Bukhari v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1012
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bukhari v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1012
File number: MLG 3413 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 11 October 2024 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal - whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s study history in Australia and his home country – consideration of the applicant’s circumstances in Australia and his home country - no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth) Schedule 2, cll 500.2, 500.212Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submissions: 7 October 2024 Date of hearing: 7 October 2024 Place: Melbourne The Applicant: In person Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3413 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED MUHAMMAD NAJAF HUSSAIN SHAH BUKHARI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed 13 November 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,000.
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 SYMONS:
INTRODUCTION
By an application filed on 13 November 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 24 October 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Tribunal entered a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Pakistan. He arrived in Australia on 22 February 2009 on a subclass 573 student visa.
On 1 March 2017, the applicant applied for the visa (Court Book (CB) 1-26).
At the time of his application, the applicant had received an offer from Australian College of Trade to study a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery with a completion date of 1 October 2018 (CB 31). In his application for the visa, the applicant recorded that he had already completed the following courses (CB 13-15):
·Graduate Diploma of Financial Management at CQ University Australia from 15 March 2009 to 26 February 2010;
·Master of Islamic Banking and Finance at Latrobe University from 26 July 2010 to October 18 2011;
·Diploma of Management at Australian College of Trade from 14 November 2011 to 12 November 2012;
·Advanced Diploma of Management at the Imperial College of Australia from 3 December 2012 to 29 November 2013;
·Diploma of Information Technology Networking at ALTEC from 17 February 2014 to 15 February 2015; and
·Diploma of Business at ALTEC from 16 February 2015 to 16 August 2015.
Pursuant to cl. 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) it was a condition for the grant of the visa that the applicant (as primary applicant) satisfy a number of primary criteria, including what is referred to as the “genuine temporary entrant” (GTE) criterion which is contained in cl. 500.212(a) and expressed (at the relevant time) as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
…
On 21 March 2017, a delegate of the Minister sent the applicant an invitation to provide more information, including a statement addressing the reasons for undertaking the courses of study specified in the visa application (CB 51-57).
By way of response, the applicant provided a statement directed at the GTE criterion dated 28 March 2017 (CB 58-63), together with the following documents (CB 64-89):
·Letter from Silver North Taxi Management dated 10 April 2017;
·Academic documentation;
·Residential Plot Transfer Letter from Defence Housing Authority Bahawalpur dated 25 April 2016;
·Performance Review dated 30 March 2016;
·A copy of his wife’s pay slip; and
·Sale Deeds dated 1 August 2009 and 29 July 2009.
On 12 May 2017, a delegate of the Minister refused to grant the applicant the visa because they were not satisfied that the applicant genuinely intended to stay in Australia temporarily in Australia and did not therefore satisfy cl. 500.212 of Schedule 2 to the Regulations (CB 95-100). The delegate stated (CB 98-100):
The primary objective of a Student visa holder in Australia must be to study a registered course and progress academically. Since completion of his Master of Islamic Banking and Finance onshore in 2011, the applicant has sought enrolment in a series of short, low level, inexpensive courses in a number of different fields of study. The applicant's new enrolment in commercial cookery/hospitality is in yet another field of study and is unrelated to his academic background. Further, no evidence has been provided to establish his proposed courses are relevant to his employment background. I find the applicants continued enrolment in low level, low cost Vocational Education and Training (VET) sector courses indicative he has sought further enrolment not for the purpose of academic development leading to professional opportunities in his home or a third country, but rather to remain in Australia for an extended period for the purposes of employment and examining other migration pathways.
…
Overall, given the applicant’s lack of academic progress, his study history, potential circumstances in Australia, immigration history and the lack of value of the courses to the applicants future, I find that he is using the Student visa program to circumvent permanent migration programs and I am not satisfied that the applicant is a genuine applicant for entry and stay as a student and that he intends to stay in Australia temporarily.
On 26 May 2017, the applicant applied, with the assistance of a registered migration agent, to the Tribunal for review of the delegate’s decision (CB 101-102).
On 6 August 2018, the Tribunal invited the applicant to provide further information relating to his student visa application by completing a Request for Student Visa Information questionnaire under s 359(2) of the Act (CB 109-115). The Tribunal provided the applicant with a copy of Ministerial Direction No. 69 “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian via applications” (Direction 69) and noted its significance to the review application.
Subsequently, the applicant provided the Tribunal with a completed questionnaire, along with a letter of offer from the Australian College of Trade dated 20 August 2018 for placement in a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management with a completion date of 5 October 2020 (CB 116-127).
On 24 August 2018, the applicant was invited by the Tribunal to attend a hearing on 17 September 2018 and to provide certain, identified, information, including a written statement addressing the issue of whether the applicant was a genuine applicant for entry and stay as a student (CB 130-137).
On 16 September 2018, in response to the hearing invitation, the applicant sent the Tribunal a written submission that was prepared by his migration agent, a response to hearing invitation, and the following documents (CB 138-184):
·Overseas Student Confirmation of Enrolment (COE) for Certificate III and IV in Commercial Cookery;
·Government of Pakistan Family Registration Certificate dated 20 August 2015;
·CQ University Notification of Completion Graduate Diploma of Financial Management dated 22 July 2015;
·CQ University Academic Transcript dated 15 March 2010;
·Latrobe University Certificate of Completion Master of Islamic Banking and Finance dated 15 July 2015;
·Latrobe University Academic Record dated 7 September 2011;
·Australian College of Trade Pty Ltd Letter of Completion dated 12 November 2012;
·ACOT Certificate Diploma of Management dated 12 November 2012;
·ACOT Statement of Attainment dated 12 November 2012;
·The Imperial College of Australia Letter of Enrolment in Advanced Diploma of Management dated 4 February 2014;
·The Imperial College of Australia Certificate of Advanced Diploma of Management dated 4 February 2014;
·The Imperial College of Australia Academic Transcript dated 4 February 2014;
·ALTEC Diploma of Information Technology Networking Completion letter dated 16 February 2015;
·ALTEC Diploma of Information Technology Networking Certificate dated 15 February 2015;
·ALTEC Diploma of Information Technology Networking Statement of Attainment dated 16 February 2015;
·ALTEC Diploma of Business Completion Letter dated 17 August 2015;
·ALTEC Diploma of Business Certificate dated 16 August 2015;
·ALTEC Statement of Attainment dated 17 August 2015;
·Board of Intermediate and Secondary Education Certificate dated 27 September 1994;
·Islamia University Bahawalpur Bachelor of Science certificate dated June 1998;
·The University of Lahore Master of Business Administration dated 10 May 2007;
·The University of Lahore Master of Business Administration Transcript dated 29 August 2005;
·Al-Khair University Master of Computer Science Certificate dated November 2000;
·Al-Khair University Master of Computer Science Marks Certificate dated November 2000;
·Daughter’s Birth Certificate dated 15 July 2017;
·Certificate of Employment dated 10 March 2016;
·Emirates Flight Itinerary dated 2013;
·NIB Confirmation of Health Cover dated 20 March 2017; and
·Proof of Property and Land Ownership dated 31 July 2018.
On 17 September 2018, the applicant and his representative attended a hearing at the Tribunal (CB 197-199). Two witnesses gave evidence in support of the applicant’s review application. The applicant provided the Tribunal with three documents (CB 199-203).
On 19 September 2018, following a request made by the applicant’s representative, the Tribunal sent the applicant a copy of the recording of the Tribunal hearing (CB 207).
On 26 September 2018, the applicant sent the Tribunal a copy of his business plan relating to his restaurant business, “Bukhari Gourmet”, that he proposed to operate from a site in Bahawalpur, Pakistan (CB 211-231).
On 30 September 2018, the applicant sent the Tribunal an updated Overseas Student Confirmation of Enrolment dated 27 September 2018 for a Certificate III in Commercial Cookery with Australian College of Trade (CB 232).
DECISION OF THE TRIBUNAL
On 24 October 2018, the Tribunal made a decision to affirm the decision of the delegate not to grant the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 267-272).
The Tribunal identified the issue in the case as whether the applicant intended genuinely to stay in Australia temporarily. In this context, the Tribunal noted that it was required, in considering whether the applicant satisfied cl. 500.212(a), to have regard to Direction 69 and set out the specified factors that it identified (Reasons, [9]-[11]).
Under the heading “Background and applicant’s immigration history”, which the Tribunal identified as relevant to clauses 13 and 14 of Direction 69, the Tribunal referred to the applicant’s evidence given at hearing directed at his arrival in Australia, his trips back to Pakistan, his student visa history and the single visit made by the applicant’s wife and son to Australia. The Tribunal gave little weight to the applicant’s travel movements (Reasons, [13]-[15]).
Under the heading “The applicant’s circumstances in their home country”, which the Tribunal identified as engaging clause 9 of Direction 69, the Tribunal referred to the applicant’s evidence given at hearing that he had completed secondary education, a Bachelor of Science, a Master of Computer Science and a Master of Business Administration in Pakistan (Reasons, [16]).
The Tribunal noted but then rejected the applicant’s claim that he had not completed his studies back in Pakistan because the offering of courses for international food was not available in that country. The Tribunal found that the applicant had not presented reasonable reasons for not undertaking his studies in Pakistan and found that he was using the student visa to maintain ongoing residence in Australia (Reasons, [17]).
The Tribunal referred to the applicant’s evidence regarding the composition of his family in Pakistan – including wife, son and two daughters – but having regard to the applicant’s stated ability to make contact with them on a daily basis, did not consider the applicant’s personal circumstances overseas as a distinct incentive for the applicant to cease residence in Australia (Reasons, [18]).
Under the heading “The applicant’s potential circumstances in Australia”, which the Tribunal identified as relevant to clause 11 of Direction 69, the Tribunal rejected the applicant’s claim that he had no significant ties in Australia. The Tribunal did not accept that during the almost ten years the applicant had been in Australia he had not developed significant community ties and friendships including in circumstances where he had been employed as a taxi driver since October 2010 and had developed close friendships with the two witnesses who gave evidence to the Tribunal. The Tribunal considered that these significant ties would present as a strong incentive for the applicant to remain in Australia (Reasons, [20]).
The Tribunal observed that the current enrolments held by the applicant – for a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management – were for a set of packaged courses in respect of which the applicant had held enrolments in the past. The Tribunal found that had the applicant continued with his studies in the first set of courses, this would have allowed him to return to Pakistan to be with his family and put his future career plans into action. The Tribunal considered that the applicant had prolonged his stay in Australia for the purposes of being granted a further student visa and was using the student visa programme to circumvent the intentions of the programme and to maintain ongoing residence in Australia instead (Reasons, [21]).
The Tribunal noted that it had to press the applicant for information about the content of and utility of the commercial cookery and hospitality courses and given this was the second time the applicant had been enrolled in this package of courses, the Tribunal was not satisfied with the applicant’s knowledge of the intended course of study and the level of research he had undertaken into it (Reasons, [22]).
The Tribunal referred to the applicant’s evidence about the remuneration he received from his work as a taxi driver and as an accountant, as well as the rent he paid for shared accommodation in Melbourne and found that the economic circumstances of the applicant would present as a strong incentive for the applicant not to return to his home country (Reasons, [23]).
The Tribunal acknowledged the statement submitted to the Department dated 28 March 2017 and noted that it mentioned the applicant’s long-term objective to open his own restaurant; to complete commercial cookery courses; reasons for choosing the current education provider; his living arrangement in Australia and his ties to his home country (Reasons, [24]).
The Tribunal also gave regard to the agent’s submission dated 14 September 2018 and noted that it provided a historical background of the applicant, his current situation and a conclusion and that the submission reiterated the information provided by the applicant at the hearing. The Tribunal placed little weight on the submission (Reasons, [25]).
Under the heading “Value of the course to the applicant’s future”, which the Tribunal identified as relevant to clause 12 of Direction 69, the Tribunal recorded the following:
26. …The applicant said to the Tribunal that the value of his proposed set of commercial cookery and hospitality management courses to his future plans back in Pakistan will provide him with the skills to open his own restaurant. The applicant stated that he plans to offer national and international foods at the restaurant and his role will be developing the business, the running of the kitchen and that it will employ approximately 15 people. The Tribunal had to press the applicant to gain the above information. Post hearing the applicant submitted to the Tribunal a full business plan…title Bukhari Gourmet Food Paradise that gave a detailed overview of the proposed business and forecast financials. The Tribunal accepts the relevance of the course to the applicant’s future employment back in his home country and the proposed future remuneration the applicant could expect to receive in his home country, however the Tribunal does not accept that the applicant is undertaking a course that is consistent with his currently (sic) level of education and that the student visa is being used to maintain ongoing residence in Australia.
27. Since arriving in Australia the applicant has completed two Higher Education sector courses, a Graduated Diploma of Financial Management and a Master of Islamic Banking and Finance. After completing the two courses at the Higher Education level the applicant moved to the VET sector and completed a range of diploma and advanced diploma level courses in the areas of management, information technology networking and business. The most recent course the applicant completed was a Skilled Migration Internship Program – Accounting between August 2015 and June 2016. After completing the course in June 2016 the applicant was well qualified and experienced to have returned to Pakistan to find work in the business field. As mentioned in paragraph 16 the applicant had completed a bachelor degree and two master degrees back in Pakistan before coming to Australia. The Tribunal considers the applicant has sufficient qualifications both in the Higher Education and VET sector to gain employment back in Pakistan. The Tribunal finds the student visa is being used to maintain ongoing residence in Australia.
The Tribunal then, in separate paragraphs, recorded the evidence given by the two witnesses. The evidence referred to the applicant’s plans upon return to Pakistan and some stressors the applicant had experienced while pursuing his studies. Both witnesses described the applicant as a “good student” (Reasons, [28]-[29]).
The Tribunal noted that there was no relevant evidence regarding the Direction 69 factors of political and civil unrest in the home country, whether the primary and secondary applicant had entered into a relationship of concern for a successful student visa outcome, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country (Reasons, [31]).
The Tribunal found, “on the basis of the above” that it was not satisfied that the applicant intends genuinely to stay in Australia permanently and that he did not meet cl. 500.212(a) or cl. 500.212 (Reasons, [31]-[32]).
APPLICATION FOR JUDICIAL REVIEW
On 3 September 2020, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of application, any supplementary court book, and written submissions. The applicant did not file any of these documents. In accordance with the procedural orders, the Minister filed written submissions on 8 August 2024.
The matter came before me for final hearing on 7 October 2024. On that occasion, the applicant appeared in person and represented himself. The Minister was represented by solicitor advocate, Mr O’Shannessy.
At the beginning of the hearing, I confirmed with the applicant that he had with him a copy of the court book (including the decision of the Tribunal) his application seeking judicial review, and the Minister’s written submissions. The applicant told the Court that he had prepared his application document and indicated a familiarity with the grounds of review recorded in that document.
I explained to the applicant that my role on judicial review was limited to a consideration of the decision and process undertaken by the Tribunal and that this involved an inquiry into whether the decision or process was affected by one or more category of jurisdictional error. I explained that jurisdictional error can include the denial to an applicant of an opportunity to present their case or material, a failure to consider relevant material, taking into account irrelevant material or a misunderstanding or misapplication of relevant law. I was at pains to explain to the applicant that the hearing was not concerned with the revisiting of the facts of his case and that his attention instead should be directed to the decision of the Tribunal.
The applicant’s submissions
The applicant addressed the Court primarily by reference to the following grounds of review identified in his application document filed on 13 November 2018:
1.Courses indicated into PRISMS are closely relevant with my previous study.
2.Visa officer has the authority to email me and request for additional documents but the officer as mentioned that I have provided all the documents except a business plan which was not being requested by the department of immigration.
3.Throughout my study in Australia, I have completed my all granted visas which indicate that I am a genuine temporary resident.
4.In Tribunal court I have submitted my professional year course certificate which I have completed during my skilled graduate 485 visa, so, how can I start my VET course as mentioned by the Minister that I should complete during that period.
5.I never called my family for stay during my student visa period and even during my 485 visa, because my wife doing job in a local bank and my children studying in school which indicate my intention to live in my country.
6.Tribunal admitted that I am 44 year of age and it is very difficult for me to arrange job in the financial sector. I have provided before the tribunal my land purchase deed for my business
7.I have provided business plan in Pakistan before the tribunal on request which is not mentioned that clearly indicate that the importance of this course and my intention
The applicant’s principal complaint was that the Tribunal had not appreciated that as a person of 44 years of age and with three children, he would experience difficulty obtaining work in the private sector and that because of this he had determined it would be better to start his own restaurant business. The applicant strenuously denied the suggestion contained in the Tribunal decision that he had sought the visa to seek and/or maintain residence in Australia and insisted that he was a good and genuine student.
The applicant was also concerned that the delegate had failed to ask him to produce a business plan and had made adverse comments, noting its absence, in its decision.
The Minister’s submissions
The Minister submitted that none of the matters identified in the applicant’s application document were capable of giving rise to jurisdictional error including, in some cases, because they raised complaints about the decision and/or process of the delegate rather than the Tribunal.
As far as grounds three and five were concerned, the Minister characterised both as involving an attempt to cavil with the Tribunal’s findings that the applicant did not intend to genuinely stay in Australia temporarily. The Minister submitted that this involved an impermissible attempt to engage the Court in merits review of the Tribunal decision which was antithetical to the principle set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As far as grounds six and seven were concerned – which involved an implicit complaint that the Tribunal failed to consider the applicant’s “land purchase deed” for his business and related “business plan” – the Minister submitted that the Tribunal had referred to and given consideration to the business plan and appeared to have been cognisant of the applicant’s land purchase, when it made reference to evidence to this effect given by one of the applicant’s witnesses (Reasons, [28]).
CONSIDERATION
I am not persuaded that any of the matters identified by the applicant reveal jurisdictional error in the decision of, or approach taken by, the Tribunal.
It is to be recalled that the GTE criterion is concerned principally with the question of whether an applicant for a student visa intends to stay temporarily in Australia in pursuit of study, rather than the question of whether an applicant is a “genuine student”. The applicant in his submissions focused on the second issue and failed to appreciate that the Tribunal’s approach and ultimate lack of satisfaction about his ability to satisfy the GTE criterion, reflected its concern that the applicant’s extant enrolments were inconsistent with his current level of education which, on any view, was substantial. The Tribunal considered that the applicant’s study trajectory revealed that the applicant was using the student visa as a means to maintain ongoing residence in Australia.
In doing so, the Tribunal had regard to the business plan provided by the applicant and recorded favourable findings about its content. The Tribunal accepted that the courses in which the applicant was currently enrolled would be relevant to his proposed future employment (as reflected in the business plan). However, the Tribunal (as it was entitled to) took a longer-term view of the applicant’s time in Australia and the number of courses undertaken by the applicant over this period. The Tribunal was concerned that the number and diminishing status of the courses undertaken by the applicant suggested that the applicant was seeking to prolong his stay in Australia. In this respect, the Tribunal was especially concerned that the applicant had foregone an earlier opportunity to study the same package of hospitality courses that he now wished to pursue. I consider that this approach and finding was open to the Tribunal on the material that was before it and did not involve the Tribunal committing any error in the application of the GTE criterion, including as informed by Direction 69.
I am satisfied that the Tribunal had regard to the material provided by the applicant, including the submissions made on 28 March 2017 and 14 September 2018 and that the applicant had a genuine opportunity to present his case to the Tribunal, noting that the Tribunal took evidence from two witnesses identified by the applicant, received documents from the applicant during the hearing and gave the applicant the opportunity to provide further material (including the business plan) following the hearing.
ORDERS
For the reasons set out above I have not been persuaded that the decision of the Tribunal dated 24 October 2018 is affected by jurisdictional error.
Accordingly, I will order that the application dated 13 November 2018 be dismissed and that the applicant pay the Minister’s costs fixed in the amount of $7,000.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 11 October 2024
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