Barah v Minister for Home Affairs

[2019] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARAH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 214

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) visa – whether the Tribunal provided logical and rational reasons – whether the Tribunal’s adverse findings where open on the material before it – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – invitation to this Court to engage in merits review – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476, 66
Migration Regulations 1994 (Cth), cl.500.212

Applicant: ALEIZ KHALED AHMAD BARAH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2477 of 2018

Judgment of: Judge Street

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Sydney

Delivered on: 4 February 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 4 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2477 of 2018

ALEIZ KHALED AHMAD BARAH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 August 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (class TU) visa.

2. The applicant is a citizen of Jordan and applied for the visa on 7 February 2017. On 3 March 2017, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate noted that the applicant had been granted a Visitor visa on 15 September 2016 and that the application for the Student visa was lodged two days before the Visitor visa was due to expire and approximately three months after the applicant’s arrival in Australia on 9 November 2016.

3. The applicant applied for review on 21 March 2017. By letter dated 26 March 2018, the applicant was invited to attend a hearing before the Tribunal. The applicant attended a postponed hearing on 3 July 2018, to which the applicant was invited by letter dated 31 May 2018, to give evidence and present arguments.

4. The Tribunal identified the background to the application for review. The Tribunal in the course of its reasons referred to the Provider Registration and International Student Management System (“PRISMS”) record which indicated that the applicant had been enrolled in a General English course to run from February 2017 to May 2017, but that his enrolment was cancelled on 3 May 2017. The Tribunal referred to the applicant having been enrolled in a General English course, which was to run from June 2017 until October 201,7 and that that enrolment was cancelled on 3 May 2017 and that the applicant was enrolled to run in a further General English course commencing November 2017 to April 2017 and that enrolment was cancelled on 3 May 2017.  

5. The Tribunal noted the applicant had now enrolled in an English for General Purposes course, which would commence in July 2018 and a Certificate IV in Leadership and Management which would run from July 2019 to January 2021.

6. The Tribunal identified the applicant’s family lives in Jordan. The Tribunal identified the criteria that had to be applied under cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal turned to the issue of whether the applicant genuinely intends to stay in Australia temporarily. The Tribunal found the applicant does not satisfy the genuine temporary entrant criterion.

7. The Tribunal was not persuaded by the applicant’s explanation as to why he ceased study in the first of the three General English courses, in which was the stated rationale for his application for the visa. The Tribunal referred to the applicant giving evidence that he had attended only two or three weeks of the course. The Tribunal did not find convincing the applicant’s claim that his migration agent had told him that he was not legally permitted to continue with his studies. The Tribunal placed little weight on this claim because the applicant subsequently gave evidence that the migration agent advised him to enrol in further courses shortly before he attended the hearing.

8. The Tribunal found the very significant period of time in which the applicant has not studied, between March 2017 and July 2018, in conjunction with his failure to complete any of the courses since his initial arrival in Australia, gives rise to concern that he does not have a genuine intention to remain in Australia temporarily, or that he is a genuine student.

9. The Tribunal also expressed concern as to the truthfulness of the applicant’s evidence in relation to being unable to work and not being paid. The Tribunal was not satisfied the bank records the applicant has provided to the hearing support his claim that he has not been in paid employment since the time of his arrival in Australia.

10. The Tribunal accepted the applicant returned to his home country for medical treatment. The Tribunal noted that it had explored with the applicant why he wants to study English skills and that the applicant’s previous qualification is in solar as a solar energy engineer. The Tribunal expressed concern that the applicant had a motivation for coming to and remaining in Australia.

11. The Tribunal was not satisfied by the applicant’s claim that he has done nothing much at all since he ceased studying a General English course in 2017. The Tribunal did accept that the applicant has taken no steps to improve his English language skills during this period.

12. The Tribunal identified the applicant had an economic motivation to remain in Australia. It was in these circumstances the Tribunal was not satisfied the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and the findings of the Tribunal.

13. The Tribunal found the applicant did not meet the criteria under cl 500.212(a) of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 4 September 2018. On 27 September 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file an affidavit on 4 February 2019 annexing the transcript of the hearing before the Tribunal. No other documents were filed on behalf of the applicant.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant maintained that he was a genuine student and advanced reasons as to why it was that he should be accepted as being a genuine student and why the applicant believed that he should have been accepted by the Tribunal in his assertion of intending to stay in Australia temporarily. The applicant’s submissions from the bar table are, in substance, an invitation to this Court to engage in merits review. This Court does not have power to review the merits.

4. The Tribunal provided logical and rational reasons in support of its adverse credibility findings, including, in particular, the limited progress and cancellation of the courses that the applicant had enrolled in to pursue his education and in that regard the Tribunal rejected the applicant’s evidence that his agent had told him that he could not study. That was a finding that was clearly open to the Tribunal and cannot be said to be illogical, irrational or unreasonable. The substance of the applicant’s submissions seek to invite the Court to make fresh findings of fact. This Court has no power to make fresh findings of fact in relation to the applicant’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application is as follows:

   1. Contrary to the Tribunal findings, I am a genuine applicant to stay in Australia as a student and I have provided what the Tribunal requested and the decision of the Tribunal is affected by error of law and made contrary to the law.  

2. The ground in the application asserts that the applicant is a genuine student. The assertion does not of itself identify any relevant error. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal correctly identified the relevant law and made adverse findings that were open to the Tribunal for the reasons given by the Tribunal.

3. The Tribunal’s decision on the face of the material before the Court complied with the statutory obligations in conducting the review and on the face of the material before the Court the Tribunal complied with the requirements of procedural fairness. The bald assertion that the decision was affected by error of law and made contrary to law does not of itself identify any relevant legal error.

4. The applicant’s disagreement with the adverse finding does not establish any legal error and the Court does not have power to determine the matter on compassionate or discretionary grounds. Nothing said by the applicant or in the material before the Court identifies any relevant legal error in the conduct of the review by the Tribunal. No jurisdictional error as alleged in ground 1 is made out.

5. Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019