Alblasy v Minister for Immigration

[2016] FCCA 1512

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBLASY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1512

Catchwords:
MIGRATION – Application for child (Migrant)(Class AH) visa – review of decision of Migration Review Tribunal – whether the Tribunal failed to consider academic transcripts provided by the applicant – whether the Tribunal failed to apply the correct test and consider the fill integers of the applicant’s daughters claim for a visa – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994, item 101 of sch 2, cll.101.211(1), 101.213, 101.221

Cases cited:
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2015] FCA 317
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZAGE v Minister for Immigration & Border Protection [2016] FCA 630
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant: FOUAD ABAS MOHAMED ALBLASY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 822 of 2015

Judgment of: Judge Smith

Hearing date: 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Sydney

Delivered on: 7 July 2016

REPRESENTATION

Counsel for the Applicant: Mr S Lawrence

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 822 of 2015

FOUAD ABAS MOHAMED ALBLASY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant first arrived in Australia from Egypt on 5 June 2007 on a prospective spouse (subclass 309) visa. He was granted a permanent spouse visa (subclass 100) on 21 April 2011 on the basis of his marriage to an Australian citizen and was granted Australian citizenship on 17 August 2012.

2. The applicant had previously been married in Egypt and had two children with his former wife. The applicant’s son was born in January 1989 in Cairo and his daughter was born there in January 1991. On 27 June 2012, the applicant’s son and daughter each lodged an application for a Child (Migrant)(Class AH) (Subclass 101) visa. The applicant sponsored each of his children in their applications.

3. The criteria for the grant of those visas were found in item 101 of sch.2 to the Migration Regulations 1994 (Cth). At the date when the application was made, one of those criteria was that, at the time of the application, the applicant was a dependent child of the holder of a permanent visa and (subject to relevant exceptions) had not turned 25: cl.101.211(1).

4. If, as was the case here, an applicant had turned 18 by the time of the application then the following criteria applied:

   101.213

   (1)If the applicant has turned 18:

   (a)the applicant:

   (i)is not engaged to be married; and

   (ii)does not have a spouse or de facto partner; and

   (iii)has never had a spouse or de facto partner; and

   (b)the applicant is not engaged in full-time work; and

   (c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   …

   (Emphasis added)

   101.22Criteria to be satisfied at time of decision

   101.221

   …

   (2)In the case of any applicant who had turned 18 at the time of the application:

   (a)the applicant:

   (i)continues to satisfy the criterion in clause 101.211; or

   (ii)does not continue to satisfy that criterion only because the applicant has turned 25; and

   (b)the applicant continues to satisfy the criterion in clause 101.213.

   (Emphasis added)

5. Clearly enough, these criteria reveal that this subclass of visa is targeted at the children of citizens or permanent residents with the usual hallmarks of dependency: financial dependency, and either they are under 18 or are not working, are not in long-term relationships and are studying. The issues in these proceedings concerned the last of these, namely, study.

6. On 10 November 2013 a delegate of the Minister made a decision to refuse to grant each of the visa applicants a visa. In the circumstances, only their sponsor, the applicant before this Court, could apply for merits review of those decisions. On 13 January 2014 the applicant made one application to the Migration Review Tribunal[1] for review in respect of both of the delegate’s decisions. On 13 March 2015 the Tribunal made a decision to affirm the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

7. On the day of the hearing the applicant sought, and was granted, leave to amend the application so as to rely on two new grounds; the first concerning the son and the second ground concerning the daughter. For the reasons that follow, neither of those grounds will succeed.

Consideration

First ground: failure to consider academic transcripts from the Higher Institute of Social Work in Port Said

1. The critical issue for the Tribunal in respect of the applicant’s son was whether, since turning 18, he had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: see sub-cl.101.213(1)(c).

2. In his visa application the son had claimed that he was currently undertaking a course of study at the Higher Institute of Social Work at Port Said. By the time the matter came before the Tribunal the son had completed that course and was enrolled in a post graduate degree in the same institution in Professional Studies in the field of Family and Childhood.

3. After the hearing conducted by the Tribunal on 11 February 2015, the Tribunal wrote to the applicant asking for the following information in respect of the son:

   ·     Academic transcripts (record of grades) from the Higher Institute of Social Work, Port Said, … for the academic years 2010/11, 2011/12, 2012/13 and 2013/14 in the Bachelor of Social Work;

   ·     Academic transcripts (record of grades) and evidence of continuing enrolment from the Higher Institute of Social Work, Port Said … for the academic year 2014/15 in the Professional Studies in the field of Family and Childhood.

   …

4. In response, the applicant sent to the Tribunal translations of documents concerning his son’s registration and grades at the Higher Institute of Social Work at Port Said for the years requested. The documents recorded that the applicant’s son was registered in his fourth year from the year 2010/2011 until the year 2013/2014. In the first of those years, 2010/2011, he was marked as absent in all but one subject (practical training in respect of which he was marked very weak) and given a general grade of “absent”. In the second year, 2011/2012 he received a general grade of “failed” although he received a pass mark in a number of subjects. In the third year, 2012/2013, he received the general grade “one subject & human rights” even though he was marked “absent” in respect of the subject human rights. The document concerning the fourth year, 2013/2014, indicated that the son had obtained a bachelor degree of Social Work and received a general grade of “pass”.

5. In addition to those documents, the applicant sent the Tribunal a certificate setting out the grades for each respective year of his social work degree, the first year being 2007/2008, the second year being 2008/2009, the third year being 2009/2010 and the fourth year being 2013/2014.

6. The Tribunal made its decision on 13 March 2015. It accepted that both visa applicants were dependent children within the meaning of that term in sub-cl.101.211(1)(c) of the Migration Regulations. However, it did not accept that the visa applicant son was undertaking a full-time course of study at the time of the application. The Tribunal’s reasons for this conclusion was set out in the following paragraphs:

   [56]With respect to the first named visa applicant, [the son], the Tribunal finds that after completing the equivalent of year 12 in the Australian school system he enrolled in a full-time course of Social Work at the Higher Institute of Social Work, Port Said in the academic year 2007/08. He was a full-time student in the academic years 2007/08, 2008/09 and 2009/10. He enrolled in the fourth year of his course for the next four years but did not attend classes at all in the 2010/11, 2011/12 or 2012/13 academic years. He completed his fourth year of study in the 2013/14 academic year. He is currently enrolled in and attending an extension course in Professional Studies (Child and Family) at the Higher Institute of Social Work, Port Said.

   [57]Based on the above evidence, that [sic] Tribunal is not satisfied that he was undertaking a full-time course of study at an educational institution for three years in the academic years 2010/11, 2011/12 or 2012/13. No evidence has been provided by the Higher Institute of Social Work that classes were cancelled or deferred during that year. His academic transcript simply states he was absent from all classes. His sister attended classes in these academic years.

   (Emphasis added)

7. The applicant points out that there is a discrepancy in these two paragraphs. At [56], the Tribunal found that the applicant’s son did not attend classes at all in three academic years. That, he said, was inconsistent with the certificates produced by the applicant in response to the Tribunal’s request. Those certificates, as summarised above, reveal that there was only one year in which the applicant’s son essentially failed to attend classes, namely 2010/11. That inconsistency was carried forward into [57] where the Tribunal refers to “three years”. However, the Tribunal then immediately refers to “that year”, creating an internal discrepancy in the Tribunal’s reasoning.

8. The applicant argued that the explanation for the discrepancy in the Tribunal’s reasoning was its failure to properly consider the certificates produced by the applicant. This, he argued, amounted to jurisdictional error in the manner considered by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (“SZRKT”).

9. I do not agree with the applicant’s argument that that is the explanation for the apparent discrepancy in [56] and [57] of the Tribunal’s reasons. First, unlike the Tribunal in SZRKT, there is no question that the Tribunal here considered the certificates produced by the applicant in response to its request. The Tribunal expressly referred to those documents at [39] of its reasons.

10. Secondly, the Tribunal’s reference to those documents contained a summary of them which was sufficiently accurate to show that the Tribunal had paid close attention to the contents of the documents. Thus, the Tribunal was more than simply aware of the existence of the documents and had examined them and understood their contents. The inaccuracy just referred to was that in respect of the academic year 2010/11, the Tribunal wrote that it indicated that the applicant’s son “was absent for every subject” whereas, in fact, as noted above, the subject “Practical training” showed the grade “Very weak”. That is an insignificant difference given that the overall grade was “Absent”.

11. Thirdly, it is important to recall the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31] referring to McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.

12. In my view, the explanation for the discrepancy is the infelicitous use of language by the Tribunal. There were two things about the certificates there were important in the Tribunal’s reasoning. First, that it took the applicant’s son four years to complete the final year of his course. Secondly, he was absent from all classes “during that year”.

13. In my view, the use of the singular in the second of these matters is important. There was one year during which the applicant was, for all intents and purposes, absent from his course: the year 2010/11. In light of that, and the fact that the Tribunal had referred to and summarised the effect of the certificates produced by the applicant, satisfies me that the Tribunal did not fail to have regard to the certificates and so did not fall into the jurisdictional error alleged by the applicant.

14. For those reasons the first ground is rejected.

Ground two: failure to apply the correct test and accordingly to consider the full integers of the applicant’s daughter’s claims for a visa

1. The Tribunal was satisfied that the applicant’s daughter satisfied the study criterion at the time of making the application for a visa. However, it was not satisfied that she continued to meet that criterion at the time of the decision.

2. The daughter’s evidence was that she completed her Bachelor of Social Work in May 2013 and had then enrolled in English classes for one year. She subsequently enrolled for the 2014/15 year in Professional studies (Rehabilitation of the Disabled) course at the Higher Institute of Social Work. The Tribunal considered that evidence and made the following finding at [67] of its reasons:

   … the second named visa applicant has not been undertaking a full-time course of study leading to a professional award at the time of this decision, as she was not engaging in or entering upon study leading to a professional award in the academic year 2013/14.

   (Emphasis added)

3. The applicant points out that the Tribunal only dealt with a “professional award” whereas the criterion refers to “professional, trade or vocational qualification”. The applicant argues that this reveals that the Tribunal did not consider whether the English course undertaken by the applicant’s daughter at the completion of her Social Work degree in May 2013 was leading to a trade or vocational qualification. By failing to consider that question the Tribunal had not properly addressed the issue raised by sub-cl.101.221(2)(b) and so fell into jurisdictional error.

4. The resolution of this ground depends on the scope of the claims made by the applicant and his children and the evidence given in support of those claims.

5. It is important to bear in mind that the criterion in question was to be satisfied at the time of the decision. The visa application was lodged on 27 June 2012. The Tribunal accepted that, at that time, the visa applicant had been “undertaking a full-time course of study leading to a professional award”: [65]. On the applicant’s evidence, that course of study, Bachelor of Social Work, had been completed in May 2013. The visa applicant told the delegate in an interview on 28 October 2013 that she had not been enrolled in further studies since her graduation from the Bachelor of Social Work course. It was on the basis of that evidence that the delegate found that the visa applicant did not satisfy the criteria for the visa and so, on 10 November 2013, refused to grant her the visa.

6. In his letter to the Tribunal dated 24 December 2014, the applicant wrote that his “children continue to study” and that they “continue their education”. In support of that assertion, the applicant enclosed a number of documents. In respect of his daughter, he enclosed “evidence that [she] is enrolled at school”. That evidence included  evaluation reports from an institution called “Axon” in Port Said dated 5 March 2014 and 15 July 2014 showing the marks achieved by the applicant’s daughter in English. Another document submitted in respect of the daughter was the translation of a certificate of enrolment dated 24 November 2014 in respect of a course entitled Professional Studies in the field of (Caring for the Disabled). There was also a receipt for the payment of the fees for a course dated 28 September 2014.

7. On 16 February 2015 the Tribunal wrote to the applicant requesting, amongst other things, academic transcripts and evidence of continuing enrolment in respect of his daughter for the academic year 2014/2015 in the Professional Studies course. In response, the applicant sent the Tribunal a number of documents including, relevantly, a translation of a receipt dated 28 September 2014 relating to his daughter’s enrolment in the Professional Studies course. He also sent an application form dated 15 July 2014 in respect of a course conducted by Axon entitled “English 31B”. However, the name of the applicant is in Arabic script and I cannot discern whether it relates to the applicant’s daughter or his son. The Tribunal appeared not to have been able to do so either: see [39] of its reasons, fifth dot point.

8. At the hearing before the Tribunal, the applicant told the Tribunal that English was not a requirement for the Professional Studies course.

9. On the basis of that material, the Tribunal found that the applicant’s daughter was enrolled in English classes for one year: [64]. However, as already noted, it concluded that she was not engaging in or entering upon study leading to a professional award in the academic year 2013/14 because a course of studies in English did not meet the study requirement provision: [67].

10. There are a number of reasons why this survey of the evidence reveals that the Tribunal did not fall into the error asserted by the applicant. First, with the exception of the English course, the applicant’s daughter relied on her enrolment in a course that the Tribunal accepted was leading to the award of a professional qualification, namely, both a bachelor’s degree and a post-graduate degree in Social Work. Secondly, she never expressly claimed that the course in English was leading to any particular qualification, let alone a trade or vocational qualification. Thirdly, the material before the Tribunal relating to the English course did not, in any way, suggest that the course might lead to any trade or vocational qualification. For those reasons, this is not a situation where the Court is dealing with a claim not expressly made but which can be fairly said to arise on the material: MZAGE v Minister for Immigration & Border Protection [2016] FCA 630 at [43] citing NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]-[58].

11. Further, although the Tribunal did not mention “trade or vocational qualification” in its conclusion about the daughter at the time of the decision, it correctly stated three times that the issue was whether the visa applicants had “been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: [40], [49] and [54].

12. In light of those two considerations, I conclude that the Tribunal properly understood the relevant criterion and properly considered each integer of the claims made by the applicant’s daughter.

Conclusion

1. For those reasons, there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 5 July 2016