Almekawy v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 542
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Almekawy v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 542
File number(s): SYG 2064 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 7 June 2024 Catchwords: MIGRATION – Grounds seeking merits review and challenge to weight to be given to evidence in determining whether applicant is genuine temporary entrant Legislation: MigrationAct 1958 (Cth) s 360
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BTQ16 v Minister for Immigration and Border Protection [2019] FCCA 2101
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149
SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
SZQBN v Minister for Immigration & Border Protection (2014) 226 FCR 68
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 7 June 2024 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr A Westenberg, Sparke Helmore ORDERS
SYG 2064 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAREK ALY ABDELAZIM ALMEKAWY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The application filed on 12 August 2019 is dismissed.
2.The applicant must pay the first respondent’s costs and disbursements, of and incidental to the proceedings, fixed in the sum of $6,054.55.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of the written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the Judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to show cause filed with this Court on 12 August 2019, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2019 affirming a decision of a delegate of the Minister (delegate) to not grant the applicant a Student (Temporary) (Class TU) visa (visa).
BACKGROUND
The applicant, who is a citizen of Egypt, arrived in Australia on 20 August 2007 (Court Book (CB) 46). On 23 June 2017, the applicant lodged an application for the visa (CB 1 to 21). On 14 August 2017, a delegate of the Minister refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant (GTE) as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 40 to 47).
On 21 August 2017, the applicant lodged an application in the Tribunal seeking review of the delegate’s decision (CB 48 to 49).
On 22 February 2019, the Tribunal invited the applicant to provide further information about his visa application (CB 56 to 58). In response, the applicant completed an undated online form outlining further information, and indicating that he consented to the Tribunal proceeding to make a decision without a hearing (CB 59 to 72).
On 4 July 2019, the applicant indicated that he had changed his mind and wanted to attend a hearing (CB 73). Accordingly, on 16 July 2019, the Tribunal invited the applicant to appear at hearing (CB 74 to 84). The applicant appeared before the Tribunal on 2 August 2019 to give evidence and present arguments with the assistance of an interpreter in the Arabic language (CB 85 to 87).
On 2 August 2019, the Tribunal affirmed the delegate’s decision (CB 93 to 102).
TRIBUNAL DECISION
The Tribunal identified that the relevant issue was whether the applicant was a GTE under cl 500.212 of the Regulations and, in considering that issue, that it was required to have regard to Ministerial Direction 69 (Direction 69) (CB 94 to 95 at [11] to [13]). The Tribunal summarised the applicant’s written evidence given to the Department and Tribunal about his purpose for studying in Australia, being that he wished to obtain a globally recognised qualification (CB 95 to 97 at [15] to [18]). The Tribunal’s decision records that the applicant’s academic studies in Australia were discussed with him at the hearing (CB 98 at [26] to [30] and [32] to [33]), as well as there being discussion about his wife’s work in Egypt (CB 98 at [31]).
The Tribunal considered the applicant’s circumstances, noting that there was no evidence to suggest that Egyptian qualifications were not globally recognised, and it was not satisfied that similar courses could not be accessed in Egypt. The Tribunal was also not satisfied that the applicant had reasonable explanations for why he did not study in Egypt (CB 99 at [38] and [40]). The Tribunal noted that the applicant had lived in Australia for many years and provided no information as to how various courses he had studied during that time period would assist him to obtain employment on return to Egypt (CB 99 at [39]).
The Tribunal found the applicant’s personal ties to Egypt to be minimal, and that his economic and personal circumstances did not demonstrate a significant incentive for him to return there (CB 99 to 100 at [41] to [43]). In relation to the applicant’s personal circumstances in Australia, the Tribunal found while in in Australia (since 2007) the applicant had:
(a)studied erratically;
(b)been continuously employed; and
(c)engaged in his local community.
(CB 100 at [45]).
The Tribunal found that, by contrast, the applicant’s situation in Australia presented strong incentives to remain (CB 100 at [46]).
The Tribunal noted the applicant’s evidence that he wanted to assist his wife in the running of her medical clinic in Egypt and that he regretted enrolling in a leadership studies course (CB 100 at [51]). The Tribunal found that the applicant would not require any further qualifications in leadership or management in order to assist in running a clinic which employed one receptionist, in circumstances where the applicant already held qualifications in various business areas (CB 100 at [51]).
The Tribunal also found that there was no information regarding the applicant’s expected remuneration in Egypt once he completed the proposed courses (CB 100 at [52]).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily, and therefore found that the applicant did not meet cl 500.212(a) (CB 101 at [71] to [72]).
Having found that the criteria for the grant of the visa were not met, the Tribunal affirmed the decision under review (CB 101 at [73] to [74]).
APPLICATION TO THIS COURT
The applicant commenced these proceedings on 12 August 2019. The matter was initially docketed to another Judge of the Court. On 5 September 2019, a Registrar of the Court made orders by consent, which included a grant of leave to the applicant to file and serve any amended application by 30 October 2019. The matter was next to be listed for a callover before the first primary Judge, on a date and time to be advised administratively to the parties. The applicant did not file an amended application in accordance with the initial grant of leave, or at all.
The matter was later placed in the central migration docket. It was next called over before a Registrar by telephone on 14 September 2023, on which occasion the applicant appeared with the assistance of an interpreter in the Arabic language. The proceedings remained in the central migration docket until 6 March 2024 when they was docketed to me, and on which date I made orders which included that the matter be listed before me today for hearing, together with orders for the preparation for that hearing.
By those orders, the applicant was granted further leave to file any amended application on or by 10 May 2024. The applicant and the first respondent were each ordered to file and serve written submissions 14 and 7 days before today's hearing, respectively. Again, the applicant has not filed any additional documents in the case as ordered, or at all.
The applicant appeared before me this morning in person, with the assistance of an interpreter in the Arabic language. The Minister was represented by a solicitor.
The Court Book was tendered for the first respondent and marked Exhibit “1R”. The Affidavit filed in support of the originating application was not read, given that it served only to annex the Tribunal's decision which is now in the Court Book.
At the commencement of the hearing, the Court explained to the applicant its limited jurisdiction and role in judicial review, and the applicant indicated that he understood.
Grounds of application
In the absence of the applicant having availed himself of the opportunity to amend his application, the grounds which arise for consideration are those contained in the originating application. Those grounds are as follows:
1. The Tribunal is not persuaded that I do not have reasonable reason for not undertaking the study in my country. The Tribunal is wrong because the quality of the study in Australia is globally recognised as much better from anywhere else and I do have strong ties to my home country and the Tribunal failed to accept my explanation and grant me the student visa.
2. The Tribunal had strong evidence concerning m previous education and contrary to its decision I have a genuine intention to study, genuine intention to return to my country and genuine intention to honour my student visa in Australia before the Tribunal failed to understand and act upon the evidence before it.
Ground 1
By ground 1, the applicant makes a statement that the Tribunal was unpersuaded that there were legitimate reasons why he could not study in Egypt. He asserts that the Tribunal's conclusion in that respect was wrong and when asked to speak to the ground, the applicant said that he could not continue with his study because his wife and his children were away from him at that time. The applicant says that the situation is now different because the applicant's wife and children have come here (presumably meaning Australia). The applicant said that at the time of the Tribunal’s decision he was “emotionally was not quite right”, that he had issues, but that has now changed.
The Court explained to the applicant that not only could it not assess for itself the situation pertaining to his visa, but was additionally unable to consider circumstances that have changed since that time. In response, the applicant said that he had lost confidence in everything at the time, and that maybe the interpreter had not understood at the Tribunal. I asked the applicant if there was something in particular which caused him to make that allegation, and he indicated that he only meant this in general.
The first respondent says that ground 1 is an impermissible attempt at merits review. I agree with that characterisation.
In addition, to the extent that the applicant makes allegations or alludes to the possibility that there was some issue in the standard of interpretation at the Tribunal hearing, the requiste principles were summarised in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 per Jacobson J, where at [29] to [32] his Honour stated:
[29] The seminal authority on the standard of interpretation is the decision of Kenny J in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO at [64].
[30] The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26]–[29]; WACO at [66].
[31]Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Applicant P 119/2002 at [16]–[18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 109 a [72]–[73] (Buchanan J).
[32] Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).
see also: Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 per Tamberlin, Mansfield and Emmett JJ, Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 per Goldberg J, Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 per Lee J and NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149 per Hely J.
In this case, the applicant does not make any specific allegation about the standard of interpretation, other than to say perhaps there is a general possibility that something had been misinterpreted. No evidence is provided, much less in the form of a comparative transcript, to make out such an allegation: see BTQ16 v Minister for Immigration and Border Protection [2019] FCCA 2101 per Judge Nicholls.
There is nothing before me to suggest that there was such a departure from the standard of interpretation required that the applicant was denied a meaningful hearing opportunity pursuant to s 360 of the MigrationAct 1958 (Cth) (Act).
As observed earlier, ground one is essentially an expression of disagreement with the Tribunal’s findings and invites this Court to undertake impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ.
In any event, the first respondent is correct in the submission that the Tribunal clearly considered the applicant’s claims.
The Tribunal noted the applicant’s assertion that Egyptian courses were not globally recognised or up to global standards (CB 197 at [17]) and considered that assertion and was not persuaded that similar courses were not available in Egypt (CB 99 at [38]). That finding was open to the Tribunal on the material before it, noting there was no corroborative evidence beyond the applicant’s general assertions.
The Tribunal also considered the applicant’s evidence regarding his ties to Egypt (CB 99 at [39] and CB 100 at [46]), and it accepted that he had strong ties to Egypt, and that these had presented as an incentive for him to return in 2017 (CB 101 at [62] to [65]). Despite this, the fact that the applicant had remained in Australia for a further two years to study a course which he regretted, his personal ties to Egypt were minimal, and his economic circumstances in Egypt led the Tribunal to find that they did not provide a significant incentive to return (CB 99 to 100 at[41] to [42]).
Ground 1 does not establish any jurisdictional error.
Ground 2
In respect of ground 2, the applicant also seeks to advance the merit of his claims by asserting that his evidence was strong and that he genuinely intended to stay in Australia temporarily. The applicant says that, by finding to the contrary, the Tribunal failed to understand the evidence before it, and to act upon that evidence.
When asked to speak to this ground, the applicant says that he had changed his plan for study, focusing instead on developing himself, and that the circumstances at the time of the Tribunal's decision “both mental and emotional”, were difficult because his children were away from him.
The solicitor for the Minister says that the applicant's alleged poor mental health at the time of the Tribunal's hearing was not relevant to the question of whether he was a genuine temporary entrant but says, in any event, that the Tribunal did consider it.
To the extent that the applicant has today made submissions about the state of his mental health at or about the time of the Tribunal decision, the Tribunal's decision relevantly says (CB 98 at [32]):
The Tribunal asked the applicant why he had now enrolled in courses relation to Leadership and Management. The applicant advised he did not have a reason for enrolling in the courses. He now regretted the enrolment. He found it difficult to concentrate because of problems relation to separation from his wife.
It will be observed that the applicant told the Tribunal that he had found it difficult to concentrate on his studies at the time because of the problems that were related to his being separated from his wife. There is further reference (CB 98 at [27]) to the applicant having been stressed, as and explanation for why he did not complete various courses. To the extent that the applicant made claims that the reason for his pattern of study may have been affected by his separation from his family or his stress levels, those were matters that the Tribunal took into account.
Before the Court, the applicant has not made any suggestion that the impact on his mental health affected the hearing opportunity that he had before the Tribunal, but went only substantively to matters relating to the visa. There is nothing before the Court to suggest, nor is any allegation made, that the applicant's mental state at the time otherwise affected, much less undermined, the hearing that the Tribunal gave him under s 360 of the Act to the point where it was not meaningful: see SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481 per O’Loughlin J and SZQBN v Minister for Immigration & Border Protection (2014) 226 FCR 68 at [15] per Flick J.
The applicant contends that the Tribunal failed to consider his evidence regarding his genuine intention to return to Egypt. The applicant has not identified any error in the Tribunal’s reasons or any evidence which it failed to consider. The Tribunal noted the applicant’s evidence regarding his family in Egypt, his property, and his proposed plans after completing his study (CB 99 to 100 at [38] to [43] and [51]). However, the Tribunal found that the applicant’s residence in Australia since 2007, his strong ties to Australia, and his poor academic history demonstrated that he was not a GTE (CB 100 at [45] to [52] and CB 101 at [58] to [65]). In circumstances where the Tribunal clearly considered the applicant’s evidence, this ground is no more than disagreement with the Tribunal’s findings and the weight it gave to the evidence before it.
It is well established that the Tribunal is not required to refer to every piece of evidence before it, provided that it identifies the material which is relevant to its reasoning and gives that material appropriate weight: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Helly JJ and Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 per RD Nicholson J at [6] to [9].
The weight to be given to the evidence the applicant presented in this matter was a matter for the Tribunal. The Court can understand that the applicant subjectively considers that the evidence that he presented was strong. The fact that the Tribunal did not agree, is not indicative of an error, in and of itself. The same can be said of the Tribunal's conclusion that the applicant was not a genuine applicant for temporary stay in Australia, despite the fact that he contends that he was. The conclusions of the Tribunal were open on the material before it, and for the reasons that it gave.
Further, I agree with the first respondent’s submission that there was no error of the kind identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) per Allsop CJ. The Tribunal correctly identified the test in cl 500.212 (CB 94 to 95 at [11] to [14]) and, unlike in Eros, the Tribunal did not make any finding that the applicant intended to stay in Australia for a defined period. Instead, the Tribunal found that the applicant’s ties to Australia, as well as his academic and migration history, were indicative of a person whose primary purpose for remaining in Australia was to maintain ongoing residence (CB 101 at [65] to [66] and CB 102 at [69] to [71]). The Tribunal ultimately found that it was not satisfied that the applicant genuinely intends to stay in Australia temporarily, and therefore it was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 (CB 102 at [72]). The Tribunal’s overall reasoning concerned whether the applicant was a genuine temporary entrant.
Accordingly, no jurisdictional error is established by ground 2.
In submissions in reply, the applicant indicated that he agreed with the submissions of the Minister and said that the solicitor for the Minister was correct, but reiterated again to the Court that his circumstances have now changed, as has his plan for his study and his intention to develop himself now that his children are here. The applicant's circumstances may well have changed. However, those are not matters which the Court can take into account in assessing whether or not the Tribunal erred in its consideration of the delegate's decision, and its decision to not grant the applicant the student visa.
Overall, I am satisfied that the decision of the Tribunal is not affected by jurisdictional error. Absent a jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
Consequent upon the dismissal of the application, the solicitor for the Minister seeks an order that the applicant pay the Minister's costs in a fixed amount, being $6,054.55. In this matter, I am satisfied that costs ought follow the event. I am also satisfied that the amount sought is reasonable.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
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