Sylvia v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 425
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sylvia v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 425
File number: LNG 25 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 1 June 2022 Catchwords: MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – whether jurisdictional error – where first applicant has offer for employment in home country upon completion of specified course of study – where Tribunal did not have regard to materially relevant evidence about course completion date - jurisdictional error established – application for review granted Legislation: Migration Act 1958 (Cth) s359
Ministerial Direction No 69 pp 9(b), 12(b)
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: Hossain [2018] HCA 34
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZAPCv Minister for Immigration and Border Protection [2021] HCA 17
Singh v Minister [2019] FCAFC 3
SZMTA [2019] HCA 3
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 17 March 2022 Place: Hobart For the First Applicant: No appearance For the Second Applicant: No appearance Counsel for the Respondents: Mr D Wilson Solicitor for the Respondents: Australian Government Solicitor ORDERS
LNG 25 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYLVIA SYLVIA
First Applicant
SUSANTO JOHAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
1 June 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 12 May 2021.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
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 Taglieri
Background
The Applicants are non-citizens who have been in Australia since approximately 2009. In July 2009, the First Applicant was granted a student visa. Further student visas were granted to her in 2013 and 2016.
In January 2015 the Applicants married. On 8 December 2016 the First Applicant was awarded a Bachelor of Accounting and she was subsequently granted a temporary graduate visa which ceased in April 2018.[1]
[1] Page 188 the Court Book.
On 27 April 2018, the First Applicant applied for a temporary student visa on the pretext of studying a Masters of Accounting at Kaplan Business School. She undertook this study for a period, but the course was not completed. Instead, the First Applicant undertook other study related to Management. While studying, the First Applicant has undertaken employment in a number of capacities, most not related to her field of study.[2]
[2] Pages 191 and 320 to 328 of the Court Book.
On 13 July 2018, a delegate of the First Respondent determined to refuse the First Applicant’s Temporary Student Visa application and, consequently, the Second Applicant’s visa application. On 24 July 2018, the first applicant made application to the Migration and Refugee division of the Administrative Appeals Tribunal (“the Tribunal”) to review the delegate’s decision.
On 12 May 2021, the Tribunal conducted a hearing in respect of the application for review and determined to affirm the decision of the delegate. Oral reasons were given for the decision taken the same day.
The Applicants applied to this Court to review the Tribunal's decision.
The Review before this court
On 17 March 2022 I conducted a hearing of the application for review. The Applicants had been given notice of the hearing, and on 16 March 2022 at 4:21pm an email was received by my Chambers from the First Applicant, in which she indicated:
…I am feeling extremely sick from contracting Covid-19 and will be too sick to attend the hearing.
The email also requested an adjournment for 14 days and apologised for the late notice of her request, stating she had not anticipated her “condition to worsen suddenly as I was beginning to gradually recover”.
At 4:27 PM, the Court’s Associate emailed the First Applicant in the following terms:
The Court is unable to grant an administrative adjournment.
There is no requirement for you to appear in person at the hearing.
You will need to dial in tomorrow 17 March 2022 at 10.00am using the MS Teams details below and seek an adjournment before her Honour.
On 17 March at 9:32am, my Chambers received an email from the First Applicant copied to the solicitor for the First Respondent, Mr Wilson. It stated:
Although I had planned to attend the hearing however, I have a fever and unable to attend, i (sic) will rely on my written submission.
At my direction, the Associate replied to the First Applicant to seek confirmation that she sought to rely solely on the written submissions and did not wish to pursue an adjournment. It was emphasised that the applicant could participate in the hearing by Microsoft Teams and was not required to appear in person.
No further communication was received and at the time of the hearing neither Applicant appeared or dialled into the hearing by Microsoft Teams. No attempt was made to pursue an adjournment and the Applicants were aware that they could make such application before me by Microsoft Teams at the time of hearing.
The advice that the First Applicant would rely on the written submissions was received soon before the hearing commenced. She had emailed the Court at 9:32am for a hearing commencing at 10:00am. Typically and commonly known, the effort of linking to a hearing by Microsoft Teams is similar to the effort of sending an email. Accordingly, I infer that whatever the state of the First Applicant’s illness or condition was, it ought reasonably not have precluded her from joining the hearing to ask for adjournment if she wished to pursue it.
The First Respondent pressed for the hearing to proceed. As I was satisfied that the Applicants had notice of the hearing, had advised that they would rely on written submissions and did not seek an adjournment, I determined that I should proceed with the hearing.
The emails exchanged between the First Applicant and my Chambers were received as Exhibit A-1.
Jurisdictional error – relevant principles
For the Applicants to succeed, they need to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Tribunal decision under review
The basis for the Tribunal affirming the decision to refuse the Applicants’ visas was stated to be as follows:
64.After weighing up all the factors specified in the Direction, I am not satisfied that the primary review applicant intends genuinely to stay in Australia temporarily. Accordingly, I find that the primary review applicant does not meet clause 500.212(a).
65.As the primary review applicant does not meet clause 500.212(a), the dependent review applicant does not satisfy clause 500.311. No further assessment about the dependent review applicant has been undertaken. Accordingly, the Tribunal is not satisfied that the dependent review applicant meets clause 500.313
As will be apparent from the above, the Tribunal was not satisfied that the First Applicant intended to stay in Australia temporarily and consequently neither she or her husband, the Second Applicant, were eligible for visas.
The documents to which the Tribunal had regard during the hearing are identified in the reasons for decision at [8], but not exhaustively because of the word “including”. At the hearing on 12 May 2021, the First Applicant gave evidence and both Applicants were legally represented.
Materials relied upon by the Applicants
On 24 February 2022, the Applicants filed and the Court has read:
·an Amended Application;
·written submissions dated 18 February 2021, the year apparently being a clerical error as they were filed on 24 February 2022; and
·Affidavit of the First Applicant, said to be sworn or affirmed on 2 March 2022, an impossibility as it too was filed in February 2022 and apparently another clerical error.
The Amended Application and the affidavit were received jointly as Exhibit A-2 and the Applicants’ written submission were received as Exhibit A-3, given that the Applicants were not present at the hearing.
The First Respondent filed a Court Book on 9 September 2021, to which the First Applicant and First Respondent appear to refer in their written submissions. The Court has had regard to the Court Book as necessary.
The Amended Application and written submissions were signed by both Applicants and are taken to be relied upon jointly. Initially seven grounds of error were asserted, but in the Amended Application only Grounds 1, 2, 4 and 6 are pursued.
The basis for jurisdictional error by the Tribunal is said to be as follows:
1.The Tribunal did not comply with s359(1) of the Migration Act 1958 (Cth). The Tribunal member failed to have regard to the various documents that I submitted prior to the hearing. The failure by the Tribunal to consider that information constitutes jurisdictional error. The various documents include the cost of my course and my grant of scholarship which is strong evidence to show that I am a genuine student.
2.I was not given a fair hearing by virtue of the member breaching the rule of procedural fairness because he failed to consider all factors relevant to the matter. Specifically, the Tribunal member concluded in paragraph 20 of the decision record that “The job offer is conditional upon the applicant completing her proposed course of study which she is not yet enrolled in”. However, the Tribunal member failed to take into consideration that despite not receiving confirmation of enrolment, I had in fact received a letter of offer from the School who also granted me Scholarship to attend.
…
4.The Tribunal drew conclusions without adequate basis. In particular during the AAT hearing the concluding that my action does not fit the characteristic of a genuine student and that I am using the student visa program to circumvent the migration system and to establish ongoing residence. I respectfully submit that such conclusion in unfounded and that the Tribunal had failed to take into consideration my academic record which show that I am achieve great results and was also awarded with a high achieve [sic] award during my course of study.
…
6.The Tribunal member failed to take into serious consideration of the fact that I need to return to Indonesia, to the comfort of being around my family members and commence my career in Indonesia. I have a job offer from Indonesia which require me to complete my course.
Have grounds of error been established?
Relevant to all grounds of review and underpinning them, is the contention that the Tribunal failed to consider documents submitted to the Tribunal before the hearing in response to a request pursuant to section 359 of the Migration Act 1958 (Cth) (“the Act”).
For context, the Court Book filed by the Respondent discloses as follows:
(a)Prior to the hearing on 12 May 2021, the Tribunal had sought information from the Applicants pursuant to section 359 of the Act;
(b)On 10 May 2021 at 8:03pm AEST, the Applicants’ legal representative provided a detailed written submission accompanied by substantiating documents;[3] and
(c)The next day at 7:12pm AEST, a further written submission with documents attached were also sent to the Tribunal.
[3] Pages 207 to 343 of the Court Book.
Ground 1
This ground of the Amended Application asserts that the Tribunal failed to have regard to “various documents” about the First Applicant’s intended study. Although this ground refers to “various documents”, those specifically identified are a scholarship offer received and costs of the study. It is apparent that the ground relies on the assertion that documents which were sent to the Tribunal the evening before the hearing were not considered.
Paragraphs 1 to 3 on page 5 of the written submissions filed on 24 February 2022 particularly engage with this ground, but the submissions generally are relied upon for all grounds. In essence, it is said that the Tribunal overlooked the documents, which caused it to erroneously make findings at [60] of its reasons about the First Applicant’s purpose for seeking the student visa. The Tribunal stated:
…I find that if the student visa the applicant has applied for is granted, it will be used primarily for maintaining ongoing residence and not for the genuine purpose of study. I give this factor weight against the applicant.
The Tribunal hearing proceeded by phone on 12 May 2021.[4] On 11 May 2021 at 7:12pm AEST, the First Applicant’s lawyer by email provided a letter by way of late submission. It attached a copy of a letter of offer to study a Master of Business Administration at the University of Tasmania.[5] The lawyer’s letter stated:
We have provided a letter of offer from the University of Tasmania in relation to the Applicant’s application for a Master of Business Administration (International). The Applicant’s enrolment will be finalised and [sic] once she receives her Transcript and Certificate for her current course and provide [sic] those to the University.
[4] Reasons of the Tribunal at [5] and [6].
[5] Pages 344, 347 and 356 the Court Book.
The reference above to “current course”, can be understood from the completed “Request for Student Visa Information”.[6] It demonstrates that the First Applicant was enrolled and studying a Graduate Diploma of Management (Learning) at AIBT Global until May 2021.
[6] Page 190 of the Court Book.
The letter of 11 May 2021 and attachments are not mentioned at [8] of the Tribunal’s reasons for decision. On its face, this raises some concern as to whether the Tribunal had regard to it for the purpose of making an apparent finding that the First Applicant was not enrolled in a course of study;[7] and further that the First Applicant was using the student visa program, not for the genuine purpose of study, but to maintain ongoing residence.[8]
[7] Reasons of the Tribunal at [20].
[8] Reasons of the Tribunal at [45].
However, this ground specifically asserts that the failure to consider the documents received on 11 May 2021 caused error in relation to whether the first applicant was a “genuine student”.
The Tribunal’s reasons refer to the First Applicant, stating at the hearing that she had completed the Graduate Diploma of Management (Learning) and has applied for enrolment in the Master of Business Administration.[9] The member was therefore aware that the First Applicant intended to enrol in the Master’s degree, but was not privy to any specific evidence about when that might occur.
[9] Reasons of the Tribunal at [40].
In the submissions relating to this ground, the Applicants contend that the Tribunal failed to consider written and oral submission about the First Applicant being awarded a scholarship. The written reasons for decision do not mention a scholarship.
The First Respondent’s submissions appear to accept that the Tribunal did not have regard to the scholarship. They say that the 11 May 2021 late submission was not drawn to the member’s attention or that the First Applicant did not make the oral statement or submission upon which she now relies.[10] Further it is contended that, to the extent the Tribunal did not take the scholarship information into account, there does not appear to be an obvious nexus between such a failure and the conclusion that the Tribunal reached at [60].
[10] First Applicant’s written submissions at [3] on page 5 and First Respondent’s written submissions at [17] on page 7.
I accept the First Respondent’s submission that the member was generally aware that the First Applicant had achieved good results in her studies, successfully completed numerous courses of study,[11] and intended to enrol in another course. It was this awareness together with evidence that she had recently completed a Graduate Diploma in Management that founded part of the member’s concern that the further study was being pursued for the purpose of remaining in Australia.
[11] Reasons of the Tribunal at [39].
He noted that on evidence before him the First Applicant had previously attained qualifications that equipped her for employment in the field of accounting, a career she had previously stated she would pursue and for which she had an offer of employment in Indonesia.[12]
[12] Reasons of the Tribunal at [41].
To the extent that the Tribunal overlooked considering the fact that the First Applicant had been awarded a scholarship alone, I am not satisfied that this was material to the decision taken and the onus was on the First Applicant as to this.[13] The Respondent contends that there was no relevant issue about the First Applicant being a genuine student. To the extent that the intent of this submission is to convey that there was no dispute about the first Applicant being a good student with a successful academic record, I agree. That the Tribunal found accordingly is self-evident from its reasons.
[13] Hossain [2018] HCA 34; SZMTA [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
The likely failure to consider more broadly the late submission of 11 May 2021 is addressed further in the context of Ground 2.
Ground 2
The written submissions at [4] to [5] inclusive address this ground of the Amended Application. The Applicants contend that in making the finding at [20] of the reasons for decision that the job offer from PT Mitra Anugrah Engineering “did not serve as a significant incentive to return” to the First Applicant’s home country, the Tribunal erroneously relied on the fact that the First Applicant was not yet enrolled in a course of study.
In essence the submissions complain that the member failed to consider the same material referred to in Ground 1. The effect of what the First Applicant submits is that the evidence she sought to rely on and forwarded on 11 May 2021, showed that enrolment was inevitable and only not satisfied because of the timing of the hearing and the decision.
Implicit in what the First Applicant says is the contention that the member’s reasoning and conclusion about whether the job offer was a significant incentive to return to Indonesia was unfair and ignored relevant evidence about inevitable enrolment and completion of the Master’s course pursuant to a study offer she had received.
The First Respondent’s written submissions under the heading Part V, at [1] to [21], address Grounds 1 and 2 of the Amended Application. They do not directly grapple with the substance of the First Applicant’s complaint referred to in the previous paragraph. The First Respondent simply says that to the extent that the member may have overlooked the documents submitted on 11 May 2021 or any oral statement made, it is not material error because the basis for affirming the decision below was not connected to whether the First Applicant was enrolled in a course of study.
However, it seems that to some degree, the Tribunal did rely on non-enrolment and an inference of non-completion of the course of study in sufficient time to take up the offer of employment when it rejected that the First Applicant was a genuine temporary entrant. That it did so is overtly apparent from:
(a)The Tribunal’s reasons at [20] when considering paragraph 9(b) of Ministerial Direction No 69;
(b)The Tribunal’s reasons at [53] when considering paragraph 12(b) of Ministerial Direction No 69.
Had the Tribunal considered the late submission of 11 May 2021 it would have had information before it that the completion date for the Masters of Business Administration at the University of Tasmania was June 2023, which would be in time for her to accept the job offer prior to November 2023, being the date until which the job offer remained available.[14]
[14] The job offer letter dated 25 February 2021 at page 260 of the Court Book.
Accordingly, objectively and reasonably the evidence not considered was directly relevant to consideration of paragraph 9(b) and 12(b) of Ministerial direction 69 and the reasons of the Tribunal about enrolment and completion of the Master’s degree.
Further, the enquiries by the Tribunal referred to at [53] in my view demonstrate that the 11 May 2021 late submission was not considered, as they would have not arisen if the member taken them into account.
Accordingly, a reasonable and objective decision maker could have reached a different conclusion about whether the job offer served as a significant incentive for the First Applicant to return to Indonesia and therefore was a genuine temporary entrant.
Ground 4
This ground relates to findings by the Tribunal at [45] of its reasons for decision. The First Applicant’s written submissions at [6] and [7] elaborate on the basis for the alleged error. In essence it is asserted that the Tribunal failed to take into account the First Applicant’s academic results and costs of the proposed course of study as relevant factors when it concluded that she was using the student visa program to maintain residence in Australia, not for the genuine purpose of study.
It is self-evident from the reasons at [39] to [42] that the member was aware of the First Applicant’s academic record and results. The First Applicant’s written submission quoted at [42] of the reasons state, amongst other things, that she was:
…achieving average of high distinction in her Master of Accounting prior to change of course…
It is not established that the identified evidence was not taken into account.
The complaint that the member did not have regard to the cost of the Masters of Business Administration may be correct because it seems that the Tribunal did not have regard to the 11 May 2021 submission, which contained the information that the costs over two years were about $54,000 and the scholarship would reduce this cost.
The First Respondent does not submit that the Tribunal took the study costs into account. However, the real issue is whether this failure was material to an established ground of jurisdictional error.
Ground 6
Ground 6 asserts that the Tribunal did not take into serious consideration facts that the First Applicant needed to return to Indonesia:
(a)to be around family members; and
(b)to commence a career in a position offered to her on condition that she complete the Masters of Business Administration.
There is no validity to this ground in so far as it refers to a need to return to Indonesia to be around family members. The Tribunal’s reasons for decision at [17], [18], [19] and [30] expressly engage in the evidence and facts concerning family ties. The member reasoned that, because there were siblings to care for elderly parents, the First Applicant had been absent for over 10 years and that the First Applicant had regularly travelled to see family and kept in contact electronically, her presence in her home country was not essential for family relations.
Regarding the second complaint in this ground, the Applicants seek to rely on oral statements made to the member during the hearing regarding the need to return to Indonesia for the job offer. The relevant questions and statements are purported to be quoted in the Applicants’ written submissions.
The First Respondent submitted that the quoted statements were not in evidence before the Court and, in any event, were misleading without the full extract of the transcript being before the Court, which it was not.
Further, the First Respondent contends that the complaint made is one about the findings of fact, which do not amount to jurisdictional error. Additionally, the First Respondent’s written submissions identify paragraphs of the reasons for decision that indicate that the First Applicant’s family ties and the job offer with PT Mitra Anugrah Engineering were considered.[15]
[15] Reasons of the Tribunal at [17], [18] and [23].
The onus was on the First Applicant to put before the Court the oral evidence she claims was given to the Tribunal. She has not done so as she did not produce a transcript of the hearing. In circumstances where the First Respondent asserts that the quotes provided in the written submissions tend to mislead, it is not procedurally fair to take the quoted extracts into account.
Disposition
The Tribunal’s reasons for decision are lengthy and address the considerations prescribed in Schedule 2 of the Migration Regulations 1994 (Cth) and Ministerial Direction 69 which provide guidance as to informing of the requirements in clause 500.212(a) of Schedule 2 of the Regulations. They demonstrate that the required evaluation of relevant considerations was mostly undertaken.[16]
[16] Singh v Minister [2019] FCAFC 3 at [3].
I am satisfied, on the basis of the Tribunal reasons and the fact that the First Respondent has not contended otherwise, that the Tribunal did not take into account the late submission of 11 May 2021. The Tribunal was obliged to take it into account as the information and documents were materially relevant to the considerations applicable to the decision being taken.[17] In particular, they are of sufficient importance to the required evaluation of paragraphs 9(b) and 12(b) of Ministerial Direction No 69.[18]
[17] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
[18] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]-[112)
They were relevant because they evidenced the date of completion of the Masters course for which the First Applicant sought the visa.
It is significant that the Tribunal overtly did not rely upon the First Applicant not being enrolled in a course of study for the purpose of affirming the decision below. Instead, it relied on being dissatisfied that the First Applicant, on the basis of various findings, was not a genuine temporary entrant to Australia.
However, in being so dissatisfied it ignored evidence that enrolment in the Masters course of study would be inevitable and that the course would be completed in sufficient time to take up the job offer. That this was ignored and the late submission not taken into account is apparent from the Tribunal’s reasons at [20] and [53].
Oral statements by the First Applicant that she intended to enrol in the Masters of Business Administration were considered. However, Ground 2 asserts error more broadly than questions of simple weight afforded to certain evidence and facts found. In my view, it raises questions of failure to consider relevant evidence and submissions, which infected the decision taken with jurisdictional error.[19]
[19] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Although the First Applicant in these proceedings was represented, the Tribunal was obliged to consider all relevant material relied upon by the Applicants, even if it was not directly drawn to the member’s attention.[20]
[20] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [74].
Whether consideration of the 11 May 2021 submission would have altered the Tribunal’s evaluation is not known. However, I consider a reasonable and objective decision maker might have decided differently.[21]
[21] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
Accordingly, Ground 2 of the application for review succeeds and the matter is remitted to the Tribunal for redetermination by another member.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 1 June 2022
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