Syed v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 675
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 675
File number: MLG 1113 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 August 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) Subclass 572 visa – where Tribunal found that applicant did not meet genuine temporary entrant criterion –– no jurisdictional error – application dismissed Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) cl 572.223
Cases cited: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 25 July 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Meaney Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1113 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAJIHUDDIN SYED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 August 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a student visa. A delegate of the Minister made a decision refusing to grant the applicant a student visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 10 April 2018. The applicant now seeks judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application to the Court contains nine grounds which largely read as a narrative to explain why the applicant believes that the Tribunal decision is wrong and why he hopes the Court will make a different decision. The Court can only grant relief to the applicant if the Tribunal decision is affected by jurisdictional error and I am not satisfied that the nine grounds raised by the applicant establish jurisdictional error in the Tribunal decision. The application to the Court must therefore be dismissed. My reasons for reaching this conclusion are set out below.
VISA APPLICATION AND DECISIONS
The applicant has held a series of student visas since his arrival in Australia in 2008. On 1 June 2016 the applicant applied for a further student visa indicating that he was enrolled in a Diploma of Automotive Technology, an Advanced Diploma of Management (Human Resources) and an Advanced Diploma of Leadership and Management.
On 10 October 2016 a delegate of the Minister made a decision refusing to grant the applicant a student visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 572.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 11 October 2016 the applicant made an application to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal to give evidence and present arguments on 15 January 2018. The Tribunal affirmed the delegate’s decision on 10 April 2018.
SUMMARY OF TRIBUNAL DECISION
The Tribunal considered that the issue for its consideration was whether the applicant met the genuine temporary entrant criterion in cl 572.223(1)(a) in Schedule 2 to the Regulations. The Tribunal acknowledged that in considering whether the applicant satisfied that criterion it was required to have regard to Ministerial Direction No 53.
The Tribunal had regard to the documents on the Department file and confirmed that there was no information contained in the applicant’s movements record and Provider Registration and International Student Management System (PRISMS) records that was adverse to the application for review.
The Tribunal had regard to the applicant’s study history in Australia and identified that between 2008 and 2016 he had completed six courses at the Certificate III, Certificate IV and Diploma level. The Tribunal acknowledged the applicant’s evidence that at the time of the hearing he was studying a Diploma of Leadership and Management which he estimated would be completed in February 2019. The Tribunal also identified that the applicant had lengthy breaks in his studies in the periods between 2013 to 2014 and 2016 to 2018. The applicant explained to the Tribunal that in the period between 2013 and 2014 he suffered from stress and family pressure and as a result was unable to concentrate on study, and that in the period between 2016 and 2018 he was again unable to study because he had suffered from family issues which had caused him stress and trauma. The Tribunal noted that the applicant did not provide any medical evidence to support his claims relating to stress and the Tribunal was not satisfied that the applicant had been able to provide any compelling reason for the large gaps in his academic progress.
The Tribunal acknowledged the applicant’s explanation to the Department and to the Tribunal that if he were granted the visa, he planned to complete his Diploma of Leadership and Management and return to India to set up his own consultancy business in the automotive sector. The Tribunal also noted that the applicant stated in his written submission to the Department that his previously completed studies in the automotive and business fields had given him the building blocks essential to the automotive sector and his business qualifications had given him the foundation to manage a team of staff to make an effective business plan. When queried at the hearing about why he was proposing to do further study in leadership and management, the applicant responded that the more knowledge he can gain the better. The Tribunal was not satisfied that the applicant had been able to provide any explanation for remaining in Australia for a further year to complete a qualification that appeared to be of little value to his future plan.
Although the applicant told the Tribunal that his family and friends were incentives for him to return home after completing his proposed course, the Tribunal did not give this significant weight given the disproportionate value that the applicant appeared to attribute to gaining more knowledge in favour of being with his young children. The Tribunal considered that the applicant’s financial concerns in India represented an incentive for him to remain in Australia beyond his proposed study.
Taking into account the relevant circumstances, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and therefore found that he did not meet the criterion in cl 572.223(1)(a).
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 27 April 2018, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The only relief sought in the application as filed was an order to quash the Tribunal decision. Pursuant to s 476(1) of the Migration, this Court has the same jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. That jurisdiction does not extend to matters where the only relief sought is an order to quash the Tribunal decision. I explained this to the applicant at the hearing and further explained that if he also sought a writ of mandamus to require the Tribunal to determine his application according to law, the matter would fall within the Court’s jurisdiction. I allowed the applicant to orally amend his application at the hearing to seek a writ of mandamus and I am satisfied that the Court now has jurisdiction to determine this matter.
The application contains the following nine grounds:
1.This is an application for review of a decision made by Tribunal and delegate of the Minister for Immigration refuse to grant the Student (Temporary) (ClassTU) visa under s.65 of the Migration Act 1958 (the Act).
2.I have appeared before the Tribunal on 15th January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter who wasn’t used anyway because of I could speak English well, I have given proper evidence in regarding my exceptional circumstances beyond my control. I do have intention study in Australia.
3.In The Tribunal Decision Paragraph 15 “The issue in the present case is whether I was in stress or not, I have given oral submission and also I have said I would produce the medical evidence to the tribunal, however respected member has not given me opportunity, any way I have given some medical evidence from Australia but they haven’t been accepted by tribunal member”. Hence, I request the Federal Circuit court to accept it is a Jurisdictional error made by Tribunal.
4.Delegate has refused the visa on the basis of Genuine temporary entrant criterion as delegate was on my study history, and went to tribunal to discuss the matter, then Tribunal has heard my matter with different angles where I could not answer those questions, also I was bit confused with interpreting as well.
5.As Member has raised the issues in regarding my study gaps haven’t been happened accidentally and there were exceptional circumstances beyond my control. Stress and depression, also my son in India had serious ailment and any way son was passed away 2nd of March 2018. It was happened recently where I could not go for his funeral because of visa stress and depression. I do have no words, I have told this information to tribunal still tribunal member did not accept my pain. I have felt it was unfair.
6.I know member did not believe me as lot of students might come to the tribunal with different reasons, but my story was real and true. That is the reason I can’t complain the member, I only request the Federal circuit court to examine my case in case of my evidence get me to meet the criterion to study rest in Australia. This is my humble request.
7.I was in Home sick and having health issues, further I do have language problem in Australia. That is the reason I could not cope up with these factors. Still Struggling to finish my education but Member and Delegate is not understanding and refusing simply showing some reason found from my side.
8.That is the reason I am bringing the Decision of Tribunal to FCCA to review as I think there is Judicial Error in tribunal Decision.
9.So I am really regretting my self-engaging the Diploma education for long time in Australia, but this is last course I can do and leave the country. I hope Federal circuit Court will see my claims in to justifying way. I will do my all submissions after the Review application made.
Pursuant to an Order made by a Registrar of this Court on 29 May 2019, the applicant was required to file and serve 28 days before the hearing any amended application, any supplementary court book and written submissions. He did not file any documents in accordance with the Order. The Minister filed a court book and written submissions.
I explained to the applicant at the hearing the need to show jurisdictional error in the Tribunal decision and the need to provide more detail in relation to what he believes the Tribunal did wrong. The applicant confirmed that he understood what had been said.
The applicant made very brief submissions at the hearing. His submissions did not assert any particular error in the Tribunal decision, and at one point the applicant acknowledged that the Tribunal may not have made any error. Rather, the applicant submitted that he came to Australia on a student visa and wanted to do a course. He lost his father, mother and son and could no longer concentrate and experienced stress during his study. He submitted that the Tribunal asked him about his gaps in this studies and he told them about things and he gave the Tribunal all relevant evidence. In response to comments from the Court about the applicant’s grounds alleging error in interpretation at the Tribunal hearing, the applicant simply said that there were some words he did not understand. I address these submissions in the consideration of the grounds below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
Before turning to the grounds, it is appropriate to make some observations about the role of the Court in judicial review proceedings.
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… 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… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
As I explained to the applicant at the hearing, the Court does not consider whether he meets the criteria for a student visa and the Court cannot grant him a visa. The Court has no power to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Some of the applicant’s grounds might be seen as expressing disagreement with the Tribunal decision. Disagreement with the Tribunal decision, even emphatic disagreement, does not, of itself, establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Further, some of the applicant’s grounds and submissions refer to circumstances that arose after the Tribunal decision or information which was not provided to the Tribunal. Whether the Tribunal decision is affected by jurisdictional error is to be assessed based on the circumstances that existed at the time of the Tribunal decision and not by reference to circumstances that did not exist at the time of the decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28].
CONSIDERATION OF GROUNDS
Ground 1 of the application is simply an introductory paragraph identifying the application to the Court and the decision that is the subject of the application. It does not contain any assertion of jurisdictional error and cannot therefore establish jurisdictional error.
Ground 2 identifies that the applicant attended a hearing before the Tribunal, at which an interpreter was available but was not used because the applicant spoke sufficient English and asserts that the applicant gave proper evidence regarding exceptional circumstances beyond his control and that he has an intention to study in Australia.
As with ground 1, ground 2 does not assert any error in the Tribunal decision and therefore is not capable of establishing jurisdictional error. To the extent that the ground refers to an interpreter, it is convenient to address it with ground 4 below. Further, to the extent that the applicant’s assertion that he has a genuine intention to study might be seen as reflecting disagreement with the Tribunal decision, it cannot establish jurisdictional error. As explained above, disagreement with a decision is not, of itself, something which amounts to jurisdictional error and I accept the Minister’s submission that, at its highest, the applicant’s assertion might be seen as inviting the Court to engage in impermissible merits review.
By ground 3, the applicant asserts jurisdictional error in the Tribunal decision on the basis that the Tribunal did not give him an opportunity to produce medical evidence to show that he had experienced stress and that he provided some medical evidence which was not accepted by the Tribunal.
The applicant did not make any submissions in relation to this ground. The Minister has helpfully identified evidence in the court book that is relevant to the consideration of this ground.
The applicant’s assertion that he was not afforded an opportunity to produce medical evidence in relation to his stress is not supported by the evidence in the court book. In particular, in an invitation to attend a hearing sent to the applicant on 13 December 2017, and in a further notice sent on 10 January 2018 advising the applicant that the hearing had been rescheduled, the applicant was requested to provide various information to the Tribunal, including ‘[a]n explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation’. I accept the Minister’s submission that this amounts to an opportunity to provide documentary medical evidence relevant to any explanation of gaps in the applicant’s enrolment, including in relation to his stress.
There is no transcript of the Tribunal hearing before the Court and the applicant has not suggested that he or his representative made any request for further time to adduce medical evidence. The Tribunal, at [15] of its reasons, made the following comments in relation to the absence of medical evidence:
The applicant further submitted that he suffered from stress to the point that it became a medical condition. However, the applicant was unable to provide any evidence to support this claim, even when prompted by the Tribunal.
While this does not show the manner in which the Tribunal ‘prompted’ the applicant to provide evidence, it also does not support the applicant’s bare assertion, made without supporting evidence, that he was not given the opportunity to provide medical evidence. Further, the Tribunal decision was made some two months after the hearing and there is no suggestion that the applicant attempted to provide any additional evidence between the date of the hearing and the date of the decision. On the evidence before the Court, I am unable to conclude that the applicant was not given an opportunity to provide medical evidence. To the extent that his ground asserts jurisdictional error on this basis, the ground cannot succeed.
The second allegation made by the applicant in relation to ground 3 is that the medical evidence he did provide was not accepted by the Tribunal. The only medical evidence that the applicant provided to the Tribunal was a medical certificate from a suburban Melbourne medical practice dated 9 January 2018. That medical certificate indicated that the applicant was suffering from a medical condition and would be unable to attend his usual occupation from 9 January 2018 to 10 January 2018. The medical certificate was provided to the Tribunal to support a request that the hearing, which had been listed on 10 January 2018, be adjourned. The Tribunal agreed to this adjournment request.
Nothing in the medical certificate purported to explain the significant gaps in the applicant’s study history in Australia and I accept the Minister’s submission that the medical certificate was not probative of the applicant’s claim that he suffered from stress and family pressure resulting in significant gaps in his study from 2013 to 2014 and from 2016 to 2018. The medical certificate does not explain in any way the nature of the applicant’s medical condition and does not suggest that he suffered from any medical condition outside of the two-day period specified in the certificate. I accept the Minister’s submission that it was open to the Tribunal to find that the applicant had not provided a compelling reason for the gaps in his academic progress notwithstanding the medical certificate that was provided.
Ground 3 therefore does not establish jurisdictional error.
Ground 4 asserts two separate errors both relating to the Tribunal’s procedural fairness obligations. First, the applicant asserts that the Tribunal heard the matter with ‘different angles’ to the delegate. Second, the applicant asserts that he was confused with the interpreting at the hearing. I address these two allegations in turn.
It can amount to jurisdictional error if the Tribunal takes no step to identify and tell the applicant of a dispositive issue which was different to the issues considered by the delegate to be dispositive: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35]. However, in the present case, the same issue was considered dispositive by both the delegate and the Tribunal. Both the delegate and the Tribunal found that the applicant did not meet the genuine temporary entrant criterion in cl 573.223(1)(a). I accept the Minister’s submission that the Tribunal in the present case was not required to alert the applicant to any new issues arising on the review because there were none.
The applicant’s assertion that he was ‘a bit confused’ with the interpreting is unsupported by evidence and appears to be inconsistent with his assertion in ground 2 that he did not use the interpreter because he spoke English well enough. The Minister identified in his written submissions that the applicant has the onus to establish jurisdictional error and that there was no evidence to support the applicant’s contention that there were issues with the interpretation at the Tribunal hearing. I also explained to the applicant at the hearing before the Court that the Court cannot find that there were errors in the interpretation at the Tribunal hearing in the absence of any evidence. In response, the applicant submitted simply that there were some words he did not understand at the Tribunal hearing.
The simple assertion that the applicant did not understand some words falls well short of establishing that the applicant was not afforded a real and meaningful opportunity to attend a hearing before the Tribunal to give evidence and present arguments. Inadequate interpretation can amount to jurisdictional error in some circumstances, including where the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence: see Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] and [22]; see also more generally in relation to the standard of interpretation required, BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52]. However, the applicant in the present case has not suggested that he was denied any meaningful opportunity to present evidence to the Tribunal and has indicated to the Court that he gave the Tribunal all relevant information.
Ground 4 does not establish jurisdictional error.
Grounds 5 to 9 of the application appear in narrative form and in these grounds the applicant asserts that:
(a)the gaps in his study arose due to exceptional circumstances beyond his control, including stress and depression and the death of his son in March 2018;
(b)it was unfair of the Tribunal, after the applicant told the Tribunal about the exceptional circumstances, to not accept his pain;
(c)his evidence to the Tribunal was real and true;
(d)he was homesick and having health issues and had language problems in Australia, and that is the reason he could not cope and the Tribunal was not understanding;
(e)he believes there is ‘judicial error’ in the Tribunal decision; and
(f)the diploma is the last course for him to do and he will leave Australia after he completes the course.
These grounds do not establish jurisdictional error.
The grounds largely express disagreement with the Tribunal decision and make submissions as to why the applicant believes he meets the criteria for the student visa. This amounts to an invitation to the Court to engage in merits review, which, as explained above, it is beyond the jurisdiction of the Court.
The applicant’s assertions in grounds 5 to 9 appear to proceed on a misunderstanding of the issue considered by the Tribunal. The Tribunal was not required to consider whether or not it accepted that the applicant had experienced pain or whether there were exceptional circumstances in his case. Rather, in reviewing the delegate’s decision, the Tribunal considered whether the applicant met the genuine temporary entrant criterion, and in so doing, took into account the range of factors set out in Ministerial Direction No 53. The Tribunal considered the applicant’s circumstances insofar as they were relevant to the issue before the Tribunal and the factors set out in Ministerial Direction No 53. In circumstances where the Tribunal found that the applicant did not meet the genuine temporary entrant criterion, the Tribunal did not otherwise have any discretion to grant the applicant a visa because of any exceptional circumstances he may have faced or because of any pain he had experienced.
Based on the information in the application, it appears that the applicant’s son passed away after the Tribunal hearing but before the Tribunal had delivered its decision. I have reviewed the court book and cannot find any indication that the applicant informed the Tribunal of the death of his son. The Tribunal therefore cannot be expected to have taken this into account.
Further, there is no evidence before the Court that the applicant told the Tribunal that he was homesick or that he was having language problems in Australia. In the absence of evidence that these matters were raised, I cannot conclude that the Tribunal’s failure to refer to these matters amounts to jurisdictional error. Put simply, the Tribunal was not required to consider these aspects of the applicant circumstances that were not the subject of evidence before it.
The assertion raised in ground 8 of ‘judicial error’, which I will interpret as jurisdictional error, was not explained by the applicant in his application. I am prepared to generously interpret the applicant’s submissions made orally at the hearing as an assertion of jurisdictional error on the basis that the Tribunal did not consider all relevant evidence advanced by the applicant. However, I do not consider that such an assertion of jurisdictional error is established.
The Tribunal had regard to the applicant’s evidence addressing the types of matters referred to in Ministerial Direction No 53. It was not required to specifically refer to each and every item of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. In any event, the applicant’s case before the Court appears to be that he provided all relevant information to the Tribunal and this should have caused the Tribunal to find in his favour and, in particular, to accept that he had an adequate explanation for the significant gaps in his study. As discussed above, this amounts to an invitation to the Court to engage in impermissible merits review. The applicant has not identified any specific evidence that he says the Tribunal did not consider and has not established jurisdictional error on the basis that the Tribunal failed to have regard to all relevant information.
Grounds 5 to 9 do not establish jurisdictional error.
CONCLUSION
In circumstances where I have found that none of the grounds raised by the applicant, and none of the matters raised in his oral submissions at the hearing, establish jurisdictional error in the Tribunal decision, the application to this Court must be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 August 2023
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