Ali v Minister for Immigration

[2019] FCCA 3130

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3130

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Subclass 500 Student visa – whether the Tribunal made a decision contrary to the evidence before it – whether the Tribunal’s decision was unreasonable, irrational or illogical – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl, 500.212

Cases cited:

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham

(2000) 168 ALR 407

Randhawa v Minister for Immigration, Local Government and Ethic Affairs

Reena v Minister for Home Affairs & Anor [2018] FCCA 2057

Applicant: OMAR ALI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2709 of 2018

Judgment of: Judge Humphreys

Hearing date: 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Parramatta

Delivered on: 31 October 2019

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms Wong, DLA Piper

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2709 of 2018

OMAR ALI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a male citizen of Lebanon. The applicant first arrived in Australia on 9 April 2011 on a TU 572 Student visa. The applicant was subsequently granted a TU 573 Student visa on 24 July 2013. On 13 March 2017, the applicant applied for a further Subclass 500 Student visa to undertake a Bachelor of Business degree. On 23 May 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa application on the basis that the Minister was not satisfied the applicant intended to stay in Australia temporarily and thus did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

2. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present his argument. In a decision dated 2 September 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant’s Subclass 500 Student visa. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. At paragraph 18 of its decision, after setting out relevant law and policy, the Tribunal was not satisfied that the completion of three vocational and education training courses in some seven years, represented a level of academic progress consistent with a student visa. The Tribunal was satisfied there was no evidence of any academic achievements since the applicant had completed a Diploma of Management in December 2015. At paragraph 19 of its decision, the Tribunal noted that the applicant’s enrolment in an Advanced Diploma of Leadership and Management was cancelled in May 2018, reportedly for the non-payment of fees. In 2016, an enrolment in an Advanced Diploma of Management was cancelled, reportedly due to non-commencement of studies.

2. At paragraphs 18 to 21 of its decision, the Tribunal concluded the applicant’s immigration and study history raise serious concerns as to future compliance with visa conditions. At paragraph 22 of its decision, the Tribunal noted new enrolments were only created the evening before the Tribunal hearing indicating an inference they were created for the purposes of the review, rather than with a genuine intention to undertake study.

3. At paragraph 24 of its decision, the Tribunal considered the applicant’s personal and family circumstances. The Tribunal concluded that the applicant had strong reasons to seek to stay in Australia on a permanent basis, rather than temporarily as a student due to his family being in Australia including a number of brothers.

4. I also note that the Tribunal complied with the requirements of s 359A of the Migration Act 1958 (Cth) (“the Act”), in that the Tribunal put a number of matters that were of concern to the applicant, so as to enable the applicant to provide responses to matters.

5. The applicant was given the opportunity to provide evidence. The applicant was also given the opportunity to provide, within two days, further material supporting his enrolment. The applicant provided the material on 30 August 2018 and his response is recorded at paragraph 10 of the Tribunal’s decision. In particular, the Tribunal noted the applicant’s response that he had passed seven subjects from an advanced diploma at the Queensland International Business Academy (“QIBA”) and he only had five subjects left. The applicant told the Court however, that QIBA had closed and he was unable to complete his studies with that college.

Grounds of Appeal

1. One ground of appeal was filed and it is as follows (verbatim):

   The Tribunal member in the decision on page 2 point 9 accepted the submitted documents in support of my claim, including confirmation of enrolment for Bachelor of Business and others as well as in point 10 I provided explanation, yet the Tribunal made a decision contrary to the evidence before it and failed to understand that I intend to stay temporarily in Australia and that after my studies I will return home to work overseas. The Tribunal made a decision contrary to the evidence.

Applicant’s Submissions

1. The applicant appeared before the Court unrepresented but assisted by an Arabic interpreter. No written submissions were filed in support of the applicant’s claim, although a submission, which has been marked as Exhibit 1, was provided to the Court on the day of the hearing. Ms Wong, who appeared on behalf of the First Respondent, took no objection to that document being tendered. The applicant’s submission reads as follows (verbatim):

   I received the Minister’s submission. I do rely on my application under the Migration Act as I continue to believe I have a genuine intention to continue my education at the time. The Tribunal refused my application. It didn’t have sufficient evidence to refuse my application. Yes, I agree that I moved colleges but that was for reasons beyond my control. The significant gap in my study was justified and the Tribunal considered my evidence as not strong enough to justify my study.

   I do not understand how the Tribunal was not satisfied that I had significant incentive and reasons to return to Lebanon on completion of studies. The Tribunal failed to understand that even my two brothers and sister are Australian citizens would be strong incentive for me to stay in Australia and failed to understand that my father visited Australia and returned to Lebanon and that my father has is a strong incentive for me to return to Lebanon because I had intention of plan to work in the construction industry.

   I continue to believe the ground of review should justify that the Tribunal made an error of law and made a decision contrary to the evidence provided. I ask this Court to take into account the transcript, as the member said in transcript at page 16:

   “I will take your comment into consideration but that was an issue that concerned me.”

2. The Court was taken to the Tribunal’s transcript. On page 15, the following question was asked by the member:

   Member: I asked you about the question, I asked you about why there is an inconsistency with what you said, which is you were enrolled and studying and the prisms record indicate that you did not pay your fees so you were not and that was why your

   Applicant: I have paid for 6 years and I pay the money. Why that one like not paid? Maybe for a reason that agent maybe didn’t pay so.

3. The Court was taken to another section of the transcript which, for the point of view of the matter before the Court here today, does not take the matter any further. The applicant claims to have paid fees for six years of study but agrees it was cancelled by the college. The applicant says it was because the college had closed and that is why he also was unable to get any transcripts. The applicant noted that he provided further information which were VET transcripts that showed he completed a number of studies, but that he was unable to complete them because the college had closed. The applicant states his father’s wish is for him to return to Lebanon and that the Tribunal’s decision is wrong.

The First Respondent’s Submissions

1. The first respondent submitted that the ground of appeal is not a proper ground of appeal, as it fails to identify any jurisdictional error. Rather the ground simply seeks to cavil with the merits of the Tribunal’s decision and asks the Court to undertake impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraph [272]). The first respondent suggests that the claim that the decision is contrary to the evidence, in essence, argues that the objective evidence should have led to a different conclusion, which goes to the merits of the decision (see Reena v Minister for Home Affairs & Anor [2018] FCCA 2057 at paragraph [29]).

Consideration

1. The Tribunal is not required to accept uncritically, any and all of the claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437 per Beaumont J).

2. I am satisfied that the Tribunal’s findings were open to it on the materials and evidence before it, including the credibility findings (see Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at paragraph [67] per McHugh J). I am satisfied that the Tribunal complied with the procedural requirements of s 359A of the Act.

3. Information which was of concern to the Tribunal was put to the applicant and he was asked orally to respond. The applicant was given more time to respond and in fact, was invited to provide written submissions which he did, within the timeframe of two years later.

4. In my mind, there is nothing unreasonable, irrational or illogical in the Tribunal’s decision (see Minister for Immigration v Eshetu (1999) 197 CLR 611 at paragraph [40]). The Tribunal reviewed the material, made reasonable inferences and came to a logical decision. Emphatic disagreement with the outcome of the reasoning may have, and in this case does not have, any legal consequence in terms of there being a jurisdictional error.

5. This Court can not engage in merits review and it was indicated to the applicant at the outset that it is not the role of the Court. The Court can only find in the applicant’s favour if there has been jurisdictional error. The ground of appeal, as best understood, simply cavils with the outcome of the Tribunal and invites the Court to undertake impermissible merits review.

Conclusion

1. I have carefully reviewed the decision in its totality and I am not satisfied, given that the applicant is unrepresented, that there is any other non-articulated jurisdictional error on the face of the record.

2. Accordingly, I dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 12 December 2019