Walia v Minister for Home Affairs
[2022] FedCFamC2G 553
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walia v Minister for Home Affairs [2022] FedCFamC2G 553
File number(s): ADG 327 of 2018 Judgment of: JUDGE BROWN Date of judgment: 8 July 2022 Catchwords: MIGRATION – application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 s 474
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 (Cth) cl 500.212 in Schedule 2
Cases cited: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 1 July 2022 Place: Adelaide The Applicants: The First Applicant appeared in person Counsel for the Respondents: Mr Chan Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 327 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VICKY WALIA
First Applicant
KAMALJIT KAUR WALIA
Second Applicant
VARUN WALIA
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The application filed 29 August 2018 be dismissed.
2.The applicant pay the respondent’s costs filed in the sum of five thousand dollars ($5,000.00).
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
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal[1] made on 16 August 2018. The decision confirmed an earlier decision of a delegate of the Minister of Immigration & Home Affairs not to grant the applicant, Vicky Walia, a Student (Temporary) (class TU) Student (subclass 500) Visa[2] pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the visa” or the student visa”.
[3] Hereinafter referred to as “the Act”.
Mr Walia is a citizen of India, where he was born on 26 June 1978. Mr Walia is the primary visa applicant, which supports applications by his wife, Kamaljit Kaur Walia born 2 October 1977 and his son, Varun Walia born 15 October 2013. They are also citizens of India as a consequence of birth.
The conditions, which must be satisfied before the relevant visa can be granted, are specified in clause 500.212 in Schedule 2 of the Migration Regulations 1994.[4] The criteria are as follows:
[4] Hereinafter referred to as “the Regulations”.
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.
In general terms, before the relevant student visa can be granted, the Minister must be satisfied that the relevant applicant is only intending to remain in Australia on a temporary basis, whilst he or she completes the proposed course of either tertiary or vocational education training.
The relevant Minister has provided directions regarding how the regulatory regime set out above is to be administered. These matters, which any administrative decision maker is required to consider in making any student visa determination can be summarised as follows:
·The applicant’s circumstances in his/her home country, including the economic reasons for pursuing study in Australia and the degree of personal ties that the applicant has to their home country;
·The applicant’s potential circumstances in Australia, including evidence that the applicant concerned may be using the student visa program as a mechanism to circumvent Australia’s migration program;
·The value of the proposed course to the applicant’s future;
·The applicant’s migration history.
In this particular case, Mr Walia was granted a student visa initially on 11 April 2008, which was valid until 20 May 2008. Thereafter, he was granted a further four student visas, the last of which was granted on 17 October 2013 and was valid until 5 April 2017.
Mr Walia applied for the visa which is germane to the current proceedings on 22 March 2017 indicating an intention to study an Advanced Diploma of Agribusiness Management. In the past, Mr Walia has studied Diplomas of Hospitality Management; Community Welfare Work; Business; Marketing; and Horticulture (Wholesale Nurseries).
In refusing the current visa application, the ministerial delegate indicated as follows:
In the past nine (9) years you have been enrolling in various courses, all in the VET sector and have not progressed beyond the VET sector. Your current enrolment is also in the VET sector and even after completing over 10 years as a primary student visa holder, the highest qualification that you secure[d] would be at Advanced Diploma level. You do not seem to have made significant progression for a student whose primary purpose for being in Australia is to study and progress academically. Furthermore, you have changed courses and education providers several times from Hospitality Management to Community Welfare to Business to Management to Horticulture to Business to Marketing to Business to Management and now wish to study Agribusiness Management., Even though a person may seek a change in career, I note that the courses you have chosen are typically of a short and are somewhat related which makes me question why you would be studying similar subjects for over 10 years without any attempts to progress to a higher education level
On balance, I am satisfied that you have been using the student visa program to prolong your stay in Australia and you do not intend to stay in Australia as a genuine temporary entrant. Therefore, I am not satisfied that you do not meet the clause 500.212 of the regulation.[5]
[5] See Court Book at pages 110-111.
In these circumstances, the delegate refused Mr Walia’s application for the relevant student visa. As a consequence, Mrs Walia and Master Walia’s subsidiary visa applications were also refused.
Given this determination, on 25 May 2017, the applicant sought a review of the visa refusal decision from the AAT. Following on from this, the applicant was invited to attend a hearing before the AAT, which was scheduled for 16 August 2018.
Mr Walia was directed to bring relevant documents to this hearing in order to enable the Tribunal to assess whether he was a genuine applicant for temporary entry to Australia in order to pursue a course of study. The purpose of this invitation was to allow Mr Walia to provide any evidence in support of his visa application and make any submissions which supported it.
THE HEARING BEFORE THE AAT
Mr Walia attended the hearing in question, at which he confirmed that he had arrived in Australia on 26 April 2008, with his wife and son joining him in this country the following year. The AAT hearing is to be categorised as a merits hearing, in contrast to the current proceedings, which are directed towards judicial review of the AAT proceedings.
I have been provided with a transcript of the proceedings.[6] Mr Walia does not complain that he was not given an opportunity to present his case or that the AAT, in some way, did not understand his position.
[6] See Court Book at pages 163.
In the decision, currently subject to judicial review, the Tribunal noted that it was incumbent upon Mr Walia to demonstrate that he was a genuine student, who is engaged in a meaningful program of study, which demonstrated academic process towards to definite goals, which in turn demonstrated that the individual concerned intended to remain in Australia on a temporary basis. I agree that this was the essential issue, which the Tribunal had to determine in order to discharge the jurisdiction conferred upon it.
In this context, the Tribunal noted that Mr Walia had only left Australia, on two short occasions. It was further noted that Mr Walia, although he had enrolled in several courses, he had not progressed beyond the Advanced Diploma level.
As a consequence, the Tribunal found that Mr Walia was unable to satisfactorily explain to it, in a logical way, what was his intended progression in pursuing what were regarded by the Tribunal as disparate and unrelated areas of study.
In addition, the Tribunal noted that Mr Walia had obtained a number of jobs, during his ten plus years of residency in Australia, including that of taxi driver; retail manager; and office manager; all of which seemed to the Tribunal to be unrelated to the many courses of study, which he had previously undertaken.
It was also noted that Mr Walia had pursued other avenues directed towards securing permanent residency for himself and his family in Australia. In the main, these efforts had been directed towards seeking sponsorship from prospective employers.
Having considered all these factors, the Tribunal was not satisfied that the applicant had demonstrated a genuine intention to stay in Australia temporarily. As a consequence, it found that he did not meet the criteria prescribed by clause 500.212 of the Regulations. In these circumstances, the subsidiary applications of the applicant’s wife and child also failed.
THE GROUNDS OF REVIEW
The applicant commenced the current proceedings, before this court, on 29 August 2018. He has prepared his own application, which does not specify any grounds of review. The application is supported by an affidavit of the applicant, to which is attached is the ministerial delegate’s decision but no other salient evidence or submissions.
After a hiatus approaching four years, the case was listed for directions, before a Registrar of the court, on 6 June 2022. On this occasion it was fixed for hearing on 1 July 2022 and the applicant was directed to file written submissions on or before 20 June 2022. No submissions have been provided.
Although I accept that the proceedings have great personal moment for Mr Walia, in practical terms he has not pursued them with any degree of diligence. As such, the unelaborated application for review lends itself liable to summary dismissal.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
CONCLUSIONS
The applicant has not been able to establish (and indeed has not made any submissions in this regard) that there is any jurisdictional error in the decision of the AAT, which is subject to review in these proceedings. It is not the court’s function to seek out some basis on which it could be asserted that there is some species of jurisdiction error which could conceivable vitiate the Tribunal’s decision.
However, in my view, it is apparent from a reading of the Tribunal’s decision that it considered the relevant criteria applicable to the grant of the relevant visa and rationally and logically reached the conclusion that the applicant could not be considered a genuine temporary entrant to Australia, which was an essential precondition to the grant of the relevant student visa.
It reached this conclusion on the basis of the following findings, which in my view, were clearly open to it:
·The applicant was unable to explain what was the logical progression of the various courses undertaken by him in terms of returning to his home country, during his decade long years of study in Australia, in circumstances where the courses undertaken by him were of short duration, with a high degree of overlap;
·The applicant had only briefly left Australia in the course of a long period of residency in this country;
·The applicant had worked in Australia and had unsuccessfully applied for other working visas and forms of sponsorship to remain in Australia; and
·The evidence indicated that the applicant had established a life for him and his family in Australia, which provided little incentive for him to return to India.
In these circumstances, in my view, it was logical and reasonable for the Tribunal to conclude that the applicant was not undertaking a course of study in Australia, which necessitated him and his family remaining in this country on a temporary basis. In addition, the applicant has not articulated any basis on which the conduct of the proceedings before the Tribunal could be characterised as being procedurally unfair to such a degree as to constitute a jurisdictional error.
The applicant was provided with an opportunity to address the AAT and was informed in advance of the hearing what were the issues required to be ventilated before the Tribunal and what documents would be likely to be needed to assist the Tribunal in discharging its functions under the Act.
Counsel for the Minister relies on the following observations of Logan J in Kumar v Minister for Immigration and Border Protection[7] as being an appropriate description of the proceedings before the AAT in the current matter, namely that it can be described as being:
A routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the [applicant] had put [his] claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the [applicant] was a genuine student. They were sufficient unto the day.[8]
[7] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
[8] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].
I agree. The AAT in this case provided the applicant with such a routine and fair merits based rehearing of his visa application. Its conclusion was logical and its reasons adequate. The AAT was entitled to conclude that Mr Walia was not a genuine student for the purposes of the Act and the Regulations made under it.
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 8 July 2022
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