Ali v Minister for Immigration

[2017] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 338

Catchwords:
MIGRATION – Judicial review – student visa.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Sch.2 cl.572.223(1)(a)

Applicant: MUHAMMAD ASAD ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 558 of 2016

Judgment of: Judge Harland

Hearing date: 13 February 2017

Date of Last Submission: 13 February 2017

Delivered at: Melbourne

Delivered on: 13 February 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. That the application filed 21 March 2016 be dismissed.

2. That the Applicant pay the First Respondents costs fixed in the sum of $3606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 558 of 2016

MUHAMMAD ASAD ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of decision of the Tribunal to affirm the delegate’s decision to refuse the applicant a student visa.  The applicant had previously been granted two student visas and has been in Australia since January 2011.  The application for judicial review complains that Tribunal did not take into account relevant considerations and took into account irrelevant considerations and otherwise is effected by jurisdictional error.  No particulars are given.  A Registrar of this Court made directions on 17 August 2016 requiring the applicant to file an amended application with proper particulars of the grounds for the application, as well as written submissions.  The applicant has not filed any further material.

3. Before me this morning the applicant says the Tribunal failed to take into account the instability in his family.  He has not pointed to any other error.  It is clear from the Court Book that when the applicant applied for the third visa he annexed three certificates of enrolment to a Certificate III in Information, Digital Media and Technology, a Certificate IV in Information Technology Networking, and a Diploma of Information Technology Networking, and the Certificates indicated that he had prepaid a tuition fee of $1,000 in the first Certificate course only.  The total tuition fee for the first course is $3,000 and the second course is $6000, and the third course was $6,000.

4. The Department of Immigration and Border Protection sent a request to the applicant to provide further information and documents, and the checklist of documents appears at page 45 of the Court Book.  The request also included details of what the applicant was required to provide.  The applicant provided some documents and a short statement which appears at Court Book 56.  He indicated that he was studying Information Technology (“IT”) because he had already completed a Diploma in Business Management, and Financial Services, and thought that the combination of that with IT would help him find a desirable job in his home country.  He says that information technology is booming in Pakistan and he would have plenty of job opportunities in that field rather than business management.  He also talked about his financial circumstances.  He talked about his lack of engagement in studies from 7 April 2013 to 25 September 2013 which a previous Tribunal found was due to his father’s death and his grief and depression after that.  A previous Tribunal had reversed a delegates’ decision to cancel his second student visa because of that gap in studies.

5. The delegate refused the applicant’s application for a visa referring to the background of the applicant’s course of study in Australia in that decision and the fact that the applicant had not completed any courses above the vocational education and training level and that he had enrolled in short, inexpensive courses.  The delegate observed that whilst people may seek to change career, he had changed courses several times, and that the courses he chose were of short duration and low cost.  The delegate was not satisfied as to the reasons the applicant gave for studying those courses. 

6. The applicant applied for a review to the Tribunal.  The applicant was invited to attend a hearing before the Tribunal, and was invited to provide further information and documents.  The invitation letter which commences at page 103 of the Court Book also includes direction number 53 which the Tribunal is required to consider when assessing whether or not an applicant is a genuine temporary entrant to Australia for the purposes of studying.  The applicant did not provide further documents but did attend the hearing and provide evidence.  The Tribunal decision commences at Court Book 130.

7. The decision sets out the applicant’s background including history of study and PRISMs records.  It also refers to the applicant’s family circumstances and records at [8] that the applicant confirmed that whilst there had been economic and security problems in his home area in the past, things had stabilised.  His father had died in 2013 but his mother and younger brother and two sisters remained living in Pakistan.  The Tribunal also discusses the evidence the applicant gave with respect to why he re-enrolled in Diploma of Management rather than continuing in his financial services study.  He was then asked why he enrolled in a Certificate IV of Hospitality and the applicant had said that at the time he was working as a personal care assistant and was interested in nursing, but the nursing courses were too expensive.  He then rolled in information technology certificates.

8. At [11] the applicant conceded to the Tribunal that he was not enrolled in any course currently as his Certificates of enrolment had been cancelled because of non-payment of fees. He said he was negotiating with the course provider to pay by instalments and had not been to class for three or four months. He was working part time, or had been working part time. His future plans were that if he was granted a visa were that he wanted to enrol in a nursing degree. The Tribunal then sets out cl.572.223(1)(a) of Sch.2 of the Migration Regulations 1994 (Cth) where the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, because the Minister was satisfied that the applicant intends to genuinely stay in Australia temporarily, having regard to the applicant’s circumstances, migration history, and any other relevant matter.

9. In assisting the determination of that issue, the department has published direction number 53.  The Tribunal refers to the direction and refers to the requirement for it to have regard to a number of factors including the applicant’s circumstances in his home country and potential circumstances in Australia, as well as the value of the course to the applicant’s future.  The Tribunal must also consider the applicant’s immigration history including previous applications for visas and any other information provided by the applicant or other information that is available that is relevant to the decision.

10. The Tribunal then went on to consider those factors.  The Tribunal observed at [17] that the applicant has his mother and three siblings remaining in Pakistan and that the fact that he has immediate family living in Pakistan provides for a significant tie for the applicant with his home country.  The Tribunal went on to consider the fact that he was the oldest son, having taken on responsibility for the family but had not returned to Pakistan since August 2015 and found that this undermined his otherwise strong reasons for him to return to Pakistan because of his family, and found that it was suggested that he may wish to remain in Australia in order to earn money to contribute to financial support of his family in Pakistan.  The Tribunal records having discussed with the applicant its concerns about the relatively poor security and economic situation in Pakistan, and that that would provide for another incentive for the applicant to seek to remain in Australia.

11. At [15] the Tribunal records that the applicant asserted that the economic and security conditions had improved and that he had been in employment before coming to Australia, but the Tribunal raised concerns with him about the fact that he had remained in Australia for so long, being five years by the time of the decision and that he had been employed in part time work for most of the time since coming to Australia and had not progressed academically beyond a vocational level in a number disparate fields of study;  suggesting that he was using the student visa program to remain in Australia indefinitely, contravening the purpose of the visa program.  The Tribunal also raised concerns with the applicant about the value of the proposed courses to his future.

12. The Tribunal recorded that whilst it accepted that the applicant may wish to study nursing, there was no evidence to suggest that he was enrolled in a nursing course or that he would be able to afford to do so.  The Tribunal was not satisfied that the applicant was able to plausibly explain why he could not return to Pakistan with the skills he had gained with business management and accounting and seek employment in those fields.

13. The Tribunal then referred to the applicant’s migration history, and at [23] records at the time of the Tribunal hearing the applicant had conceded that he had not been enrolled for about seven months in any course, had indicated that he wanted to enrol if he could afford to do so.  This is quite separate from the previous gap of study that the applicant had in 2013.  The Tribunal concluded that after assessing the whole of the applicant’s circumstances, including the enrolment in multiple vocational level courses, several of which appeared to have no relationship to each other, or to the applicant’s stated aims and career prospects in Pakistan that there was no reason why the applicant could not return to his home country and seek employment with the existing Australian qualifications.  It was not satisfied that the Tribunal was a genuine applicant for temporary stay in Australia as a student.

14. It is apparent from the Tribunal decision record that the Tribunal did consider the applicant’s family circumstances together with his migration history and lack of progress in studies.  These are all matters that the Tribunal properly had to have regard to in accordance with the legislative requirements.  I am satisfied that the Tribunal took into account the relevant considerations that it was required to do so in assessing whether or not the applicant was a genuine applicant for temporary residence in Australia as a student.  There is nothing in the Tribunal record which suggests the Tribunal took into account irrelevant considerations.

15. I am satisfied that the Tribunal has not made a jurisdictional error and will dismiss the application and order costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 28 February 2017