Vankayalapati v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1098
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vankayalapati v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1098
File number(s): BRG 343 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 25 October 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review –jurisdictional error – procedural fairness - failure to take into account relevant considerations – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476(1)
Migration Regulations 1994 (Cth) cl 500.211, 500.212, 500.218
Cases cited: Pabbi v Minister for Home Affairs [2019] FCCA 1750 Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 18 October 2024 Date of hearing: 18 October 2024 Place: Brisbane Counsel for the Applicant: The applicant appeared in person via MS Teams video link. Solicitor for the Respondents: Ms Tattersall - Minter Ellison ORDERS
BRG 343 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIVAJI VANKAYALAPATI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $5900.00.
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
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.
BACKGROUND
Application for a Student (Temporary) (Class TU) visa
The applicant is a citizen of India. The applicant arrived in Australia on 23 June 2016 on a Student visa. The applicant was subsequently granted a Temporary Graduate (subclass 485) visa on 9 December 2019, which expired on 9 December 2021 (Court Book (“CB”) 155).
On 8 December 2021, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) for the purpose of completing an Advanced Diploma of Leadership and Management (CB 23-45).
On 5 January 2022, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That criterion relevantly provides:
The applicant is a genuine applicant for entry and stay as a student because:
a. the applicant intends genuinely to stay in Australia temporarily, having regard to:
i.the applicant’s circumstances; and
ii.the applicant’s immigration history; and
iii.if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
iv.any other relevant matter; and
Application for review in the Administrative Appeals Tribunal
On 20 January 2022, the applicant applied to the Tribunal for review of the delegate’s decision (CB 62-76). The applicant appointed a Migration Agent to represent him and to act as an authorised recipient (CB 66).
On 21 January 2022, the Tribunal acknowledged receipt of the Application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 79-86).
On 17 March 2023, the Tribunal sent the applicant an invitation requesting him to provide information to satisfy the Tribunal that he meets the visa requirements that he is enrolled in a registered course of study and is a genuine applicant for entry and stay as a student
(CB 89-95). The Tribunal provided to the applicant a link to the online Request for Student Visa Information Form. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) was also attached.
On 31 March 2023, the applicant’s Migration Agent provided to the Tribunal a letter from the applicant attaching a number of documents (CB 96-121).
On 16 May 2023, the Tribunal sent a letter inviting the applicant to attend a hearing by video conference on 16 June 2023 to give evidence and present arguments (CB 124-136). The invitation requested the applicant to provide by 9 June 2023 all documents he intended to rely upon to support his case, and referred the applicant to the reasons for the decision made by the delegate.
On 9 June 2023, the applicant provided to the Tribunal a completed Response to Hearing Invitation Form (CB 137-143).
On 16 June 2023, the applicant appeared before the Tribunal to give evidence and present arguments (CB 144-147). The applicant’s Migration Agent did not attend.
On 29 June 2023, the Tribunal affirmed the delegate's decision not to grant the visa
(CB 154-167). The Tribunal provided written reasons for its decision.
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant was a genuine applicant for entry and stay as a student and identified the criterion in cl 500.212 in Schedule 2 of the Regulations ([8]; [29]).
The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a) in Schedule 2 of the Regulations, the Tribunal must have regard to the specified factors in Direction No. 69 ([30]). The Tribunal went on to state that the factors should not be used as a checklist but as a guide to decision makers when considering the applicant’s circumstance as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion ([31]).
After setting out the procedural background, the Tribunal summarised the applicant’s oral and written evidence ([9]-[28]), including the applicant’s response to the s 359(2) request and the applicant’s genuine temporary entrant statement to the department.
Having considered the evidence and the applicant’s written and oral evidence, the Tribunal found that the applicant was not a genuine temporary entrant for the following reasons:
(a) The applicant had not completed any course of study since the expiry of his Graduate Temporary Visa on 9 December 2021 despite holding a Certificate of Enrolment (“COE”) for an Advanced Diploma of Leadership and Management. This indicated that the applicant was not a genuine entrant for stay and study as a student and was using a Student visa to maintain residency, lifestyle and access to earnings in Australia([32](a));
(b) Whilst it was acceptable for an applicant to change courses to further a career objective, the applicant had transitioned from a Master’s degree course to a VET sector course which was cancelled for non-payment of fees, and now proposed to undertake a Graduate Diploma course. This indicated the applicant was using the Student visa stream to maintain residency, lifestyle and access to earnings in Australia ([32](b));
(c) Despite having family in India, the applicant’s lack of return visits to his home country in more than 7 years of residency suggested the applicant had stronger ties to Australia, than to his home country. This indicated the applicant is using the Student visa stream to maintain residency, lifestyle and access to earnings in Australia ([32](c));
(d) The applicant had not provided adequate evidence to support his claims that it was his intention to return to India after completing his course of study to seek a job as a Business Analyst ([32](d));
(e) The applicant had been resident in Australia for more than 7 years, including a period without completion of study for which the Student visa was sought. ([32](e));
(f) There was inadequate evidence to support an intention to complete the new course and return to India ([32](e)).
On balance, the Tribunal considered that the applicant had stronger ties to Australia than with his relative future prospect in India, had a desire to remain in Australia and was using the Student visa stream not to study and improve his career prospects in India but for the purpose of maintaining residency, lifestyle and access to earnings in Australia ([33]-[34]).
The Tribunal concluded the applicant did not meet cl 500.212(a) in Schedule 2 of the Regulations as it was not satisfied that the applicant intended to genuinely stay in Australia temporarily ([35]-[36]).
Accordingly, the Tribunal affirmed the delegate’s decision ([38]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”) by application filed on 27 July 2023.
The applicant also filed an Affidavit affirmed on 27 July 2023. The Affidavit states that the applicant has reasonable grounds for establishing that the Tribunal’s decision contains jurisdictional errors and annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicant to file an Amended Application with proper particulars of the grounds of the application and any additional evidence that he sought to rely on and requiring the applicant to file written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence which the first respondent sought to rely upon. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicant did not file an Amended Application or any further evidence. The applicant did not file written submissions.
The material before the Court included the Application for judicial review, the applicant’s Affidavit filed on 27 July 2023, the first respondent’s Response filed on 16 October 2023, the first respondent’s written submissions and a Court Book.
The grounds of review set out in the Application are (without alteration):
Ground One
The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s 359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars
a) The applicant applied for a review of his decision. There was no way that the Applicant was able to know of the likely time frame to have a hearing allocated by the Second Respondent as there was no consistency.
b) The Tribunal failed to provide procedural fairness to the Applicant in circumstances where the Tribunal failed to take into account the circumstances that led to the refusal.
c) The Second Respondent did not consider that the intentions of the applicant to return to his hometown and considered the fact that his family have assets of close to one million dollars in India, both parents and two brothers. The Second Respondent placed focussed entirely on the low pay employment the applicant has in Australia, which and did not consider the fact that the applicant actually had an excellent academic record, having already completed a Master course in I.T.
Ground Two
The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not have regard for the applicant’s record and excellent prospects upon returning home.
The applicant appeared before the Court in person via Microsoft Teams. He appeared without legal representation.
The Court confirmed with the applicant that he had access to the materials before the Court.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by jurisdictional error.
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The applicant was given the opportunity to make oral submissions.
Ground one: Denial of procedural fairness and failure to consider relevant considerations
In ground one, the applicant pleads two grounds of review:
(a) He was denied procedural fairness under s 359 of the Act and because ‘he was unable to know of the likely time frame to have a hearing allocated by the Second Respondent as there was no consistency’;
(b) The Tribunal failed to take into account relevant considerations namely representations made by the applicant that led to the refusal, his intentions to return to his hometown, his family’s assets in India of close to one million Australian dollars, his parents and two brothers in India and his excellent academic record.
Procedural fairness
As to the applicant’s complaint with respect to s 359 of the Act, the Tribunal invited the applicant by letter dated 17 March 2023 to provide information to satisfy the Tribunal that he met the visa requirements that he is enrolled in a registered course of study and is a genuine applicant for entry and stay as a student. The Tribunal provided the applicant with a copy of Direction No. 69. The request was sent to the applicant’s representative and authorised recipient appointed under s 379G of the Act.
The applicant was given 14 days to respond to the request for information. The applicant (through his representative) provided a response to the request within 14 days. There is no evidence before the Court that the applicant sought an extension of time within which to comply with the request or sought a further opportunity to provide documents in response to the request prior to the hearing.
Accordingly, the Tribunal complied with the requirement in s 359 of the Act.
The Court had difficulty in understanding the applicant’s complaint (in particular (a)) that he was not able to know ‘the likely time frame to have a hearing allocated’. In oral submissions, the applicant explained that his complaint here was that he was not given enough time to provide documents about his parents’ financial situation and did not have enough time to explain himself to the Tribunal because the hearing was short.
As to the opportunity the applicant was given to provide documents to the Tribunal, the applicant was given three opportunities prior to the hearing to provide to the Tribunal any documents on which he sought to rely. First, when acknowledging receipt of the application for review, the Tribunal advised the applicant to provide any material for consideration by the Tribunal as soon as possible. Secondly, as already noted, the Tribunal invited the applicant to provide information in response to a s 359 request and the applicant responded to that request by providing documents. Thirdly, when inviting the applicant to the hearing the Tribunal requested the applicant to provide any documents he intended to rely upon at the hearing. The applicant was given until 9 June 2023 to do so. This gave to the applicant a period of just over three weeks. The applicant did not provide any further documents. There is no evidence before the Court that the applicant requested the Tribunal for any further opportunity to provide documents prior to the hearing.
In considering whether the applicant was given a sufficient opportunity to provide documents as to his parents’ financial situation (or about other relevant matters) it is relevant to note that it is evident from the Tribunal’s correspondence that the applicant was on notice as to the dispositive issue in the matter and that he was assisted in the review process by a Migration Agent.
The Court asked the applicant whether he asked the Tribunal at the hearing for more time in which to submit documents. He said that he did not. That is borne out by the Tribunal’s question to the applicant as to whether he wanted to make any further comment to which he responded “no” ([27]). The applicant also told the Court that he submitted to the Tribunal “all the file documents and everything original”.
The Court is satisfied that the applicant was afforded procedural fairness by being given sufficient opportunity to provide documents to the Tribunal in support of his application for review.
As noted, the applicant also asserts that he was not given enough time to present his case because of the brevity of the hearing before the Tribunal. The hearing was brief. The hearing record shows that it went for 15 minutes (CB 145-147).
The is no minimum statutory time limit for hearings before the Tribunal and brevity alone is not indicative of a denial of procedural fairness (Pabbi v Minister for Home Affairs [2019] FCCA 1750 (“Pabbi”) at [54] per Kendall J).
The question is whether, pursuant to s 360 of the Act, the applicant was given a real and meaningful opportunity to provide evidence and present arguments. This includes providing an applicant with a hearing in which they understand the process and can participate and engage in the process (Pabbi at [55] per Kendall J).
The Court is concerned by a hearing which lasted only 15 minutes. However, as noted, brevity alone is not indicative of a denial of procedural fairness. In assessing whether an applicant had a meaningful opportunity to present their case account should also be taken of the opportunity that the applicant was afforded prior to the hearing (which he availed himself of) to provide information and documents to the Tribunal as well as what happened at the hearing.
The transcript of the proceedings before the Tribunal is not in evidence. However, from a reading of the reasons for decision, the following is noted:
(a) The applicant understood the dispositive issue in the case which was the same as that before the delegate and which had been raised in the invitation to the applicant pursuant to s 359 of the Act;
(b) The Tribunal asked the applicant a number of questions relevant to that issue to which he replied “no” ([24]-[26]). There is no suggestion that the applicant was cut off in trying to provide his answer or that he sought to provide further responses;
(c) The Tribunal asked the applicant whether he wanted to make further comment to which he replied “no” ([27]).
The Court is satisfied that the applicant understood the process and was given a meaningful opportunity to give evidence and present arguments.
No jurisdictional error is established.
Failure to take into account relevant considerations
It is evident from the Tribunal’s reasons that it took into consideration each of the matters the applicant asserts (in particular (a) of this ground of review) were not taken into account:
(a) the circumstances that led to the visa refusal ([6]);
(b) the applicant’s stated intention to return to his hometown ([17]; [24]-[26]; [28]; [32](d));
(c) the applicant’s family assets and family members in India ([18]; [22]-[23]; [32](c));
(d) the applicant’s academic record ([10]; [3]-[15]; [32](a))
In oral submissions, the applicant also submitted that the Tribunal did not take into consideration that he wanted to study further to gain more knowledge to fill a gap in his knowledge and skills. The reasons for decision demonstrate that the Tribunal did take this consideration into account ([19]; [28]; [32](d)).
The Court is satisfied that the Tribunal took into consideration all of the matters the applicant identifies. Further, the Court agrees with the first respondent’s submission and having regard to the Tribunal’s reasons that the Tribunal came to a conclusion open to it and its reasoning disclosed a proper evaluation of the applicant’s evidence that was logical and rational (FRS [29]).
No jurisdictional error is established.
Ground two: Denial of procedural fairness and failure to have regard to applicant’s record and prospects in home country
So far as ground two asserts a denial of procedural fairness, these reasons have already dealt with the specific matters the applicant has raised about procedural fairness in ground one.
Otherwise, the Court agrees with the first respondent’s submissions that the Tribunal complied with the procedural fairness requirements in Division 5 of Part 5 of the Act which are an exhaustive statement of the Tribunal’s procedural fairness obligations: s 357A (FRS [33]).
In ground two, the applicant also asserts that the Tribunal failed to consider his record and excellent prospects upon returning home.
As to the applicant’s record, this is repetitive of particular (c) of ground one which has been dealt with. The applicant also, however, asserts that the Tribunal did not consider his excellent prospects upon returning home. It is evident from the reasons for decision that the Tribunal did consider the applicant’s employment prospects upon returning to India ([28]). The Tribunal was not satisfied with the applicant’s claims regarding those prospects because it did not consider that the claim was supported by adequate information ([32](d)). Whilst the applicant might not be satisfied with this conclusion, the Tribunal’s reasons demonstrate that it came to a conclusion that was open to it and its reasoning was logical and rational.
No jurisdictional error is established.
CONCLUSION
The application for judicial review and oral submissions fail to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 25 October 2024
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