Akbar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 746
•19 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Akbar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 746
File number(s): SYG 2293 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 August 2024 Catchwords: MIGRATION LAW – Administrative Appeals Tribunal - Student (Temporary) (Class TU) Subclass 500 (Student) visa – Whether genuine applicant for entry and stay as a student – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Pandey [2014] FCA 650
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 147 FCR 51
Singh v Minister for Home Affairs [2019] FCAFC 3
Soliman v University of Technology, Sydney (2012) 207 FCR 277
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 12 August 2024 Place: Parramatta Solicitor for the Applicant: Appearing in person Counsel for the Respondents: Ms Sangha, Mills Oakley ORDERS
SYG 2293 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMIZ AKBAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed
2.The Applicant pays the First Respondent’s costs fixed in the sum of $5400.00.
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 D HUMPHREYS:
INTRODUCTION
The applicant is a male citizen of Indonesia. He arrived in Australia on 15 September 2012 as the holder of a Student (Subclass 572) visa.
The applicant subsequently applied for a Student (Temporary) (Class TU) Subclass 500 (Student) visa (“the visa”) on 26 May 2017 to study a Diploma and Advanced Diploma of Marketing and Communication at George Brown College.
On 9 August 2017, a delegate of the then Minister for Immigration and Border Protection (“delegate”) refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (“Act”) on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“Regulations”) as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a merits review of the delegate’s decision on 18 August 2017. He appeared before the Tribunal for hearing on 16 May 2019. On 8 August 2019, the Tribunal affirmed the decision of the delegate to not grant the applicant the visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal considered that the issue for resolution was whether the applicant was a genuine temporary applicant for entry and stay as a student. The Tribunal set out in full cl 500.212 of 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.
Under the heading “Does the applicant intend genuinely to stay in Australia temporarily?”, the Tribunal confirmed that it must have regard to Direction No.69 which specifies a number of factors the Tribunal is to have regard to, being:
•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.
At [10] to [11], the Tribunal set out the documents that the applicant had provided and the documents the Tribunal had regard to, and from [12] to [37] set out the statements, evidence, and claims of the applicant.
Under the heading “Findings in relation to factors contained in Direction No.69”, the Tribunal found that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia. The Tribunal noted that certain aspects of the applicant’s circumstances supported his claim to be a genuine temporary entrant, but that the Tribunal had concerns as a whole. The Tribunal, in considering Direction No.69, made the following findings:
(a)The applicant continues to have personal ties in Indonesia which would serve as an incentive to return, that he maintains contact with his family through phone applications and relatively regular visits, and that his economic circumstances may present as an incentive to return, including his mother’s business and the land which he and his brothers own, and the land owned by his mother.
(b)The Tribunal was satisfied that the applicant does not have strong personal ties with Australia and, noting the applicant had some friends, did not consider them a strong incentive to remain in Australia.
(c)The applicant has a good level of knowledge of living in Australia.
(d)There was no evidence of any military service or civil or political incidents which would act as an incentive for the applicant to remain in Australia. There was no evidence that the applicant had entered into a relationship, and that there was insufficient evidence regarding the applicant’s circumstances in Indonesia relative to others. As such, the Tribunal made no adverse findings in regard to these factors.
(e)There were no adverse findings in relation to cl 9(a) of Direction No.69.
(f)When considering the value of the course to the applicant’s future, the Tribunal had concerns. At [44] to [49], the Tribunal set out the applicant’s generic and sometimes varying reasons for why he was studying his chosen course of Marketing and Communications. These reasons were stated by the applicant in his Genuine Temporary Entrant statement (“GTE statement”), his response to the Tribunal’s invitation under s 359(2) of the Act, and his claims and oral statements at the hearing before the Tribunal.
(g)In light of the applicant’s previous statements, the Tribunal viewed the applicant’s plan to work as a Marketing Consultant as being put forward for the purposes of the hearing. The Tribunal had concerns that this plan had not been thought through sufficiently and was still in the ideas stage. The Tribunal also noted that, on the applicant’s evidence, the weekly wages earned by the applicant in Australia were roughly equivalent to what he hopes to earn from consultancy work in Indonesia; even when expenses are factored in. The Tribunal had some concerns in respect of the applicant’s economic circumstances, which present as an incentive not to return to his home country, and with respect to the renumeration the applicant could expect to receive in his home country compared to Australia. As such, the Tribunal was concerned that the applicant was enrolled in his then current studies to extend his stay in Australia, raising concerns that the visa may have been used to maintain ongoing residence and to circumvent the intentions of the migration program.
(h)The applicant has held two Student visas, and he has no other outstanding visa applications.
(i)Considering the applicant’s work as an Uber driver (on the applicant’s own evidence of earning $600 to $700 per week), the Tribunal noted that this was significantly higher than the salary earned in previous years and the Tribunal questioned whether the additional hours worked were required for paying daily expenses and educational costs as claimed, or whether the self-regulating hours provided the applicant with an additional economic incentive to extend his stay in Australia. Furthermore, the Tribunal noted the applicant’s Bridging visa, dated 26 May 2017 contained in the Department’s file, and noted that it contained Condition 8105 (work limitation). The Tribunal found that the applicant, based on his own evidence, did not comply with Condition 8105 of his visa and that the circumstances were not beyond his control.
(j)While having some concerns, the Tribunal did not make any adverse findings when considering the amount of time the applicant has spent in Australia, and the relatively short and inexpensive courses he has completed.
(k)There were no adverse findings in respect to clauses 14(a)(i) and (ii) or 14(b)(ii) or (iv) of the Direction No.69.
(l)There are no other relevant matters in addition to those otherwise considered.
In a summary of its considerations, the Tribunal acknowledged that certain factors contained in Direction No.69 lend some support towards a finding that the applicant is a genuine temporary entrant. However, the Tribunal placed weight on the value of the course to the applicant’s future and the applicant’s breach of Condition 8105 of his Bridging visa which suggest economic incentives to extend his stay in Australia. Accordingly, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and thus did not meet cl 500.212(a) of the Regulations.
Under the heading “Does the applicant intend to comply with visa conditions?”, the Tribunal considered cl 500.212(b) of the Regulations. At [57] to [58] and at [60], the Tribunal set out the considerations and criteria under cl 500.212(b) of the Regulations, and at [59] summarised the applicant’s evidence that he had breached Condition 8105 and the applicant’s claim that, if granted the visa, he would do the right thing and not breach the work limitation condition again. The Tribunal was not satisfied, considering the applicant’s record of compliance and stated intention to comply, that the applicant intended to comply with the conditions subject to which the visa is granted as required by cl 500.212(b) of the Regulations, nor that the applicant was a genuine temporary applicant for entry and stay as a student.
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa
GROUNDS OF JUDICIAL REVIEW
The grounds for judicial review are contained in the Amended Application filed on 6 December 2023. The grounds, raised by the applicant are:
1.The Tribunal has breached s359 of the Migration Act by failing to take into account relevant documents and information. Specifically, in paragraph 46 of the Tribunal decision (Page 165 of the Court Book) the Tribunal stated that the applicant made “no mention of his career plan in the s359(2) response … “. On the contrary, on page 85 of the Court Book, there is a copy of the Applicant’s s359(2) response where he clearly stated that he wished to run his own business. Further, in the Applicant’s GTE statement made in 2017, which can be found at page 25 of the Court Book, he clearly stated that he would like to have his own business.
2.The Tribunal drew a conclusion based on incorrect or erroneous information. In paragraph 44 the Tribunal stated that “the applicant’s plan for a marketing consultancy was put forward for the first time at the Tribunal Hearing”. On the contrary, in the applicant’s GTE statement which can be found at page 25 of the Court book, he stated that: “I would like to have my own business and I will need to deal and build relationship with various people, including clients and partners…”.
Clearly the applicant was referring to a Service oriented business or a Consultancy business as he referred to clients and partners as opposed to customers and shareholders. This is consistent with his evidence during the Tribunal Hearing.
3.The Tribunal made an erroneous reasoning and deprived the Applicant of a different outcome. In paragraph 49, the Tribunal took the view that the applicant gave a very generic reasons for wishing to study Marketing and Communication and drew the conclusion that the applicant has enrolled in his current studies to extend his stay in Australia and that it had concerns that the student visa may be used to maintain ongoing residence and to circumvent the intentions of the migration program. This is related to Ground 1 above where the Tribunal failed to consider the fact that the applicant had been quite consistent in his motivations to study the Marketing course and that is he wishes to carry on a Marketing Consultancy business, making his course an essential requirement to fulfill his intentions. He stipulated his plan for a business in both his GTE statement as well as his s359(2) response and during the hearing he clarified that he wishes to engage in a Marketing Consultancy business. Had the Tribunal taken this information into account, the Tribunal would not have made the conclusion that it had made in paragraph 49.
THE APPLICANT’S SUBMISSIONS
At hearing, the applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
The applicant filed an outline of Submissions on 6 December 2023. Under the heading “Submission”, the applicant reproduced his grounds of review, as set out above, with the following addition:
3.[….] Further, and more importantly, this conclusion is critical to the whole decision, because after the Tribunal’s conclusion in paragraph 49, it went on to conclude that the Applicant was not a genuine temporary entrant in paragraph 55 and paragraph 56 of the Tribunal decision (page 166 in the Court book). Hence the impugned reasoning of the Tribunal deprived the Applicant of the possibility of a different outcome and hence a jurisdictional error.
4. We therefore respectfully submit that the Tribunal had breached s359 of the Migration Act and has fallen into Jurisdictional error because it had not taken into consideration relevant information and drew conclusions without adequate basis when deciding whether or not the Applicant was a genuine temporary entrant.
Costs
1.If the Court determine that my application for Judicial Review is to be dismissed then I would like to respectfully request the Court to make an order that there be no order as to costs.
Included in the applicant’s Submissions are references and pinpoints to a number of cases that the applicant relies on in support of his submissions as to jurisdictional error, including: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [179]; Soliman v University of Technology, Sydney (2012) 207 FCR 277; Singh v Minister for Home Affairs [2019] FCAFC 3; Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 147 FCR 51 at [212].
The Court asked the applicant if there were any oral submissions he would like to make. The applicant told the Court that the Tribunal made a mistake, in that he said he wanted to open a business with clients and partners. This implied a business such as a consultant not one with customers such as a supermarket.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one
In regard to ground one, the first respondent submits that the applicant misquoted the Tribunal’s decision in a way that “changes the nature of the Tribunal’s finding”. The applicant alleged that the Tribunal was in breach of s 359 of the Act by failing to take into account the applicant’s claim that he wished to run his own business. The applicant states in his Amended Application that the Tribunal found that the applicant made “no mention of his career plan in the s359(2) response” when the actual Tribunal decision stated that the applicant had made “no mention of this career plan” in the s 359 response (CB 165) (emphasis added).
The Tribunal found that the applicant had not previously claimed to have the same career plan as he had explained to the Tribunal at the hearing. The applicant couched his claim as being that the Tribunal found that the applicant had not made mention of career plans in general. The applicant’s specific “career plan” to run his own marketing consultancy in Indonesia, was not raised in the GTE statement or s 359(2) response where the applicant only stated his wish to run a business, but did not make specific reference to a career plan. The first respondent submits that ground one should fail on this basis.
Ground two and three
The first respondent addresses grounds two and three together. The applicant contends that the Tribunal “drew a conclusion based on incorrect or erroneous information” by finding that the applicant put forth his plan for a marketing consultancy business for the first time at the Tribunal hearing. The applicant contends that in fact, his GTE statement clearly stated that he wished to run his own business.
The applicant further states in ground two that they were “clearly” referring to a “service oriented business or a consultancy”. However, it was open to the applicant to clearly set out his future plans and present his own evidence to the Tribunal. There was no mention of the specific plan to run a marketing consultancy in either the GTE Statement or s 359(2) response despite the applicant contending that it was an obvious intention. At (CB 25), the applicant clearly referred to a business such an accountancy business.
It was not the responsibility of the Tribunal to afford every opportunity to the applicant to present his best possible case or to improve upon the evidence; (see: Minister for Immigration and Border Protection v Pandey [2014] FCA 650 at [41]).
Ground three alleges that the Tribunal “made an erroneous reasoning” by failing to consider that the applicant had been “quite consistent” in his motivations. The first respondent submits that the applicant seeks an invitation for the Court to engage in impermissible merits review; (see: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). As such both grounds two and three must fail.
CONSIDERATION OF THE GROUNDS OF REVIEW
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46], the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
Ground 1 is a complaint that the Tribunal breached s 359 of the Act. That section reads as follows:
Tribunal may seek information
(1) 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.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
The complaint by the applicant is that the Tribunal failed to take account of his statement that he wished to run a marketing consultancy business. A fair reading of the Tribunal decision record clearly indicates that the Tribunal did take into account the plan the applicant put forward at the hearing to run a marketing consultancy, whereas the material in the response related to “a business”. The applicant’s evidence was clearly set out at [44] – [49] of the decision record. The Court is satisfied based on a reading of the entirety of that evidence, the Tribunal was entitled to draw the conclusion that the applicant only stated that the plan to run a business as a marketing consultant was put forward for the first time at the hearing before the Tribunal. Up until that point of time, the idea of running a business had been entirely generic and vague. The Court notes that at [25], the Tribunal noted that the applicant stated his initial intention was a business similar to that of his parents, which was as an accountant.
Even if the Court is wrong in this regard, the Court does not consider that any error by the Tribunal, as alleged by the applicant was material. There was considerable other evidence to support the finding that the applicant was not a genuine temporary entrant. The applicant has not been deprived of the possibility of a different outcome.
The Court is not satisfied that the complaint raises an issue of jurisdictional error, rather it seeks to dissect the decision record with an eye finely attuned to error. Ground one has no merit.
Grounds two and three can be dealt with together. These grounds again seek to criticise the Tribunal decision on the basis that it drew a wrong conclusion from his evidence. The Court is satisfied that this ground rises no further than a vehement disagreement with the evaluation of the evidence by the Tribunal and the conclusion reached. The grounds invite impermissible merits review. Grounds two and three have no merit.
As the applicant is unrepresented, the Court has perused the papers and is unable to find any unarticulated jurisdictional error.
CONCLUSION
As none of the grounds of judicial review have merit, this applicant’s application must be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 August 2024
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