Arain v Minister for Immigration

[2020] FCCA 1181

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARAIN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1181

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 359AA

Migration Regulations 1994 (Cth)

Cases cited:

Inderjit v Minister for Immigration [2019] FCAFC 217
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: MUHAMMAD ASAD JAVED ARAIN

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2821 of 2019

Judgment of: Judge Driver

Hearing date: 14 May 2020

Delivered at: Sydney

Delivered on: 14 May 2020

REPRESENTATION

Applicant appeared in person by telephone

Solicitors for the Respondents: Ms Ren of Australian Government Solicitor by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2821 of 2019

MUHAMMAD ASAD JAVED ARAIN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Background

1. The applicant, Mr Arain, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 October 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Arain a temporary student visa (visa).  Background facts relating to Mr Arain’s visa application and the decision of the Tribunal on it, are set out in the Minister’s submissions filed on 29 April 2020.   

2. Mr Arain is a citizen of Pakistan. He first arrived in Australia on 20 September 2010 as the holder of a student (Subclass 572) visa. He has held a further three student visas and a temporary skilled graduate visa since that time.[1]

   [1] Court Book (CB) 57, 81

3. He applied for the visa on 31 July 2017.[2] On 5 September 2017, the delegate refused to grant the visa on the basis that Mr Arain did not satisfy the genuine temporary entrant criteria (GTE criterion) in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Migration Regulations).[3]

   [2] CB 1

   [3]  CB 55-59

4. On 18 September 2017, Mr Arain applied to the Tribunal for review of the delegate’s decision.[4] On 2 April 2019, the Tribunal invited Mr Arain to provide information pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act), which involved completing an online ‘Request for Student Visa Information’ form.[5] Mr Arain returned the completed form to the Tribunal along with two confirmation of enrolment documents.[6]

   [4]  CB 60

   [5]  CB 69-76

   [6]  CB 77-89

5. Mr Arain attended a Tribunal hearing on 28 May 2019.[7] On 8 October 2019, the Tribunal affirmed the delegate’s decision.[8]

   [7]  CB 100

   [8]  CB 111-125

Tribunal decision

1. The Tribunal identified that the relevant issue on review was whether Mr Arain met the GTE criterion, having regard to Ministerial Direction No 69 (Direction).[9]

   [9]  CB 112, [8]

2. The Tribunal considered that Mr Arain’s PRISMS records (a copy of which was provided to Mr Arain at the hearing pursuant to s.359AA of the Migration Act), was largely consistent with the evidence given by Mr Arain at the hearing regarding his study history.[10] That is, that he had completed a Diploma of Accounting, a Bachelor of Business and a Masters of Professional Accounting and, at the time of the hearing, was enrolled in a Diploma of Technology Networking and an Advanced Diploma of Network Security.[11]

   [10] CB 114, [15]-[17]

   [11] CB 114, [17]-[18]

3. The Tribunal accepted that Mr Arain had personal ties to Pakistan which would serve as an incentive to return and noted that he had made regular return trips to Pakistan.[12] The Tribunal found that there was no strong evidence of Mr Arain having economic or other ties to Australia other than the time that he had remained in Australia on student and skilled graduate visas.[13]

   [12] CB 115, [24]

   [13] CB 115-116, [27]

4. However, for the following reasons, the Tribunal found Mr Arain did not satisfy the GTE criterion:

   a)having considered Mr Arain’s evidence regarding potential jobs and remuneration in Pakistan, the Tribunal found that the value of Mr Arain’s present studies in information technology would only marginally improve his employment prospects and remuneration in Pakistan. In particular, they offered limited incremental value when considered alongside his bachelor degree obtained in Pakistan, his 8 years of study in Australia and his 18 months spent working on a skilled graduate visa in Australia;[14]

   b)the Tribunal found that Mr Arain’s evidence regarding his job search in Pakistan and the need for multiple qualifications was not compelling, noting that he had provided only one example of a job for which he had applied. In light of his immigration history, the Tribunal considered that it was more likely that Mr Arain had enrolled in the current courses to extend his stay in Australia;[15] and

   c)the Tribunal considered that Mr Arain had performed well as a student, however found that he had recommenced studies in August 2017 primarily to maintain residence in Australia. In this regard, the Tribunal noted that Mr Arain’s current courses were short in duration, less costly and at a lower level academically compared to his prior courses. The Tribunal also considered that if he were to complete his current enrolments, his total time in Australia would amount to over 11 years.[16]

   [14] CB 116-117, [31]-[32]

   [15] CB 117, [33]

   [16] CB 118, [38]

5. The Tribunal noted Mr Arain’s evidence that he had previously applied for a regional sponsored migration scheme (subclass 187) visa which was withdrawn and that he had a pending application for a skilled independent (subclass 189) visa. However, given that the subclass 187 visa was not current and there was no evidence of the subclass 189 visa application (which Mr Arain had referred to as an ‘expression of interest’), the Tribunal did not place any weight on these applications.[17]

   [17] CB 117, [35]-[37]; CB 118, [40]-[41]

6. On balance, the Tribunal was not satisfied, based on the evidence and the factors in the Direction, that Mr Arain intended genuinely to stay in Australia temporarily and accordingly, he did not satisfy clause 500.212 of the Migration Regulations.[18]

   [18] CB 119, [44]-[47]

7. These proceedings began with a show cause application filed on 31 October 2019.  Mr Arain continues to rely on that application.  The three grounds in it are:

   1. Tribunal has made a jurisdictional error by reviewing me as a genuine student, eventhough tribunal has taken into consideration that my previous and current history is good.

   2. Tribunal made a jurisdictional error, that i am using studies for staying in Australia, however,i have provide evidence of my travel history, which show i travel frequently and have strong ties with my country.

   3. The tribunal raised a point that i does not meet the criteria of visa subclass 500 and just want to secure further stay, eventhough, i have mentioned that how this course will help me to secure a job in competitive market.

   (errors in original)

8. The application was supported by a short affidavit filed with it which I received as a submission.  I have before me as evidence the court book of relevant documents filed on 12 December 2019.  I invited oral submissions from Mr Arain this morning.  He impressed me as an honest and sincere person.  It appears from the Tribunal decision that he has been a diligent student who has demonstrated continuing ties to Pakistan through regular travel there.  The difficulty for the Tribunal was the value of the diploma and advanced diploma of information technology being undertaken by Mr Arain at the time of the Tribunal decision, which he is still studying.  The Tribunal deals with that at [38] of its reasons as follows:   

   38. The applicant has previously held four Student visas and a Temporary Skilled Graduate (subclass 485) visa. Prior to the expiry of his subclass 485 visa, the applicant applied for the Student visa currently under review. Based on the evidence before it, the Tribunal considers the applicant has recommenced his studies from August 2017 onwards primarily to maintain residence in Australia, rather than because of genuine intentions to progress academically as a student or to enhance his career prospects on his return to his home country. Although the applicant has performed well as a Student since his arrival in Australia in September 2010, the Tribunal notes he is currently enrolled in a Diploma course and an Advanced Diploma course, below the level of his existing qualifications from both Australia and Pakistan. The applicant’s current courses are of relatively short duration and cost compared to his Bachelor and Master degrees and will provide him with qualifications at the vocational level, rather than at the higher education level. The applicant’s current enrolments will extend his time in Australia until 1 February 2021, which would bring his total time in Australia to over 11 years. Given the amount of time the applicant has now spent in Australia and the level of courses he is currently enrolled in, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence and to circumvent the intentions of the migration programme.

9. Reasonable minds might differ on the question of whether Mr Arain is a genuine temporary entrant for study.   He has been studying in this country for a decade and has undertaken several courses successfully. 

10. There is nothing obvious pointing to abuse of the student visa programme by Mr Arain.  The view that he is not a genuine temporary entrant is really based on the assessment of his higher degrees already obtained, and an apparent step down in his current diploma courses.  He has sought to explain that, but not to the Tribunal’s satisfaction.  It may well be that a different decision-maker might have been satisfied by Mr Arain’s explanation.  That, however, is not the question.  The question is whether the Tribunal fell into any jurisdictional error in arriving at its assessment.  Unfortunately for Mr Arain, no such error is apparent. 

11. Given current restrictions on travel, it is unlikely that Mr Arain would be in a position to return to Pakistan in the immediate future.  He told me that he would complete his current diplomas in February 2021.  It would, in my view, be appropriate for the Minister to consider whether Mr Arain might be permitted to remain in Australia until February 2021 in order to complete his studies and to return to Pakistan as he currently intends.  That is beyond the scope of these proceedings.  The legal issues raised by Mr Arain are appropriately dealt with in the Minister’s submissions.  I agree with those submissions. 

Ground 1

1. Ground 1 amounts to no more than an expression of Mr Arain’s disagreement with the Tribunal’s decision. It is well established that mere disagreement with a Tribunal’s decision will not establish jurisdictional error nor is the Court able to engage in merits review of Mr Arain’s evidence.[19]

   [19] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. Whilst the Tribunal accepted that Mr Arain had performed well as a student, and that there was no evidence that he had not complied with conditions on his visas, it was open to the Tribunal to find that clause 500.212 of the Migration Regulations was not satisfied based on the totality of the evidence.

3. In applying clause 500.212 of the Migration Regulations, the question of whether Mr Arain intended genuinely to stay in Australia temporarily, was a question of fact for the Tribunal to decide based on all of the material before it.[20] Having regard to applicant’s circumstances and all of the evidence before it, the Tribunal considered that Mr Arain was using the student visa programme to maintain residence in Australia. That finding was open to the Tribunal and does not evidence any jurisdictional error.

   [20] see Inderjit v Minister for Immigration [2019] FCAFC 217 at [36], [41]

Ground 2

1. To the extent Ground 2 contends that the Tribunal failed to consider Mr Arain’s evidence in relation to his ties to Pakistan and his return trips, this Ground cannot be made out. Contrary to what is alleged, the Tribunal considered and accepted that Mr Arain had personal ties to Pakistan and that he had made regular return trips.[21] The amount of weight that the Tribunal gave to this information was a matter for it, as part of its fact finding function.[22]

   [21] CB 115, [23]-[24]

   [22] Inderjit at [36]

Ground 3

1. To the extent that Ground 3 contends that the Tribunal failed to consider Mr Arain’s claim that the information technology courses would help secure him a job in a competitive market, this assertion is without merit. There is nothing to suggest that Mr Arain specifically referred to the Pakistani market as being “competitive”. Further, the Tribunal did consider Mr Arain’s claims made in his GTE statement and at the hearing, that companies in Pakistan sought people with skills in more than one field and skills in technology.[23] The Tribunal accepted that having additional skills may increase Mr Arain’s employment opportunities. However, it found that Mr Arain’s further studies offered only incremental value when considered in light of the experience Mr Arain had already obtained in Australia.[24] This finding was open to the Tribunal based on the material before it.

   [23] CB 116, [28]-[29]

   [24] CB 117, [32]

2. I conclude that Mr Arain is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

3. I will, therefore, order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Arain did not wish to be heard on costs. 

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 May 2020