Sutiawan v Minister for Immigration
[2020] FCCA 549
•12 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUTIAWAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 549 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | FENDI SUTIAWAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1819 of 2019 |
| Judgment of: | Judge Driver |
| Hearing dates: | 28 January, 12 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Downie of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1819 of 2019
| FENDI SUTIAWAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant, Mr Sutiawan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 June 2019. The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Sutiawan a student visa. Background facts relating to this matter are set out in initial written submissions filed on behalf of the Minister on 13 January 2020.
Mr Sutiawan is a citizen of Indonesia who arrived in Australia on a student (Subclass 573) visa on 18 September 2013.[1]
[1] Court Book (CB) 33
On 2 March 2017 Mr Sutiawan applied for the visa.[2] He indicated that he would like to finish his business course before going back to Indonesia to open his own business.[3]
[2] CB 1–16
[3] CB 7
On 15 June 2017 the delegate of the Minister refused the application for the visa having not been satisfied that Mr Sutiawan had a genuine intention to stay temporarily in Australia.[4]
[4] CB 31–36
On 16 June 2017 Mr Sutiawan sought review of the delegate's decision before the Tribunal.[5] On 5 September 2018 the Tribunal invited Mr Sutiawan to appear before it to give evidence and present arguments in relation to the issues in his case.[6] The invitation requested that he provide, among other things, a written statement addressing the issue of whether he was a genuine applicant for entry and stay as a student with regard to the matters contained in Ministerial Direction No. 69—Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69) which was attached to the invitation.[7]
[5] CB 37–38
[6] CB 49–51
[7] CB 61–63
On 23 October 2018 Mr Sutiawan emailed the Tribunal to provide documents and to indicate that he was ready to attend a hearing.[8] He did not provide a written statement addressing Direction 69 amongst these documents.
[8] CB 64–80
On 24 October 2018 Mr Sutiawan attended a hearing before the Tribunal with the assistance of an interpreter in the Indonesian and English languages.[9]
[9] CB 94 at [5]
On 7 November 2018 Mr Sutiawan emailed the Tribunal and provided a copy of an Indonesian business licence, a family card, and a letter of recommendation from his uncle in Indonesia which explained that Mr Sutiawan would be appointed as a manager of another branch in his uncle's company which would be opened on his return to Indonesia.[10]
[10] CB 87–90
On 29 June 2019 the Tribunal affirmed the delegate's decision.[11]
[11] CB 92–104
Tribunal decision
The Tribunal set out the procedural background, listed the documentary evidence supplied by Mr Sutiawan and summarised his oral evidence at hearing.[12] The Tribunal identified that the central issue before it was whether Mr Sutiawan was a genuine temporary entrant for study having regard to the matters contained in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) and in Direction 69.[13] In relation to this issue the Tribunal made the following key findings:
a)it did not accept Mr Sutiawan’s claim that he planned to take over a newly opened branch of his uncle's business in the absence of independent evidence regarding the size and scope of the business as well as the new branch that the applicant would manage;[14]
b)it found that Mr Sutiawan had some incentive to remain in Australia acknowledging his uncertain response to questioning about further study, that his brother was also a student in Australia and the economic disparity between the two countries;[15]
c)it was not satisfied that Mr Sutiawan’s enrolment was for a genuine purpose, having regard to the discrepancy between the reasons for study given in his application for the visa (opening his own business) and the claims made before the Tribunal (taking over a new branch in an existing business);[16] and
d)it found that Mr Sutiawan’s immigration history weighed against him, having regard to the significant amount of time spent in Australia and failure to comply with visa conditions.[17]
[12] CB 94 at [1]–[13]
[13] CB 95 at [14]–[15]
[14] CB 96 at [18]
[15] CB 96 at [19]
[16] CB 96 at [20]
[17] CB 96 at [21]
On the basis of these findings, the Tribunal was not satisfied that Mr Sutiawan intended to genuinely stay in Australia temporarily.[18] Consequently the Tribunal affirmed the decision under review.[19]
[18] CB 97 at [22]
[19] CB 97 at [25]
These proceedings began with a show cause application filed on 18 July 2019. Mr Sutiawan continues to rely upon that application. The grounds in it are:
1.The Second Respondents decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
(a)The applicant applied for a review of his decision. As there was no consistency in processing time of the review applications, there was no way the applicant knew of likely time frame to have a gearing allocated by the Second Respondent.
(b)The Tribunal failed to provide procedural fairness to the applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to his emotional state after the refusal of the visa. In the circumstances where the Tribunal failed to have proper regard to his emotional state it acted unreasonably.
(c)The Tribunal failed to provide procedural fairness in that it did not take into account the reasoning behind his course Advanced diploma of leadership and management regardless of the fact that the applicant had clearly pointed out the difference in the content of the course.
2.The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider the applicants emotional ability and did not give the applicant the opportunity to provide evidence of his claims that the new course of study had more relevance to his career path.
The application was supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 11 September 2019.
This matter was listed for a show cause hearing on 28 January 2020. Shortly before that hearing, Mr Sutiawan contacted the Court to advise that he felt unable to appear due to anxiety and other matters. Mr Sutiawan provided a medical opinion from Mr Greig Phillpot of the Australian Association of Psychologists dated 21 January 2020. The Court contacted Mr Sutiawan by telephone. He requested an adjournment. Having regard to Mr Sutiawan’s presentation at that time and the opinion of Mr Phillpot, I ordered that the show cause hearing be adjourned to 2.15pm today. Mr Sutiawan attended today’s hearing in person. He did not appear to be inhibited by any ailment or condition.
I invited oral submissions from Mr Sutiawan in support of his application. Mr Sutiawan submits that he was not treated fairly. He told me that he had a friend with a similar situation to his. His friend was dealt by the Tribunal more quickly than Mr Sutiawan and received his visa. Mr Sutiawan also said that he was very nervous at the Tribunal hearing. He said he provided documents to the Tribunal in support of his application as quickly as he could. He feels that those documents should have been persuasive. As I explained to Mr Sutiawan, it would be very rare for two applicants to present identical circumstances. Even if, hypothetically, identical circumstances were presented to the Tribunal, it is possible that two different members could make different decisions on the facts. The question for the Court is not whether the Tribunal made the right decision. The question is whether the Tribunal made a legally valid decision.
At the aborted show cause hearing on 28 January, I raised with the Minister the Tribunal’s statement at [12] of its reasons[20] that Mr Sutiawan had undertaken to provide a post-hearing submission. That seemed to beg the question of whether a submission was in fact made and, if it was made, whether it was considered. The Minister provided supplementary submissions on that issue. Having heard argument on the question, I agree with the supplementary submissions.
[20] CB 95
Where there is no reference in the Tribunal's reasons to a particular matter clearly raised by an applicant, an inference might be drawn that the matter has not been considered.[21] The Tribunal reasons do not support such an inference being drawn in respect of the post-hearing submissions as the Tribunal expressly referred at [6][22] to each item of documentary evidence provided in the post‑hearing submissions in its decision record. Specifically, the Tribunal's decision records evidence submitted by Mr Sutiawan “prior to and after the hearing” which included, among other things:
a)“Indonesian Business Licence information in the name of the applicant's uncle”;
b)“Family relationship information”; and
c)“Letter of recommendation from the applicant's uncle in Indonesia”.
[21] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ
[22] CB 94
Furthermore the Tribunal's reasons disclose express consideration of, and active intellectual engagement with, the substance of the post-hearing submissions, insofar as it again referred to the business licence and the letter of recommendation in the context of assessing Mr Sutiawan’s claim that his relatives were in the process of opening a new branch of their business. In relation to these matters, the Tribunal found that: [23]
in the absence of independent evidence regarding the size and scope of the business as well as the new branch that the applicant would manage, it did not accept this claim, nor did it accept that any documentation supporting the claim was unavailable and that the only evidence the applicant could provide was “a copy of a business licence and a letter from his relative”.
[23] CB 96 at [18]
As a result of these findings the Tribunal gave Mr Sutiawan’s claim that he had an incentive to return to Indonesia after his studies no weight. These findings were both open to the Tribunal on the evidence before it (including the evidence contained in the post-hearing submissions which it afforded proper, genuine and realistic consideration) and were eminently justifiable for the reasons it gave.
The weighing of various pieces of evidence is a matter for the Tribunal and that care ought to be taken with the formula “proper, genuine and realistic consideration” which has found to be no more than an expression of emphatic disagreement with findings of the Tribunal and insufficient to establish requisite error.[24]
[24] Abebe v Commonwealth (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ; Minister for Immigration v SZJSS (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; see also Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [31]–[35]; [43]–[48] per Griffiths, White and Bromwich JJ
In the circumstances of this case the merits of the abovementioned findings were squarely a matter for the Tribunal and are not for this Court to disturb on judicial review.
Turning to the grounds in the application, in my view, the grounds raised by Mr Sutiawan do not establish an arguable case of jurisdictional error. The Minister’s submissions deal with the grounds in the show cause application. I also agree with those submissions.
Ground 1
Mr Sutiawan contends that the Tribunal denied him procedural fairness under s.359 of the Migration Act 1958 (Cth) (Migration Act). Contrary to this allegation, Mr Sutiawan was invited to provide a statement addressing whether he was a genuine applicant for entry and stay as a student. The fact that he failed to avail himself of this opportunity does not disclose jurisdictional error in the Tribunal's decision and, consequently, this allegation is misconceived, without foundation and that it fails to disclose an arguable case for the relief sought.
Mr Sutiawan complains that there was no consistency in the processing times of review applications. It is true that some time passed from the date of his application for review of the delegate's decision to the date of the hearing. However, the Minister observes that the Tribunal invited Mr Sutiawan to attend a hearing to give evidence and present arguments in relation to the issues in his case in accordance with the statutory requirements and, furthermore, Mr Sutiawan evidently received that notice, replied to that notice and proceeded to attend the hearing. As he has failed to point to any material consequence of there being “no consistency” in processing times this complaint fails to disclose jurisdictional error in the Tribunal's decision.
Mr Sutiawan contends that the Tribunal acted unreasonably by failing to consider the circumstances that led to his emotional state after the refusal of his visa. It is not evident that he advanced any such claim and no error is disclosed in a failure to consider information not put before the Tribunal nor arising squarely on the material before it. Consequently, this complaint fails to establish that Mr Sutiawan was denied a meaningful opportunity to be heard on the issues arising in his case. It follows that this ground fails to disclose an arguable case for relief.
Mr Sutiawan contends that the Tribunal erred by not taking into account the reasoning behind his nominated course. Insofar as this may be construed as an allegation that the Tribunal failed to consider Mr Sutiawan’s intentions for studying the nominated course, or the benefit that it might have had on his future plans, such an allegation must fail in light of the Tribunal's express findings on these points. Specifically, the Tribunal found that Mr Sutiawan was not studying his current course for a particular purpose and gave no weight to his claim that it would help him run a branch of a business currently owned by his uncle in Indonesia.[25] These findings were open to the Tribunal for the reasons it gave, and that this allegation does not disclose jurisdictional error in the Tribunal's decision.
[25] CB 97 at [20]
Consequently, Ground 1 fails to disclose an arguable case for the relief sought.
Ground 2
Mr Sutiawan appears to reiterate his complaint that the Tribunal failed to consider his emotional state. For the reasons set out above, this complaint does not disclose jurisdictional error in the Tribunal's decision.
Mr Sutiawan also alleges that he was not afforded an opportunity to provide evidence in support of his claims. This allegation is without foundation. Specifically, Mr Sutiawan was invited to provide a written statement addressing the issue of whether he was a genuine applicant for entry and stay as a student in advance of the hearing, he was afforded an opportunity to give evidence and present arguments in relation to these issues at the hearing and, he was given further time to provide additional evidence regarding his claims after the hearing and undertook to do so.[26]
[26] CB 95 at [12]
The Tribunal afforded Mr Sutiawan a sufficient opportunity to be heard on the issues arising in his case as required by the Migration Act and consequently, that this ground fails to disclose an arguable case for the relief sought.
I conclude that Mr Sutiawan has failed to demonstrate an arguable case that the decision of the Tribunal is affected by jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Sutiawan did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Appeal
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