Ali v Minister for Immigration
[2019] FCCA 2639
•23 September 2019 (and delivered by telephone by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2639 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student Visa – whether decision illogical and unreasonable – whether adequate weight to a relevant consideration – whether applicant’s employment history relevant to his course of study – whether applicant had enrolled in a number of unrelated courses of study – whether consideration of lack of detailed plan to operate a business in applicant’s home country an irrelevant mater – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.353, 359AA, 474, 476 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Cases cited: 1602950 (Migration) [2016] AATA 4120 Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666; (1980) 4 ALD 139 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 MZWDG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 497 |
| Applicant: | NAUMAN ALI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 574 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2019 (and delivered by telephone by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr J Raftos |
| Solicitors for the Applicant: | Munro Doig Lawyers |
| Counsel for the Respondents: | Mr A Burgess |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the originating application, as amended on 31 January 2018, be dismissed.
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 574 of 2017
| NAUMAN ALI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Nauman Ali (“Mr Ali”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 3 October 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision to not grant Mr Ali a Student (TU) Education and Training Sector (subclass 572) visa (“Student Visa”).
These Reasons for Judgment are being delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)Mr Ali is a citizen of Pakistan who first time arrived in Australia on 23 August 2011: CB 1-8;
b)on 17 August 2015 Mr Ali applied for a Student Visa to study Certificates III and IV studying in commercial cookery and an advanced Diploma of Hospitality at the Perth College of Business and Technology and Stanley International College respectively: CB 25-28 (“Student Visa Application”);
c)on 19 August 2015 the Delegate requested that Mr Ali provide further information in relation to the Student Visa Application, including evidence that he met the genuine temporary entrant criterion in cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 32-42, and Mr Ali responded to this request and provided further information on 11 September 2015: CB 43-95;
d)on 9 October 2015 the Delegate’s Decision was to refuse to grant Mr Ali the Student Visa: CB 96-104; and Mr Ali sought review of the Delegate’s Decision by the Tribunal on 26 October 2015: CB 105-106;
e)Mr Ali was invited to attend a hearing before the Tribunal on 26 September 2017: CB 113- 116 (“Tribunal Hearing”), though the Tribunal was required to postpone the Tribunal Hearing to 3 October 2017: CB 130-133;
f)on 26 September 2017 and 3 October 2017 the Mr Ali’s migration agent provided written submissions and current Certificate of Enrolments for Mr Ali’s studies to the Tribunal: CB 137-157;
g)Mr Ali and his migration agent participated in the Tribunal Hearing by telephone on 3 October 2017 and the Tribunal Decision was delivered orally at the Tribunal Hearing: CB 158-163; and
h)on 11 October 2017 Mr Ali requested a written statement of the Tribunal Decision and on 1 November 2017 the Tribunal provided the Tribunal Decision to Mr Ali in writing: CB 170-176.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that in order to be eligible for the grant of the Student Visa, Mr Ali must have been both a genuine temporary entrant and a genuine student, and further that to be a genuine temporary entrant, Mr Ali’s circumstances must support a genuine intention to remain in Australia temporarily: CB 173 at [3];
b)having regard to the Delegate’s Decision, noted that in considering whether Mr Ali was a genuine temporary entrant, it must have regard to Ministerial Direction 53 (“Direction 53”), and that the factors in Direction 53 were not to be used as a checklist, but rather were intended to guide the Tribunal in reaching a finding, in this case, as to whether Mr Ali satisfied the genuine temporary entrant criterion: CB 173 at [5]-[7];
c)stated that Mr Ali had confirmed at the Tribunal Hearing that he had read and understood the Delegate’s Decision which made detailed references to the Direction 53 factors and put him on notice of the issues in his case, and despite being asked to provide a statement addressing the Direction 53 factors, Mr Ali had failed to do so: CB 173 at [8]-[10];
d)considered Mr Ali’s evidence that he was enrolled in and studying an Advanced Diploma of Hospitality Management course, scheduled to run until January 2019, and also had regard to evidence previously provided by Mr Ali and emailed by Mr Ali’s representative following the Tribunal Hearing, that Mr Ali had completed a number of courses in the past: CB 173-174 at [11]-[12];
e)noted that Mr Ali had been in Australia for over six years, and had undertaken courses for approximately four years, but did not consider this to be the progress of a genuine student and in addition to this Mr Ali had also been enrolled in a number of courses, a large number of which had been cancelled: CB 174 at [13];
f)went through those enrolments pursuant to s.359AA of the Migration Act and found that the repeated enrolment in courses that Mr Ali had either not started or not completed was not the behaviour of a genuine student: CB 174 at [15]-[16];
g)had regard to a statement written by Mr Ali submitted in support of the Student Visa Application, in which Mr Ali claimed that he had successfully finished all courses that he had started and noted this was not correct: CB 174 at [17];
h)otherwise noted that Mr Ali had been enrolled in a number of short and relatively inexpensive courses in unrelated fields which led the Tribunal to find that Mr Ali was not following a set path of academic progress but was using the Student Visa program to maintain residence in Australia and to circumvent permanent migration programs: CB 174-175 at [18]-[19];
i)did not consider that Mr Ali’s enrolment history reflected a pattern of somebody studying business marketing and management before deciding that it was not for them, and choosing hospitality, and also noted Mr Ali’s work history in Australia, as a security and crowd control at a bar and then driving taxis for some years: CB 175 at [20];
j)the Tribunal had regard to Mr Ali’s evidence, first, that he wanted to return to Pakistan and open a hotel restaurant, second, that he had always wanted to open a business and now felt confident enough to do so, third, that he wanted to create a restaurant chain, and had agreed to an in-principle agreement with his cousin to commence a restaurant business on land he owned and was developing, which the Tribunal considered an unusual step if Mr Ali only had an in-principle agreement, and found that Mr Ali’s inability to answer questions or provide details about the business with any degree of specificity was because Mr Ali did not have a considered business plan: CB 175 [21]-[22];
k)acknowledged that whilst Mr Ali had family in Pakistan which provided some incentive for him to return and he had stated that he intended to return home, that he had been in Australia for over six years and it appeared that he had settled in Australia as he had a history of work and he now sought to remain until 2019, and the Tribunal considered that Mr Ali’s current circumstances presented as a strong incentive for Mr Ali to remain in Australia, and did not believe that he provided any evidence of any incentive to return to Pakistan which outweighed the issues discussed during the course of the Tribunal Hearing: CB 175 at [24]-[25]; and
l)found that Mr Ali was not a genuine student who intended to stay temporarily in Australia and that he did not meet cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 175 at [25].
Amended Judicial Review Application
On 31 January 2018 Mr Ali filed an Amended Judicial Review Application (“Amended Judicial Review Application”). The Amended Judicial Review Application contains four grounds of application, as follows:
The Administrative Appeals Tribunal ("Tribunal") committed jurisdictional error by illogically and unreasonably:
1. failing to give adequate weight to a relevant consideration namely the applicant's ties to his home country.
PARTICULARS
At paragraph 24 of the Decision Record (CB 75) the Tribunal acknowledged the applicant had family back home “which may provide some incentive” for the applicant to return to his home country but failed to consider this evidence in any real or active way.
2. concluding the applicant’s employment history was not relevant to his course of study.
PARTICULARS
(a) The Tribunal at paragraphs 20-21 (CB175) found the applicant had “not done work in [his] chosen field” as he had worked in security and crowd control notwithstanding that the applicant had studied business, marketing, management and hospitality and cookery. Further the applicant had given evidence of his future intention to operate a business in the hospitality sector.
(b) In any event, working in his chosen field was not a requirement of the applicant's visa or his courses of study.
3. concluding the applicant had enrolled in a number of unrelated courses of study.
PARTICULARS
The Tribunal at paragraph 18 (CB174) found that the applicant had “enrolled in a number of short and relatively inexpensive courses in unrelated fields which leads the Tribunal to find [the applicant was] not following a set path of academic progress but [was] using the student visa program to maintain residence in Australia and to circumvent permanent migration programs” whereas courses in business, management, marketing and hospitality are inherently relevant to each other, particularly in the context of a stated intention by the applicant to run a hospitality business.
4. considering an irrelevant matter namely the lack of a detailed plan of the applicant to operate a business in his home country.
PARTICULARS
The Tribunal at paragraphs 22-23 (CB 175) considered the applicant's future intention to operate a business with agreement with his cousin and found that he did not “have a considered business plan as the basis to [his] studies” which is not a requirement of a subclass 572 visa or an indicator of a genuine intention to remain temporarily in Australia.
Mr Ali’s Submissions
Mr Ali made the following submissions in respect of ground one:
a)the Tribunal’s consideration of such material must be real or active: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 at 595 per Kirby J;
b)the Tribunal is required to base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined and it must proceed by reference to reasonably probative evidence: Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685 per Deane J; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 93 ATR 775; (2013) 59 AAR 221; (2013) 296 ALR 307; (2013) 133 ALD 39 at [62] per Jessup J and per Jagot J at [83]–[84];
c)at CB175 at [24] in the Tribunal Decision the Tribunal acknowledged that Mr Ali had family back in his home country but failed to consider this evidence in any real or active way, merely stating that this “…may provide some incentive…” to return to his home country and nothing more;
d)the Tribunal also made a bald assertion at CB175 at [24] of the Tribunal Decision that, having referred to Mr Ali’s immigration history, Mr Ali’s “words and … actions seem to be different”. On a reasonable, rational view Mr Ali’s study history and his stated intention of returning to Pakistan, where he has family and intends to pursue a business, are entirely consistent; and
e)the Tribunal had no basis for concluding, based on vague evidence of Mr Ali “having worked as security and crowd control at a bar for just over a year, and driving taxis for some years”: CB175 at [20] that Mr Ali would “appear settled in Australia”: CB175 at [24].
Mr Ali made the following submissions in support of ground two:
a)at CB175 at [20]-[21] the Tribunal found Mr Ali had “not done work in [his] chosen field” as he had worked in security and crowd, control notwithstanding that Mr Ali had studied business, marketing, management and hospitality and cookery, and in doing so found this information to be adverse to Mr Ali’s claim to be a genuine student, again notwithstanding Mr Ali’s evidence of his future intention to operate a business in the hospitality sector;
b)on a reasonable, rational view, the occupations and industries Mr Ali worked in were related to his studies, namely hospitality, but in any event it was not a requirement for the grant of the Student Visa or the courses of study that Mr Ali work in an occupation closely related to the course;
c)irrationally and unreasonably, the Tribunal created a ‘false dichotomy’ between being a genuine student and working in a field not similar to Mr Ali’s studies; and
d)it would be reasonable for overseas students to take up part-time work in fields unrelated to their studies to assist with their own financial support whilst studying.
In support of ground three Mr Ali made the following submissions:
a)referring to the Tribunal Decision at CB174 at [18], that on any rational or common sense view, the courses in business, management, marketing and hospitality are inherently relevant to each other, particularly in the context of a stated intention to run a business in the hospitality sector; and
b)in 1602950 (Migration) [2016] AATA 4120 at [26], the Tribunal found that, in considering whether a Certificate III in Food Processing and a Diploma of Business Management were “closely related” to the nominated occupation of Pastry Cook, found that “management skills are relevant and closely related to the nominated occupation of [pastry cook]”.
In respect of ground four, Mr Ali submitted:
a)the Tribunal at CB175 [22]-[23] considered Mr Ali’s future intention to operate a business and the agreement to do so with his cousin and found that he did not “have a considered business plan as the basis to [his] studies”, and in doing so the Tribunal found this information to be adverse to Mr Ali’s claim to be a genuine student; and
b)a considered business plan is not a requirement of a Student Visa or an indicator of a genuine intention to remain temporarily in Australia. For the Tribunal to ‘import’ such a requirement was unreasonable and arbitrary.
Minister’s submissions
The Minister made the following submissions:
a)at their highest, Mr Ali’s grounds amount to nothing more than a request for impermissible merits review;
b)the Tribunal clearly understood that it was required to have regard to the factors outlined in Direction 53 namely Mr Ali’s circumstances, the value of the courses to Mr Ali’s future, Mr Ali’s immigration history, his incentive to stay in Australia or return home, whether he was using the Student Visa program to maintain ongoing residence and any other relevant matter;
c)the Tribunal Decision demonstrates that the Tribunal considered Mr Ali’s evidence and engaged in an “active intellectual process” and gave “genuine consideration” to the factors set out in Direction 53;
d)it is evident that the Tribunal’s findings in relation to Direction 53 had practical relevance to Mr Ali’s circumstances and evidence, therefore Mr Ali’s grounds simply quarrel with the factual findings made by the Tribunal with respect to the Direction 53 factors and do not demonstrate jurisdictional error, let alone any illogicality or unreasonableness on the part of the Tribunal;
e)in respect to Mr Ali’s argument that the Tribunal failed to give “adequate weight” to a relevant consideration, being Mr Ali’s ties to his home country, it is well established that matters of weight are within the exclusive province of the Tribunal, and the Tribunal expressly considered this matter when assessing the factors in Direction 53, and the weight it afforded to Mr Ali’s evidence was a matter for the Tribunal;
f)insofar as Mr Ali argues that the Tribunal had no basis for reaching conclusions such as those at CB175 at [20] and [24] given “the vague evidence of the applicant”, it was for Mr Ali to put whatever evidence or argument he wished to advance in support of the Student Via Application, it was not for the Tribunal to make Mr Ali's case for him;
g)prior to the Tribunal Hearing Mr Ali was invited to provide a written statement addressing the factors in Direction 53, but failed to do so, hence the Tribunal’s findings were clearly open to it on the “vague evidence before it”.
Consideration
Jurisdictional error
A Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also arise by reason of a breach of the procedural fairness required by provisions of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, and where an administrative decision is legally unreasonable: Minister for Immigration & Citizenship v Li [2012] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225, (2013) 138 ALD 181 (“Li”). The Court notes that the Tribunal was empowered pursuant to s.368D of the Migration Act to make the Tribunal Decision orally on the day and at the time of the Tribunal hearing.
When considering if the Tribunal acted illogically the following principles must be borne in mind:
a)to recognize irrationality or illogicality in the Tribunal Decision, more must be shown than simply the fact that reasonable minds may differ on the conclusion reached: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 (“SZMDS”) at [131] per Crennan and Bell JJ;
b)the Tribunal Decision may be illogical or irrational if only one conclusion was open on the evidence, and the Tribunal did not come to that conclusion, or if the there is no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal: SZMDS at [135] per Crennan and Bell JJ;
c)the illogicality must be shown to have affected the Tribunal Decision, such that the error is material to the Tribunal Decision: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463 at [85] per Rares J; Yusuf at [82] per McHugh, Gummow and Hayne JJ.
The essence of the error that is legal unreasonableness was described in Li at [76] per Hayne, Kiefel and Bell JJ where it was stated that:
‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.’
When determining if the Tribunal has acted unreasonably, the Court must give close attention to the scope and purpose of the statutory functions conferred upon the Tribunal: Li at [74] per Hayne, Kiefel and Bell JJ; Ministerfor Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 at [9] per Allsop CJ. The following guidance was provided by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Eden [2013] FCAFC 28; (2016) 240 FCR 158 at [65] per Allsop CJ, Griffiths and Wigney JJ:
…consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
The distinction between jurisdictional fact, and other facts taken into account in discretionary decision making must not be scrutinized in an overzealous manner so as to ensure the Court does not engage in impermissible merits review: SZMDS at [38]- [39] per Gummow ACJ and Kiefel J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The onus is on Mr Ali to satisfy the Court the Tribunal Decision was irrational or illogical: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) FCR 90; (2015) 144 ALD 525; (2015) 318 ALR 450 at [129] per Perram, Jagot and Griffiths JJ.
Ground one
In relation to ground one Mr Ali placed emphasis on CB175 at [24] which is as follows:
24. While I acknowledge you have family back home which may provide some incentive to return, you certainly appear settled in Australia where you have a history of work. While you say it is your intention to return home, having been here for over six years you now seek to remain until 2019. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history.
A failure to consider a relevant consideration may demonstrate jurisdictional error: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21]–[29] per Tamberlin J; Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 at [36] per Bromberg J. However, Mr Ali must “do more than point to material capable of supporting an inference" that there was a failure to consider, or actively engage with, the considerations relevant to the determination of the Student Visa: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ.
It is well accepted that the Tribunal may get any information it considers relevant, and that the weight it affords that material is a matter for it: NAHI v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, subject, however, to the Tribunal giving “proper, genuine and realistic consideration” to the claims and the evidence before it: Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [26] and [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
This grounds asserts that the Tribunal failed to give adequate weight to the applicant’s ties to his home country, and therefore committed a jurisdictional error by acting illogically and unreasonably.
In the Court’s view the Tribunal in determining whether or not the applicant was a genuine student intending to stay temporarily in Australia was entitled to take into account the fact that the applicant had family in Pakistan, and weigh that against what the applicant has done and intended to do in Australia, including:
a)his history of work, noting that the Tribunal had found that he had been “driving taxi’s for some years, a job you are still doing”: CB175 at [20];
b)that he had been in Australia for over 6 years, and if the present Student Visa application was granted he would remain until 2019, or more than 8 years: CB175 at [24]; and
c)his current circumstances provided a strong incentive to remain in Australia; CB175 at [24].
The weighing of the information set out CB175 at [24] cannot be viewed in isolation; the Tribunal had already dealt extensively with the applicant’s enrollment history whilst in Australia, and his alleged intention to create a restaurant chain in Pakistan with his brother: CB173-175 at [11]-[23].
Having regard to the combination of factors considered by the Tribunal, that is the applicant’s “current circumstances”: CB175 at [24], it is evident that the Tribunal weighed the evidence before it in its totality and arrived at a decision in respect of the genuineness of the applicant’s intention to stay temporarily in Australia which was open to it. The mere fact that the applicant had enrolled in a number of certificate and diploma courses, but not any more advanced studies, and had been in Australia for 6 years (or 8 years if the Student Visa was granted) and had a job driving taxi’s for some years, is doubtless a sufficient evidentiary basis for the Tribunal to conclude that the applicant did not intend to stay temporary in Australia. As this Court observed in Brar v Minister for Immigration and Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 (“Brar”) at [23] per Judge Lucev:
… It might indeed be arguable that the AAT Decision to affirm the Delegate’s Decision was the only logical and rational decision which could be made in relation to a “temporary” student visa for an applicant who had already resided in Australia for approximately eight years and was applying for a fifth student visa in a fourth area of study…
In Brar the applicant was, she said, desirous of establishing a clinic in India, and had undertaken courses in Australia in nursing, business, dental assisting and management and sought to do more advanced studies in business to facilitate her opening a clinic, whilst working in Australia as an aged care personal attendant.
In the Court’s view the Tribunal’s consideration of this issue was a proper exercise in administrative decision making. It reveals no jurisdictional error, and the finding that Mr Ali was not a genuine “temporary” student because his links to Australia outweighed his links to Pakistan was a finding which was not such that no rational or logical decision maker could reach it on the same evidence: SZMDS at [130] per Crennan and Bell JJ.
It follows that ground one is not made out, and does not establish jurisdictional error in the Tribunal Decision and for the Court to intervene in the circumstances would simply be to substitute its own merit conclusion for that of the Tribunal, and that is not a course permissibly open to this Court: Wu Shan Liang CLR 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS at [38]-[39] per Gummow ACJ and Kiefel J.
Ground two
In support of ground two Mr Ali referred to CB175 at [20]-[21] which provides as follows:
20. This is not the pattern of somebody studying business marketing and management before deciding it was not for them, and choosing hospitality. Despite studying business and management your work history in Australia is of having worked as security and crowd control at a bar for just over a year, and driving taxis for some years, a job you are still doing.
21. When I asked why you have not done work in your chosen field, you then made the comment, that, "Well, I did at one stage work in a Thai restaurant, " although that has not come up before. You say your ultimate goal, well, there are a range of things you have said. You said today you want to go back and open a hotel restaurant. Basically in your written statements you have provided only motherhood statements about your future, saying you always wanted to open your own business in Pakistan, and you now felt confident to manage your own business there or anywhere in the world.
CB 175 at [20]-[21] need to be read in conjunction with paragraphs that precede them.
In the Tribunal Decision at CB174-179 at [18]-[19] the Tribunal observes as follows:
18. You have been enrolled in a number of short and relatively inexpensive courses in unrelated fields which leads the Tribunal to find you are not following a set path of academic progress but are using the student visa program to maintain residence in Australia and to circumvent permanent migration programs. In the statement your agent Mr Carmody submitted last week, which I presume reflects information you provided, it states:
In the beginning, when Mr Ali came to Australia, he was led to believe that courses in business, management and marketing would lead to a successful career and a happy life after he went back to Pakistan. But Mr Ali found that he did not have any passion for the corporate life of business and marketing, instead finding in himself a passion for cooking and hospitality
19. Your enrolment history does not reflect this. As I have already stated after you did a Certificate IV and a Diploma of Business you then enrolled in a Certificate III in Hospitality. You did not compete this but enrolled in a Certificate IV in Small Business Management. Then, again Hospitality courses, none of which you completed, before enrolling in the Diploma of Marketing. Then back to Hospitality, a Diploma of Management, and Advanced Diploma of Marketing, back to a Certificate IV in Hospitality, then Advanced Diploma of Business, before going back to Hospitality studies
Ground two asserts that it was illogic and unreasonable for the Tribunal to conclude that the applicant’s employment history was not relevant to his course of study. This sets up a false premise, as it is not evident to the Court that the Tribunal made such a conclusion. What the Tribunal did, in legitimately weighing the available evidence, was to observe that the applicant had embarked upon a series of courses of study at certificate and diploma level, and that he had worked as security and crowd controller for just over a year, and had been driving taxi’s for some years, which he was still doing (and the Court can infer that he has been doing that for about 5 years as he has been in Australia for 6 years). The applicant did not dispute that he did not work in the area of hospitality (which is now said to be applicant’s chosen field of endeavour: CB 174 at [18]) other than fleetingly: CB175 at [21]. Thus, what the applicant characterises as a conclusion, is in fact an observation on the evidence available to the Tribunal in assessing whether or not the applicant is a genuine temporary entrant to Australia for the purpose of study.
The applicant then says, by way of particularisation that working in the applicant’s chosen field was not a requirement for the grant of the Student Visa or for any of the courses of study undertaken by the applicant. In respect of the latter, that is not evident from the evidence and materials before the Tribunal, but in any event it is immaterial. The observations that the Tribunal made in this regard were observations which were properly made in the course of assessing whether or not the applicant was a “genuine temporary entrant” as proposed to one who “using the student via program to maintain ongoing residence in Australia”: CB173 at [5], and that in regard the Tribunal was entitled to observe that the applicant had not worked in his chosen field of study, and was driving a taxi. Conversely, if the applicant had been working in an area related to his field of study, the Tribunal would have been entitled to weight that factor as well, probably in the applicant’s favour.
In the above circumstances, all that the Tribunal was doing at CB175 at [21] was making evidentiary observations which were necessarily preliminary to drawing a conclusion about whether or not the applicant was a genuine temporary entrant, and in respect of the evidence about which those observations were made, the Tribunal was entitled to weigh that evidence before arriving at its conclusion which was open to it on the evidence. Once again, to interfere with that conclusion would have the Court undertaking impermissible merits review, contrary to long standing principle: Wu Shan Liang and SZMDS as sighted at [16] above.
In the circumstances, ground two is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground three
The applicant sights CB 174 at [18], in part, in support of ground three which asserts unreasonableness and illogicality in the conclusion that the applicant had enrolled in a number of unrelated courses of study. Once again, the premise of the ground does not accurately reflect what was in fact said by the Tribunal or how it relates to the ultimate finding to affirm the Delegate’s Decision not grant the Student Visa. In that regard it is necessary to read CB174 at [18] together which CB175 at [19], both of which are set out at [29] above. The Tribunal went on to observe at CB175 at [20] that the history of the applicant’s studies as set out at CB 175 at [19] was not the pattern of somebody studying business, marketing or management before deciding it was not for them, and then choosing hospitality.
When CB174-175 at [18]-[20] together with CB174 [17] are read as a whole, and in context, it can be seen that that the applicant claimed to have successfully completed all the courses he had started, which was not correct, and then to have changed the focus of his courses from business, managing and marketing to cooking and hospitality, again which is not correct, as the Tribunal’s fact finding at CB175 at [19] makes clear, resulting in the finding at CB175 at [20] about the pattern of the applicant’s studies. Ultimately, whether the courses are related or unrelated is not particularly material to the outcome of the Tribunal Decision. What is material is that the applicant could be seen to be “not following a set path of academic progress” as evidenced by the chopping and changing between business, management and marketing related courses, and cooking and hospitality related courses, but to instead be “using the student visa program to maintain residence in Australia and to circumvent permanent migration programs”: CB174 at [18]. Viewed in that context there is nothing in the Tribunal’s conclusions in relation to the applicant’s course of study which lacks an evident and intelligible justification, or which is illogical in the sense that another decision maker might not have arrived at the same conclusion, that conclusion being that the applicant was not a genuine temporary entrant in Australia.
For all of the above reasons, ground three is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground four
In support of the error asserted in ground four the applicant referred to CB175 at [22]-[23], which provide as follows:
22. In an earlier statement [you] said you planned to create a restaurant chain. Mr Carmody's recent statement said you had an in-principle agreement with your cousin to commence a restaurant business on land he owned and is currently developing. An unusual step if you only have an in-principle agreement. But when I asked you about this business you are talking of and asked how many rooms this hotel is going to have, you say, “10, 15 or 20”.
23. When asked about the size of the restaurant you plan, the answer is “50 or 100 plus. We will have one or two chefs, three or four waiters, two or three cooks, 10 or 15 staff in total. “When I say, “What about cleaning staff for the restaurant and the hotel?" you say "Well, if you include those, it would be over 20." Your inability to answer questions or provide details about this business with any degree of specificity leads me to find you do not have a considered business plan as the basis to your studies.
The applicant complains that his future intentions for the business and a business plan were irrelevant matters because they were not a requirement for the grant of the Student Visa, or an indicator of a genuine intention to remain temporarily in Australia, and on that basis the Tribunal conclusions in this regard are said to be unreasonable and arbitrary. Once again, the observations made by the Tribunal at CB175 at [22]-[23] are observations on the evidence. In determining whether the applicant was a genuine temporary entrant the Tribunal was entitled to have regard to what the applicant intended to do on his return to Pakistan, and how the studies he presently proposed to undertake, related to his future intentions. That was a relevant matter, because if the applicant had no future intentions or could not explain his future intentions, the Tribunal was, in all the circumstances (many of which have been set out above, including the fact that the applicant had already spent 6 years in Australia studying) entitled to consider how the lack of a detailed business plan did or did not relate to the applicant’s study in Australia, and in particular, whether the applicant was simply studying to prolong the period he was spending in Australia. Once again, if the Court were to interfere with the Tribunal’s ultimate finding on the basis of its consideration of the applicant’s detailed business plans, the Court would be usurping the Tribunal’s role as fact finder and merits review decision maker, contrary to the long standing principle: see Wu Shan Liang and SZMDS as sighted at [16] above.
In all of the above circumstances, ground four is not made out, and does not establish jurisdictional error on the Tribunal Decision.
Conclusion and orders
The Court has concluded that none of the four grounds of the Amended Judicial Review Application have been made out. Further, as will be evident from the Court’s consideration of those four grounds, the applicant has essentially asked the Court to undertake a merits review of the Tribunal’s Decision contrary to long standing principle. Also, the nature of the grounds is such that they seek to dissect the Tribunal Decision in a way which results in it being read out of context, and not as a whole, and with an overzealous emphasis on a search for error inconsistent with this Court’s proper role of judicial review of administrative decisions. It follows from the above that there will be an order of the Court dismissing the Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 23 September 2019
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