Baig v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 35
Federal Circuit and Family Court of Australia
(DIVISION 2)
Baig v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 35
File number(s): MLG 2454 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 27 January 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of Immigration Assessment Authority – Student (Class TU) visa – where the Tribunal did not accept that the applicant was a genuine temporary entrant – where the applicant alleges that he was not afforded procedural fairness – finding that the Tribunal put the applicant on sufficient notice of the issue before it – where the applicant takes issue with various findings made by the Tribunal – finding that Tribunal’s findings were reasonably open on evidence before it – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 357A, 499
Migration Regulations 1994 (Cth), cl 573.223
Cases cited: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 9 September 2022 Date of hearing: 9 September 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitors for the First Respondent: Clayton Utz ORDERS
MLG 2454 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ZUBAIR BAIG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
27 January 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 14 November 2017 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 October 2017. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’), to refuse the applicant a Student (Class TU) visa (‘student visa’).
The Tribunal found that the applicant did not meet the criteria for the grant of the visa on the grounds that it was not satisfied that he intended genuinely to stay in Australia temporarily.
Background
The applicant is a Pakistani citizen.
Application for student visa on 21 August 2015
On 21 August 2015, he applied for a student visa.[1]
[1] Court Book at pages 1 to 8.
On 18 November 2015, the Department requested further information from the applicant for the purpose of considering his visa application, including further information addressing the genuine temporary entrant (‘GTE’) requirement in clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[2] In response, the applicant provided a statement with some information directed to the GTE requirement.[3] In that statement, he also explained why he has had a number of changes to the course that he was enrolled to undertake.
[2] Court book at page 16.
[3] Court book at pages 28 and 29.
By letter dated 1 February 2016, the applicant was advised that a delegate of the Minister had decided to refuse his visa application on the basis that the delegate was not satisfied that he met the GTE criteria.[4]
[4] Court book at pages 58 to 68.
Application for review at Tribunal on 16 February 2016
On 16 February 2016, the applicant filed a review application with the Tribunal.[5]
[5] Court book at pages 69 to 70.
On 27 September 2017, the Tribunal wrote to the applicant inviting him to attend a hearing to be held on 19 October 2017.[6] In the letter advising him of the hearing, the applicant was invited to provide all documents upon which he would seek to rely to establish that he meets the GTE criteria for the visa.[7]
[6] Court book at pages 95 to 98.
[7] Court book at page 96.
By letter dated 18 October 2017, the applicant’s representative at the time filed various documents with the Tribunal on the applicant’s behalf.[8]
[8] Court book at pages 115 to 138.
On 19 October 2017, the applicant appeared at the Tribunal hearing together with his representative.[9]
[9] Court book at pages 140 to 143.
On 26 October 2017, the applicant, via his representative, was advised by letter that the Tribunal had determined to refuse to grant him a student visa.[10]
[10] Court book at pages 145 to 146.
Tribunal decision
The Tribunal’s decision record dated 25 October 2017 is at pages 150 to 155 of the court book.
At paragraph [8] of the decision record, the Tribunal notes that the issue in this matter was whether the applicant met the criterion in clause 572.223 of the Regulations, namely that the applicant intended to genuinely stay in Australia on a temporary basis as a student.
The Tribunal also notes at paragraph [9] that in considering this issue, it must have regard to Direction No 53 (‘Direction 53’) made under section 499 of the Migration Act1958 (Cth) (‘the Act’).
At paragraph [12], the Tribunal records the procedural history of the applicant’s student visa application. At paragraphs [13] to [22], the Tribunal sets out the applicant’s study history in Australia and the concerns that the Tribunal had about whether this history was consistent with a genuine temporary student whose primary objective in being in the county was to study.
For example, at paragraph [17], the Tribunal notes:
17.When I asked the applicant why he had not completed anything since arriving in Australia, he replied that he had been struggling with assessments and could not pass the subjects he was enrolled in.
At paragraph [22], the Tribunal went on to find that:
22.As suggested to the applicant, if the holder of a student visa finds that for personal reasons he cannot maintain satisfactory course progress, the student is able to return to the student’s home country until such time as he is personally ready to study successfully in the selected course. Or, he is able to remain in Australia on a student visa which I consider is a decision to commit to achieving satisfactory course progress … The applicant made the decision to remain in Australia knowing that he was not in a position to progress academically … As suggested, I do not consider this to be the behaviour of a genuine student whose intention is to progress academically. (emphasis added)
At paragraphs [23] to [25], the Tribunal considered the applicant’s career plan to work in ‘something in business or banks’ and the concerns it had about the clarity of such plans.
At paragraphs [26] to [28], the Tribunal considers the value of the applicant’s course of study to his future in circumstances where he was not able to articulate the specific type of job that he wanted to apply for upon return to Pakistan.
At paragraphs [29] to [30], the Tribunal considered the applicant’s immigration history and the explanations given by the applicant for his limited travel back to Pakistan, ultimately placing no weight on the fact that the applicant has only returned to Pakistan once since 2013, when the applicant first arrived in Australia.
At paragraphs [31] to [32], the Tribunal sets out the applicant’s incentives to return to Pakistan, including that he said that he had parents in Pakistan who he had to take care of.
Having discussed the applicant’s evidence, the Tribunal set out its reasoning and findings at paragraphs [33] to [35], in particular, that the applicant:
(a)had not been able to complete a single course in his four years residing in Australia on a student visa; and
(b)conceded that he did not have a specific plan for his future.
Having found that the applicant did not meet the GTE requirement in clause 572.223, at paragraph [36], the Tribunal determined to affirm the delegate’s decision not to grant the applicant a student visa.
Proceedings in this court
On 14 November 2017, the applicant filed his application for judicial review in this court.
On 25 July 2018, orders were made by Registrar Allaway, including that the applicant file and serve written submissions and any amended application within 28 days of the hearing.
The hearing was ultimately listed before me on 8 September 2022. At the commencement of the proceedings before me, the applicant confirmed that notwithstanding the orders made, he had not filed an amended application, nor had he filed any written submissions.
Grounds of review
I will now address each of the applicant’s five grounds of review as contained in his application to this court.[11]
[11] Initiating application filed on 14 November 2017.
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to afford him procedural fairness and in particular failed to allow him a:
… fair, meaningful or reasonable opportunity to respond to information held by the First and Second Respondent that was adverse to the Applicant that was considered to be credible, relevant and significant to the Applicant’s application for review and would (and did) form the reason, or part of the reason, for affirming the decision under review.
The applicant did not expand on this ground in his oral submissions.
The Tribunal’s procedural fairness obligations are set out in Part 5 Division 5 of the Act. Section 357A relevantly provides that Division 5 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 357A further provides that in applying the Division, the Tribunal must act in a way that is fair and just. It is not clear from the applicant’s application or his submissions to the court how he asserts that he was not afforded procedural fairness as required.
It is well settled that the requirement to provide an applicant an opportunity to attend a hearing, for the purposes of presenting argument and evidence, requires that the applicant be on notice of the issues arising in relation to the decision under review.[12]
[12] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32] and [33] and the cases referred to therein.
In this case, the applicant was on notice of the issue before the Tribunal, namely, whether the applicant met the ‘genuine temporary entrant’ criterion. In the invitation to attend a hearing before the Tribunal dated 27 September 2017, the Tribunal said:
We will assess whether you intend genuinely to stay in Australia temporarily.[13]
[13] Court book at page 97.
Also in that invitation, the Tribunal referred the applicant to Ministerial Direction No 53 and noted that that Direction contained matters relevant to the GTE requirement. A copy of Direction 53 was also attached to the invitation.[14]
[14] Court book at pages 106 to 110.
In addition, steps were taken during the hearing to ensure that the applicant was aware of the issue before the Tribunal, which are set out at paragraph [11] of the Tribunal’s decision record. This included that the applicant was:
(a)informed that a major issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student, with reference to the considerations set out in Ministerial Direction No 53;
(b)informed that a copy of Direction 53 had been provided to him along with the invitation to attend the hearing;
(c)given an opportunity to read Direction 53 in circumstances where he stated that he had not read it; and
(d)given an opportunity to discuss the contents of the Direction with his agent, which he declined.
In addition, it is also apparent from a fair reading of the Tribunal’s decision itself that in the course of the hearing, various matters were put to the applicant for comment and response. For example at paragraph [19], after setting out the applicant’s study history, the Tribunal records:
… but as suggested to him at hearing, this is not the study history of a genuine student.
Similar references are also found at:
·paragraph [21] – ‘I told the applicant …’;
·paragraph [22] – ‘As suggested to the applicant …’;
·paragraph [25] – ‘I suggested to the applicant …’;
·paragraph [27] – ‘I suggested to the applicant …’; and
·paragraph [31] – ‘I asked the applicant …’.
The Tribunal both directly, and by reference to the questions that it asked of the applicant in the course of the hearing, provided the applicant with an opportunity to comment on those matters which were relevant to the ultimate decision taken, including any concerns or provisional views that it had formed.
In the absence of any more specific articulation of any denial of procedural fairness, I find that the Tribunal did not act inconsistently with the requirements of procedural fairness.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims that the Tribunal acted unreasonably by failing to provide a fair and/or meaningful opportunity for him to comment or respond to the relevant matters raised. By this ground, the applicant seeks to suggest that the failure to provide a reasonable opportunity to comment or respond to relevant matters constitutes unreasonable behaviour.
For the reasons discussed above in relation to ground 1, the Tribunal did not fail to provide the applicant with an opportunity to respond to relevant matters raised. The obligation to provide the applicant with an opportunity to attend a hearing and provide evidence and make submissions has been satisfied in this case and there is no substance to the suggestion that the Tribunal acted unreasonably by not having done so.
For these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant asserts that the Tribunal failed to consider all of the evidence.
No particulars are provided so as to clearly identify what relevant evidence it is said that the Tribunal did not take into account. At the hearing before me, the applicant stated that the Tribunal did not believe him when he said that the University of Canberra lost his Letter of Offer and told him that he was a liar.
I will return to this claim later in my reasons. For reasons which will be given, I do not accept that this is correct as a matter of fact. If this ground relies on the assertion that the Tribunal did not consider the applicant’s evidence that it was the University and not the applicant that lost his Letter of Offer, it must fail. A fair reading of paragraph [18] of the Tribunal’s reasons shows that the Tribunal was aware of the applicant’s assertion in this regard and accepted it.
The Tribunal went on to say that even accepting his explanations, it was not satisfied that the applicant’s study history was that of a genuine student. That finding was reasonably open to the Tribunal and does not disclose any legal unreasonableness.
For these reasons, ground 3 is not made out.
Ground 4
By ground 4, the applicant asserts that the Tribunal failed to provide proper reasons for its decision and findings of any material questions of fact. This ground is not made out. A fair reading of the Tribunal’s reasons shows that the Tribunal clearly set out the basis of the findings of any material facts on which the decision was made.
The Tribunal’s reasons disclose that it carefully considered the evidence before it, including, in particular, the applicant’s explanations for his study history and his failure to progress those studies since his arrival in Australia.
The issue before the Tribunal was whether the applicant met the requirements of clause 572.223(1)(a) of Schedule 2 to the Regulations. In order for an applicant to meet the mandatory criterion for the grant of the visa, the Tribunal, on review, was required to be ‘satisfied that the applicant intends genuinely to stay in Australia temporarily’.
In reaching the requisite state of satisfaction, the Tribunal had to have regard, relevantly, to:
(a)the applicant’s circumstances;
(b)the applicant’s immigration history; and
(c)any other relevant matter.
In assessing these criterion, the Tribunal had to have regard to Direction 53. As stated, the applicant has not identified any specific matters in clause 572.223(1)(a) or in Direction 53 which were not considered or which were not adverted to in the Tribunal’s reasons.
As noted by the Full Court of the Federal Court in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [85] it is only those matters which are:
… considered to be sufficiently material to the decision [which] must be brought to account in the decision-making process … Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker …
It is not clear from the applicant’s application which, if any, factors in Direction 53 and/or in clause 572.223(1)(a) was not considered and/or not referred to in the Tribunal’s reasons. The onus is on the applicant to establish that a failure to refer to a particular matter in written reasons leads to an inference that can be drawn that the matter was overlooked.[15]
[15] Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [91].
For reasons discussed earlier, a fair reading of the Tribunal does disclose that the Tribunal carefully considered the evidence before it.
For these reasons, ground 4 is not made out.
Ground 5
Ground 5 is stated in even more generalised and un-particularised terms.
By ground 5, the applicant asserts that the Tribunal’s decision is affected by jurisdictional error in that the Tribunal did not conduct the review in the manner required by law. No particulars are provided to clarify what error of law is asserted, nor were any particulars provided when the applicant made submissions to this court.
To the extent that this refers to the issue of how the Tribunal dealt with the applicant’s assertion that the University of Canberra had lost his Letter of Offer, I address this issue below.
In the absence of any particulars, ground 5 lacks any merit and is also not made out.
Other issues – Lost Letter of Offer
As stated, at the hearing before me, the applicant was invited to make any submissions that he wished to make in relation to his application. In response, he said that he believed that the decision made by the Tribunal was not fair as the decision-maker failed to have regard to the fact that he said that the University of Canberra had lost his documents and that this was when his problems began.
The applicant further submitted that when he told the Tribunal member that it was the University of Canberra who had lost his documents, the Tribunal member did not accept this, and indeed, said that the applicant had lied about this. The applicant said that he now has documents which prove that it was the University who had lost his documents.
The Minister addressed this further proposition in oral submission. It was submitted for the Minister that this submission is not borne out on the face of the Tribunal’s decision record when regard is had to paragraph [18] of the decision record.
In that paragraph, the Tribunal records that the applicant:
18.… stated that he had submitted the application but the University of Canberra advised after a while that they had lost his Letter of Offer and couldn’t do anything about it. The applicant states that they told him to either go back home or pick another course to enrol in. …
In its decision, after setting out further information about the applicant’s study history, the Tribunal goes on to say in paragraph [19]:
19.I acknowledge the applicant’s explanation of his study history, but as suggested to him at hearing, this is not the study history of a genuine student.
I note that at page 28 of the court book is a statement provided by the applicant in which he addresses the GTE. In the context of explaining his educational history, the applicant stated:
I have previously attempted Bachelor of Business Administration, then I cancelled it because I was not comfortable with that course and I decided to change my course to Bachelor of public relations, but University of Canberra’s administration department lost my admission forms and relevant documents then they said you need to fill the forms again then I took admission in Information technology.
This is consistent with the submission made to the court.
There is no suggestion in the Tribunal’s decision record that the Tribunal did not believe that the University of Canberra had, in fact, lost the applicant’s Letter of Offer or that it formed the view that he had lied about this. Rather, a fair reading of the Tribunal’s reasons disclose that the Tribunal formed the view, having regard to the applicant’s study history in its entirety, including the steps he took after the University of Canberra lost his Letter of Offer, and concluded that it was not satisfied that this was a history of a genuine student. This conclusion is to be read together with related comments at paragraphs [21] and [22] of the decision.
To the extent that the applicant’s oral submission could be construed as a claim that the Tribunal misunderstood his claims or failed to have regard to relevant information, this claim is not supported by a fair reading of the Tribunal’s decision record. Nor does the applicant’s oral submissions in relation to the issue of the lost Letter of Offer otherwise disclose any jurisdictional error on the part of the Tribunal.
Conclusion
For each of these reasons, and in circumstances where none of the applicant’s grounds of review are made out, the applicant’s application ought to be dismissed and an order made for the applicant to pay the first respondent’s costs in an amount to be fixed if not agreed.
The first respondent also seeks an order for its name to be amended to reflect current administrative arrangements. That is an appropriate order.
For each of these reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 27 January 2023
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