WANG v Minister for Immigration
[2020] FCCA 1758
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1758 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence – no arguable case that jurisdictional error arises – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 Migration Act 1958 (Cth), s.358, 359 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | XIAOYE WANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 354 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 June 2020 |
| Date of Last Submission: | 29 June 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant have leave to rely on the affidavit filed 26 June 2020.
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 354 of 2019
| XIAOYE WANG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. She first arrived in Australia on 21 March 2017 as the holder of a travel visa (Court Book (“CB”) 22).
On 19 March 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa) (Affidavit of Ellen Lucy Goldsworth Tattersall affirmed 4 June 2020). The applicant indicated that she proposed to study “General English” (CB 21). A number of supporting documents were provided with the applicant’s visa application (CB 3-14).
On 15 May 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 19-22). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the delegate was not satisfied that the applicant was “a genuine temporary entrant”.
On 5 June 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 23-24). The applicant was assisted by a migration agent.
On 20 May 2019, the Tribunal invited the applicant to provide further information (CB 39-46). Specifically, the Tribunal asked that the applicant provide information that she was enrolled in a registered course of study and was a genuine temporary entrant. The applicant was advised that she had until 4 June 2019 to respond.
The applicant did not respond to the request for information by the relevant deadline. However, she did forward a number of documents to the Tribunal. These documents included a statutory declaration dated 24 June 2019, a confirmation of enrolment dated 7 June 2019, various medical certificates and correspondence between the applicant’s education provider and her migration agent (CB 47-59).
On 5 August 2019, the Tribunal affirmed the decision not to grant the applicant the visa.
Tribunal’s Decision
The Tribunal’s substantive decision (excluding annexures) is 6 pages long and spans 41 paragraphs.
The Tribunal began by setting out the background to the application (at [1]-[3]) and explained that an invitation had been sent to the applicant asking her to provide information pursuant to s.359 of the Act (at [4]-[5]). It was noted that, as the applicant did not respond within the time required, the applicant had lost an entitlement to appear before the Tribunal (at [6]). The Tribunal confirmed, however, that it had had regard to the materials that were submitted after that relevant time and prior to the decision being made (at [7]).
The Tribunal then set out the principles to be applied in assessing whether the applicant was entitled to the visa in question (at [9]). The Tribunal extracted the contents of cl.500.212 of the Regulations in full (at [10]) and summarised the factors in Direction 69 that were relevant to the visa (at [11]-[12]), as follows:
11. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
When considering the applicant’s circumstances in her home country, the Tribunal:
a)noted that the applicant was divorced with two children who remain in China (at [13]);
b)explained that the applicant had not provided the Tribunal with any detailed information about any other living relatives she had in China (save for her parents and a sister) and had not provided any current information to the Tribunal in relation to any assets or in relation to community or economic ties to her home country (at [14]-[15]);
c)indicated that the applicant had raised no concerns about military service or civil and political unrest (at [16]);
d)relevantly, stated:
17. The applicant is currently enrolled in a General English (Beginners to Proficiency) course. The applicant has conceded in her statutory declaration that she could have studied English in China. The applicant claims to have been the subject of discrimination by Chinese employers because of a physical disability and has stated that she believes having Australian qualifications and experience will give her a better advantage. The Tribunal does not give any great weight to the applicant’s assertion that she is the subject of discrimination in China, as she has stated in her statutory declaration that the company for which she previously worked has invited her to work with them.
18. The applicant has provided no detailed information regarding the availability of English speaking courses in her home country, and neither has she provided any evidence of having researched the availability of those courses. Neither has the applicant provided any persuasive reasons as to why those courses do not meet her needs, or why it is necessary for her to undertake her current study in Australia. There is no evidence before the Tribunal that the applicant undertook any research into the availability of English courses in her home country prior to making the visa application currently under review.
e)referred to the applicant having significant family ties in Australia (as her sister is currently living in Australia) (at [19]) and noted that she had not returned to China since arriving in Australia in 2017 (at [21]);
f)determined that the circumstances in which the applicant procured the confirmation of enrolment to support the visa (i.e., applying five days prior to her tourist visa ceasing) indicated that she had applied for the visa in order to maintain residence in Australia (at [19]-[20]); and
g)noted that the applicant’s current confirmation of enrolment was for a course due to conclude on 20 March 2020 (but noted that the applicant had foreshadowed in her materials an intention to complete other courses and determined that this indicated that she intended to stay in Australia beyond 20 March 2020 (at [22]).
Having assessed all of these matters, the Tribunal determined that it was not satisfied that the applicant had an incentive to return to China. This weighed heavily against granting of the visa (at [23]-[24]).
When considering the applicant’s “potential circumstances in Australia”, the Tribunal:
a)noted that the applicant had disclosed no assets in Australia and had not indicated how she would be able to support herself and meet the cost of her studies. It also appeared that her only community ties were her sister and her church (at [26]); and
b)found, based on the applicant’s own evidence, that the applicant’s presence in Australia was primarily motivated by a desire to remain in Australia with her sister and determined that this demonstrated that the applicant had a strong incentive to remain in Australia as long as she was able to (at [27]-[28]).
The Tribunal then considered the value of the applicant’s course of study to her future and:
a)noted that at the time of her visa application, the applicant had stated that she “may re-join the company” she was previously working for but that her “long term goal is to open a beauty parlour.” It was noted that the delegate had concluded that the applicant had failed to give strong reasons as to how her proposed study would assist in her future career plan (at [30]). The Tribunal further noted that the applicant had stated that her current course of study would enable her to teach children in China how to speak English (at [31]); and
b)referred to the applicant having provided no evidence as to her prospective earnings as a result of her current studies. Nor, it was noted, had she provided a clear statement of what she was earning in her previous employment (at [32]). Overall, the Tribunal was unable to conclude that the applicant’s current course of study offered any significant value to her future.
The Tribunal found that the minimal value of the applicant’s course to her future weighed against her being given the visa in question (at [33]).
Finally, the Tribunal considered the applicant’s immigration history as follows:
34. On 20 May 2019, the Tribunal wrote to the applicant seeking information as to her current courses of study, and her status as a genuine temporary entrant.
35. The Tribunal notes that the COE provided by the applicant for her current course of study was issued on 7 June 2019. The Tribunal infers from this that as at 20 May 2019, the applicant held no current COE, and that the current COE has been procured in a bid to prolong the applicant’s presence in Australia.
36. The Tribunal notes that this appears to be the second occasion when the applicant has procured a COE at a very convenient time for the purposes of her visa application. This suggests to the Tribunal that the applicant’s visa application is primarily motivated by factors other than study.
37. Weighing all of the above the applicant’s immigration history weighs against her.
Having weighed all of the factors, the Tribunal was not satisfied that the applicant met cl.500.212 of the Regulations (at [38]).
The Tribunal affirmed the decision to not grant the applicant the visa (at [39]-[41]).
Proceedings in this Court
The applicant commenced proceedings in this Court on 9 September 2019. The grounds of review in her application for judicial review provide:
1. The AAT did not look at all the information provided for the appeal of the student visa refusal. He didn’t look at my school reports such as attendance, medical certificates or report from my teacher. He didn’t say anything in the decision about it.
2. I was researching and preparing a course to enrol in and also to do more English. But the AAT thinks that I only got the second COE because the AAT asked for the information. My migration agent emailed to the school about enrolling in more English classes before the AAT asked me for more information. The AAT didn’t look at this email.
The applicant also filed an affidavit affirmed 9 September 2019 which relevantly provided:
2. I think the decision made by the Administrative Appeals Tribunal was not fair because the member did not look at all of the documents. The list of documents submitted to the AAT can be seen in Annexure 4.
3. My agent provided some documents such as my school records, medical certificates but the member did not mention anything about them.
4. In paragraphs 35-36 of the AAT decision (Annexure 2) the member says that I got my COE (issued on 7 June 2019) so that I could prolong my stay in Australia. On 20 May 2019 the AAT asked for more information and on 7 June 2019 the school issued the COE. In paragraph 36 he says that “... this appears to be the second occasion when the applicant has procured a COE at a very convenient time for the purposes of her visa application. “I think his meaning is that I only applied for the COE to study more because the AAT asked for more information.
5. Before the AAT asked for more information (see Annexure 3) I was already researching other classes and I knew that I needed to study more English. My migration agent emailed the school to ask how much more English I needed to study and the school replied (see Annexure 9). This was before the AA T asked for more information. So this is proof that I was already planning to study more before, and not just to show the AAT. The member never said anything about this email.
6. In paragraph 36 of the AAT decision the member says “... the applicant’s visa application is primarily motivated by factors other than study” but he didn’t comment about whether I was even studying or going to class. I provided my medical certificates (see Annexures 5-8) and school record (see Annexure 10) but the AA T did not look at them and didn’t mention anything about them. Although my English is not good, I worked diligently. It is not easy to learn a new language an adult. My attendance was 83% and the school says this is satisfactory and they said I worked hard as well (see Annexure 10). I was also sick and provided many medical certificates. If I was not sick then my attendance rate would have been even higher. This shows that I was diligently attending classes and my main reason for the student visa was to study.
The matter was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). To succeed at a hearing of this sort, an applicant must satisfy the Court that she has a “reasonably arguable case” that the Tribunal fell into jurisdictional error when assessing her case. Whether a matter is reasonably arguable is an assessment to be made on “a reasonably impressionistic level”.
Orders were made by a Registrar of this Court allowing the applicant to file any amended application, affidavit evidence and written submissions to rely upon for the show cause hearing.
The applicant filed a further affidavit affirmed 3 November 2019 which relevantly provided as follows:
…
3. I think the AAT did not follow Section 359(1) of the Migration Act. The AAT must assess all information provided when making a decision.
4. As mentioned in paragraphs 5-6 in the first affidavit, the AA T did not mention anything about these documents in the decision record:
• Email from PICE dated 17 May 2019 (see Annexure 9 of the first affidavit or pages 57- 58 of Court Book)
• 4 Medical Certificates (see Annexures 5-8 and 10 of the first affidavit or pages 50-55 of Court Book).
• School attendance record and school report (see Annexure 10 of the first affidavit or pages 50-51 of the Court Book)
5. The AAT’s letter (Court Book page 40) says:
In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. A copy of this is attached for your reference.
6. Section 16 of Direction 69 says that “any other relevant matters” should also be assessed, which includes” ... information otherwise available to the decision maker”. The documents were available to the AAT decision maker.
7. Because the AAT did not mention these documents in the decision record, I don’t think the AAT assessed them. So Section 359(1) was not followed.
On 26 June 2020, the applicant filed a further affidavit. This affidavit responded to the Minister’s written submissions filed in this matter on 10 June 2020. That affidavit provides as follows:
2. In Paragraph 14 the government lawyer says that Direction 69 is a guide and not meant to be a checklist. I agree this is what it says in paragraph 1 of direction 69 (CB 43). In this paragraph it also says that decision makers should be “... considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion” (CB 43)
3. In paragraph 2 of Direction 69 says that all factors in the direction should be considered and any other relevant information provided by the applicant (or information otherwise available to the decision maker) (CB 43). This is again mentioned in paragraph 16 of direction 69 (CB 46).
4. The documents that the AAT did not discuss are:
a. Letter of attendance (CB 50)
b. School report (CB 51)
c.Medical certificates (CB 52-55)
d. Email from PICE to discuss further English studies (dated 17 May 2019) (CB 57-58)
5. The government lawyer’s submission in paragraph 29 says that the tribunal considered all of the material but I don’t believe it. For example the Tribunal said that it thinks I only got my COE so that I could stay longer in Australia. In paragraphs 34-37 of the AAT refusal record it says that the AAT asked for more information on 20 May 2019 for my appeal. It also says the COE was issued on June 7 2019. The Tribunal says I got my COE “at a very convenient time” for the visa application. It indirectly is saying that I only got a COE because the AAT asked for more information for my appeal.
6. But before the AAT asked me to provide more information I was already making plans to study more English. The email between my migration agent and PICE (CB 57-58) is dated May 17, 2020 which means I was already planning to continue my studies before the AAT asked for more information. This is very important and the AAT never mentioned this email.
7. In paragraph 36 the AAT says that my application is “... primarily motivated by factors other than study”. But study is also a factor, and the AAT never mentioned that I was studying the whole time during the appeal up till 19 April 2019 (CB 50). I missed 11 days of school because I was sick and still I got 83% attendance. So my attendance score would be much higher if I wasn’t sick. This means I was a hard working student and the AAT never considered this.
8. The date of issue of the COE was a big concern for the AAT. The AAT wrote one whole section (Applicant’s Immigration History) and 4 paragraphs from paragraphs 34-37 used to describe how this negatively impacted my case. But he didn’t look at the planning involved to get the COE before it was issued and the study I was doing. Therefore I believe that the AAT did not look at all the information when the decision was made
9.In paragraph 29 of the government lawyer’s submission it says Contrary to the applicant’s assertions, it was ‘‘plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.” But in the next paragraph of the court case it says “Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. “
10. Lastly, the government lawyer wrote in a statement on 16 September 2019: “To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC 10 at [10]. “
11. The court’s web site says “the Court determines if the decision has been made according to law” I think the AAT did not make a decision according to law. The AAT is supposed to look at all the information and all the factors and other relevant information. But it didn’t do this. I hope the court agrees that the AAT did not look at all the important information that might have affected my appeal.
In addition to the materials referred to above, the materials before the Court included a Court Book numbering 73 pages (marked as Exhibit 1). It is apparent from the applicant’s second affidavit that she had received a copy of the court book and had reviewed its content closely. The Court confirmed with the applicant at the hearing that she had also received a copy of the Minister’s written submissions and had these documents with her.
The applicant appeared before the Court without legal representation. She was assisted by a Mandarin interpreter. Her partner was with her at the hearing.
Notwithstanding r.44.13 of the Rules (which the Court notes can be dispensed with pursuant to r.1.06 of the Rules), the Court allowed the applicant to elaborate on, and further particularise, her grounds of review and to raise any concerns she had with the Tribunal’s decision. This is now the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]).
To assist the applicant, the Court explained that, in the context of a show cause application, the applicant needed to satisfy the Court that she had a reasonably arguable case that the Tribunal had made a material error. The Court explained that in determining whether the applicant had an “arguable case”, the Court can only assess whether it is at least arguable that there is a jurisdictional error in the Tribunal’s decision.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that she did not believe that the Tribunal looked at all of the material thoroughly. She specifically referred to her attendance records, medical certificates and letters of support from her teachers. She also referred to the email dated 17 May 2019 regarding her further studies. In response to the Minister’s submissions the applicant noted that Direction 69 should not be applied as a checklist and noted that Direction 69 stipulates that all materials should be considered and they were not in this case.
Consideration
Ground 1 and the Applicant’s Affidavits
Ground 1 and the matters referred to in each of the Applicant’s affidavits can be addressed together.
In effect, the applicant is arguing that the Tribunal did not consider all of the information that was provided to it and has breached s.359 of the Act. Specifically, the applicant is suggesting that the Tribunal did not have regard to:
a)an email exchange between the applicant’s agent and her education provider dated 17 May 2019 (which indicates that the applicant was making inquiries about further English study);
b)four medical certificates indicating that the applicant was unfit for study on various dates; and
c)the applicant’s attendance record and report (which describe her as “dedicated”).
The Court notes as follows.
At [7], the Tribunal stated:
After the time for reply had passed, the applicant provided various documents to the Tribunal, including a Confirmation of Enrolment issued on 7 June 2019 and a statutory declaration dated 24 June 2019. In reaching its decisions, the Tribunal has considered all of this material, together with all other material on file.
It is clear that the Tribunal did not make specific reference to the documents that the applicant identifies in her affidavits.
The Tribunal also states that it had received documents “including …”. This suggests that the Tribunal had received more documents than were actually listed above.
The failure to refer to the documents is not, in and of itself, a jurisdictional error. It is not necessary for the Tribunal to refer to every piece of information that is before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]. Rather, when considered as a whole, it may simply be that the particular information or evidence was not material to the Tribunal’s decision.
The applicant appears to argue that her attendance rate and the fact that she had completed her studies was relevant to [16] of Direction 69 and, as such, should have been mentioned by the Tribunal.
Paragraph [16] of Direction 69 provides:
Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
In oral submissions, the applicant also said that information as to “attendance rates” and her letters of support was overlooked. She stated that [16] of Direction 69 requires that all information to be considered.
Direction 69 requires the Tribunal to have regard to any other relevant information. At no time did the applicant advance a case that her attendance and her participation in her studies thus far was a reason for, or indicator of, or relevant to, her being a genuine temporary entrant. The only reference that the applicant made to her attendance and participation was in her statutory declaration where she stated “… I have been trying my hardest and regularly attended classes” (CB 48). This does not advance a case that the applicant’s study habits were evidence that she was a genuine temporary entrant. Hence, the failure to say anything about the fact that the applicant was a diligent student cannot be seen as a jurisdictional error.
As noted in Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7], the Tribunal’s evaluation is inherently reactive to the way an applicant puts their claims. Here, despite being represented, there was nothing to suggest that the documents were important in relation to the Tribunal’s task of determining whether the applicant was a genuine temporary entrant.
Having considered the decision as a whole, the Court considers that the failure to refer to the particular documents that the applicant relies upon is explained by the fact that those documents were simply not considered relevant. It was entirely open to the Tribunal to make this determination.
Here, the Tribunal’s reasons for it not being satisfied that the applicant was a genuine student rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction: Kumar at [7]. This included:
a)there was no evidence that the applicant undertook any research into the availability of English courses in her home country;
b)the timing and circumstances surrounding the applicant’s procurement of the confirmations of enrolment;
c)the applicant’s sister residence in Australia was a strong incentive for the applicant to remain in Australia; and
d)there was no evidence that the applicant’s current course of study offered any significant value to her future.
The failure to refer to the applicant’s attendance records, medical certificates or letters of support does not give rise to a reasonably arguable case that the Tribunal fell into jurisdictional error.
The applicant also argues that there has been a breach of s.359 of the Act. The Minister submits that, when read as a whole, it can be inferred that the information not referred to in the Tribunal’s written reasons was not overlooked. Rather, the Tribunal did not consider it sufficiently relevant to its decision. The Tribunal did, therefore, have “regard” to the information as required by s.359 of the Act.
The Court accepts that submission and refers to the discussion above.
There is further reason why the argument advanced in relation to s.359 is not arguable.
Relevantly, Section 359 of the Act states:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
The applicant’s argument that s.359(1) of the Act is breached cannot be sustained. This is so because the Tribunal did not receive any information in response to the invitation issued under s.359(1) of the Act. Hence, the Tribunal did not “get” any information. Rather, the documents were provided by the applicant, ultimately, pursuant to s.358 of the Act.
In this context, the applicant’s s.359 argument must fail.
The Court does not consider it to be reasonably arguable that the Tribunal erred in failing to consider information. The mere fact the information was not expressly referred to does not provide an arguable basis for this ground to succeed when the Tribunal’s reasons are read as a whole.
Ground 1 and the matters arising from the applicant’s affidavits raise no arguable case.
Ground 2
The applicant appears to argue in ground 2 that the Tribunal overlooked evidence when it found that the applicant had “procured” her confirmation of enrolment primarily for the purpose of maintaining residence in Australia (see [19]-[20] and [35]-[36]).
The applicant states that she had started looking at other courses to enrol in “well prior” to the Tribunal’s request for her to provide a confirmation of enrolment. Further, she says that the email correspondence from her agent (as provided to the Tribunal) indicated that this was the case.
The applicant also refers to this issue in her affidavits to the Court.
The document the applicant refers to does indicate that her agent made inquiries about further courses on 17 May 2019. The invitation to comment was not sent until 20 May 2019. That is, inquiries were sent prior to the invitation to comment. The applicant says that this was “critical” and was not taken into account. The applicant states in ground 2 that the Tribunal “thinks that I only got the second COE because the AAT asked for the information”.
The Court disagrees.
The Tribunal had concerns with the timing of the applicant’s first enrolment (which was considered by the delegate) and with the enrolment she obtained in the course of the Tribunal’s review. The circumstances of the applicant’s first enrolment were that she had enrolled in a course and applied for the visa only days prior to her travel visa expiring. This context informs the Tribunal’s findings about the “timing” of the applicant’s current enrolment.
Here, the timing of the applicant’s enrolments formed part of a number of concerns that the Tribunal had about the applicant’s enrolment in further studies and whether she was a genuine student.
It was open to the Tribunal to state that the applicant procured the confirmation of enrolment at a “very convenient time” and that she was not enrolled in any course prior to 20 May 2019. The documents the applicant provided indicate that the applicant had ceased her previous course on 19 April 2019 (CB 50), waited until 17 May 2019 to make further enquiries about further study and waited until (informally) at least 5 June 2020 (CB 50) or (formally) 7 June 2020, to enrol. It was entirely open for the Tribunal to consider that the timing of the enrolment was “convenient” (regardless of whether inquiries had or had not been made).
For these reasons and those expressed in ground 1, the Court does not consider that the Tribunal overlooked the email correspondence sent by the applicant’s migration agent on 17 May 2019 or that the Tribunal acted illogically in stating that she had “procured” her confirmation of enrolment primarily for the purpose of securing a student visa so as to maintain residence in Australia.
Ground 2 does not raise any reasonable argument that jurisdictional error arises in this regard.
Conclusion
The application for judicial review and the applicant’s affidavits fail to identify any jurisdictional error. The Court has also, in its duty to the self-represented litigant, reviewed the Tribunal’s decision for any possible legal error: as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. No error can be identified.
The application is, accordingly, dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth)
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 July 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
0
13
4