Butt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 26
•9 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Butt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 26
File number(s): LNG 83 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 9 September 2021 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it resulted from a denial of natural justice and was unreasonable.
Legislation: Migration Act 1958 (Cth), ss 357A, 359A, 474
Migration Regulations 1994 (Cth), sch.2 cl.500.212
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.01(4)
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 26 August 2021 Counsel for the Applicants: The first applicant appeared in person Solicitor for the Respondents: Mr D. Wilson (AGS) ORDERS
LNG 83 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASIM MEHMOOD BUTT
First Applicant
NARMEEN MAZHAR
Second Applicant
MUHAMMAD ABUBAKAR BUTT
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 CAMERON
The first and second applicants (“the applicants”) are husband and wife respectively, and citizens of Pakistan. The third applicant is the son of the applicants and was born in Australia in about 2018. On 19 October 2018 the first and second applicants applied to the Department of Home Affairs (“Department”) for Student (Temporary) (Class TU) Subclass 500 visas. The first applicant, Mr Butt, applied on the basis of his intention to study in Australia. The second applicant, Ms Mazhar, applied as a member of her husband’s family unit. It appears that the third applicant was born after the visa application was made and that he was not subsequently made a party to it.
The first and second applicants’ applications were refused by a delegate of the first respondent (“Minister”). Mr Butt’s application was refused on the basis that it did not satisfy the requirements of cl.500.212 of sch.2 of the Migration Regulations 1994 (“Regulations”). Ms Mazhar’s application was refused because it depended on the outcome of her husband’s application. The first and second applicants applied to the Administrative Appeals Tribunal (“Tribunal”) for review of those decisions. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In this proceeding, the Court cannot rehear the applicants’ visa applications. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
LEGISLATION
Clause 500 of sch.2 to the Regulations sets out the criteria for the grant of a subclass 500 (student) visa. At all relevant times, cl.500.212 relevantly provided:
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
…
In considering cl.500.212, the Tribunal must have regard to Ministerial Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’. It requires the Tribunal to have regard to:
a)the principal applicant’s circumstances in their home country;
b)the principal applicant’s potential circumstances in Australia;
c)the value of the course to the principal applicant’s future;
d)the principal applicant’s immigration history; and
e)any other relevant matters.
BACKGROUND FACTS
Mr Butt first arrived in Australia in 2011. Since arriving, he has returned to Pakistan three times to visit his family and to marry Ms Mazhar. Mr Butt has otherwise resided in Australia for the past 10 years. In this time, he has held three student visas, a work visa and a bridging visa.
Mr Butt completed a Bachelor of Computer Science in Pakistan before arriving in Australia. He has subsequently gained the following qualifications in Australia:
a)Elicos (English course) in 2011;
b)Certificate IV in Small Business Management in 2012;
c)Bachelor of Business (Information Systems) in 2016; and
d)Diploma of Leadership and Management in 2020.
Mr Butt also completed a year of work experience between 2017 and 2018 in Australia.
The visa application the subject of this proceeding was made pursuant to, relevantly, Mr Butt’s enrolment in a Graduate Diploma of Management (Learning) which he commenced on 27 April 2020 and was due to complete on 23 April 2021.
The Tribunal’s decision and reasons
On 9 April 2020 the Tribunal wrote to the first and second applicants inviting them to provide all relevant information about the course of study Mr Butt was undertaking and about his entry and stay in Australia as a student. Later, the Tribunal invited the applicants to a hearing on 25 November 2020 to give oral evidence and present arguments, which Mr Butt attended by telephone.
The Tribunal was not satisfied that Mr Butt is a genuine applicant for entry and stay as a student as required by clause 500.212. The Tribunal relevantly reasoned as follows:
a)in relation to Mr Butt’s circumstances in his home country, the Tribunal had regard to Mr Butt’s evidence that his mother and eight siblings live in Pakistan and that he has an interest in the family import/export business based there, but found that those ties did not provide a significant incentive for him to return to his home country. The Tribunal noted that Mr Butt had been living in Australia for 10 years but had visited Pakistan only three times in that period, although it accepted that he had reasonable reasons for not undertaking his then-current course of study in Pakistan;
b)as to Mr Butt’s potential circumstances in Australia, the Tribunal found that he has ‘an affinity or close connection with living in Australia’ and that his ties to Australia present as a strong incentive for him to remain here. The Tribunal found that Mr Butt had established living arrangements in Australia, had a sound knowledge of living in Australia and was fluent in English. When asked by the Tribunal what he intended to do when he completed his current course of study, Mr Butt said that if he completed his course prior to the birth of his second child he might need to “get another CoE” to remain in Australia for the birth. He said his intention was to thereafter return to Pakistan;
c)in relation to the value of the course to Mr Butt’s future, the Tribunal was not satisfied that his then-current course would assist him to obtain employment in Pakistan. The Tribunal noted that Mr Butt had told it that although when he lodged his visa application his intention had been to work in his family’s import/export business upon his return to Pakistan, his intention had become to start his own IT firm there, saying that his experience working for an IT company in Australia had led to this change in his plans. The Tribunal was not persuaded by this explanation. During the Tribunal hearing, Mr Butt was also asked why he could not apply the knowledge and experience he had already gained in Australia to return to Pakistan and start an IT firm, in response to which he gave general statements about needing to learn management and leadership skills from his current course of study. He was unable to explain, other than in general terms, the benefit of the course to his future plans;
d)as to Mr Butt’s immigration history, the Tribunal referred again to his comment that he might need to “get another CoE” to remain in Australia for the birth of his second child and assessed this factor against him; and
e)the Tribunal was concerned that Mr Butt intended to use the student visa program to circumvent the intentions of the migration visa program and found on balance that the evidence indicated that he would use the student visa program to maintain residence in Australia and not genuinely for the purpose of study.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicants alleged that:
1-The Administrative appeals failed to provide procedural fairness and natural justice.
2-The Administrative tribunal was harsh and unjust in his decision should have afforded me the benefit of doubt.
3-The administrative tribunal made an error in law and applied the regulations too strict.
CONSIDERATION
Ground 1
The first ground of the application alleges denials of procedural fairness and natural justice. The Tribunal’s natural justice obligations are codified by s.357A of the Act in those provisions found in div.5 of pt.5 of the Act but the applicants have not identified which, if any, of those provisions may have been breached. It should also be noted that s.357A does not exclude the operation of the natural justice bias rule but no allegation of bias has been made in this case.
Although the applicants did not suggest in what way they were denied natural justice, it should be noted that they were invited to attend the Tribunal hearing and the first applicant did attend by telephone. The issues that were relevant to the determination of the review were the relevant criteria for the grant of the visas sought and the considerations set out in the Ministerial Direction, all of which were advised to the first and second applicants in the Tribunal’s letter to them of 9 April 2020. Further, the information on which the Tribunal reached its decision was information provided to it by the first and second applicants and so no relevant duty arose under s.359A of the Act.
For those reasons the error alleged in the first ground of the application has not been made out.
Ground 2
In the second ground of their application, the applicants allege that the Tribunal’s decision was harsh and unjust. That characterisation suggests an invitation to the Court to reach a decision on the applicants’ case different from the one reached by the Tribunal. However, as explained earlier in these reasons and to the first applicant at the hearing of his application, the Court cannot rehear the first and second applicants’ applications. To the extent that the second ground of the application is an allegation of irrationality or unreasonableness, the issue that raises is whether it had been open to the Tribunal to engage in the process of reasoning in which it engaged and to make the findings it made on the material before it:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131] per Crennan and Bell JJ)
The requirement of reasonableness in the Tribunal’s reasoning and fact finding is not limited to its ultimate decision on the review but applies also to its intermediate findings although:
Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result … (Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221 [55])
Having reviewed the Tribunal’s decision, I am unpersuaded that it was not open to the Tribunal to make the findings and reach the conclusion that it expressed.
The applicants also allege in the second ground of their application that they should have been afforded “the benefit of the doubt”. That argument is derived from the reasons of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 where his Honour referred to the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees, which his Honour quoted at 451-452 to say:
(2) Benefit of the doubt
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
It was said in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, a case in which an applicant sought a protection visa, that:
… it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. (at 557)
Even in refugee claims however, although the Tribunal should adopt a liberal attitude in considering the credibility of the claims of a person seeking protection, it is not obliged to accept those claims uncritically: Randhawa at 541. This is a proceeding that concerns an application for a student visa. The considerations which call for the account of a person claiming to be fleeing persecution to be treated with an appreciation of the alleged difficulties of their situation do not apply in this case. In any event, the first applicant’s evidence as to relevant events was not rejected. The matter in issue before the Tribunal in the first and second applicants’ case was the conclusion to be drawn from those facts and the first applicant’s stated intentions. It was not suggested in Randhawa that the benefit of the doubt should be given at that stage of the decision-making process.
The applicants have not demonstrated that the Tribunal erred for the reasons alleged in the second ground of the application.
Ground 3
The allegation in the third ground of the application that the Tribunal had been “too strict” in its application of “the regulations” seeks to impugn the Tribunal’s decision-making process but does not identify what duty was breached. In substance this ground contends that the Tribunal should have reached a decision different from the one at which it arrived, which is an invitation to undertake merits review, not judicial review. For that reason it does not identify any relevant error on the Tribunal’s part.
Third applicant
The Minister submitted that the third applicant had been incorrectly joined in the proceeding as he had not been included in the visa application and had not been a party to the Tribunal review. The Minister correctly pointed out that the third applicant could obtain no relief against the Tribunal as it had made no decision in relation to him.
At the hearing of this application I invited the first applicant, as the person who had caused the third applicant to be joined in the proceeding, whether he would consent to his son’s removal from it. Understandably, unassisted by a legal representative he declined to give his consent. It is also questionable whether, as he was not the third applicant’s litigation guardian, a matter which had not been addressed at any time in the proceeding, the first applicant could have given meaningful consent in any event.
Be that as it may, the Court may decide the matter even if a person has been incorrectly included as a party: r.11.01(4) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. As the application is to be dismissed no separate order will be made in relation to the third applicant although, because his situation is different from the other applicants, he will not be at risk of a costs order
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 September 2021
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