Arif v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1065
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arif v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1065
File number(s): MLG 2582 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 18 October 2024 Catchwords: MIGRATION – student visa – where applicant had not met the requirements of his student visa – applicable criteria not satisfied – no error established – application dismissed. Legislation: Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth) ss. 65, 359A, 359AA, 359B, 474, 476, 360
Migration Regulations 1994 (Cth) cl. 500.212
Cases cited: Craig v South Australia (1995) 184 CLR 163
Hossain v Minister for Immigration and Border Protection (2018) 359 ALR1; [2018] HCA 3
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 5 June 2024 Place: Melbourne Counsel for the Applicant: Mr O D Lloyd Solicitor for the Applicant: Katsaros & Associates Counsel for the Respondents: Ms Chan Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2582 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWAIS ARIF
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
3.The application as amended on 24 May 2024 be dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
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).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
This is an application for review of a decision of the then Administrative Appeals Tribunal (Tribunal). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Arif a student visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Mr Arif is a citizen of Pakistan. He arrived in Australia on 10 February 2015, as the holder of a Student (Temporary) (Class TU) Subclass 573 – Higher Education Sector visa (first student visa). It is not contentious in these proceedings that there were conditions on the first student visa – relevantly, that Mr Arif was required to:
(a)maintain enrolment in a full time registered course and not be certified by the education provider as not achieving satisfactory course progress or not achieving satisfactory course attendance in the registered course (condition 8202 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as in force at the time); and
(b)continue to be a person who would satisfy the primary or secondary case criteria, as the case required, for the grant of the visa (condition 8516 of Schedule 2 to the Regulations as in force at the time).
From 1 July 2016, applicants for a student visa were required to apply for a Student (Temporary (Class TU) (subclass 500) visa once their earlier student visa expired.
On 10 January 2017, Mr Arif applied for a Student (Temporary (Class TU) (subclass 500) visa (second student visa). It was not contentious that the same conditions 8202 and 8516 applied. It is this visa application that is subject of this proceeding.
On 24 April 2017, a delegate of the First Respondent refused to grant the second student visa because the delegate was not satisfied that Mr Arif intended genuinely to stay temporarily in Australia and therefore did not meet the requirements of clause 500.212(a) of Schedule 2 of the Regulations.
On 15 May 2017, Mr Arif applied to the Tribunal for review of the delegate’s visa refusal decision.
On 26 June 2018, the Tribunal invited Mr Arif to attend a hearing before it (scheduled for 31 July 2018).
On 25 July 2018, the Tribunal wrote to Mr Arif and notified that the Tribunal may determine his case on the basis of the requirement at cl. 500.212(b) rather than cl. 500.212(a) as was the basis of the delegate’s decision to refuse the second student visa. By that correspondence, Mr Arif was advised to be prepared to answer any questions that the Tribunal may have on this issue and to bring any supporting information or documents he may wish to provide. Mr Arif was also given an extract of cl.500.212(b), a short explanation of the requirement and contact information if he had any questions.
On 26 July 2018, Mr Arif provided the Tribunal with his written response to hearing invitation and a short written statement. By that statement, Mr Arif admitted that he had initially failed to complete his first semester of study but, subsequently, with encouragement and support of friends and family, commenced to study a Certificate III in commercial cookery. He stated that he had since completed Certificates III and IV in commercial cookery and provided a statement and certificate of completion and record of results for his Certificate IV studies. Mr Arif also stated that, during this time, he had worked in different restaurants as a chef for experience which (in his own words) “is important for me if a want permanent residence in Australia”. Mr Arif provided letters of support from Australian hospitality employers.
On 31 July 2018, Mr Arif completed a Student Visa – GTE Questionnaire. On the face of that questionnaire, Mr Arif provided information about his then current enrolment and prior enrolments and responded to other questions about his immigration history.
At hearing on 31 July 2018, the Tribunal made an oral decision to affirm the delegate’s decision to refuse the second student visa. A written record of the Tribunal’s reasons was provided to the Applicant on 31 October 2018.
In its decision record, the Tribunal:
(a)identified that the issue before it concerned Mr Arif’s compliance with visa conditions (specifically, whether Mr Arif satisfied the requirements of cl. 500.212(b)) and that this issue was raised orally during the course of the hearing and in the Tribunal’s letter of 25 July 2018: at [12]-[14];
(b)stated that Mr Arif had confirmed, at hearing, that he understood the determinative issue had changed and offered an explanation and engaged in extensive discussions with the Tribunal member concerning his record of compliance in the past and stated intention to comply with the condition in the future: at [15];
(c)outlined Mr Arif’s visa history and summarised the relevant visa conditions: at [17] to [21];
(d)referred to a letter provided by the Applicant, of the Holmes Institute dated 28 February 2017, and that it stated Mr Arif was enrolled in a Master of Professional Accounting from 16 March 2015 until 26 June 2015; noted that the Applicant did not provide a certificate of enrolment for that limited period of enrolment to the department or the Tribunal; and also summarised that the delegate had stated that they could not find any reference to this alleged enrolment in Mr Arif’s PRISMS record and that the delegate had found that Mr Arif was not enrolled in the relevant Master of Professional Accounting at this time: at [22]-[23];
(e)stated that the delegate had made a finding that Mr Arif was not enrolled in any approved course on 26 June 2015 until 31 December 2015 and his enrolment in a Graduate Diploma of Business was cancelled on 26 August 2015 for reason of student notifies cessation of studies: at [25];
(f)summarised the evidence of Mr Arif given at hearing, in terms that Mr Arif had advised the Tribunal that: he had not been enrolled in an approved course from 26 June 2015 until 31 December 2015; was enrolled in a Certificate III in commercial cookery from 25 January 2016 until 22 January 2017 and provided to the department a letter of confirmation of enrolment in this course; explained that, during the period of his first student visa, he had decided to go back to the beginning to study at a certificate level prior to studying in the higher education sector; had told the Tribunal that he acknowledged that he had not maintained enrolments in the past because it was too hard, the study was too hard in Australia, but he would do so in the future; and explained his then current enrolment in a Diploma of Hospitality and Management that commenced on 16 July 2018 and was scheduled to conclude on 2 December 2018 and upon conclusion of this would like to commence further study at advanced diploma level: at [26], [29], [30] and [32];
(g)considered that Mr Arif was not enrolled in an approved course for the period 16 March 2015 until 26 June 2015 and 28 August 2015 until 31 December 2015 and, in the period 25 January 2016 until 9 January 2017 was not enrolled in an approved course in the higher education sector and – hence, for almost the entire period of Mr Arif’s first student visa, was in breach of relevant conditions attached to that visa: at [28];
(h)cited Mr Arif’s acknowledgements that he had not maintained his visa conditions in the past and his reasons for these periods of non-enrolment being it was too hard, the study was too hard in Australia, but he would maintain enrolment in the future: at [29];
(i)that Mr Arif cited his then current enrolment in a diploma of hospitality and management that commenced on 2 July 2018 and was scheduled to conclude on 2 December 2018 and his intention to continue studies at an advanced diploma level in the hospitality and management field: at [30]; and
(j)outlined the materials the Tribunal had regard to, including the GTE statement submitted on 26 July 2018; page 28 of the Tribunal file, a further statement provided at the hearing and the statement provided to the department at page 36 of the departmental file: at [33].
The Tribunal, by its written reasons, ultimately found that Mr Arif’s conduct constituted “a significant and sustained breach of visa conditions 8202 and 8516 and the extent of the breach leaves the tribunal to have grave doubts concerning [Mr Arif’s] stated intention to comply with these mandatory conditions in the future” and, with regard to the length of time in Australia and the period of time not enrolled in any course or an approved course, did not accept as genuine Mr Arif’s stated intention to comply with the visa conditions in the future including the requirements to remain enrolled imposed on all student visas: at [34] to [36].
Accordingly, the Tribunal concluded that Mr Arif did not meet cl. 500.212(b) and, as there was no evidence he had met the alternative criteria for the other subclass of class TU (and had confirmed he did not claim to apply on the basis of being a student guardian), decided to affirm the delegate’s decision on review: at [37]-[38].
THE APPLICATION BEFORE THE COURT
On 28 August 2018, this application for judicial review was filed with a short accompanying affidavit.
On 15 November 2018, a response was filed on behalf of the First Respondent by which it was contended that the decision of the Tribunal was not affected by jurisdictional error.
Various procedural orders followed. Most recently, on 15 February 2024, programming orders were made by which Mr Arif and the First Respondent were invited to file any amended application, an outline of written submissions and any additional evidence.
On 24 May 2024, Mr Arif filed an amended application for judicial review of the Tribunal’s decision. By that application, Mr Arif identified two grounds for review in the following terms:
1.The Tribunal’s decision was made in jurisdictional error, because the applicant was not afforded procedural fairness by reason of the Tribunal’s non-compliance with sections 359AA, 359A and 359B of the Migration Act 1958 (Cth).
Particulars
The Tribunal failed to provide clear particulars of information in writing within the prescribed period or orally during the hearing in relation to:
a)the PRISMS data record referred to at [23] of the Tribunal’s reasons; and
b)the Certificates III and IV in Commercial Cookery not being a registered course provided by a body registered under the Education Services for Overseas Students Act 2000, referred to at [23] and [25] of the Tribunal’s reasons.
2.The Tribunal’s decision was made in jurisdictional error, because the Tribunal’s satisfaction as to the criteria under cl 500.212(b) of Sch 2 of the Migration Regulations 1994 (Cth) was reached in reliance on a particular matter for which there was no evidence or, alternatively, was reached illogically or irrationally.
Particulars
The Tribunal’s decision relied on a factual finding that from the period 16 March 2015 to 26 June 2015, the applicant was not enrolled in an approved course.
On 5 June 2024, the matter proceeded to hearing before the Court as presently constituted. Mr Arif and the First Respondent were respectively represented by counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (the Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
After considering a valid application for a visa, the Minister (or his delegate) must grant a visa application if satisfied of criterion including that the other criteria for it prescribed by the Act or the regulations have been satisfied: s.65(1)(a) of the Act.
Clause 500.212 of schedule 2 of the Regulations relevantly provided as follows:
The applicant is a genuine applicant for entry and stay as a student:
(a) having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(b) because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) because of any other relevant matter.
I turn to consider the application for judicial review against the pleaded grounds in the amended application.
GROUND 1: DENIAL OF PROCEDURAL FAIRNESS
Respective contentions
By the first ground of review, Mr Arif claimed a denial of procedural fairness because the Tribunal did not comply with ss.359AA, 359A and 359B.
Mr Arif accepted that he was on notice that the case may be determined on the basis of cl.500.212(b) rather than cl 500.212(a), by the Tribunal’s letter of 25 July 2018 and discussions at the hearing. However he claimed that, in contravention of ss.359AA, 359A and 359B, the Tribunal did not: give clear particulars of the PRISMS data record referred to at paragraph [23] of the Tribunal’s written reasons and the Certificates III and IV in commercial cookery not being a registered course provided by a body registered under the Education Services for Overseas Students Act 2000 (Cth) referred to at paragraphs [23] and [25] of the Tribunal’s written reasons.
For its part, the First Respondent contended that there was no obligation on the Tribunal to comply with all of the identified statutory provisions as plead. The First Respondent said that the obligation at s.359A and related obligation at s.359B did not apply to the present case. Further, although there was a strict failure to comply with s.359AA(1)(b)(iii), there was no material failure by the Tribunal to comply with its obligation at s.359AA in respect of the information specified in the particulars to the amended application.
Consideration
Section 359AA provides:
Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
In the present case, Mr Arif appeared before the Tribunal on 31 July 2018 because of an invitation given to him under s.360 of the Act. It is not contentious that, during the course of the hearing, the Tribunal member orally identified that the issue before it concerned Mr Arif’s compliance with visa conditions in terms of whether he satisfied the requirements of cl.500.212(b) and not whether he satisfied the requirement of cl.500.212(a) which was the basis on which the delegate had refused the student visa application.
The written reasons reflect that the Tribunal member considered, at paragraphs [22], [23] and [25]:
(a)the Holmes Institute letter which stated Mr Arif was enrolled in a Master of Professional Accounting from 16 March 2015 to 26 June 2015;
(b)the delegate’s findings that they could not find a PRISMS record to support the Holmes Institute letter for the alleged enrolment period; and
(c)the delegate’s findings that Mr Arif was not enrolled in any approved course on 26 June 2015 until 31 December 2016 and Mr Arif’s enrolment in a Graduate of Business Diploma was cancelled on 26 August 2015 for reason of student notifies cessation of studies.
Mr Arif’s contention that these matters were not put to him orally at hearing, and therefore he was not given clear particulars of information that would form a or a part of the reason for affirming the decision on review as required by s.359AA(1)(a), can not be accepted upon review of the transcript of the Tribunal hearing. There, the absence of any PRISMS record to support the Holmes Institute letter supporting his enrolment in a Master of Professional Accounting was put to Mr Arif, in clear terms and with reference to the delegate’s decision:
the delegate’s decision makes it quite clear that – it says here: ‘Evidence of study for the specified gap period.’ You provided a letter from Holmes Institute stating you were enrolled in a Master of Professional Accounting on March until June 2015. The delegate could not find evidence of this enrolment reflected in PRISMS. It appears you were not enrolled in a master of professional accounting. And further, a letter states you ceased study on 26 June 2015 due to cancellation of your COE, which he could not find evidence of. You did not provide any evidence of attendance of study beyond 26 June 2015. You did not provide an explanation for your low attendance or study for the certificate of a period of time for more than six months. I note your immigration records indicate you remained onshore. So there was an extensive discussion about your enrolment, non-enrolment, and non-study in writing?---Well I have not (indistinct).
The above extract taken from transcript of the Tribunal hearing followed the Tribunal member’s earlier oral explanation about the nature of the issue in focus before it and that the review application would turn on Mr Arif’s past adherence to conditions attached to his first student visa between 2015 and 2016.
The Tribunal’s written reasons noted that which was reflected on transcript - that Mr Arif had acknowledged his understanding of the matter in issue and that Mr Arif was orally given an opportunity to respond to these matters or anything at all further that he wanted to say and provided an explanation.
Accordingly, it is established that the Tribunal sufficiently discharged its obligations to give clear particulars pursuant to s.359AA(1)(a), ensure as far as reasonably practicable that Mr Arif understood why the information was relevant and the consequences of it being relied upon pursuant to s.359AA(1)(b)(i) and orally invited Mr Arif to comment or respond on that information in accordance with s.359AA(1)(b)(ii) of the Act.
It was properly conceded that the Tribunal did not advise Mr Arif that he may have sought additional time in which to comment or respond to the information in accordance with s.359AA(1)(b)(iii). It falls to consider whether a strict error of this kind is “material” as contemplated in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR1; [2018] HCA 34, where the High Court of Australia considered:
Thus, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 [23]; [2015] HCA 51, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
With the benefit of advice that he could seek additional time in which to comment or respond to the information in accordance with s.359AA(1)(b)(iii), Mr Arif submitted that he may have been able to speak with Holmes Institute who in turn may have been able to provide another letter that corrected the original statement changing the dates or explain why the mistake was made (if it was in fact a mistake). Mr Arif did not bring such evidence before the Court in this matter or otherwise seek to probatively establish the truth of his enrolment at the relevant times as to demonstrate materiality.
The obligations to give particulars of information to an application and invite the applicant to comment or respond to the information at s.359A do not arise if the Tribunal gives clear particulars of the information to the applicant and invites the applicant to comment on or respond to the information under s.359AA: s.359A(3). In turn, the obligations at s.359B are contingent on an invitation given under ss.359 or 359A.
With regard to the earlier findings that the Tribunal sufficiently discharged its obligations to give clear particulars of the information and to invite Mr Arif to comment or respond to the information in accordance with s.359AA(1)(a) and (1)(b)(ii), there is no obligation arising under s.359A or, relatedly, s.359B.
Even if there were a denial of procedural fairness in the Tribunal’s application of s.359AA or the exception at s.359A(4) did not apply such that s.359A and s.359B were engaged, such error would not be material for reasons articulated in relation to the second ground.
Resolution
For the above reasons, the first ground does not succeed.
GROUND 2
Respective contentions
Mr Arif contended that, as part of its reasoning process, the Tribunal relied on its incorrect summation of the delegate’s findings which was in error because there was no evidentiary basis. Alternatively, that the Tribunal made a finding that was seriously irrational or illogical because it did not give proper consideration to the underlying evidence.
The First Respondent properly conceded that the Tribunal had mistakenly attributed Mr Arif’s non-enrolment in an approved course during the period 16 March to 26 June 2015 to the findings of the delegate. However, they contended that this mere mistake of fact did not of itself amount to an error of jurisdiction.
Consideration
It may be accepted that the passage of reasons at [22] to [23] record the basis on which the Tribunal found that Mr Arif was not enrolled in an approved course of study in the period 16 March 2015 to 26 June 2015. That passage included an erroneous reference to the delegate’s findings in terms that the delegate had found that Mr Arif was not enrolled in an approved course for the period 16 March to 26 June 2015 which was not an express finding on the face of the delegate’s reasons.
However, that error was not material to the outcome. That is, even if it were accepted that Mr Arif was enrolled in a Master of Professional Accounting in the period 16 March 2015 to 26 June 2015 as the Holmes Institute letter so purported, Mr Arif would still not have established any enrolment in a higher education course as defined for the period 26 June 2015 to the date of the Tribunal hearing on 31 July 2018. This fact established that Mr Arif was in contravention of his visa conditions for a substantial period of time and was relevant to Mr Arif’s immigration history being a requirement about which the decision maker was to be satisfied. Accordingly, Mr Arif did not meet the requirements of cl.500.212(b) at the relevant time.
The second ground does not succeed.
DISPOSITION
For the above reasons, the amended application filed on 24 May 2024 is dismissed. The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 18 October 2024
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