Adigbo v Minister for Immigration
[2016] FCCA 2250
•30 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADIGBO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2250 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359A, 499 Migration Regulations 1994 (Cth) |
| Cases cited: Ghimire v Minister for Immigration [2014] FCA 899 Minister for Immigration v Khadgi (2010) 190 FCR 248 Singh v Minister for Immigration (2001) 109 FCR 152 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | CHRISTOPHER ADIGBO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3218 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3218 of 2015
| CHRISTOPHER ADIGBO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Administrative Appeals Tribunal, formerly the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Adigbo, a temporary student visa. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 23 August 2016.
Mr Adigbo is a citizen of Ghana. He initially arrived in Australia on a student visa on 11 February 2014, valid to 10 February 2015. This first student visa was cancelled before the expiry date, on 15 January 2015, after the applicant cancelled his Certificate of Enrolment (COE) in an Advanced Diploma of IT[1]. He then held a bridging visa which allowed him to study[2].
[1] [5] (Paragraph references are reference to the Tribunal’s decision )
[2] [10]
Mr Adigbo applied to the Minister’s Department for a further student visa on 6 February 2015.
On 19 February 2015, a delegate of the Minister refused to grant the further student visa on the basis that Mr Adigbo did not satisfy clause 572.223(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because he had not provided evidence that he met the English proficiency requirements.
On 7 April 2015 Mr Adigbo applied for review of that decision with the Tribunal.
The evidence before the Tribunal and the Tribunal’s decision
Prior to the scheduled hearing on 17 August 2015 Mr Adigbo provided evidence of English proficiency and financial capacity as required by Schedule 5A. Mr Adigbo also submitted a letter from his education provider dated 9 February 2015, indicating that he was studying an Advanced Diploma of Information Technology which commenced on 14 April 2014 and was to finish on 10 April 2015.
On 14 August 2015 (ie, three days before the hearing) Mr Adigbo obtained a COE to undertake a Diploma of Business from 7 September 2015 to 15 July 2016, which he provided to the Tribunal.
Mr Adigbo appeared at the Tribunal hearing on 17 August 2015. The Tribunal raised with him that although the delegate’s decision had turned on the issue of English proficiency, the issue before it was whether Mr Adigbo met the requirements of clause 572.223(1) of Schedule 2 to the Regulations. It explained that clause 572.223(1) requires that, at the time of the decision, the Minister is satisfied that Mr Adigbo is a “genuine applicant for entry and stay as a student”[3].
[3] [9]
At first, Mr Adigbo claimed that he had successfully completed the Advanced Diploma of IT which he studied from April 2014[4]. However, when the Tribunal raised with him that the information before it indicated that he had ceased those studies on 15 January 2015, and questioned whether the letter from the education provider of February 2015 was genuine, Mr Adigbo admitted that he had not successfully completed any course in Australia. However, he maintained the letter from the education provider was genuine.
[4] [10]
The Tribunal’s account of hearing is set out at [10]-[28] of the decision. The Tribunal’s particular concern was that Mr Adigbo had been in Australia for 18 months, had not completed any course and had not been enrolled in or attended any course for over six months from January 2015 (it appears that Mr Adigbo commenced his current course in September 2015). The Tribunal noted that, despite his student visa having been cancelled, the applicant’s bridging visa allowed him to study (ie, did not contain a “no study” condition).
Mr Adigbo responded that he found the IT course too hard[5], but did not begin the Diploma of Management because he was waiting to hear from Immigration “before making any move”[6].
[5] [14]
[6] [15]
After the hearing the Tribunal sent an invitation pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) to comment on information[7], namely:
a)information in PRISMS records which indicated that Mr Adigbo had ceased studying the Advanced Diploma of IT and that he had notified his education provided that he wished to cease his enrolment in that course on that day;
b)information that Mr Adigbo did not commence the Diploma of Management or Advanced Diploma of Management on 13 April 2015.
[7] see Relevant Documents (RD) 115-118
Mr Adigbo responded to the invitation, providing a Statement of Attainment from the education provider dated 16 April 2015 indicating that he had completed two of the subjects[8] within the Advanced Diploma of IT.
[8] NB, the Tribunal refers to these at [31] as “courses”
In his written response Mr Adigbo stated that he did not cease studying on 15 January 2015; he was still enrolled in that class, but his attendance was inconsistent because he fell ill. Due to illness he missed classes and faced difficulties in understanding, but he had tried his best and received the letter of achievement. He maintained that the letter of 9 February 2015 from his education provider was a genuine document from the College.
Mr Adigbo claimed he did not commence the Diploma of Management as he was stressed and upset due to the visa refusal process, and not knowing whether he would be granted the visa, this made him unable to concentrate and decide whether or not to enrol. He attended the College in May and they told him they had cancelled his COE, which made him more depressed. However, he decided to continue his studies and he is currently attending his business course and meeting academic requirements[9].
[9] [33]
On 19 October 2015, the Tribunal affirmed the Delegate’s decision. As noted above, the principal issue for the Tribunal was whether Mr Adigbo met the requirements of clause 572.223(1)(a) of Schedule 2 to the Regulations, which sets out a criterion for the grant of the visa in the following terms:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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 application; and
(iv) any other relevant matter.
The Tribunal’s key findings
At [38] the Tribunal considered Mr Adigbo’s circumstances as a whole and in light of the factors required to be considered pursuant to Ministerial Direction 53 (Direction 53), and found that Mr Adigbo does not satisfy the genuine temporary entrant criterion.
It reached this finding on the basis of the following:
a)although Mr Adigbo’s family are in Ghana, his girlfriend is an Australian permanent resident. The Tribunal found that having a permanent resident girlfriend was indicative of strong ties to Australia;
b)it appeared that Mr Adigbo had been in Australia for 18 months and not successfully completed any course. He had ceased enrolment in his IT course in January 2015 and did not commence his Management course in April 2015. He then obtained a COE for a Diploma of Business on 14 August 2015, only three days before the Tribunal hearing, to commence studying on 7 September 2015, which he claimed (in his response to the s.359A invitation) he was attending and successfully achieving components of that course;
c)the Tribunal found the range of courses from IT to Management, to Business to be of concern. As to the evidence that Mr Adigbo studied past January 2015, to February and later, the Tribunal preferred the evidence of PRISMS records, which was consistent with Mr Adigbo’s oral evidence at the hearing;
d)the Tribunal placed weight on the gaps in Mr Adigbo’s study: that he enrolled in a course in Management in May 2015, but did not commence it, and then enrolled in a course in August 2015 to commence in September 2015. It viewed these as indicative of a person using the student visa program to maintain residence. The Tribunal stated that it considered the reasons given in Mr Adigbo’s response to the s.359A letter, but considered that a person who is in Australia to study would continue to be continuously enrolled, despite the concerns, even after the delegate’s refusal, and when on a Bridging visa;
e)the Tribunal found Mr Adigbo’s stated reasons as to why he was studying Business to be vague. This, combined with his lack of awareness (at the time of the hearing) of the course he was proposing to study (eg, he could not name any of the subjects) was indicative of a person using the student visa to maintain residence. This was so notwithstanding that the Tribunal accepted that Mr Adigbo had commenced the Management course in September 2015 and accepted his evidence that he was making satisfactory academic progress in that course so far.
These proceedings began with a show cause application filed on 26 November 2015. Mr Adigbo continues to rely upon that application. There are three grounds in it:
1.The Administrative Appeals Tribunal (Tribunal) did not correctly interpret cl. 572.223 of Schedule 2 to the Migration Regulations 1994.
2. The Tribunal in its assessment of the applicant's matter took into account irrelevant considerations and did not consider relevant considerations.
3. Failure of the Tribunal to properly interpret and assess cl. 572.223 resulted in a denial of an opportunity to be heard.
The application is supported by a short affidavit. I received that affidavit as evidence, save for [3], which I received as a submission. I also have before me as evidence the book of relevant documents filed on 21 January 2016.
Mr Adigbo’s grounds of review are couched in very general terms. I invited oral submissions from Mr Adigbo, but he was unable to elaborate on the three legal issues raised. He explained to me his personal circumstances and his difficulties experienced in finding a course to suit his needs and deal with his personal circumstances. While I have sympathy for him, the Court cannot intervene in the absence of any arguable case of jurisdictional error by the Tribunal. In my view, Mr Adigbo is unable to present an arguable case of any jurisdictional error.
The Minister’s submissions deal adequately with the three grounds advanced. I agree with those submissions.
Ground 1 contends that the Tribunal “did not correctly interpret cl 572.223 of Schedule 2 to the Migration Regulations”. No particulars are provided and there is nothing apparent in the Tribunal’s reasoning which would support this claim. Ground 1 does not disclose any arguable ground of review.
Ground 2 contends that the Tribunal “took into account irrelevant consideration and did not consider relevant considerations”. Again, no particulars are provided.
In reaching a decision with respect to the clause 572.223(1)(a) criterion, the Tribunal was required by s.499(2A) of the Migration Act to consider the factors set out in Direction 53, issued pursuant to s.499(1) of the Migration Act. Insofar as Ground 2 intends to complain that the Tribunal failed to have regard to a factor in Direction 53, the Tribunal’s consideration of the applicant’s circumstances[10] speak to the contrary.
[10] at RD 130-131
In reaching a decision with respect to the clause 572.223(1)(a) criterion, the Tribunal was required by s.499(2A) of the Migration Act to consider the factors set out in Direction 53, issued pursuant to s.499(1).
A number of points should be made about the operation of Direction 53.
The first is that a decision-maker is not required slavishly or mechanically to recite all the matters set out in Direction 53. In determining whether a factor in Direction 53 has not been considered, the “question is whether a particular decision in substance can be understood to have regard to the matters set out in the Direction”[11]. In the present case the Tribunal was aware of requirements of Direction 53 and had regard to each of the requirements set out in Direction 53.
[11] Ghimire v Minister for Immigration [2014] FCA 899 at [50] and [3]
Secondly, even if a decision-maker does not refer to a particular factor in detail that does not mean that the decision-maker did not consider such a factor. A direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process[12].
[12] Singh v Minister for Immigration (2001) 109 FCR 152 at [54] per Sackville J
Thirdly, it would be inappropriate to draw an inference that a decision-maker has not considered a particular matter in circumstances where:
a)“the reasons are otherwise comprehensive and the [matter] has at least been identified at some point”; and
b)“it was unnecessary for the decision-maker to make a finding on the matter because it was ‘subsumed in findings of greater generality’’’[13].
[13] Minister for Immigration v Khadgi (2010) 190 FCR 248 at [65] citing WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
In the present case the Tribunal considered Mr Adigbo’s circumstances as a whole and in light of the factors in Direction 53, and found that he does not satisfy the genuine temporary entrant criterion. Ground 2 does not disclose any arguable ground of review.
Ground 3 alleges that “failure of the Tribunal to properly interpret and assess cl 572.223 resulted in a denial of an opportunity to be heard”. Ground 3 does not identify in which respect it is alleged that the Tribunal failed to “properly interpret and assess cl 572.223” or that Mr Adigbo was “denied an opportunity to be heard”.
To the extent that Ground 3 is intended to complain that the Tribunal failed to apply or consider all the factors in Direction 53, my finding above in relation to Ground 2 is relevant. Furthermore, the Tribunal’s account of its discussion with Mr Adigbo at the hearing demonstrates that it adequately raised its concerns, as well as the factors in Direction 53, with Mr Adigbo at the hearing. There is no arguable basis to the complaint in Ground 3.
I conclude that Mr Adigbo has not advanced any arguable case of jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in the sum of $3,416, which was the scale amount applicable at the time the application was filed. Mr Adigbo indicated that he may require time to pay. I will not require payment by any particular time.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 September 2016
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