doing computer courses. I want to enhance and expand my knowledge in this direction so I ultimately decide to study Certificate Ill in Printing & Graphic Arts and Diploma of Interactive digital Media.
Afterwards, I tried to go to different area trying to specialize in different subjects in order to satisfy my study need, which ultimately leads to study different courses in Australia, and then finally I decided to pursue Bachelor of Business. The reason besides this was to set up a business when I return back to my home country, as my husband and my family are ready to fully support my idea of setting up a business, and I believe that Bachelor of Business study will definitely help to achieve my desired dreams.
I applied for a student visa on 11 March 2016 (class TU) Higher Education Sector (Subclass 573) visa and the Department of Immigration and Border Protection refuse me to grant me the Student Visa on 25 July 2016 on the ground that I didn't fulfil.
I would like to bring to your kind attention that my motivation to stay in Australia is to study and get a degree from the Australian Universities and go back to home country after completing my study. It was only because of my studious nature that I keep changing the course and finally decided to pursue my study in Bachelor.
I was not happy with the decision of Administrative Appeals Tribunal (AAT) as the member affirm the decision made by the Department of Immigration and Border Protection (DIBP) without letting me to study my remaining study of Bachelor of Business, and I also believe that the decision of Administrative Appeals Tribunal (AAT) was not satisfactory as I found it bias, as I want to complete my remaining study and then return back to my home country and hence it is my genuine request for you to consider my circumstances and also like to humbly request this application.
The affidavit accompanying the application that was filed on 4 January 2018 contains a further statement which largely repeats the material in the statement annexed to the application. The statement, which also annexes the AAT’s decision, reads as follows:
That, I Beyant Surjit …,my husband Narinder Kumar … has came (sic) to Australia on 12 June 2009 on a student visa whereas my husband came as a student dependent visa. I came to study Certificate Ill in Printing & Graphic Arts and Diploma of Interactive digital Media. During this course of study, I have realized that printing & graphics arts and digital media industry has lot of scope & potential and especially in India, which is growing fast and emerging as a winner amongst all developing countries.
Hence, with the thought in my mind of opening a business in my hometown, I have decided to gain knowledge and study in the area of business, management & marketing. Then, I studied Certificate IV in Business, Diploma of Business and Advanced Diploma of Business and learnt about basic fundamentals of the business, managing meetings, designing and developing business documents.
Similarly, I studied Certificate IV in Front line Management and Diploma of Management in 2014-15 to have an intensive knowledge of innovative work environment, safe work place and maintaining a quality customer service.
Thereafter, I want to study Bachelor of Business to enhance my career horizons and strengthen the business sector knowledge but due to the poor advise (sic) from University Management, I had to defer the Semester. The only reason for this is that I remained in Western Australia and expected my bachelor degree to be available in Perth, as Universities Authorities had mentioned to me that they going to start the course in Perth soon.
The Department of Immigration and Border Protection refuse me to grant me the Student Visa on 25 July 2016 on the ground that I didn't fulfil clause 573.223(1)(a) of the Migration Regulation 1994 or In other words, I didn't fulfil the Genuine Entrant Criteria (GTE).
Then I appeal to Administrative Appeal Tribunal (AAT) on August 10th 2016 only to finish my Bachelor degree from one of the reputed universities of Australia. I was invited for the hearings on 11 December 2017 at 2 PM on Level 4, 15 William Street, Melbourne.
The member made an oral decision to affirm the decision made by the Department of Immigration and Border Protection (DIBP), which I was not happy with. I made it clear during the hearing session that my main intention is to finished my remaining Bachelor Degree from the Australian University so that I could set up a business when I return back to my home country as my husband and my family are ready to fully support my idea of setting up a business, and I believe that Bachelor of Business study will definitely help to achieve my desired dreams.
I would like to bring a kind attention to your good office that I have complied all the visa condition that has been attached to my student visa till now.
My main intention is finished Bachelor of Business study from the Australian Universities. It is my feeling that the member has not considered my genuineness while delivering the decision of Administrative Appeals Tribunal, as I want to complete my remaining study. It is our humble request to accept this application so that I can finish the remaining studies.
I am thankful to you for your kind attention to my application.
On 14 March 2018, the Court made orders permitting the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence. The applicant was also given the opportunity to file and serve written submissions and a list of authorities prior to the scheduled hearing date.
The applicant did not file and serve any amended application, any further affidavits or any written submissions.
Did the AAT fall into Jurisdictional Error?
To succeed before this Court, the applicant must show that the AAT fell into jurisdictional error.
The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, 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) 39 ALD 193 (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 and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]‑[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
General, vague and insufficiently particularised applications
Unfortunately, the applicant’s grounds of review are, at best, described as vague. Despite being given an opportunity to provide particulars in relation to her grounds for judicial review, the applicant did not provide any particulars or further written submissions.
In her statements accompanying her application and affidavit, the applicant has provided a lengthy explanation of her study history and her reasons for wanting to pursue tertiary studies in Australia. However, other than an unparticularised allegation that she found the AAT’s decision to be biased, it is not clear what, exactly, the applicant believes the AAT did wrong.
The Court notes that in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969, it was held that a general, vague and insufficiently particularised application provided judicial justification for the dismissal of the proceeding.
In relation to whether or not the application should be dismissed because the grounds are not particularised the Court does not believe that this is an appropriate case in which to do so. While this might apply within the context of an applicant who is legally represented, it would be most unfair to dismiss an application in circumstances where an applicant is not legally represented. In those circumstances an applicant should, at a minimum, be given an opportunity to explain to this Court what her grounds of review actually mean. In effect, the applicant should be given an opportunity to particularise and make any submissions that she wishes to make. In that regard the Court notes the recent decision of Justice Colvin in the Federal Court in the matter of DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9].
Accordingly, the applicant was asked to explain what she believes the AAT did wrong. Her submissions, made orally via telephone, are outlined below.
Allegation of Bias
In the applicant’s statement accompanying her application she raises bias as an issue of jurisdictional error:
I was not happy with the decision of the Administrative Appeals Tribunal (AAT) as the member affirm the decision made by the Department of Immigration and Border Protection (DIBP) without letting me to study my remaining study of Bachelor of Business, and I also believe that the decision of the Administrative Appeals Tribunal (AAT) was not satisfactory as I found it bias, as I want to complete my remaining study and then return back to my home country and hence it is my genuine request for you to consider my circumstances and also like to humbly request this application.
In relation to the applicant’s allegation of bias the Minister contended at paragraph 30 of his written submissions dated 3 August 2018 as follows:
The allegation of bias is a serious claim which has not been firmly and distinctly made and clearly proven. There is no evidence to suggest the Tribunal was biased, and a fair reading of the Tribunal's decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531.
The applicant was asked to explain why she felt the AAT was biased. Her response did not clarify her concerns. The applicant seemed to suggest that bias was evident because the AAT did not properly consider her enrolment at Murdoch University.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [69] and [127]. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72]. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982 at [27].
There is no evidence here:
a)that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper assessment of the applicant’s credibility or any proper evaluation of materials relevant to the making of the Tribunal decision: Jia Legeng at [35] and [72]; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the applicant’s credibility: Ex parte H at [27]-[28].
The Court sees no evidence of bias in the AAT’s decision.
Further, in relation to any concerns that the AAT did not consider the applicant’s enrolment at Murdoch University, the Court notes that the AAT did indeed consider the significance of this course of study (at [13]-[14], [23]-[28]) and did so in considerable detail.
What the applicant is really seeking here is for the Court to look at “Murdoch evidence”, to weigh it in relation to the evidence as a whole and come to a conclusion that differs from the AAT’s overall conclusion. The Court cannot do that as this would amount to an impermissible merits review. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shian Liang & Ors (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone
There is no evidence here that the Murdoch evidence, and indeed all relevant evidence, was not objectively analysed by the AAT.
Typographical Error in the Tribunal’s Decision
The Minister correctly pointed out at [32] of his written submissions that the AAT’s decision at [1] and [43] incorrectly refers cl 572.223(1)(a) of the Regulations, instead of cl 573.223(1)(a). The two provisions are identical except that subclass 572 appears under the heading “Vocational Education and Training Sector” and subclass 573 appears under the heading “Higher Education Sector”.
The Court discussed this with the applicant and asked whether she wanted to comment. She responded that this was clear evidence of an error that amounted to jurisdictional error because it shows that the AAT applied the wrong legislation.
The Court does not accept that the AAT’s reference to subclass 572, rather than 573, constitutes jurisdictional error. This is no more than typographical error. No adverse inference can be drawn. Nothing in the AAT’s decision can be seen to have turned on an error of this sort: Saini v Minister for Immigration and Border Protection (2015) 300 FLR 72; [2015] FCCA 2379 at [11], [12] and [33].
It appears from much of what the applicant says is that she believes the AAT’s decision to be “illogical” on the basis of the evidence before it.
The Court does not accept that there is any legal error in the AAT’s decision and nothing that can be referred to as illogical or irrational.
In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131. The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines 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, 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.
SZMDS sets a very high threshold for findings of irrationality or illogicality. In this context the Court is also guided by the decision in Gupta v Minister for Immigration & Border Protection (2017) FCAFC 172 at [34]–[36] and DAO16 v Minister for Immigration & Border Protection (2018) FCAFC 1 at [30].
The Court also notes that in SZMDS Crennan and Bell JJ in SZMDS further explained that:
135. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
It cannot be said here that the Tribunal’s ultimate finding (that the applicant was not a legitimate student for the purposes of the relevant legislation) was not open to it. There is no evidence here that the AAT failed to look at all of the evidence before it. Rather, the AAT considered the facts of the case, the legislation it was required to examine and all of the evidence it had been given. All relevant material was examined. No irrelevant material was relied on. The AAT weighed up the material before it and determined, objectively, that the applicant was not qualified for the visa in question because she had, in effect, no intention of returning to India.
Nor can it be said that the AAT’s conduct in relation to this case was in any way biased. There is also no evidence of procedural unfairness. The applicant was given every opportunity to attend and present evidence. Before this Court the applicant indicated that her agent was not given an opportunity to speak to the AAT. The Court can only rely on the evidence before it. There is simply no evidence that the applicant’s agent was not offered an opportunity to assist the applicant at the hearing. Rather, the evidence shows that the AAT did what it could do to ensure that the applicant was given the time she needed to present her evidence in detail (noting, in particular, [30] in the AAT’s decision).
Conclusion
For the reasons outlined above, the Court finds that the applicant has failed to show any jurisdictional error on the part of the AAT. Her application is, accordingly, dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 26 September 2018
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