Ahmed v Minister for Immigration
[2019] FCCA 2362
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2362 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of Minister for Immigration not to grant Student (Class TU) (Subclass 573) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student – no jurisdictional error identified by the applicant – Minister as model litigant raised decision of Raza v Minister for Immigration & Border Protection (2017) 322 FLR 1 in which it was found in connection with an application for a Student visa that the Administrative Appeals Tribunal had not complied with the mandatory requirement of Ministerial Direction No. 53 to consider the applicant’s circumstances in his home country – decision of Administrative Appeals Tribunal in this case distinguishable from that in Raza and complied with Ministerial Direction No. 53 – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.109, 499 Migration Regulations 1994 (Cth) |
| Cases cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Nguyen v Minister for Home Affairs [2019] FCA 892 Raza v Minister for Immigration & Border Protection (2017) 322 FLR 1 |
| Applicant: | MD FAISAL AHMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1926 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 12 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr H. Bevan of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 21 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1926 of 2016
| MD FAISAL AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The Applicant is a male citizen of Bangladesh aged 30 years, having been born on 23 July 1989.
By Application filed in this Court on 21 July 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 June 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 11 December 2015 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 573) Higher Education Sector visa (Student 573 visa).
The Applicant arrived in Australia on 5 July 2009 on a Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visa which was granted offshore on 22 June 2009 and valid until 26 May 2011. It is obvious from the below chronology of events that he must have been granted further student visas after 26 May 2011, but the evidence before me in that regard is scant.
Since his arrival in Australia the Applicant has completed:
a)an English language course from 20 July 2009 to 25 September 2009;
b)a number of Diploma of Accounting courses over the period September 2009 to September 2012; and
c)a further English language course extending from 14 October 2013 to 8 November 2013.
On 8 October 2012 the Applicant commenced a Certificate III in Hospitality (Commercial Cookery) course, but this course was cancelled by the education provider on 10 September 2013 as he had given a notice of ceasing to study that course.
On 21 January 2014 the Applicant deferred a Bachelor of Business course scheduled to commence on 11 November 2013, but then he did not commence his studies in this course which was cancelled by the education provider on 29 August 2014.
The Applicant enrolled for a Bachelor of Professional Accounting course scheduled to commence on 17 March 2014, which was to extend to 31 July 2015, but he did not commence his studies in this course and his enrolment was cancelled by the education provider on 29 March 2014, with the comment “Non-commencement of studies”. He enrolled for the same course commencing on 4 August 2014, which was to extend to 31 December 2015, but his enrolment was cancelled again by the education provider on 4 May 2015 with the comment “Student notifies cessation of studies”.
On 18 September 2015 the Applicant applied for the Student visa the subject of this Application, having enrolled in a Bachelor of Professional Accounting course (commencing on 10 August 2015 and scheduled to finish in 7 July 2017) followed by a Master of Professional Accounting course (scheduled to commence on 10 July 2017 and to finish on 31 December 2018).
Prior to 18 September 2015 the last student visa which had been granted to the Applicant was also a Student 573 visa. The Applicant was not enrolled in any course for nearly six months between 4 May 2015 to 10 August 2015 and thus was in breach of Conditions 8202 and 8516 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) (which apply to all student visas) and which by force of Condition 8202(2)(a) required him to be enrolled in a registered course of study and by Condition 8516 to continue to satisfy the criteria for the grant of a Student 573 visa.
By letter dated 23 September 2015 the Department of the Minister (Department) invited the Applicant to comment on his study history in Australia since his arrival on 5 July 2009, foreshadowed that such history might indicate that he did not seem to have a genuine intention to stay in Australia temporarily, and requested that he:
Please provide a statement setting out your reasons for undertaking the course(s) of study specified in your application.
The statement should set out:
o your reasons for choosing to undertake the course(s) of study specified in your application
oyour reasons for choosing your education provider(s)
o your reasons for choosing to study in Australia rather than in your home country or usual country of residence
o your planned living arrangements in Australia
o the relevance of your course(s) of study to your academic and/or employment background
o the relevance of the course(s) of study to your future career and/or educational plans.
Please provide evidence of your ties to your home country or usual country of residence that shows that you have significant incentives to return home at the end of your stay in Australia.
This may include evidence of financial, family or social ties.
Please provide evidence of your current employment.
By email dated 21 October 2015 the Applicant responded to the Department’s invitation to comment, by in short claiming that he had suffered depression owing to the death of his grandfather and his father’s subsequent illness, and that his studies were thereby affected. He also claimed that his tuition fees and living costs were unable to be paid because his father’s business had burnt down, but that this situation was getting better. Relevantly he stated as follows:
… I'm writing you in regards to my application of my student visa. As you know, I arrived in Australia 2009 and I've finished few degrees here. Unfortunately last two years I couldn't maintain my student visa very well. Since 2014 a lot has been changed in my life. I've been through a mental depression and still recovering from that. At the beginning of 2014 my grand father passed away and I went to his funeral at Bangladesh. He was the closest person in my life. After few weeks while I was there my father become very sick since my grandfather died. I had to stay back bit longer in Bangladesh because I couldn't leave my father in that situation. When I came back to Australia I couldn't carry on my study even though I paid all my tuition fees. When I came back from Bangladesh my situation was different than before. My day to day life was affected by stress. That's one of the main reason I couldn't attend the school regularly. When I was recovering from the situation, end of last year we had another [incident] back home. We had a family business which was the main income source for our family. That shop burnt down with an electric issue. That's why I was unable to pay my tuition fees fully beginning of this year and my father was not able to send my tuition fees and my living cost. The situation is getting better in my country and my father re-open the business. The whole situation is back to normal now. So hopefully I can continue my study if you give me the permission. I can provide all the supporting documents if you’re required. Sir/ madam please give me the last opportunity to complete my higher education and after I finish my study I can go back home with a certificate that I can give it to my father.
thank you sir/madam
(Applicant’s Written Claims)
Statutory Requirements for the Grant of a Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.573.223 of the Regulations which required, inter alia, that he be what is known as a “genuine applicant for entry and stay as a student”. Subclause 573.223 at the time of decision provided as follows:
573.223
(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 applicant; and
(iv) any other relevant matter;…
Further, by force of cl.573.221 of the Regulations the Applicant had to satisfy at time of decision cl.573.231(a) by establishing that he was enrolled in, or the subject of a current offer of enrolment in, a course of study.
Decision of Delegate
In his Decision Record of 11 December 2015 the Delegate referred to and set out cl.573.223 and also referred to and summarised Ministerial Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications (Direction No. 53), which set out the factors that had to be taken into account when assessing the genuine temporary entrant criterion for Student 573 visa applications.
In the result, the Delegate refused to grant to the Applicant a Student 573 visa because he was not satisfied that the Applicant was a genuine applicant for entry and stay as a student. In particular, the Delegate in his Decision Record took into account the following factors:
a)that although the Applicant had relied on the claim that his grandfather’s death, his father’s illness and the misfortune of his father’s business had affected his ability to study, the Applicant had not provided any documentary evidence, in spite of being specifically requested to provide his comments with supporting evidence;
b)that the Applicant had only completed English courses and a Diploma of Accounting in the last six years in which he had been in Australia on a student visa and the Delegate did not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia was to study and progress academically;
c)that the Applicant had not completed any course above the vocational level and in the past had mostly maintained enrolment in short / inexpensive courses at that level, which indicated that he was using the student visa program to maintain residency in Australia, rather than due to a genuine interest in study and academic progress; and
d)that the Applicant had failed to respond to the request to provide evidence of his employment and his incentive to return to his home country upon completion of his study in Australia.
Accordingly, the Delegate concluded as follows:
Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.
The Delegate therefore refused to grant the Student 573 visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 17 December 2015 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
By letter dated 18 April 2016 the Tribunal invited the Applicant to a hearing before it. In addition, the Tribunal requested that the Applicant provide a copy of his current Certificate of Enrolment (CoE) as required for the grant of the Student 573 visa and further stated:
We will assess whether you intend genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the Migration Regulations.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.
The Applicant appeared before the Tribunal on 16 June 2016 to give evidence and present arguments. The evidence before me establishes that two days earlier on 14 June 2016 the Tribunal obtained a Provider Registration and International Student Management System printout which indicated that the Bachelor of Professional Accounting and Master of Professional Accounting courses (see [8] above), in respect of which the Applicant had applied for the Student 573 visa, had been cancelled by the education provider on 23 April 2016 because of the Applicant’s cessation of studies and non-commencement of studies. It followed that on the date of the Tribunal hearing the Applicant was not enrolled in, or the subject of a current offer of enrolment in, any course of study and thus could not comply with cl.573.231(a).
At [7] of its Decision Record the Tribunal set out cl.573.223 and at [8] – [9] noted that it must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act, when considering whether or not the Applicant satisfied cl.573.223(1)(a), and that the factors referred to in Direction No. 53 should not be used as a checklist.
At [10] of its Decision Record the Tribunal recorded that the Applicant agreed at the Tribunal hearing “that he was currently neither enrolled in any course nor studying any course…”.
At [11] of its Decision Record the Tribunal recorded that it had “reminded the applicant that he had not enrolled in any lengthy course (viz nor higher education course) since the Diploma of Accounting in 2011 and that some five years had elapsed since that time but the applicant offered no explanation”.
At [14] – [15] of its Decision Record the Tribunal recorded as follows:
[14] The Tribunal reminded the applicant that he was on a 573 higher education visa and that he was required by that visa to maintain eligibility and that meant, amongst other things, that he had to continue to enrol and undertake the higher level courses. It continued that it appeared that he had not enrolled in any higher education course nor had he studied or attended any higher education courses for the last five years being that he was in breach of two visa conditions, that is maintaining eligibility under 8516 and continues study under 8202. He replied that he was faced with many challenges, the first was that his father's business burnt down and he was suffering from cancer in 2013 and he was granted a deferment. The Tribunal noted that in his earlier submissions indicated that it was not because of his father that he requested deferment but because of his grandfather's death and he replied it was an application for all of those disasters.
[15]The Tribunal raised with the applicant that he had never actually completed a higher education course at all since arriving in Australia. His most senior course was a Diploma of Accounting which took two and a half years and which he completed in 2011 but that it appeared since then he has not completed anything at that level or that length of time and that most of his courses since then had involved ones which were very inexpensive and varied from two months to a few at any one time. It also noted that he had enrolled in some twenty courses but only completed one course of a longer duration, which was that course mentioned directly above and he concurred with this view but gave no further information.
At [18] of its Decision Record the Tribunal recorded the Applicant’s admission “that he did not have any explanation for his lack of studying at the appropriate level or why he had not participated in the temporary student program over the last three years”.
At [20] of its Decision Record the Tribunal recorded as follows:
[20]Overall and taking into account the considerations of all factors set out in Direction 53, the applicant has not displayed or illustrated any effort to undertake or continue his studies at the appropriate higher level. By his own admission he concurred with the Tribunal that he had not studied anything for some five years.
In the result, the Tribunal affirmed the decision of the Delegate not to grant the Student 573 visa to the Applicant because it was not satisfied that he intended genuinely to stay in Australia temporarily and accordingly he did not meet cl.572.223(1)(a) of the Regulations.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Application are as follows:
1. Reviewing the AAT Decisions was not correct.
2. Student visa back.
3. I think the decision was not right. I finished few courses in Australia and I wanted to finished my Bachelor of Accounting but I couldn’t get chance for my personal and family problem. Can I please get my student visa back and get the opportunity to finish my higher education.
Consideration
Unfortunately for the Applicant, none of these grounds constitute a meaningful assertion that the decision of the Tribunal is affected by jurisdictional error, but rather seek to invoke a merits review which is not available in this Court. At the hearing the Applicant also did not make any meaningful assertion of jurisdictional error, but rather requested that he be given another chance to finish his studies.
Accordingly, the Application filed in this Court fails to establish jurisdictional error.
A Further Matter
Mr Bevan of Counsel, who in appearing for the Minister appeared for a model litigant, referred me to the decision of Judge Smith in this Court in Raza v Minister for Immigration & Border Protection (2017) 322 FLR 1 (Raza), in which case his Honour found in connection with an application for a Student 573 visa that the Tribunal had not complied with the mandatory requirement of Direction No. 53 to consider the applicant’s circumstances in his home country. Nevertheless, Mr Bevan submitted that Raza was distinguishable and had no application to the present case. I agree that the circumstances in Raza were quite different and distinguishable from the present case.
In Raza the applicant had expressly raised claims concerning the situation in his home country and his future prospects there. In the context where his Honour was of the view that the Tribunal’s reasons were “neither lengthy nor lucid” (Raza at 7 [26]), “far from comprehensive” (Raza at 10 [38]) and “cursory and poorly drafted” (Raza at 11 [38]), and there was no reference in the Tribunal’s reasons to the applicant’s claims concerning the value of his study in his home country, his Honour was not prepared to infer that the Tribunal had considered the applicant’s circumstances in his home country merely from the Tribunal’s reference in its reasons to the mandatory requirement that it have regard to Direction No. 53.
In this case, the Applicant’s Written Claims only referred to Bangladesh in connection with his grandfather dying at the beginning of 2014, his father becoming sick after his grandfather died and the family shop business burning down, though the business had reopened and was back to normal. The Applicant’s Written Claims failed to set out, as requested by the Department in its letter of 23 September 2015, any claims relevant to Bangladesh such as his “reasons for choosing to study in Australia rather than in [his] home country or usual country of residence”, “the relevance of the course(s) of study to [his] future career and / or educational plans” or “evidence of [his] ties to [his] home country or usual country of residence that shows that [he had] significant incentive to return home at the end of [his] stay in Australia” (see [10] above). He had not provided any “written statement addressing the issue of whether [he was] a genuine temporary entrant by referring to Direction No. 53” as requested by the Tribunal in its invitation of 18 April 2016: see [19] above.
The Tribunal was clearly aware of the Applicant’s Written Claims, about which discussion took place at the Tribunal hearing concerning his grandfather’s death and the burning down of his father’s business, as recorded at [14] of the Decision Record of the Tribunal.
In my view the Tribunal’s obligation pursuant to Direction No. 53 to consider the Applicant’s circumstances in his home country is to be seen through the prism of, and to be informed by, the actual claims made by the Applicant in connection with his home country. The mandatory requirement is expressed in Direction No. 53 as “decision makers must have regard to…”. That mandatory requirement did not mean that the Tribunal was bound to ritualistically and punctiliously refer in its Decision Record to each of the factors set out in Direction No.53. The Full Court of the Federal Court of Australia comprised of Stone, Foster and Nicholas JJ in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi), in considering a similar mandatory requirement as comprised in s.109(1)(c) of the Act and reg.2.41 of the Regulations said at 277 – 278 [83] as follows:
[83]In our view, it is incumbent on the visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41. The reg 2.41 criteria direct the Minister’s attention to particular factors at a general level but it is for the visa holder to shape and mould the Minister’s consideration of those criteria by reference to his or her individual circumstances. Whilst the Minister must, of course, have regard to material, information and documentation in his possession which properly fall within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister’s discretion to be properly exercised. For example, consider the criteria in reg 2.41(a), (e), (f) and (k). If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria.
In this case the reasons given by the Tribunal in its Decision Record are not defective as they were found to be in Raza. The Decision Record is concise, but in my view it covers the relevant statutory provisions and claims made by the Applicant and there is no reason to not accept the Tribunal’s statement at [20] of its Decision Record that it had taken into account the factors set out in Direction No. 53. On any basis the Applicant’s academic record in Australia was unimpressive and the Tribunal focussed its decision on the Applicant’s failure to comply with the genuine temporary entrant criterion. In any event affirmation of the decision of the Delegate not to grant the Student 573 visa was mandated because he was no longer enrolled in, or the subject of a current offer of enrolment in, any course of study.
Direction No. 53 sets out many factors to be considered, but specifies that such factors are not to be considered as a checklist. It does not indicate or require any of those factors to be accorded primacy or preponderance. In such circumstances the following statement of principle of the Full Court of the Federal Court of Australia comprised of Emmett, McKerracher and Foster JJ in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 at [44] is pertinent:
[44]The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]–[59]).
(emphasis added)
To similar effect more recently Colvin J in Nguyen v Minister for Home Affairs [2019] FCA 892 stated at [6] as follows:
[6]Further, there may be important differences in the way the mandatory obligation is expressed. A requirement that a decision-maker must have regard to a particular matter may require that it be considered or it may require that the matter must be given weight as a fundamental element when making the decision: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [50]‑[56] (Parker J, Malcolm CJ and Anderson J agreeing). Where there are a large number of prescribed circumstances to which the decision‑maker must have regard that counts against a conclusion that each of them is to be given weight in a central or fundamental way: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [60]‑[62]. The precise nature of the obligation to 'have regard to' specified matters is dependent upon the terms of the legislation and the particular circumstances in which the provision is to be applied: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [216]‑[231].
(emphasis added)
In Khadgi the Full Court had said at 271 [61] – [62]:
[61]We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
…. a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense 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.
[62]In our opinion, the prescribed circumstances to which the Minister must have regard in the present case are of the latter kind. There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
In my view the Tribunal did not relevantly fail to comply with Direction No. 53, but rather considered expressly or by necessary inference the Applicant’s circumstances in his home country. Nothing in Raza is dispositive in this case in favour of the Applicant.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 29 August 2019
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