Aziz v Minister for Home Affairs

[2019] FCCA 876

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZIZ v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 876

Catchwords:
MIGRATION – Administrative Appeals Tribunal – refusal of student visa – application for judicial review.

Legislation:

Migration Act 1958 (Cth), s.359AA

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: RUBINA AZIZ

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 7 of 2018

Judgment of: Judge Young

Hearing date: 15 March 2019

Date of Last Submission: 15 March 2019

Delivered at: Darwin

Delivered on: 15 March 2019

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: In Person

Counsel for the Respondents: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application filed 5 January 2018 is dismissed.

2. That the Applicant pay the First Respondent’s costs in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 7 of 2018

RUBINA AZIZ

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse the applicant a student visa. 

3. The background to the matter is significant.  The applicant, Mrs Aziz, is the widow of a medical practitioner who, along with Mrs Aziz, came to Australia in 2005 on a medical practitioner’s visa.  Sadly, Dr Aziz died in 2009 and Mrs Aziz’s right to reside in Australia finished, as I understand it, sometime after that.  In January 2010 she applied for a student visa and she has held a student visa or a renewed visa from January 2010 to March 2016.  During that time she has completed a number of vocational and educational training courses.  I will call them “VET courses”. 

4. I think the figure was that she has completed seven VET courses.  Since the delegate refused her student visa application on 8 June 2016, she completed the VET course that was the subject of that application, which was an Advanced Diploma of Business.  Since the refusal of her student visa application, it appears from the Tribunal’s decision, after the Tribunal invited her to an interview in approximately December 2017 Mrs Aziz enrolled in another VET course, an Advanced Diploma in Marketing and Communications. 

5. Mrs Aziz has enrolled in seven VET courses and completed six on my calculation.  The completion of the proposed Advanced Diploma of Marketing and Communications would extend her VET level study in Australia to nine years. 

6. Another factor in Mrs Aziz’s background is that most of her close family are Australian citizens, as I understand it from the Tribunal decision.  Three of her siblings are Australian citizens. Two of her children are permanent residents and one son is an International Student.  The only close family that she has living in Pakistan is her brother.  It was against that background that the Tribunal assessed the question of whether Mrs Aziz was a person genuinely intending to stay temporarily in Australia for the purpose of study.  The Tribunal considered that background and considered another factor that I have not mentioned, which is that Mrs Aziz has an outstanding application for a contributing parent visa, which I understand is referred to as a CA143 visa. 

7. I was not told, nor do the Tribunal’s reasons say precisely, what the conditions of that visa are but the name would suggest, along with the fact that Mrs Aziz has one son as an International Student here, that she is seeking to remain in Australia for the purpose of supporting that child.  Mrs Aziz told the Tribunal, and the delegate as well, that the reason for the six or the seven VET level courses that she had enrolled in and/or completed in Australia was for the purpose of commencing a food processing business in Pakistan with her brother. 

8. There is no detailed information anywhere as far as I am aware, and certainly not in the Tribunal decision, about the nature of that business.  The Tribunal described the applicant’s plans in that regard as “vague”.  I asked Mrs Aziz whether there were in fact any more detailed plans or any detailed plans at all that she was able to refer me to and she was not able to refer me to any plans.  It would appear with regard to that business that the adjective “vague” may have been appropriate. 

9. The application to this court sets out six grounds.  They are very long and discursive and it is not necessary to read them all, and I do not propose to do that but I will try to summarise the grounds. 

10. Ground 1 alleges that the Tribunal placed too much weight on the fact that most of the applicant’s immediate family were living in Australia and it was said, among other things, that that was an error in that it failed to pay due regard to the departmental Procedures Advice Manual which relevantly contains a passage saying that the presence of an applicant’s family in Australia was not necessarily inconsistent with an applicant for a student visa genuinely intending to remain temporarily in Australia. 

11. Ground 2 is an allegation that the Tribunal failed to comply with the procedural fairness requirements in section 359AA of the Migration Act. As I understand the grounds set out in the application, it was said that the Tribunal failed to permit the applicant to comment on or respond to adverse information. The application does not actually identify the information.

12. I asked Mrs Aziz if she was able to make submissions in relation to the grounds and it was apparent to me that she was not familiar with the grounds and was not, in any sense, able to make intelligible submissions about them.  However, she did read a prepared note to me during the hearing and, as I understood it, the information that she said that she ought to have been given a chance to respond to was in relation to the Tribunal referring to the fact that Mrs Aziz owned a home in Australia and still owned that home and the Tribunal said that it was not persuaded that she intended to sell it. 

13. Strictly speaking that is probably an assessment of information given by the applicant herself, that is, the fact that she owned a home in Australia, that was being complained about.

14. Ground 3 is an allegation that, again, the Tribunal failed to comply with the procedural fairness requirements of section 359AA of the Migration Act. It is said that the Tribunal failed to give the applicant an opportunity to respond to its assessment or conclusion that the fact of the CA143 contributing parent visa and the fact of ownership of property were factors indicating that Mrs Aziz may not genuinely intend to remain temporarily in Australia and she said that she ought to have been given the opportunity to respond to that information, as she described it.  It appears that that information is, firstly, information that was provided by Mrs Aziz, that is, the fact of the visa application and the ownership of property, and, secondly, the Tribunal’s response to that was an assessment of that information rather than any separate information. 

15. Ground 4 alleges that the Tribunal also denied procedural fairness to the respondent in inferring that all of the seven courses completed by the applicant were at the VET level and the failure to proceed beyond the VET level in seven courses in about eight or nine years was indicative that the process of VET study was a vehicle to allow Mrs Aziz to remain in Australia.  It was alleged in the ground that she ought to have been given an opportunity to respond to that process of reasoning. 

16. Ground 5 is an allegation that the Tribunal committed jurisdictional error by drawing an adverse inference that Mrs Aziz had enrolled in her present VET course, the Advanced Diploma in Marketing and Communications, in order to extend her time in Australia.  The adverse inference was drawn by the Tribunal because Mrs Aziz enrolled in that course, according to the Tribunal’s reasons, after she received the Tribunal’s invitation to an interview. 

17. Ground 6 is an allegation that the Tribunal committed jurisdictional error by finding that the applicant’s evidence about her proposed business with her brother in Pakistan was vague and conditional on the brother’s retirement at an unspecified time in the future (which I would interpret as a particular of the vagueness rather than a separate issue entirely). 

18. In my view, each of the grounds must fail.  In relation to Ground 1, the weight to be given to a particular factor is a matter for the Tribunal and the Minister referred to in NAHI v Minister [2004] FCAFC 10 at [11] as authority for that proposition. It is a well-known proposition.

19. In my view, Ground 1 which complains about weight cannot succeed.  In the circumstances of this case, while the Procedures Advice Manual certainly says, in the case of an applicant for a student visa, the fact of that applicant’s family being in Australia is not necessarily to be construed against the applicant. Indeed the Procedures Advice Manual says that situation may indicate a reason why a particular applicant wishes to come to Australia to study. 

20. It is clear that the Procedures Advice Manual is a guide to decision-making and in each case the facts must be assessed separately.  In my view, the conclusion that was drawn by the Tribunal about the applicant’s family situation was a proper conclusion to draw and was open on the material. 

21. Grounds 2, 3, 4 and 5 are allegations about a denial of procedural fairness.  Ground 2 does not specify what information the applicant ought to have been permitted to respond to.  Ground 3, referring to the applicant’s home, firstly, concerns information given by the applicant herself.  Secondly, it appears that the complaint is that the Tribunal did not offer the applicant an opportunity to comment on its process of reasoning. That is not information and is not required in any event: SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. The same can be said about the Tribunal’s adverse inference drawn from the fact of the multitude of VET courses completed by the applicant or enrolled in by the applicant and again, that is information provided by the applicant and it appears to me that the process of reasoning engaged in by the Tribunal was certainly open to it, if not inescapable.

22. Similar comment can be made about Grounds 4 and 5. 

23. The complaint in Ground 6 that the Tribunal was not justified in concluding that the applicant’s evidence about her business plans in Pakistan were vague. In my view this conclusion was open to the Tribunal and, on the material I have seen, unavoidable.  I am satisfied that none of the grounds of the application are made out and the application must fail. 

24. I will add this comment, which is unnecessary to my process of reasoning but I think is merited in the circumstances, as I see them. Mrs Aziz came to Australia in 2005 with her husband, a medical practitioner.  She was encouraged to come, as was her husband, because her husband was in a position to provide a service to the Australian community.  It is very sad that he died prematurely, it would appear, in 2009. Mrs Aziz has her children here and other members of her family.  It might be inferred that but for the premature death of her husband the trajectory for Dr Aziz and Mrs Aziz would have been permanent residence and eventually citizenship in Australia.  Her present situation is, I am satisfied, very much a consequence of the premature death of her husband.  I consider it regrettable that she is in what is clearly a difficult situation and I would like to think that the Minister would give sympathetic consideration to her position. 

25. I dismiss the application and order the applicant to pay the Minister’s costs.

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

Associate: 

Date:  5 April 2019