BILIWAL v Minister for Immigration

[2018] FCCA 1504

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILIWAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1504

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – whether the Tribunal decision is affected by jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359AA

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312

SZNOA v Minister for Immigration and Citizenship [2010] FCA 60

Applicant: BILIWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1424 of 2016

Judgment of: Judge Obradovic

Hearing date: 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Parramatta

Delivered on: 8 June 2018

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the First Respondent: Ms Luchese

Solicitors for the First Respondent: Sparke Helmore

Appearing for the Second Respondent: Submitting appearance

ORDERS

1. The Amended Initiating Application filed 17 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1424 of 2016

BILIWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant is a citizen of Pakistan, who entered Australia on 11 November 2012 as a holder of a student visa. The applicant has not completed any studies since his arrival on a student visa.

2. On 7 July 2015, the applicant applied for a temporary work (skilled) (subclass 457) visa, with a nominated position of customer service manager. The nomination for the visa was refused on 9 October 2015.

3. On 9 July 2015, the applicant applied for a student (subclass 573) visa, which was refused on 15 October 2015. The delegate refused the application on the basis that the applicant did not satisfy the criteria in cl.573.223 of Schedule 2 to Migration Regulations1994 (Cth) and was not a genuine applicant for entry and stay as a student temporarily.

4. On 3 November 2015, the applicant then applied to the Administrative Appeals Tribunal seeking a review of the delegate’s decision of 15 October 2015.

5. On 15 March 2016, the Tribunal wrote to the applicant inviting him to attend a hearing. That invitation put the applicant on notice that the genuine temporary entrant criterion was in issue and also enclosed a copy of the Ministerial Direction No.53.

6. On 12 April 2016, the applicant accepted the invitation to hearing and emailed the documents in support of his application, including a “Statement of Purpose”.

7. On 19 April 2016, the applicant attended the hearing before the Tribunal.

8. On 10 May 2016 the Tribunal affirmed the decision not to grant the applicant the visa.

9. The applicant now seeks judicial review of the decision of the Tribunal made on 10 May 2016.

10. In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.

11. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.

12. In his amended application, the applicant sets out two grounds of review, namely:

    a)That the Tribunal erred in law by asking a wrong question of law and it failed to correctly apply the test of “Genuine Intention to study and temporarily stay in Australia” criteria specified in sub-class 573; and

    b)That the Tribunal erred in law by deciding the matter without giving proper information as required under s 359AA Migration Act1958 (Cth) and also violated the principles of natural justice.

13. Even though the applicant had been ordered[1] to provide written submissions to support those grounds he had not done so. At the hearing, the Court invited the applicant to make oral submissions in support of his application which opportunity the applicant accepted.

Determination

[1] Order dated 28 July 2016: 6. The applicant must file and serve written submissions and a list of authorities 14 days before the final hearing.

Ground 1

1. When pressed by the Court to explain what the “wrong question” which the Tribunal asked itself was, the applicant submitted that the Tribunal failed to correctly apply the relevant test, which was articulated as a ‘genuine intention to study and temporarily stay in Australia’. Indeed what the applicant was submitting was that the facts as it found, when applied to the test, ought to have resulted in the Tribunal granting the visa.

2. The applicant submitted in essence that the Tribunal made an error in not finding that the applicant had a genuine intention to study and/or temporarily stay in Australia. He submitted that the only reason he was in Australia was to study and that he would go back once he completed his degree.

3. The applicant submitted that the Tribunal found that the majority of the applicant’s family was in Pakistan and therefore it should have found that he had the intention to only remain temporarily in Australia for the purpose of study.

4. What the Tribunal found was that all but one member of the applicant’s family lived in Pakistan, that he had a close relationship with his parents, that his family was financially secure and that these factors would act as incentives for him to return. [2] However, balanced against this was the applicant’s academic performance in Australia, which was found by the Tribunal to be less than satisfactory, given that he had not completed any course since his arrival in November 2012.

   [2] CB 84 at [23]

5. The Tribunal took into consideration the evidence that the applicant suffered from depression in mid-2015, but also noted that he did not seek specialist advice either in Australia or in Pakistan, and that he was not prescribed any medication in Australia for the condition. Further, the Tribunal noted that the applicant’s failure to make academic progress existed before any mental health issues emerged.[3]

   [3] CB 26-27. An ultrasound specialist in Pakistan certified that the applicant was as at 27 November 2014 suffering from “…Hallucinations with Depression. Treatment given. Advised rest for one month and treatment should be continue (sic) till six months”.  There is then what appears to be a list of treatment (medication) prescribed, with a list of: “Vertigo, Anxiolytic, Depression” at the top of the page. The earliest the evidence suggests the applicant was diagnosed with depression is November 2014.

6. A submission with respect to Ground 2 below, made by the applicant related to an alleged failure by the Tribunal to provide him with procedural fairness with respect to information from the Provider Registration and International Student Management System (“PRISM”). This information indicated that the applicant had not passed any of the six courses in which he had been enrolled since arriving in Australia. Even though not specifically mentioned as part of its reasons with respect to the applicant’s poor academic performance[4] the PRISM information was referred to in the Tribunal’s reasons. The PRISM information was material that was put to the applicant at the Tribunal hearing. The applicant confirmed that he understood the information from PRISM,[5] and indicated that one of the cancellations on the PRISM record was a mistake by the provider.[6]

   [4] CB 84 at [24]

   [5] CB 83 at [20]

   [6] CB 83 at [13]

7. Lastly, in respect of the applicant’s academic performance, the Tribunal referred to a certificate from Holmes Institute dated 8 April 2016, [7] which stated that he commenced his current enrolment in a Bachelor of Professional Accounting on 9 November 2015 and that he has completed 59% of the course[8].

   [7] CB 82 at [12].

   [8] At CB 82 at [12] the Tribunal referred to the applicant’s academic transcript for a course in Bachelor of Business (Accounting) at Kings Own Institute of Business and Management in which he enrolled on 12 November 2012. On that document the applicant is shown as gaining 11 of the 24 subjects required, six of which were by exemption. 10 subjects have a grade of F (Fail): CB 29

8. The applicant submitted that the Tribunal failed to take into consideration the statement provided by the applicant’s education provider in respect of the partial completion of his course. This is clearly not the case. The statement was specifically referred to in a number of passages in the Tribunal’s reasons.[9]

   [9] CB 82 at [12], 83 at [20] and 84 at [24]

9. No academic transcript was provided by the applicant with respect to this enrolment before the Tribunal hearing, during the Tribunal hearing or after the Tribunal hearing. His evidence at the Tribunal hearing was that he had passed only two out of four subjects thus far.

10. The Tribunal concluded that the applicant’s poor academic performance was indicative that he had used the student visa program as a means of maintaining residence in Australia.[10] Such a finding was clearly open to the Tribunal on the matters and for reasons referred to above[11].

    [10] CB 84 at [24]

    [11] Particularly [18] to [22]

11. The applicant further submitted that the Tribunal’s consideration of his sub-class 457 visa application was either irrelevant[12] or led the Tribunal into error by placing too much weight[13] on it. In essence the applicant submitted that this too was a temporary visa application so he could never have stayed here permanently even if this visa had been granted. The applicant submitted that he never stopped studying and it wasn’t his intention to stop studying even after he applied for the temporary work visa, indeed he kept his studies going to date.

    [12] Not words the applicant used, but the gist of his argument

    [13] Once again, not the words used by the applicant, but the gist of his argument

12. The way that the Tribunal considered the sub-class 457 visa application was in the context of the student visa application[14]. It was put to the applicant by the Tribunal member that the nominated position in his 457 visa application was incompatible with his stated career path and that the application for a temporary work visa cast doubt on the truth of his claim that he intended to remain in Australia as a student only temporarily.[15]

    [14] And by reference to Ministerial Direction 53: CB 80 at [8]

    [15] CB 83 at [19]

13. At the Tribunal hearing, the applicant said that it was his employer who had suggested he could work full time and still continue his studies. The applicant also said that it was a mistake for him to have made the application as his intention was not to remain in Australia but to return to Pakistan. The Tribunal noted these matters;[16] that is the applicant’s explanation in respect of his subclass 457 visa application, but was not satisfied that the application for the subclass 457 visa was compatible with the applicant’s claimed intention to remain in Australia temporarily as a student. Such findings were open to the Tribunal on the evidence before it and for the reasons it gave.

    [16] CB 85 at [25]

14. Having heard his submissions, it is clear that the applicant is in fact seeking an impermissible merits review of the Tribunal’s decision[17]. In reality, the applicant’s contentions in relation to this ground do not rise above a strong disagreement with the Tribunal’s reasoning and decision.

    [17] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

15. The Tribunal’s findings were open to it on the material before it and for the reasons it gave. The Tribunal’s reasons disclose a logical chain of reasoning between the established facts and the conclusions drawn by the Tribunal from them.

16. There was no identification of any ‘wrong question’ by the applicant before the Court nor did the applicant establish that the Tribunal incorrectly applied the appropriate test.[18]

    [18] Despite the grounds identified in his Amended Initiating Application as to the Tribunal’s failure to correctly apply the test, the applicant conceded that the Tribunal did correctly apply the test but that it found the criteria was not satisfied by the applicant

17. For reasons explained, the Ground is not made out.

Ground 2

1. This was a new ground relied upon in the Amended Initiating Application, which was filed more than 20 months after the time provided for such document to be filed. While a formal objection was raised by the Respondent in the written submissions, no further objection was raised at final hearing in respect of the Amended Initiating Application being relied upon. Consequently, the ground argued in the amended document was considered at final hearing.

2. In his submission, the applicant identified an alleged failure by the Tribunal to provide him with procedural fairness in the context of its obligation pursuant to s359AA.

3. The alleged failure deals with the information contained in the PRISM records. There are two sub-arguments by the applicant in this regard.

4. Firstly, the applicant submitted that by not providing him with a copy of the PRISM record the Tribunal failed to comply with its obligations pursuant to s359AA, and secondly that the Tribunal did not provide the applicant with an opportunity of providing information about those matters on a later date, once again contrary to s359AA.

5. Section 359AA provides that the Tribunal may orally give to the applicant 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. If the Tribunal does so, then it must:

   a)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   b)orally invite the applicant to comment on or respond to the information; and

   c)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

d)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

1. There is no obligation pursuant to s359AA for the Tribunal to provide copies of documents to an applicant. The obligation is limited to providing clear particulars of certain information.[19]

   [19] The PRISM information was also referred to in the delegates decision: CB 41. It was not a new matter to the applicant.

2. Assuming that the PRISM information is information which is relevant for s359AA purposes[20] (although no such finding is made herein), the Tribunal did provide particulars of that information to the applicant at the Tribunal hearing. Indeed, the applicant conceded at the Tribunal hearing that the information was correct.[21] The applicant confirmed that he understood the information from PRISM,[22] and indicated that one of the cancellations on the PRISM record was a mistake by the provider.[23]

   [20] This seems to be what the Tribunal was saying CB 84 at [20]

   [21] CB 82 at [13], and CB 83-84 at [20]

   [22] CB 83 at [20]

   [23] CB 83 at [13]

3. Furthermore, the Tribunal reasons indicate that the applicant was invited at the Tribunal hearing to comment or respond to the information and that it was explained to him that he could do so at once, at a resumed session of the hearing or in writing, with further time available for these purposes if necessary.[24]

   [24] CB 84 at [20]

4. Despite the orders made on 28 July 2016 and an almost two year period between the commencement of these proceedings and final hearing, the applicant has not put before the Court the transcript of the Tribunal hearing, having been provided with the recording of the hearing on 19 April 2016.[25]

   [25] CB 75

5. In the absence of a transcript of the Tribunal hearing, there is no reason to doubt that the Tribunal complied with s359AA as stated in its reasons.[26]

   [26] SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19]; SZNOA v Minister for Immigration and Citizenship [2010] FCA 60 at [21]

6. Section 357A(1) makes it clear that Part 5 Division 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

7. Consequently this Ground is not made out.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. Therefore, the application for judicial review is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date:  8 June 2018