Virk v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1302
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Virk v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1302
File number: MLG 2949 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 29 November 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant the primary applicant a student visa – primary applicant did not satisfy genuine temporary entrant criterion – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the Tribunal erred in relation to the evidence of the secondary applicant Legislation: Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submissions: 26 September 2024 Date of hearing: 26 September 2024 Place: Melbourne Counsel for the Applicants: Mr Honnery Solicitor for the Applicants: Carina Ford Immigration Lawyers Counsel for the Respondents: Ms Mills Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2949 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASKARAN SINGH VIRK
First Applicant
VARINDERPAL KAUT VIRK
Second Applicant
JASHANDEEP VIRK
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSITRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application filed 6 September 2019 as amended 28 August 2024 be dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
4.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
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 BINGHAM:
On 29 August 2019 the Administrative Appeals Tribunal (Tribunal) affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the First Applicant, and the Second, Third and Fourth Applicants as secondary applicants, a Student (Temporary) (class TU) (subclass 500) visa on 26 February 2018 (Visa) because the First Applicant did not meet the genuine temporary entrant criterion (Tribunal’s Decision).
By an application filed in this Court on 6 September 2019 (Application), the Applicants seek judicial review of the Tribunal’s Decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) on the grounds that the Tribunal failed to comply with section 360 of the Migration Act and that the Tribunal erred in its consideration of the law and the evidence.
BACKGROUND
The Applicants arrived in Australia from India on 19 April 2010 with the First Applicant being a holder of a temporary student visa and the Second, Third and Fourth Applicants being secondary applicants to the visa (Secondary Applicants). The visa was valid until 22 June 2012.
The First Applicant was subsequently granted two further s 572 temporary student visas and a s 485 temporary graduate workstream visa.
Between 2009 and 2016 the First Applicant was enrolled in seven different courses.[1]
[1] Cout Book (CB), 55.
On 26 February 2018 the First Applicant applied for his fifth temporary student visa being the Visa that is the subject of these proceedings (Visa Application). The Secondary Applicants were joined to the Visa Application.
The genuine temporary entrant requirements
Clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) set out the genuine temporary entrant (GTE) criterion:
500.212
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
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Ministerial Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction No. 69) provided the matters to be considered when assessing the GTE criterion.
Delegate’s Decision
On 12 April 2018 the Delegate found that:
(a)On balance the information provided by the First Applicant regarding the circumstances in India, potential circumstances in Australia, the value of the proposed course to his future, immigration history and other relevant matters was not sufficient to demonstrate that he was a genuine temporary entrant.
(b)The First Applicant and the Secondary Applicants were using the student visa program as a means of maintaining ongoing residency in Australia.
(c)The First Applicant and the Secondary Applicants did not intend to stay in Australia temporarily as a fulltime student.
(d)The First Applicant did not meet the requirements of clause 500.212 of the Regulations.
(e)The criteria for the grant of a Student Visa was not met by the First Applicant.
Consequently the Visa Application for the Visa was refused (Delegate’s Decision).
Application for review to the Tribunal
The Applicants sought review before the Tribunal on 26 April 2018.
An invitation to provide further information to the Tribunal was sent to the Applicants on 25 July 2019. On 8 August 2019 a completed request for Student Visa Information Form was submitted to the Tribunal by the Applicants together with medical and education records.
The Applicants were invited to attend a scheduled hearing before the Tribunal on 29 August 2019. On or about 28 August 2019 the Applicants submitted to the Tribunal a completed Response to Hearing form.
A hearing was held before the Tribunal on 29 August 2019 (Tribunal Hearing). The First Applicant appeared at the Tribunal Hearing to give evidence and to present arguments. The Secondary Applicants were in attendance and did not give evidence.
THE TRIBUNAL’S DECISION
On 29 August 2019 the Tribunal made an oral decision and gave an oral statement of reasons and decision at the conclusion of the Tribunal Hearing. A written record of reasons was provided on 24 September 2019.
The Tribunal found that on the face of the First Applicant’s express statements he demonstrated an unqualified intention to remain temporarily in Australia but that when tested against “more objective considerations” the declared intentions were seriously undermined.
The Tribunal considered the First Applicant’s immigration history. It found that each of the four visas that had been granted to the First Applicant since 19 April 2010 were all temporary visas and that on each occasion the First Applicant applied for those visas he declared an intention that he would remain in Australia temporarily following which at the expiry of the visa period he would depart Australia and return to his home country. The Tribunal observed that the declared intention “failed to manifest into reality”.
The Tribunal noted that in almost 10 years the First Applicant had only returned to his home country on two occasions, that the First Applicant regarded Australia as home, and that the Applicant’s children, at the time of the hearing aged five and fifteen had either only known Australia or spent the majority of their life here. The Tribunal went on to opine that the First Applicant and his immediate family had become accustomed to Australia and its way of life over the decade they had resided here and that they would prefer to remain here with the corollary being that their ties to India were weakened.
The Applicant’s proposed course of study, the Tribunal found, had virtually no value to his proposed career as an owner operator of automotive business and that the First Applicant already had the necessary qualification to pursue that career.
It was accepted by the Tribunal that the Applicant had assets in India but that they did not operate as a significant incentive to return. The Tribunal considered the “significant economic disparity” between Australia and India and referred to the United Nations Human Development Index which ranked Australia at 3 and India at 133 and found that objectively the index indicated the First Applicant would prefer to remain in Australia.
The Tribunal ultimately affirmed the Delegate’s Decision that the First Applicant did not satisfy the genuine temporary entrant requirement.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 6 September 2019, within 35 days of the date of the Tribunal’s Decision, pursuant to s 477 of the Migration Act. An amended Application was filed on 28 August 2024.
This matter was heard on 26 September 2024 (Hearing). Both parties were represented by Counsel. Orders were made by consent removing the Fourth Applicant as a party to the proceeding on the basis of attaining Australian citizenship.
The Applicants relied upon the following documents:
(a)The amended Application filed 28 August 2024;
(b)The Affidavit of Madeline Keating on 27 August 2024 together with annexures;
(c)The Applicant’s outline of submissions filed 28 August 2024; and
(d)The List of Authorities filed 23 September 2024.
The Minister relied upon:
(a)The Response filed 24 September 2019;
(b)The Minister’s outline of submissions filed 12 September 2024; and
(c)The List of Authorities filed 24 September 2024.
The Court has before it a Court Book numbered 222 paginated pages which was filed by the Minister on 3 April 2024.
The remaining Applicants relied on the following grounds of review reproduced, omitting particulars, from the amended Application (Grounds of Review):
1.The Tribunal:
(a) misunderstood the law and/or misconstrued the evidence; and/or
(b) engaged in reasoning, and made findings, without a proper evidentiary basis.
[…]
(Ground 1)
2.The Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth).
[…]
(Ground 2)
3.The Tribunal:
(a)breached its obligations under s 360 of the Act in respect of a secondary applicant (the applicant’s daughter); and/or
(b)misconstrued, and failed to consider, the applicant’s claim that his daughter wants to go back to India because she misses her grandparents
[…]
(Ground 3)
In Bold added.
CONSIDERATION
Ground 1
By the particulars to Ground 1 the Applicants asserted that:
(a)The Tribunal erroneously assumed the Applicants had made the “same declaration” for each of his previous temporary visas,[2] which was incorrect because:
(i)the Applicant’s original 572 visa was granted before the introduction of the ‘genuine temporary entrant’ requirement of the student visa criterion on 5 November 2011, and did not comprise a declaration that he intended to stay in Australia temporarily; and
(ii)the Applicant’s 485 visa was also not subject to a GTE requirement and did not contain a declaration to remain in Australia temporarily.
(b)The Tribunal also misunderstood the declarations associated with the applicant’s previous visas in finding “on each occasion” he “declared an intention to remain here temporarily following which at the expiry of the visa period it was expected that he would depart Australia”[3] and “on each occasion that declared intention failed to manifest into reality at the end of the visa period”[4], because the declarations expressly contemplated the grant of further visa, such that no departure was required.
(c)Each of these errors materially tainted the Tribunal’s consideration of the Applicant’s immigration history, which was a critical issue arising in the review.
[2] CB P210:L31-45 and P211:L1-9.
[3] CB P214:L44-48.
[4] CB P211:L1-2.
In oral submissions at the Hearing Counsel for Applicants the took me to paragraph [22] of the Tribunal’s Decision where the Tribunal referred to the Applicant’s immigration history. The relevant paragraph of the Tribunal’s Decision is set out below:
I first draw attention to the applicant’s immigration history, which I have already referred to. The primary applicant and his wife and oldest child originally arrived in Australia on 19 April 2010, the primary applicant having been granted a 572 visa that was a student visa. When he applied for that visa he declared an intention when he made his application to the Immigration Department that he only wanted to remain in Australia temporarily. Implicit in that declaration was also an effective declaration that he would depart Australia once he had completed his studies at the end of the visa period.
The visa “applications” were annexed to the Affidavit of Ms Keating as “A1”. The first two of the visa applications were not the applications made by the First Applicant but rather examples of the forms in place at the time. Other than the Visa Application that was the subject of the consideration of the Tribunal[5] the “applications” exhibited to Ms Keatings affidavit were not before the Tribunal.
[5] CB P1.
It was submitted by Counsel for the Applicants that there was no statutory basis until after November 2011 for the Minister to assess whether the First Applicant was a genuine temporary entrant and that the Tribunal impugning the First Applicant’s initial temporary visa application was based on an erroneous assumption to the contrary.
Counsel for the Applicants took me to the visa “applications” annexed to Ms Keating’s affidavit. Counsel took me through the application forms where he identified that there were no declarations of the kind relied upon by the Tribunal in paragraph [22] of the Tribunal’s Decision. It was submitted that the Tribunal wrongfully assumed the nature of the declaration.
I inquired of Counsel what I should make of the fact that that each of the visas applied for were temporary. It was submitted that it was not just the temporary nature of the visa that the Tribunal impugned but that the Tribunal had looked at the purported declarations made in relation to each of the visa applications by the First Applicant.
Counsel for the Minister submitted that the Applicants have applied an unduly narrow approach to the interpretation of the Tribunal’s decision regarding the First Applicant’s visa history and the visa applications. It was submitted that the Tribunal used the word ‘declaration’ or a variant of the word such as ‘declared intention’ in approximately 15 places throughout the decision. The Minister submitted when the Tribunal used these words it was not referring to an express declaration in a visa application. Apart from the Visa Application the Tribunal did not have any of the prior visa applications before it. What the Tribunal did have before it was a history of temporary visa applications. It was submitted that the Tribunal was referring to a “declaration” in a more general sense, being that the First Applicant was declaring to the Tribunal or Minister at the time each application was made regarding his intent to remain in Australia temporarily.
Counsel took me to the various iterations of the use of “declaration” or a derivative by the Tribunal in the decision which included references of express statements given in evidence. It was further submitted, that when considering the First Applicant’s immigration history the Tribunal used the word declaration as a reference to the fact that on each occasion the First Applicant applied for a temporary visa he was declaring to the Department that he would remain in Australia on a temporary basis.
The word declaration has a number of meanings, including a positive, explicit or formal statement, announcement, and a proclamation.[6] A declaration may also include a formal affirmation usually made in writing.[7] I concur with the Minister’s submission that a narrow approach was being adopted by the Applicant’s and that the Tribunal was not referring to a formal affirmation in writing.
[6] Maquarie Dictionary.
[7] Shorter Oxford Dictionary.
Reading the Tribunal’s Decision as a whole and applying a realistic approach to understanding the Tribunal’s reasons[8] I am of the view, in circumstances where the Tribunal had only the Visa Application before it, that the Visa Application did not contain a formal attestation/declaration or acknowledgment that the First Applicant was agreeing to remain in Australia temporarily, that the Tribunal was using the term ‘declaration’ in reference to all five visa applications made by the First Applicant to describe the circumstances that each of the five applications made were for temporary visas and that by making an application for temporary visas that, for all intents and purposes, the First Applicant was declaring to the Department that he intended to stay in Australia temporarily and subsequently return to his home country at the expiration of the visa.
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 271-272.
Gound 1 does not constitute a jurisdictional error. There was no misunderstanding of the law, misconstruction of evidence nor was there reasoning or findings made without a proper evidentiary basis.
Ground 2
The Applicants submitted that the Tribunal failed to comply with s 360 of the Migration Act. Section 360 of the Migration Act provides that:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Counsel for the Applicants submitted that the Tribunal failed to comply with s 360 of the Migration Act because the Tribunal failed to put the United Nations Human Development Index (UNHDI) as evidence of the significant economic disparity between Australia and India to the First Applicant, and nor was the First Applicant given the opportunity to respond to the assessment made by the Tribunal. It was asserted that the UNHDI raised a new issue that the Tribunal was obliged to put to the Applicants.
There appears to be no controversy between the parties about the fact the Applicants were invited to attend the Tribunal Hearing.[9]
[9] CB 184.
The Minister submitted that for the Applicants to show non-compliance with s 360 the Applicants must show that:
(a)there is an issue arising in relation to the Tribunal’s Decision that the Applicants were not given an opportunity to give evidence and present arguments relating to that issue; and
(b)that they were not given this opportunity because it was not apparent that the matter was an issue.
The Applicants were provided with a copy of Direction No. 69. This is also not in contest between the parties. Direction No. 69 provides that the Tribunal should have regard to the following factors:
(a)the applicant’s circumstances; and
(b)the applicant’s immigration history; and
(c)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(d)any other relevant matter.
The Minister submitted that the consideration of the UNHDI and the conclusion arrived at by the Tribunal was within the ambit of subparagraph 9(c) of Direction No. 69 which provides:
economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
The Minister contended that it was unnecessary to put the issue specifically to the Applicants in order for them to give evidence and make submissions. The First Applicant made submissions to the Tribunal regarding the state of the automotive industry in India.[10] Questions were asked by the Tribunal of the First Applicant regarding his economic affairs in both Australia and India.
[10] CB 55.
The Minister asserted that the First Applicant was on notice of the issue of the economic disparity between Australia and India due to the fact that it was raised in the Delegate’s decision.[11]
[11] CB 56.
Further the Minister submitted that there was no obligation to provide the Applicants with the particulars of the information in the UNHDI regarding the disparity between Australia and India as the information was not about the Applicants or another person but was about a class of person to whom the Applicants were members.[12]
[12] Migration Act 1958 (Cth), s 424A(3)(A).
I am of the view that there was no material error occasioned by the Tribunal by not providing the UNHDI to the First Applicant. The First Applicant was on notice of Direction No. 69 and its content. The First Applicant gave evidence and made submissions on his economic circumstance both in Australia and India. I agree with the Minister’s submission that it was unnecessary to raise this specific issue in order for the First Applicant to be given an opportunity to give evidence or make submissions, both of which he did.
Ground 3
The Applicants submitted that the Tribunal also breached its obligations under s 360 of the Act in respect of a Secondary Applicant and misconstrued or failed to consider the First Applicant’s claim that his daughter wants to go back to India because she misses her grandparents.
With respect to Ground 3 the Applicants made the following claims:
(a)During the hearing the Tribunal declined to ask the applicant’s 15 year old daughter, who was a secondary applicant, to give evidence “due to her age” and instead asked the First Applicant to give evidence on her behalf.
(b)The Tribunal:
(i)asked the First Applicant what his daughter thinks of having lived in Australia for 10 years, to which he responded “She likes the culture back in India, but she does like the education system of Australia”.[13]
(ii)asked the First Applicant what she thinks of the idea of going back to India, to which he responded “she does want to go back to India, and she misses her grandparents, paternal and maternal grandparents”.[14]
(c)In its decision, the Tribunal did not accept the “applicant's evidence that the 15 year-old child wishes to return to India because she likes the culture, she has never effectively experienced it”.[15]
(d)The First Applicant’s statement that his daughter “likes the culture in India” was made in answer to the Tribunal’s question of what she thinks of Australia and the claimed reason for her desire to return to India was because she misses her grandparents.
(e)The Tribunal did not consider, or meaningfully engage with, the daughter missing her grandparents in its reasons, and failed to appreciate a matter that might have impacted its decision.
[13] Affidavit of Madeline Keating affirmed 27 August 2024 and filed 28 August 2024, Annexure “MK-1”, 16.
[14] Affidavit of Madeline Keating affirmed 27 August 2024 and filed 28 August 2024, Annexure “MK-1”, 16.
[15] CB 211.
In oral submissions the Applicants submitted that the fact the Tribunal dedicated paragraph [26] of its decision to this issue shows that it was material to the Tribunal’s assessment.
The Applicants contend that the Tribunal declining to take evidence from the daughter, who was at the Tribunal Hearing, in person was an error and submitted that the Tribunal could not have properly conducted its task without asking her the questions directly.[16]
[16] Transcript P19.
The Minister submitted that at no point in the hearing did the First Applicant state or otherwise request that his daughter to be called to give evidence. The Tribunal’s decision at the hearing not to ask the daughter to give evidence due to her age is consistent with Direction No. 69 which sets out that the Tribunal should have regard to the intentions of a parent, guardian or spouse of the applicant where an applicant is a minor. If there was an error by the Tribunal refusing to allow the daughter to give evidence, it would not be material enough to amount to jurisdictional error.
The Minister submitted that the Tribunal’s failure to refer to the specific evidence that the First Applicant’s daughter missed her grandparents in its reasons merely indicates that the Tribunal was not persuaded it was of significance.[17]
[17] Transcript P36.
I agree with the Minister’s submissions. The First Applicant did not seek to call as a witness his 15 year old child. The completed response to hearing invitation[18] shows that an election was made that the Third Respondent would not take part in the Tribunal Hearing. Further the First Applicant did not elect to request that the Minister take oral evidence from another person.
[18] CB 193-194.
I reject the Applicants’ submissions that a failure to engage with the First Applicant’s submissions that his daughter missed her grandparents and that it was a matter that might have impacted the Tribunal’s Decision. This alleged failure may have been an error but it was not a jurisdictional error. Even if it could be said that the Tribunal erred by making an erroneous finding that the child wanted to go back to India because she missed the culture as there was no realistic possibility that the decision that was in fact made could have been different if the alleged error had not occurred.[19] The threshold of materiality has not been met.
[19] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [14].
CONCLUSION
No jurisdictional error has been identified in the Tribunal’s Decision, the Application must be dismissed.
The Minister sought costs fixed in the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $8,371.30.
Orders will be made accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 29 November 2024
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