Ashraf v Minister for Immigration

[2015] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHRAF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2073

Catchwords:
MIGRATION – Judicial review application ‑ Student (Temporary) (Class TU) visa – whether jurisdictional error.

PRACTICE AND PROCEDURE – Show cause hearing – whether application raises arguable case for relief claimed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.474, 476

Migration Regulations 1994 (Cth), Schedules 2, cl.572.223, 5A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
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
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

First Applicant: MUHAMMAD ZAHID ASHRAF

Second Applicant: MISBAH PARVEEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 260 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Perth

Delivered on: 5 August 2015

REPRESENTATION

For the Applicants: No appearance

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Sparke Helmore

ORDERS (made on 31 July 2015)

1. The application be dismissed pursuant to r.44.12(l)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs in the amount of $3,416.00.

3. The name of the second respondent be amended to “Administrative Appeals Tribunal”.

4. Reasons for Judgment to be published electronically from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 260 of 2014

MUHAMMAD ZAHID ASHRAF

First Applicant

MISBAH PARVEEN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application for judicial review

1. This proceeding commenced on 2 September 2014 by the first and second applicants (“the applicants”) filing an application (“Judicial Review Application”) under s.476 the Migration Act1958 (Cth) (“Migration Act”) seeking judicial review of a decision of the then Refugee Review Tribunal (now the “Administrative Appeals Tribunal”; “Tribunal Decision” and “Tribunal” respectively) made on 30 July 2014 which affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) made on 11 July 2012 to refuse the applicants a Student (Temporary) (Class TU) visa (“Temporary Student Visa”).

2. When the matter was called on 31 July 2015 for hearing there was no appearance for the applicants. The Court was satisfied that at least the first applicant was in attendance at a directions hearing before a Registrar of this Court on 15 October 2014 when an order was made listing the matter for hearing at 2.15pm on 31 July 2015, and that the Registrar’s orders had been posted subsequently to the address for service for the applicants. The Court being satisfied that the applicants had been given notice of the hearing, the Court indicated that it had read the relevant materials, and was satisfied that orders ought to be made to the following effect:

   1.The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

   2.The applicant pay the first respondent’s costs in the amount of $3,416.00.

   3.The name of the second respondent be amended to “Administrative Appeals Tribunal”.

   4.Reasons for Judgment to be published electronically from Chambers at a later date.

3. The following are the Reasons for Judgment referred to in order 4 above.

Factual and procedural background

Introduction

1. The first applicant, born on 6 October 1988 in Pakistan, lodged an application for the Temporary Student Visa on 10 June 2012: CB 1-8. The second applicant is the first applicant’s wife and applied for the Temporary Student Visa as a member of the first applicant’s family unit. It appears as though the applicants also have a child who was not included in the application: CB 99.

2. The first applicant arrived in Australia in July 2008 on a student visa. He has enrolled in various courses since that time including Management, Bricklaying, Hospitality and Business. At the time of the Tribunal hearing the first applicant was enrolled in a Diploma of Marketing and an Advanced Diploma of Management: CB 101 and 102.

Proceedings before the Delegate

1. On 11 July 2012 the Delegate refused the applicants’ Temporary Student Visa application: CB 51-60. The Delegate was not satisfied that the applicants met the relevant financial capacity criteria for the grant of the visa as required by cl.572.223(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“MigrationRegulations”).

Tribunal proceedings

1. On 24 July 2012 the applicants lodged an application for review of the Delegate’s Decision by the Tribunal: CB 61-71.

2. By letter dated 15 April 2014 the Tribunal wrote to the applicants to invite them to appear at a hearing on 19 May 2014 to give evidence and present arguments. In that invitation the Tribunal noted: CB 76-78:

   The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria and you should have regard to these, and any changes in your circumstances in providing documents and preparing for the hearing.

3. The 15 April 2014 letter from the Tribunal also specifically requested that the applicants provide information including:

   A copy of your current Certificate of Enrolment …

   An explanation of any gaps in your enrolments and any documentary evidence relevant to your explanation …

   Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant) and travel costs over the relevant period …

4. By email dated 17 May 2014 the applicants’ registered migration agent provided documents to the Tribunal: CB 91-112.

5. The applicants attended the hearing on 19 May 2014 with their registered migration agent and presented arguments and the first applicant gave evidence.

Tribunal Decision

1. The Tribunal made reference to:

   a)the relevant issue, being whether the first applicant was a genuine applicant for entry and stay as a student having regard to prescribed matters;

   b)the relevant criteria that had to be met including having access to funds relied upon to satisfy the financial capacity requirements in cl.572.223 of Schedule 2 and Schedule 5A of the Migration Regulations; and

   c)the relevant assessment level applicable to the first applicant: CB 123 at [6]-[7].

2. In the Tribunal Decision the Tribunal found that:

   a)the first applicant had indicated that he had read and understood the Delegate’s Decision, and that it had been made because the financial information provided was not acceptable: CB 124 at [10];

   b)the first applicant had provided further financial evidence of a grant of a loan of Rs. 5,400,000 against a fixed term deposit of Rs.6 million, but that there was no evidence of the source of the Rs.6 million despite the Tribunal’s letter of 15 April 2014 requiring such information. The Tribunal asked the first applicant about this issue and he did not provide a “coherent response”: CB 124 at [11];

   c)the first applicant had come to Australia in July 2008 because he wanted to study Business and Management: CB 124 at [12], but had originally studied a Bricklaying course which he stopped because he had a “sore back”: CB 124 at [13];

   d)the first applicant did not provide a “coherent response” regarding why he had not studied since May 2011: CB 124 at [15], the Tribunal having noted that the first applicant’s study history in Australia indicated that he had completed a Diploma of Business in January 2011 and a Certificate IV in Business in May 2011, and when asked why he had not done any further study indicated that he “just wanted to do business so had been looking for business opportunities”, and when asked “whether he had found and engaged in any business opportunities … responded that he now wished to do marketing”: CB 124 at [14];

   e)the Tribunal did not consider the first applicant’s study history to be consistent with that of a genuine student: CB 125 at [21], having noted that it told the first applicant that it believed a genuine student would have completed more than the two courses set out above in almost six years in Australia: CB 125 at [16], and further noted that the first applicant’s “only successfully completed studies in Australia are two six-month course in business”: CB 125 at [21]; and

   f)the Tribunal was not satisfied that the first applicant:

   i)had “provided evidence of the source of funds for the fixed deposit” and therefore was not satisfied that he had provided satisfactory evidence that he met the financial capacity requirements of cl.572.223(2)(a) and (c) of Schedule 2 to the Migration Regulations: CB 125 at [23]); and

   ii)was a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(b) of Schedule 2 to the Migration Regulations: CB 125 at [23].

3. The Tribunal was therefore not satisfied that the criteria for the grant of a Temporary Student Visa had been met by the first applicant and the Delegate’s Decision was affirmed: CB 124 at [24] and [26]. Because the first applicant had not met the criteria for the grant of a Temporary Student Visa the second applicant was also ineligible for the grant of the relevant dependant’s visa.

Grounds of review

1. The Judicial Review Application identifies the following grounds of review:

   1. I am a genuine student always attend college with good marks

   2. I am not applying for stay in Australia. I just want to do study

   3. After study I want to go back and join my family business.

The Judicial Review Application – Registrar’s orders

1. On 2 September 2014 the applicants filed the Judicial Review Application. Orders were made by a Registrar of the Court on 15 October 2014 permitting the applicants to file and serve an amended Judicial Review Application or any affidavit evidence by 3 December 2014 and any written submissions 14 days prior to the hearing. The applicants did not file or serve an amended Judicial Review Application or any affidavit evidence or submissions.

Submissions

Applicants’ submissions

1. There were no submissions made by the applicants: none being filed in accordance with the Registrar’s orders of 15 October 2014, and none being made at the hearing before the Court by reason of the non-attendance of the applicants.

Minister’s submissions

1. Relevantly, the Minister’s submissions were as follows:

   a)all three grounds of review effectively amount to an impermissible plea for the Court to engage in merits review of the Tribunal Decision;

   b)no jurisdictional error arises out of the Tribunal Decision; and

   c)as there is no jurisdictional error in the Tribunal Decision it is a privative clause decision within the meaning of s.474 of the Migration Act.

Consideration

Legislative criteria

1. The legislative criteria that the first applicant was required to satisfy included cl.572.223(2) of Schedule 2 to the Migration Regulations which relevantly provided as follows:

   (2)An applicant meets the requirements of this subclause if:

   (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)     the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)     any other relevant matter; and

   (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Jurisdictional error a requirement for relief

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: 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 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).

2. None of the grounds of review in this matter identify a jurisdictional error of the type identified by the High Court in Yusuf, and there is no challenge, even indirectly, to the Tribunal’s findings concerning the failure of the first applicant to meet the financial capacity requirements under cl.572.223(a) and (c) of Schedule 2 to the Migration Regulations.

Ground 1

1. Ground 1 seeks to directly challenge the factual finding that the first applicant was not a genuine student, a finding that the Tribunal arrived at having examined the first applicant’s study history, and as such seeks to have this Court engage in impermissible merits review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.

2. The finding made by the Tribunal in the Tribunal Decision as to whether the first applicant was a genuine student was a matter for the Tribunal, and the finding that the Tribunal made, namely that the first applicant was not a genuine student, was a finding open on the facts, both on the basis of the absence of relevant financial evidence, and particularly on the basis of the applicant’s study record including the failure of the applicant to study since May 2011, and his obtaining of only two minor qualifications, in two course requiring no more than six months’ study, in six years in Australia as a student prior to the time of the Tribunal Decision.

3. For the above reasons ground 1 does not allege or disclose jurisdictional error in the Tribunal Decision, and is not made out.

Ground 2

1. As with ground 1, this ground makes an assertion as to the preparedness of the first applicant to study which is contrary to the findings of the Tribunal, and insofar as it is contrary to that finding, is an impermissible attempt at merits review contrary to the well-established principle in Wu Shan Liang. Otherwise ground 2 simply seems to be no more than an assertion, which does not found any error, let alone jurisdictional error, in the Tribunal Decision. There being no jurisdictional error alleged or made out, ground 2 must fail.

Ground 3

1. Ground 3 is a statement of future intent by the first applicant, and raises no issue of error by the Tribunal, let alone jurisdictional error. There being no jurisdictional error in the Tribunal Decision alleged or made out, this ground must fail.

Conclusions and orders

1. The Court has concluded that no jurisdictional error in the Tribunal Decision has been alleged or established by the applicants. Accordingly, the Judicial Review Application raises no arguable case for relief and must be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). An order to that effect, plus other ancillary orders, including costs, was made on 31 July 2015.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 5 August 2015