Chishtie v Minister for Home Affairs

[2018] FCCA 1823

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHISHTIE v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1823

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student temporary (class TU) visa – whether Applicant is a genuine temporary entrant – cl.572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 – where Applicant completed only 2 courses in 6 years, with no courses completed in the last 3 years – Applicant claims non-attendance due to humiliation at university, leg injury and student visa refusal – whether Tribunal failed to give evidentiary weight to Applicant’s evidence – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.572.223(1)(a)

Cases cited:

Lee v Minister for Immigration (2005) FCA 464

Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration v SZRKT (2013) 212 FCR 99

Applicant: MUHAMMAD ALI CHISHTIE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 551 of 2018

Judgment of: Judge Baird

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Sydney

Delivered on: 18 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms S. Sangha, Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYG 551 of 2018

MUHAMMAD ALI CHISHTIE

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 6 February 2018 to affirm a decision of a Delegate of the First Respondent, the Minister for Home Affairs, dated 15 December 2016 to refuse to grant the Applicant a student temporary (class TU) Visa.

Background

1. The Applicant is a citizen of Pakistan, born in January 1988.  He arrived in Australia on 5 June 2010 as the holder of a student (subclass 572) visa which he had obtained overseas.  He has subsequently held, from time to time, either a student or associated bridging visas.  On 15 March 2016 the Applicant applied for the present Visa on the basis of his enrolment in a Certificate IV in Human Resources course, proposed to start on 22 February 2016, and a Diploma of Human Resources Management, proposed to start on 20 February 2017, both with Sicop Education & Technology Pty Limited, trading as Gateway Business College.

2. By letter dated 15 September 2016, the Department wrote to the Applicant and requested that he provide additional information including a statement addressing the genuine temporary entrant (GTE) criterion contained in cl.572.223(1)(a) of schedule 2 of the Migration Regulations 1994 (Cth). That clause, at the relevant time of the application, provided:

   (1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)   the Minister is satisfied that 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; …

3. The letter also requested evidence of study, stating that:

   Our records indicate you did not attend or complete any study for a significant period of time.  Provide evidence of your study undertaken in Australia from August 2014 to January 2016.

4. By a statement dated 19 September 2016, the Applicant purported to address the GTE criterion, but did not provide any evidence of study in that requisite period. 

5. The Delegate refused to grant the Visa on the basis that the Applicant was not a genuine applicant for entry and stay as a student, as required by cl.572.223(1)(a) of schedule 2 to the Regulations. The Delegate found, in particular, that the Applicant had only completed 2 vocational courses in the past 6 years, with no courses completed in the last 3 years. The Applicant did not undertake any studies between 10 March 2015 and 22 February 2016.

The Tribunal proceeding and decision

1. On 4 January 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.  The Applicant was represented in connection with his review application by a registered migration agent. 

2. On 29 September 2017, the Applicant was invited to attend a hearing scheduled before the Tribunal on 31 October 2017, and he did so with his migration agent.  Prior to the Tribunal hearing, on 25 October 2017, the Applicant’s representative provided further documents in support of his review application including email correspondence from Victoria University and an email on its face purporting to be from Mr Shakeel Chishtie, the Applicant’s father, dated 6 September 2013. 

3. After the Tribunal hearing, on 14 November 2017, the Applicant provided to the Tribunal a letter of offer to study at Gateway Business College in the Certificate IV in Human Resources course. 

4. The Tribunal, in its decision, identified that the issue on the review was whether the Applicant genuinely intended to stay in Australia temporarily as required in cl.572.223(1)(a). In considering whether the Applicant met the GTE criteria, the Tribunal identified that Direction Number 53, “Assessing the genuine temporary entrant criterion for Student visa applications” made under s.499 of the Act (which had been provided to the Applicant enclosed with his hearing invitation letter), required it to consider the Applicant’s case against a list of factors which, the Tribunal correctly appreciated, were not to be used as a checklist but are intended as a guide to decision-makers to weigh up the Applicant’s circumstances as a whole.

5. The Tribunal found that there were 3 specific events which the Applicant claimed led to him being unable to study (at [19] of its decision).  These were:

   (1)an alleged incident at Victoria University where he was humiliated and which, he says, resulted in him being too stressed to study;

   (2)an incident which occurred during a trip home to Pakistan when the Applicant claims he broke his leg, and on his return to Australia, had to take bedrest; and

   (3)the refusal of his student visa, which event, the Applicant says, prevented him from studying.

6. The Tribunal in its decision at [20] through to [22] considered each of these incidents and the emails provided in support of his claims. 

Incident 1

1. In relation to the alleged incident at Victoria University, the Tribunal had regard to an email, purportedly from the Applicant’s father to the University, dated 6 September 2013 (see above at [8]), which stated that staff members were threatening the Applicant with cancellation of his enrolment and requested “some form of scholarship or compensation”.  The Tribunal was concerned that there was no response from the University, and found that “it is highly likely that the university would have responded” due to the nature of the allegations made by the Applicant’s father. 

2. The Tribunal had regard to emails from the University to the Applicant later in 2013 (in October and November), and noted that they were concerned with other issues, namely: 

   (a) the Applicant not responding to contact from them;

   (b) the Applicant being given permission to submit a make-up essay;

   (c) an inquiry as to the Applicant’s welfare due to his absence from campus;  and

   (d)an offer of a meeting to develop study strategies. 

3. The Tribunal concluded at [20]:

   There is no correspondence from the [U]niversity about the incident alleged by the [A]pplicant, and, rather than threatening his enrolment, university staff were offering ongoing support to the [A]pplicant due to his absence from campus and non-submission of work.

   For the above reasons, the Tribunal concluded it could not be satisfied that the email in question, dated 6 September 2013, was actually sent.

4. According to the Tribunal decision record, the Applicant told the Tribunal that after his negative experience at University, he returned to Pakistan for three months. However the Tribunal noted at [21] that according to departmental records, the Applicant left Australia on 26 November 2014 and returned on 10 March 2015 which (the Tribunal noted) is over a year after the alleged incident at University referred to in his father’s email of 6 September 2013.  The Tribunal found the Applicant had not accounted for his activities during this period except to say that he was “too stressed” and suffered from depression.  At [21], the Tribunal stated that:

   The [A]pplicant has not provided satisfactory evidence of an incident that affected his ability to study.  If such an incident did occur, it was open to him to postpone his education and return to Pakistan until he felt able to study.  Instead, the [A]pplicant returned to Australia but did not undertake the course in which he was enrolled.

Incident 2

1. In relation to the Applicant’s claimed injury to his leg, the Tribunal was not satisfied that the Applicant had sustained an injury such that he was unable to study for over a year (at [22]).  The Tribunal found that the medical evidence submitted did not indicate a fracture as claimed (and I note that the medical evidence contained in exhibit 1, the Court Book, identifies the Applicant’s injury as a soft tissue injury to the left ankle suffered on or about 15 February 2015).

2. The Tribunal also referred to an interchange between the Department of Immigration and Border Protection (the Delegate) and the Applicant. When the Department requested medical evidence of the injury, the Applicant replied that he had to ask his family to scan and send the documents from overseas.  Although the Applicant had claimed that his education agent did not send the relevant documents to the Department, the Tribunal noted in its decision at [22] that the Applicant has still not provided independent medical evidence consistent with his claims.  I note that the Tribunal decision was made on 6 February 2018, which provided ample time after the Tribunal hearing on 31 October 2017 for the Applicant to provide this evidence. 

Incident 3

1. The Tribunal observed that these issues, together with the Applicant’s claim that he thought he had to stop studying when his visa was refused, are not the behaviour of a genuine student. 

The Applicant’s current study and other matters

1. Although the Applicant submitted a current offer of enrolment from Gateway Business College, The Tribunal observed at [22] that the course was a regression in his studies, as the Applicant had previously completed in Australia a Diploma and an Advanced Diploma of Information Technology (see the Tribunal decision at [4]), and that the Applicant had also said, as recorded by the Tribunal at [8], that he intends to take over the family business which was said to be a software company.  The Tribunal did not accept that the Applicant has to return to certificate level courses because of the matters he put forward for his failure to study or maintain enrolment. 

2. I note that during the hearing before the Tribunal, the Applicant’s representative mentioned that the Applicant has a pending application for a subclass 457 visa and that he is working as a cook, not a kitchenhand.  The Tribunal asked the Applicant how applying for that visa fits with his claims of wanting to continue studying and eventually taking over his family’s software business.  The Applicant said he only works at night so it will not affect his attendance at college, and taking over the family business is still his long-term plan (see Tribunal decision at [11]).  The Tribunal appears to have accepted that explanation.

Tribunal’s conclusion

1. The Tribunal stated at [23] that it was not satisfied the Applicant has been, or is now, focused on studying in Australia, and found that the Applicant appears to be using the student visa program to work and maintain residency. On the basis of the above and having considered the Applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal was not satisfied that the Applicant intends genuinely to stay in Australia temporarily, and, accordingly, did not meet cl.572.223(1)(a). It affirmed the decision not to grant the Applicant the Visa.

The Applicant’s grounds for judicial review

1. The Applicant filed his application for judicial review on 2 March 2018 which, whilst prepared by a lawyer, that lawyer, Mr Steven John, of Stephen John Lawyers, stated specifically on the application “not instructed to represent”. 

2. At the commencement of the hearing before me today, I confirmed with the Applicant that he wished to proceed on the grounds set out in his application.  He confirmed that he did so.  The 2 grounds are (without alterations):

   1.The Tribunal denied the Applicant procedural fairness

   Particulars

   (a)On 15 December 2016, the delegate of the first Defendant refused the Plaintiff Student Class TU visa. The delegate based the decision on the plaintiff's lack of academic progress, his study, potential circumstances in Australia, immigration history and lack of value of the course to his future.

   (b)The applicant had claimed that he provided corroborating evidence of his compelling circumstances to his agent who did not provide that evidence to the delegate. When asked by the delegate over the phone to the applicant that why he did not provide the evidence when given the opportunity?

   (c)The applicant responded that he did not know about any such request because he believed his agent is dealing with the application and he did not receive any request for further information from the delegate as well. The delegate did not provide an opportunity to the applicant to provide the evidence and made the adverse decision.

   (d)The information contained the critical information regarding applicant's mental capacity that was affected owing to:

   (1) the humiliation of applicant at his first day in his class in Victoria University.

   (2) Applicant's broken leg while he was on visit to Pakistan.

   (e)The delegate denied the applicant procedural fairness in deciding that certain information was not provided (namely evidence of humiliation and broken leg); the applicant not being given opportunity to file the evidence.

   (f)The Tribunal, having made adverse findings about the applicant's credibility in relation to the intentions of the applicant to remain in Australia but gave no evidentiary weight to the corroborating evidence of compelling circumstances.

   2.The Tribunal Thereby committed jurisdictional error.

Proceeding before this Court

1. On 26 March 2018, orders were made by consent in this proceeding which permitted the Applicant to file and serve an amended application and any additional evidence including any transcript of the hearing before the Tribunal, if he wished to rely on it, by 7 May 2018 and written submissions by 4 June 2018.    The Applicant has not filed any amended application, any additional evidence, or any written submissions.  He accepted that he had appeared at the directions hearing before Registrar Cho and had received, and was aware of, the orders and information provided by the First Respondent’s solicitors.  Before me today, the Applicant confirmed that he did not have any other material to give me, and characterised his submissions as “the Tribunal should have believed me”.

2. The Applicant confirmed that he was present at the directions hearing before Registrar Cho on 26 March 2018.  When shown a copy of the short minutes of order made on that date, and documents provided by the Minister’s solicitors regarding the first Court date comprising ‘Information From Unrepresented Applicants’, which was filled in and an ‘Information For Applicants’, which was also filled in, the Applicant confirmed that his signature appeared on each of the short minutes of order, the ‘Information From Unrepresented Applicants’ and the 'Information For Applicants’, which documents included the statements informing the Applicant that if he intended to obtain a recording of the hearing in the Tribunal, he should obtain, and have verified by way of affidavit, a written transcript of that hearing.  The ‘Information for Applicants’ sheet also stated on it with regards to the hearing (emphasis in original):

   Once the matter is given a date for the hearing, if you have NO lawyer to represent you, you will need to be ready to tell the Court about your legal case (with an interpreter, if required).

3. Those short minutes of order and attached information sheets were tendered in evidence and admitted.

4. The Applicant appeared today to seek an adjournment of today’s hearing, saying that his lawyer was not able to be here but that he had in the last week spoken to another lawyer, and he wanted one or two more weeks to adjourn the matter.  When pressed, the Applicant did not provide any more detail, and, as I have said, confirmed that he did not have any other material today to give me.  As I have said, he accepted that he had appeared at the directions hearing before Registrar Cho, and had received and was aware of the orders and information provided by the Respondent’s solicitors.  I refused the application for adjournment.

Consideration

1. Ground 1 alleges that the Tribunal denied the Applicant procedural fairness, however, the particulars to the ground are that the breach of procedural fairness is on the basis that the Delegate failed to consider the Applicant’s “corroborating evidence of his compelling circumstances”, and that the information contained critical information about the Applicant’s mental capacity that he had provided to his agent who did not provide the evidence to the Delegate.  This critical information appears to have been that the Delegate erred when it failed to afford him the opportunity to provide that evidence and the Tribunal erred when it failed to give “evidentiary weight” to the corroborating evidence of compelling circumstances (see at ground [1.(f)]).

2. Insofar as the Applicant’s complaints are about the Delegate’s decision, they cannot succeed, as the Court does not have jurisdiction to review the Delegate’s decision: see s.476(2)(a) of the Act. Insofar as the Applicant’s complaints about the Delegate are complaints that the Tribunal failed to give evidentiary weight to corroborating evidence, critically, the Tribunal expressly considered the Applicant’s claim that “his agent ruined his case as relevant documents were not submitted to the Department” (see Tribunal decision at [8]).  As I have said, the Tribunal noted at [22], that when these documents were requested by the Department, the Applicant replied that he had to ask his family to scan and send the documents from overseas, and that, as at the date of the Tribunal’s decision, the Applicant had “still not provided” the medical evidence to the Tribunal.

3. The Tribunal expressly invited the Applicant, by letter dated 29 September 2017, to provide “an explanation of any gaps in your enrolments and any documentary evidence relevant to your explanation”, and, in response, the Applicant had submitted the email correspondence relating to the claimed incident at Victoria University and subsequent email correspondence from the University.

4. In relation to the evidence of the Applicant’s humiliation at his first day in his class at Victoria University, the Tribunal expressly considered the submitted email correspondence relating to that claimed incident, and I have referred to the Tribunal’s consideration of that at [20] to [21] above.

1. The Tribunal is entitled to accept, or reject, or give such weight to, the evidence proffered as it thinks appropriate in all the circumstances:  see, for example, Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. This is not a case where the Tribunal overlooked probative and cogent evidence: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [112]. I note the Applicant has not identified any such medical evidence regarding impediments to study, notwithstanding the opportunity afforded him to provide evidence and submissions to this Court.

2. If the Applicant is intending to say that the Tribunal’s decision was unreasonable, I note that the High Court observed in Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; (2010) 240 CLR 611 that an applicant describing a decision as “unreasonable” may merely be an emphatic way of expressing disagreement with the findings of a decision maker; mere disagreement does not establish the legal standard of unreasonableness as the High Court described it in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [68] see SZMDS at, inter alia, [124] – [[131] per Crennan and Bell J). Here, the Tribunal’s decision, I find, is not illogical, irrational, or lacking basis. For example, in relation to the incident at Victoria University, as considered at [20] of the Tribunal’s decision, the Tribunal makes clear that it provided a number of matters which it weighed in concluding that it was not satisfied the email in question was actually sent, including the ongoing correspondence from the University which was concerned with offering ongoing support to the Applicant due to his absence from campus and non-submittal of work.

3. Further, the incident at Victoria University claimed by the Applicant was not the only basis for the Tribunal’s findings.  Rather, the Tribunal assessed the evidence as a whole, and it is apparent in the Tribunal’s consideration from [19] through to [23] of its decision that, as a whole, the Tribunal was not satisfied that the Applicant has been, or is now, focused on studying in Australia.  I find that it was open to the Tribunal to come to that conclusion on the material before it, and that its finding, does not evidence jurisdictional error.  Accordingly, ground 1 must fail. 

4. In relation to ground 2, which simply states that the Tribunal “thereby committed jurisdictional error”, this ground cannot succeed in the absence of meaningful particulars, and there are none.  Further, this ground appears to restate what has already been put in support of ground 1.

Conclusion

1. I conclude that the Tribunal’s decision indicated that it assessed the Applicant’s circumstances as claimed before the Department and the Tribunal and as supplemented by material provided to the Tribunal by the Applicant and his representative against the requirements in Direction Number 53.  The Tribunal’s assessment of the weight it placed on its consideration of the factors relevant to the Applicant’s case was a matter of fact for the Tribunal.  Those factual findings, as I have said, were open to it for the reasons given, and no error is revealed. 

2. Accordingly, the application ought to be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:     5 July 2018