Azam v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 661
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Azam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 661
File number: SYG 371 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 18 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was provided a “meaningful” opportunity to appear before the Tribunal to give evidence and present arguments – whether the Tribunal failed to properly consider the applicant’s evidence related to his “future plans” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360, 368, 425, 476, 499 and Part 5 & Part 7
Migration Regulations 1994 (Cth), cl 572.223 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 16 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 371 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANAS AZAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Pakistan (Court Book (“CB”) 1). He arrived in Australia in May 2010 as the holder of a student visa (CB 17).
The applicant has since been granted two further student visas (one at the Subclass 573 level and the other at the Subclass 572 level) (CB 17).
On 30 June 2016, the applicant applied for a further Student (Class TU) (Subclass 572) visa (the “visa”) (CB 1-8). At the time he applied for the visa, the applicant was enrolled in an Advanced Diploma of Marketing course (CB 17).
On 12 July 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant (through Vision Consultants (Australia) Pty Ltd, (his “representative”)) to provide more information in relation to his visa application (CB 12-19). In that correspondence, the Department put the applicant on notice that it had a number of concerns regarding his previous enrolments and educational history in Australia, together with his failure to comply with past visa conditions. The applicant was also asked to provide documents and information to the Department in relation to his study history and the genuine temporary entrant criteria (CB 17-18).
On 8 and 9 August 2016, the applicant’s representative provided the Department with a Statement of Purpose and supporting documents in response to the above request (CB 20-38). In his Statement of Purpose (CB 27-28), the applicant included the following information (CB 28):
Future Plan
When I came to Australia I was so young and was not able to take decision by my own and I had influenced of my family and due to their wish I have chosen Advanced Diploma of accounting which I have successfully completed and pursued my bachelors degree in accounting. Unfortunately I did not give my best in bachelor program despite the fact that I studied 1 year in bachelors but did not clear even a single unit. I have realized that accounting is not my field of interest. Advanced diploma is not as much extensive as bachelor degree so I passed the advanced diploma in accounting with efforts but in bachelors even I worked hard but failed miserably in all the attempted units.
Additionally my institute has cancelled my COE without notifying me which made me disappointed. I discussed with my father and after detailed discussion I conclude that I should do management studies as I will pursue my career in administration.
In Pakistan, jobs are available in administration and people who have foreign degrees are preferred over local graduates as they have advanced knowledge. I do not want to overstay in Australia and want to complete my remaining course.
My intension and vision is clear as I never change my courses on frequent basis nor I have significant gaps in studies. My aim is to complete my course and return back to my home country.
On 22 August 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 43-49). The delegate was not satisfied that the applicant met the requirements set out in cl 572.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily (CB 48).
On 9 September 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 50-51).
On 25 September 2017, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 20 October 2017 (CB 60-73). The Tribunal also requested that the applicant provide the following materials (CB 63):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53.
A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
On 16 October 2017, the applicant’s representative responded to the hearing invitation and provided the Tribunal with a copy of the applicant’s Overseas Student Confirmation-of-Enrolment (“CoE”) in an Advanced Diploma of Marketing and Communications, together with academic records from the Australian Institute of Commerce and Language (“AICL”) (CB 74-84).
The applicant appeared at the Tribunal hearing on 20 October 2017 to give evidence and present arguments. The applicant’s representative did not attend that hearing (CB 85-87).
On 16 January 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 91-94).
On 13 February 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is four pages in length and spans 18 paragraphs.
The Tribunal began by outlining the type of decision under review, noting that the applicant had applied for the visa on 30 June 2016 and that the visa had been refused by a delegate of the Minister on 22 August 2016. The Tribunal explained that the relevant subclass of student visa was ordinarily dependant on the type of course for which an applicant has an offer of enrolment (at [1]-[2]).
The Tribunal continued:
3.The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because it was determined the applicant was not a genuine applicant for entry and stay in Australia or that he intends to stay temporarily.
The Tribunal then set out the applicant’s background, noting that he had arrived in Australia in 2010 intending to study a Bachelor of Accounting, was currently enrolled in an Advanced Diploma of Marketing and declared that he plans to pursue a Bachelor level degree in Marking (having changed his course of study because accounting – which was recommended to him by his parents – did not suit him) (at [4]).
The Tribunal explained:
5.In the Department’s decision record dated 22 August 2016, a copy of which was provided with the application, the following findings were made:
•In a period of six years the applicant had only completed two vocational courses;
•The applicant’s studies regressed from higher education to vocational;
•The applicant is studying a course in Marketing but claimed he wanted to work in administration;
•No information was provided regarding the applicant’s reason for studying Marketing or how it related to his future plans;
•The applicant appeared to be using the student visa program to maintain residency in Australia.
The Tribunal confirmed that the applicant had appeared at a hearing before it on 20 October 2017 (at [6]) and had been represented in relation to his review by a registered migration agent (at [7]).
The Tribunal identified that, based on the applicant’s proposed course of study, the relevant visa subclass was 572 (at [9]).
The Tribunal also detailed the “time of decision” criterion relevant in this case (being cl 572.223 in Schedule 2 of the Regulations, otherwise known as the genuine temporary entrant criterion) (at [10]).
The Tribunal explained that it was required to have regard to the factors specified in “Direction No. 53 – Assessing the genuine temporary entrant criterion for Student visa applications” (made under s 499 of the Act) (at [11]). The Tribunal further explained that those factors should not be used as a checklist but instead as a guide when weighing an applicant’s circumstances as a whole (at [12]).
The Tribunal continued:
13.The applicant provided documentary evidence and appeared at the Tribunal hearing. He explained that he had difficulty undertaking his original course and changed to study at a lower level. The applicant declared he really wants to obtain a degree in Marketing and said he may consider joining a commercial bank in future. It was claimed he had undertaken accounting based on parental advice but it did not suit him. Other than expressing an interest in Marketing, the applicant did not provided details of future employment plans or how he would achieve his aims. The Tribunal found his evidence to be vague and without detail in this regard.
14.The Tribunal is not satisfied the applicant has demonstrated satisfactory progress in his studies in Australia or that he has clear plans for the future. He has been in the country for over seven years and has still not progressed to the level of education he originally came to study at. The Tribunal considers the amount of time the applicant would still need to achieve his stated aim of obtaining a degree to be excessive.
15.The applicant has an uncle in Australia who has supported him and he has been employed in casual positions. He has only travelled back to Pakistan twice since his arrival, in 2012 and 2015. While his immediate family members continue to live there, the Tribunal is not satisfied there is sufficient incentive for the applicant to return after studying. The Tribunal acknowledges the applicant has completed some courses; however, it appears he is studying for the purpose of remaining in Australia rather than a genuine interest in the field.
Ultimately, having considered the applicant’s circumstances, immigration history and other relevant matters, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily and thus did not meet cl 572.223 in Schedule 2 of the Regulations (at [16]).
The Tribunal also noted that (with the exception of Subclass 580) all other Subclasses of the Class TU visa contained identical requirements and found that the applicant would thus not meet the requirements for the grant of a student visa (at [17]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [18]).
APPLICATION TO THIS COURT
Although the application for judicial review filed in this Court by the applicant on 13 February 2018 was prepared by a lawyer, that lawyer noted in the application that he was “not instructed to represent” the applicant.
The application contains one particularised ground of review as follows:
1.The Tribunal denied the Applicant procedural fairness and / or breached s 425 of the Migration Act.
Particulars
(a)The tribunal stated (at paragraph 13 AAT decision) ‘the applicant did not provide details of future employment plans or how he would achieve his aims. The Tribunal found his evidence to be vague and without detail in this regard’.
(b)The applicant provided corroborating evidence of his successful completion of studies and future plans; namely:
(i)the Statement of Purpose with detailed explanation of study progress and future of the applicant.
(ii) Certificates of completion.
(iii) Confirmation of enrolment (CoE) for bachelor’s degree.
(c)The Tribunal, having made adverse findings about the applicant's credibility in relation to the intentions of the applicant to remain in Australia but gave no evidentiary weight to the corroborating evidence
The Tribunal Thereby committed jurisdictional error.
In support of his application, the applicant swore an affidavit on 6 February 2018 (filed on 13 February 2018) which annexed a copy of the Tribunal’s decision. That affidavit did not raise any additional issues that this Court need address.
On 5 March 2018, procedural orders were made by Registrar Tesoriero of this Court giving the applicant an opportunity to file an amended application, any evidence and written submissions. On 2 March 2022, further procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant a further opportunity to file written submissions. Unfortunately, no materials were filed by the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 13 February 2018, a Court Book numbering 97 pages (marked as Exhibit 1), written submissions filed by the Minister on 1 August 2022 and the affidavit of Sophie Caroline Roberts affirmed and filed on 4 August 2022 (the “Roberts affidavit”). The Roberts affidavit was taken as read and in evidence at the hearing.
The applicant appeared before this Court on 16 August 2022 without legal representation. The Court confirmed with him that he had received a copy of the Court Book, the Minister’s written submissions and the Roberts affidavit.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
While not entirely clear, the applicant appeared to suggest that it took him some time to decide what path he might take in terms of his study and that he was advised in that regard by various people. He asked the Court to consider his situation “as a whole” and not just look at the “mistakes he may have made” regarding course selection.
Unfortunately, the applicant’s concerns amount to no more than a request for impermissible merits review.
CONSIDERATION
For ease of reference, the applicant’s ground of review provides as follows:
1.The Tribunal denied the Applicant procedural fairness and / or breached s 425 of the Migration Act.
Particulars
(a)The tribunal stated (at paragraph 13 AAT decision) ‘the applicant did not provide details of future employment plans or how he would achieve his aims. The Tribunal found his evidence to be vague and without detail in this regard’.
(b)The applicant provided corroborating evidence of his successful completion of studies and future plans; namely:
(i)the Statement of Purpose with detailed explanation of study progress and future of the applicant.
(ii) Certificates of completion.
(iii) Confirmation of enrolment (CoE) for bachelor’s degree.
(c)The Tribunal, having made adverse findings about the applicant's credibility in relation to the intentions of the applicant to remain in Australia but gave no evidentiary weight to the corroborating evidence
The Tribunal Thereby committed jurisdictional error.
Essentially, the applicant raises two main issues:
(a)Issue 1: whether the applicant was provided a “meaningful” opportunity to appear before the Tribunal to give evidence and present arguments; and
(b)Issue 2: whether the Tribunal failed to properly consider the applicant’s evidence related to his “future plans”.
These issues are considered below.
Issue 1: whether the applicant was provided a “meaningful” opportunity to appear before the Tribunal to give evidence and present arguments
The applicant references s 425 of the Act (which relates to the Tribunal’s obligation to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in Part 7 review).
It is noted that in relation to matters of this sort (Part 5-reviewable decisions), the relevant (and largely identical) provision is set out on s 360 of the Act, which provides as follows:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court notes that on 25 September 2017, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 20 October 2017 (CB 60-73). The hearing invitation notified the applicant that he should provide all documents upon which he intends to rely to the Tribunal as follows (CB 62):
What you should do within 7 days of receipt of this letter
Please read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form.
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. 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. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
The hearing invitation also requested specific information from the applicant, expressly notifying the applicant that the issue of whether he was a genuine temporary entrant would be assessed by the Tribunal (and seeking a statement in that regard), as follows (CB 63):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
In response, the applicant (through his representative) provided the Tribunal with a copy of the applicant’s CoE (confirming his enrolment in an Advanced Diploma of Marketing and Communications) and educational records from AICL (CB 79-84).
The applicant did not provide any written statement to the Tribunal relating to the issue of whether he was a genuine temporary entrant.
The applicant attended the scheduled hearing before the Tribunal on 20 October 2017 to give evidence and present arguments (CB 85-87).
The applicant did not provide any further documents or material to the Tribunal at (or following) the hearing. In this regard, it is noted that there was a period of nearly 3 months between the Tribunal hearing (which took place on 20 October 2017) and the date of the Tribunal’s decision (being 16 January 2018) within which the applicant (or his representative) could have provided further material to the Tribunal in support of the applicant’s review application.
There is nothing before the Court to suggest that the applicant (or his representative) provided (or attempted to provide) any additional material to the Tribunal or that any additional time was sought within which to do so.
Here, the Tribunal invited the applicant to appear at a hearing before it, notified the applicant of the issues for consideration at that hearing and provided the applicant with an opportunity to provide any documents or supporting material to the Tribunal for consideration. The Tribunal then gave the applicant an opportunity, at the hearing before it, to give evidence and present arguments to support his case.
The Court is satisfied that the Tribunal complied with its obligations under s 360 of the Act.
Further, there is no evidence before the Court to suggest that the Tribunal failed to provide the applicant with a real and meaningful opportunity to attend and participate at a hearing before or that the hearing invitation was a “hollow shell”, or an “empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
No error arises in relation to issue 1.
Issue 2: whether the Tribunal failed to properly consider the applicant’s evidence related to his “future plans”
The applicant also takes issue with the Tribunal’s consideration of his evidence relating to his “future plans”.
In this regard, the applicant references a “Statement of Purpose” (provided to the Department), certificates of completion and a CoE.
As outlined above, the Statement of Purpose provided to the Department includes information relating to the applicant’s “future plans” as follows (CB 28):
Future Plan
When I came to Australia I was so young and was not able to take decision by my own and I had influenced of my family and due to their wish I have chosen Advanced Diploma of accounting which I have successfully completed and pursued my bachelors degree in accounting. Unfortunately I did not give my best in bachelor program despite the fact that I studied 1 year in bachelors but did not clear even a single unit. I have realized that accounting is not my field of interest. Advanced diploma is not as much extensive as bachelor degree so I passed the advanced diploma in accounting with efforts but in bachelors even I worked hard but failed miserably in all the attempted units.
Additionally my institute has cancelled my COE without notifying me which made me disappointed. I discussed with my father and after detailed discussion I conclude that I should do management studies as I will pursue my career in administration.
In Pakistan, jobs are available in administration and people who have foreign degrees are preferred over local graduates as they have advanced knowledge. I do not want to overstay in Australia and want to complete my remaining course.
My intension and vision is clear as I never change my courses on frequent basis nor I have significant gaps in studies. My aim is to complete my course and return back to my home country.
The Tribunal’s consideration of this information is as follows:
13.The applicant provided documentary evidence and appeared at the Tribunal hearing. He explained that he had difficulty undertaking his original course and changed to study at a lower level. The applicant declared he really wants to obtain a degree in Marketing and said he may consider joining a commercial bank in future. It was claimed he had undertaken accounting based on parental advice but it did not suit him. Other than expressing an interest in Marketing, the applicant did not provided details of future employment plans or how he would achieve his aims. The Tribunal found his evidence to be vague and without detail in this regard.
14.The Tribunal is not satisfied the applicant has demonstrated satisfactory progress in his studies in Australia or that he has clear plans for the future. He has been in the country for over seven years and has still not progressed to the level of education he originally came to study at. The Tribunal considers the amount of time the applicant would still need to achieve his stated aim of obtaining a degree to be excessive.
The Tribunal’s obligations under s 368 of the Act to prepare a statement of reasons do not require it to identify or discuss each item of evidence to which it has had regard: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) at [346].
To the extent that the applicant submits that the Tribunal did not specifically reference his Statement of Purpose or other documents provided in support of his application (for example a CoE or statements of completion), the Tribunal was not required to do so. There is no obligation on the Tribunal to reference every piece of evidence before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (“SZSRS”) at [34].
Here, in its consideration above (at [13]), the Tribunal references difficulties that the applicant had in completing studies at the level originally enrolled in (being at a Bachelor level) and lowering his level of study. The applicant, in his statement of purpose, discussed those difficulties as follows (CB 28):
Advanced diploma is not as much extensive as bachelor degree so I passed the advanced diploma in accounting with efforts but in bachelors even I worked hard but failed miserably in all the attempted units.
The Tribunal, at [14], references the applicant’s future employment plans as “vague and without detail”. In this regard, the applicant simply stated (in his Statement of Purpose) that (CB 28):
In Pakistan, jobs are available in administration and people who have foreign degrees are preferred over local graduates as they have advanced knowledge.
Insofar as the applicant takes issue with the failure to specifically mention the CoE, the Court notes that it is a requirement that, at the time of decision, the applicant be enrolled in a course of study (or have an offer of enrolment for a course of study). The Tribunal, in its hearing invitation letter, specifically requested that the applicant provide confirmation of his enrolment prior to the hearing. The applicant did so.
While the Tribunal is not required to specifically reference each item of evidence before it (Yusuf at [346]), the Court is generally entitled to infer that a matter not mentioned in the Tribunal’s reasons was, at a minimum, not considered to be material: SZSRS at [33]. The Court considers that to be the case in relation to information regarding the applicant’s enrolment.
Once the Tribunal was satisfied that the applicant was enrolled in a course of study, the dispositive issue became whether the applicant was a genuine temporary entrant and no further consideration was required to be undertaken in relation to the applicant’s enrolment status.
The Tribunal instead concentrated on the dispositive issue before it (and before the delegate). In that regard, having summarised the evidence before it, and while acknowledging that the applicant had completed some courses of study while in Australia, based on the length of time that the applicant had been in Australia, and his limited course progress (noting that the applicant had been in Australia for more than seven years and had not yet progressed to the original intended level of study (at [14])), the Tribunal ultimately found that it appeared as though the applicant was “studying for the purpose of remaining in Australia”, rather than having a genuine interest in the field of study (at [15]).
The Tribunal is entitled to accept or reject or give such weight to an applicant’s evidence as it thinks appropriate in all of the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. This is entirely a matter for the Tribunal as a part of its fact-finding function: Wu Shan Liang at 281-282.
Further, the Court is satisfied that no error arises in relation to any concerns the applicant might have about the Tribunal’s assessment of the material before it and its ultimate determinations about the vague nature of the evidence before it. The Tribunal’s findings in this regard are entirely logical and reasonable and based on the limited evidence provided by the applicant. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. The Tribunal’s findings flow logically from the evidence before it and were entirely open to be made. It cannot be said to that no reasonable person could have made the same findings.
No error arises in relation to issue 2.
CONCLUSION
The application for judicial review filed by the applicant on 13 February 2018 fails to identify any error on the part of the Tribunal. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2022
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