ASHRAFEE v Minister for Immigration

[2018] FCCA 1903

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHRAFEE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1903

Catchwords:
MIGRATION – Student visa – where applicant had enrolled in series of courses – where applicant not enrolled in any course during 2013 or 2014 – where applicant applies for Student visa – where delegate refused application on ground that applicant not genuinely intending to stay temporarily in Australia – where Tribunal affirms decision on same ground – grounds of review generalised – whether applicant afforded a real opportunity to present case – whether application evidence and submissions given real and genuine consideration – whether applicant on notice of dispositive issue – correct legal principles applied – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359A, 360, 476

Migration Regulations 1994 (Cth), sch.2 pt.572 cl.572.223

Cases cited:

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

Igbenoba v Minister for Immigration [2017] FCCA 1539

Minister for Immigration and Border Protection v Guder [2018] FCA 626

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572
Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Shah v Minister for Immigration and Border Protection [2017] FCA 183
Singh v Minister for Immigration and Border Protection [2016] FCA 74

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZSSG v Minister for Immigration and Border Protection [2018] FCA 670
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: RAFIQUZZAMAN ASHRAFEE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 915 of 2016

Judgment of: Judge A Kelly

Hearing date: 11 July 2018

Date of Last Submission: 11 July 2018

Delivered at: Melbourne

Delivered on: 12 July 2018

REPRESENTATION

The Applicant: In person

Solicitor for the first respondent: Ms Wilde

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed at $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 915 of 2016

RAFIQUZZAMAN ASHRAFEE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 4 May 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal  (Tribunal) made on 7 April 2016 affirming the decision of the delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant, a Bangladeshi national aged 48 years, first entered Australia in 2009.  He has completed or enrolled in a number of courses in Commercial Cookery, Hospitality, Business and Management, having earlier completed a Bachelor of Arts in 1994 before coming to Australia.

2. The applicant was not enrolled in any course of study in 2013 or 2014.

3. On 29 December 2014, the applicant applied for a Student (Temporary) visa, proposing to commence a further course of study in January 2015.

4. On 30 December 2014, the Department of Immigration and Border Protection requested that the applicant provide further information in order that his visa application might be considered.  On 23 January 2015, the applicant responded to the request for further information.

5. On 2 February 2015, a delegate of the Minister refused the Student visa application on the basis that the delegate found the applicant had not met the criteria for the grant of the visa. The delegate found that the applicant did not a genuinely intend to stay temporarily in Australia and for that reason did not satisfy the criteria prescribed by cl 572.223(1)(a) of Part 572, Sch of the Migration Regulations 1994 (Cth) (Regulations) or any other subclass for which he might otherwise be eligible. 

6. In reaching that decision, the delegate had regard to the applicant’s explanation of the reasons why he had not been engaged in a course of study during 2013 and 2014, which included his mother’s deteriorating health, his wife’s infidelity and his own illness which had included depression and that he had suffered a stroke.

7. On 23 February 2015, the applicant applied to the then Migration Review Tribunal for review of the delegate’s decision.  The applicant was assisted in that application by a registered migration agent.

8. On 10 February 2016, the applicant was invited to attend a hearing before the Tribunal on 3 March 2016 to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The applicant attended the hearing on 3 March 2016 and was there assisted by a new migration agent.  In the course of that hearing, the applicant tendered a deal of documentary evidence proving his difficult personal circumstances, medical conditions and other matters relating to various courses of study.

9. On 7 April 2016, the second respondent affirmed the delegate’s decision not to grant the applicant a Student visa, providing a statement of its reasons for doing so (Reasons).

10. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and for that reason found that the applicant did not meet the criteria for the grant of a Student visa prescribed by cl 572.223 in Part 572, Sch 2 of the Regulations.

11. In reaching that conclusion, the Tribunal identified the background to the application, the documents which the applicant had been invited to provide and the documents which he had provided: Reasons, [3]-[8], [17]. The Tribunal noted that the applicant was granted additional time in which to provide further documentation and that he had done so: Reasons, [16]-[17].

12. The Tribunal had regard to the applicant’s personal history, both in Bangladesh and in Australia, and had regard to the applicable legal principles governing consideration of a Student visa application: Reasons, [10]-[16], [19]-[22].

13. The Tribunal identified that there were considerable gaps in the applicant’s courses of study and considered the nature of the courses of study which the applicant had undertaken: Reasons, [23]-[27]. The Tribunal accepted that the medical evidence adduced by the applicant supported a conclusion that his medical conditions had affected his ability to study but noted that the applicant had neither deferred his studies nor completed any course in the three year period to 2016.

14. The Tribunal noted that the applicant had strong family ties to Bangladesh having a wife and two children living there. It also noted that the applicant had been working in Australia and concluded that, in light of his limited academic achievements, the applicant appeared to be maintaining his residence in Australia for the purposes of employment and to be enrolling in short, inexpensive courses of study so as to circumvent the Australian migration program: Reasons, [29]-[30].

15. The Tribunal concluded on the whole of the evidence that it was not satisfied the applicant intended genuinely to stay in Australia temporarily and for that reason did not meet the criteria prescribed by cl 572.223(1)(a) or a cognate criteria for any other subclass of Class TU visa: Reasons, [31]-[32]. The Tribunal affirmed the decision of the delegate to refuse the visa application.

Procedural history

1. On 4 May 2016 the applicant filed an application for judicial review of the decision made by the Tribunal on 7 April 2016.

2. The applicant’s affidavit affirmed on 4 May 2016 annexed a copy of the Tribunal’s decision, but adduced no further evidence in support of the application or otherwise informing the grounds of judicial review.

3. By a Response filed on 13 May 2016, the Minister contended that the application did not establish any jurisdictional error and sought that the application be dismissed with costs.

4. The matter was listed for a Directions Hearing on 28 September 2016. Orders were made, by consent, regulating the preparation of the proceeding for trial including the filing by the applicant of any amended application, supplementary Court Book and written submissions.

5. The applicant has not taken the opportunity provided by those orders to file any further material.

6. The matter was listed for Final Hearing on 11 July 2018.

Consideration

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).

2. The applicant advances four grounds of review.  It was somewhat difficult to identify the precise complaints being made by the applicant; however, as the applicant was self-represented I have re-examined the Reasons and the materials comprised in the Court Book.

Ground 1 – a genuine hearing?

1. Ground 1 reads:

   AAT didn’t take a decision seriously on papers have been submitted.

2. By s 360 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As purpose of s 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the application with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [60]-[61], (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [39], [42]-[45] (Griffiths J). In the latter case, Griffiths J observed that there may be circumstances in which an applicant has been denied a real and meaningful opportunity to present evidence and arguments.

3. In the present case, I consider that the applicant was afforded a real and meaningful opportunity to present evidence and arguments to the Tribunal and that he did so.  He was represented by his migration agent and afforded further time to produce further documents for the purposes of the conduct of a merits review of the delegate’s decision.  The applicant’s affidavit adduced no evidence from which consideration could be given as to whether the applicant had any grievances as to the manner in which the Tribunal hearing had been conducted.

4. The applicant’s complaint might also be seen as a failure to give proper, genuine and realistic consideration to the issues arising or to material that is before it.  As to this, there is no doubt that the Tribunal must engage actively with those issues and such material as is presented: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi), [57]-[59] (Stone, Foster and Nicholas JJ). However, the authorities emphasise the need for caution in determining whether proper, genuine or realistic consideration was given: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [33]-[38] (Perram, Perry and O’Callaghan JJ).

5. From my examination of the Reasons, I do not consider that the Tribunal failed to properly consider either the material that was before it or the issues arising on the decision under review.  The Tribunal allowed the applicant an opportunity to provide further documentation and the Reasons record that further material was so provided.

6. Having regard to the materials comprised in the Court Book and to the Reasons, I consider that there is no reason to conclude that the material or issues were not properly considered.  Ground 1 is rejected.

Ground 2 – failure to apply correct principles

1. Ground 2 reads:

   Not considered the documents according to law.

2. The Tribunal set out the text of cl 572.223(1)(a): Reasons, [20].

3. The Reasons also record that the Tribunal recognised the need to have regard to Direction No 53 in assessing the genuine temporary entrant criterion for a Student visa. It also recognised that the matters in that Direction were not to be employed as a checklist but served as a guide in assisting a Tribunal when evaluating the various considerations which may be relevant to the question of genuineness: Reasons, [21]-[22]. Those Reasons support a conclusion that the Tribunal identified and applied the correct criteria and principles in the conduct of the review.

4. The Tribunal was not required to mention specifically each of the factors listed in the Direction: Singh v Minister for Immigration and Border Protection [2016] FCA 74, [28] (Reeves J); Igbenoba v Minister for Immigration [2017] FCCA 1539, [38] (Lucev J).

5. In my view, the Tribunal had regard to the evidence adduced before it and that which was supplied by the applicant following the hearing.

6. I do not consider that the Tribunal failed to consider the matter according to law.  The Reasons undermine a submission that it did so. 

7. Ground 2 is rejected.

Ground 3 – failure to consider evidence

1. Ground 3 reads:

   AAT strongly denied the genuine papers and documents and verbal correspondence in the tribunal which are submitted to the tribunal. In the decision by the AAT which has been briefly described in the “statement of decision and reasons” but the final decision has given against the evidence.

2. Treating this ground as a complaint that the Tribunal had not considered the evidence before it, I consider that there is no substance in this ground.

3. In my view, the statement of reasons demonstrate that the Tribunal examined the evidence before it in a concise but comprehensive form. It accepted much of the applicant’s history but reached a conclusion that the criterion prescribed by cl 572.223(1)(a) was not satisfied. There was ample evidence before the Tribunal to support that conclusion.

4. The Tribunal was not obliged to refer to every item of evidence that was before it to the extent of giving reasons why it rejected a particular item, or attributed less weight to particular evidence: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [41] (Gray, Tamberlin and Lander JJ); Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559, 593 (Kirby J). The weight that is attached to particular items of evidence is a matter for the Tribunal: Khadgi, [58].

5. The Court should not lightly infer that a Tribunal has overlooked evidence: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, [30] (Tracey J); Shah v Minister for Immigration and Border Protection [2017] FCA 183, [15] (Moshinsky J). I decline to do so.

6. Insofar as the applicant’s complaints may otherwise be understood as seeking a further review in this Court of the merits of the application for a Student visa, this is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J).

7. However, the close analysis of the factual evaluation and approach by the Tribunal is not merits review; it is part of the process of ensuring or assessing whether serious findings made about applicants have been made lawfully: SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 at [6]-[7] (Allsop J). I have examined the Reasons and materials comprised in the Court Book and see no reason to conclude that the Tribunal had not considered the evidence before it.

8. Ground 3 is rejected.

Ground 4 – notice of dispositive issues

1. Ground 4 reads:

   On decision of point number 10 is not correct because I didn’t know about the question will be asked. The evidence can be provided is honourable court.

2. Ground 4 may be understood as indicating that the applicant had not been forewarned that the matters in para [10] of the Reasons were to be put to him.  The Reasons at [10] state:

   The applicant is 46 years of age, male national of Bangladesh. His wife, two children, one sister and mother all live in Bangladesh.  He does not own significant property in Bangladesh.  Before arriving in Australia in April 2009, he had completed a Bachelor of Arts Degree in 1994.  He claims that he had a restaurant in Bangladesh from 2002 to 2006. He also claims that he worked for a stock exchange company from 1994 to 2002.  These claims were not substantiated with documentary evidence.

   I reject this ground for two reasons.

3. First, it is evident that the Tribunal accepted each of the matters in [10]. The applicant may have had some reason to raise a complaint had the matters in [10] been considered to contain the reason or part of the reason for affirming the decision under review and the Tribunal had failed to give him clear particulars of those matters: s 359A(1).

4. Where it applies, sub-s 359A(1) of the Act provides that the Tribunal must, amongst other things, give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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.

5. However, the matters set forth in the Reasons at [10] were matters about which the applicant had informed the Tribunal in the course of the hearing. Further, several of those matters were themselves contained in the decisional record of the delegate. In those circumstances, I accept the Minister’s submission that the matters in [10] were based upon information that had either been supplied by the applicant himself in the course of the hearing or were derived from the delegate’s decision which had been provided to the applicant, thereby negating the necessity for such information to be provided by the Tribunal: see s 359A(4)(b).

6. Insofar as the Reasons at [10] concluded with the observation that the claims had not been substantiated by any documentary evidence, this may be seen as constituting a gap in information and accordingly, did not constitute ‘information’ for the purposes of s 359A(1): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, [24(iii)] (Finn and Stone J). Ground 4 is rejected.

Conclusion

1. For the reasons above, the application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 12 July 2018