Farooq v Minister for Immigration
[2020] FCCA 861
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAROOQ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 861 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – whether the Tribunal failed to take into account relevant considerations – whether the Applicant was afforded procedural fairness – whether the Tribunal made an error of law – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Sch.1 Migration Act 1958 (Cth), pt.5, div.5, ss.360, 476 Migration Regulations 1994 (Cth), cl.572.223 of sch.2 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 |
| Other materials: Ministerial Direction No.53 made under s.499 of the Migration Act 1958 |
| Applicant: | MUHAMMAD SULEMAN FAROOQ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2827 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 6 December 2018 and 14 February 2019 |
| Date of Last Submission: | 14 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Warraich |
| Solicitors for the Applicant: | HUK Legal |
| Counsel for the First Respondent: | Mr Goodwin |
| The Second Respondent submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant have leave to rely on the written submissions and the amended grounds, dated 5 February 2019 and such be accepted for filing.
The Applicant’s application, dated 28 December 2016, be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2827 of 2016
| MUHAMMAD SULEMAN FAROOQ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 28 December 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 15 December 2016 (Tribunal’s Decision).
The Tribunal’s Decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Delegate and Minister, respectively), to refuse to grant the Applicant a Student (Temporary) (Class TU) visa (Visa).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (Act). To obtain relief from this Court, the Applicant must show jurisdictional error in the Tribunal’s Decision.
Background
The Court had before it a Court Book numbering 176 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 30 August 2017 (Minister’s Submissions) at [3]-[10] accurately summarise the factual history of this matter. The Court adopts those submissions, with minor amendments, as its own. They provide, relevantly, as follows.
The Applicant is a citizen of Pakistan and arrived in Australia on 16 July 2010 as the holder of a Student (Class TU)(Subclass 572) visa, which was valid until 2011. The Applicant was granted a further Subclass 572 visa on 9 September 2011, which was valid until 15 March 2015. On 2 March 2015, the Applicant applied for the Visa that is the subject of these proceedings on the basis of his enrolment in a Certificate IV in Automotive Management, a Diploma of Automotive Management and an Advanced Diploma of Management (Human Resources) (HR Course)[1].
[1] Court Book (CB) 1-7.
On 3 March 2015, the then Department of Immigration and Border Protection (Department) sent a letter to the Applicant requesting further information, including a statement addressing the “genuine temporary entrant criterion”[2].
[2] CB 8-17.
On 30 March 2015, the Applicant, via his representative, sent an email to the Department attaching a number of supporting documents, including a statement from the Applicant which addressed the genuine temporary entrant criterion[3].
[3] CB 24-71.
On 14 April 2015, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate was not satisfied that the Applicant genuinely intended to stay in Australia temporarily and found that he did not satisfy cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[4].
[4] CB 81-86.
On 15 April 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision[5]. A copy of the Delegate’s Decision was provided with the review application. The Applicant was represented by his registered migration agent throughout the review proceedings.
[5] CB 87-88.
On 7 July 2016, the Tribunal sent a letter to the Applicant, via his representative, inviting him to attend a hearing before it, scheduled on 2 August 2016[6]. The letter indicated that the Tribunal would be assessing whether the Applicant intended genuinely to stay in Australia temporarily and also enclosed a copy of Ministerial Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications (Direction 53).
[6] CB 103-107.
The Applicant provided a statement to the Tribunal, dated 27 July 2016 addressing the genuine temporary entrant criteria and annexing a number of supporting documents[7].
[7] CB 115-152.
On 2 August 2016, the Applicant attended a hearing before the Tribunal to give evidence and present arguments with the assistance of his representative[8]. At the hearing, the Applicant stated that he would withdraw from the HR Course[9].
[8] CB 154-156.
[9] See CB 164 at [17].
The Tribunal’s Decision
The Tribunal’s Decision appears at pages 160 to 166 of the Court Book. The Minister’s Submissions at [11]-[20] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal considered the claims and evidence presented to it by the Applicant and:
a)Affirmed the Delegate’s Decision not to grant the Applicant the Visa[10].
b)Identified that the relevant issue that the Tribunal needed to consider was the satisfaction of cl.572.223 of Sch.2 to the Migration Regulations (the genuine temporary entrant criterion)[11], and that cl.572.223(1)(a) of Sch.2 to the Migration Regulations relevantly requires that the Applicant satisfy the following criteria:
[10] CB 166 at [38].
[11] CB 161 at [8].
(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…
c)Noted that in considering whether the Applicant satisfies the genuine temporary entrant criterion, the Tribunal must have regard to Direction 53, which required the Tribunal to have regard to a number of specified factors[12].
[12] CB 162 at [9].
d)Considered the circumstances in the Applicant’s home country of Pakistan and found that he had the following incentives to cease residence in Australia:
i)The Applicant had close family members and friends outside Australia, including his father and mother in Pakistan, a brother in Dubai and a sister in New Zealand with US nationality. The Applicant’s only close family member in Australia was a brother who was studying and held a 485 visa;
ii)The Applicant’s family had a business in Pakistan;
iii)The Applicant had plans to utilise the skills and knowledge gained in Australia in pursuits outside of Australia. His plan included to open an automotive business in Pakistan on property he owns there[13].
e)Found that whilst the Applicant contended that he would depart Australia after the completion of his Certificate IV in Automotive Mechanical Diagnosis in September 2016, he remained in Australia at the time of the Tribunal’s Decision in December 2016. Further, the Applicant had not proposed this course when making the Visa application, but rather added it to extend his period of study and stay in Australia[14].
f)Notwithstanding the Applicant’s contentions that he would withdraw from the HR Course, the Tribunal had concerns that the HR Course offered little incremental value to the courses already completed by the Applicant and considered that it offered greater value in extending the duration of his stay in Australia[15].
g)Found that with the withdrawal of the HR Course, the Applicant had no course left to study[16].
h)Found that after the completion of the Applicant’s Diploma of Automotive Management in March 2016, the Applicant had sufficient business, management and automotive skills and knowledge to open an automotive business in Pakistan[17].
i)Found that the holding of property overseas was not an effective incentive to cease residence in Australia, noting that property was easily sold or may produce income in the form of rent[18].
j)On the basis of the above findings, found that the Applicant intended to stay in Australia indefinitely and place himself in a position to obtain permanent residence[19].
[13] CB 163 at [12].
[14] CB 164 at [20]-[22].
[15] CB 164 at [18].
[16] CB 165 at [29].
[17] CB 164-165 at [22].
[18] CB 165 at [25].
[19] CB 165-166 at [32].
The Tribunal concluded that the Applicant did not meet cl.572.223(1)(a) of the Regulations[20].
[20] CB 166 at [33].
As a separate issue, the Tribunal found that with the withdrawal of the Applicant’s proposal to study the HR Course, there was no relevant course remaining for the Applicant to study. This was despite the mandatory requirement for the grant of the Visa that the Applicant at least hold an offer of enrolment in a course. It found that this was a separate reason why the Applicant could not be granted the Visa[21].
[21] CB 166 at [34]-[35].
Proceedings before the Court
The Applicant’s judicial review application (Original Application) contains 7 grounds of review as follows:
AAT TOOK OF IRRELEVANT CONSIDERATION
AAT ERRED AT LAW
AAT FAILLED TO TAKE ACCOUNT OF RELEVANT CONSIDERATION
THE SUPPORTIVE DOCUMENT WHICH WAS PROVIDED BY ME, WERE NOT PROBABLY CONSIDER NOR I HAVE BEEN ASKED FOR SUPPORTIVE DOCUMENTS.
I was not given sufficient opportunity to the tribunal member’s queries or address their concerns at the time, Furthermore, I dint understand the outcome of the tribunal Member’s decision and the hearing itself was very stressful for me.
I said the member after completing my current study I will go back home, but the circumstances are change and its not my favour, so I choose to further higher study for better future.
The Member failled to comply with their obligation to give propper, genuine and realistic consideration to the merits of the case and actively failed to exmine facts.
(Without alteration)
By Orders of a Registrar of this Court dated 5 July 2017, the Applicant was given an opportunity to file an amended application, any affidavits, a supplementary Court Book and written submissions by 9 August 2017. Despite this, the Applicant filed no material prior to the hearing on 6 December 2018.
The Minister filed written submissions on 30 August 2017.
At the hearing on 6 December 2018, the matter was adjourned and the Applicant was given a further opportunity to file an amended application with proper particulars of the application, any affidavits, a supplementary Court Book and written submissions. The Minister was also given an opportunity to file updated submissions and any affidavits.
Subsequently the Applicant’s lawyer, Mr Warraich, provided the Court with a two page document dated 5 February 2019 containing submissions and four “amended grounds” (Applicant’s Written Submissions and Amended Grounds). The Applicant’s Written Submissions and Amended Grounds were provided informally and relied upon but were not properly filed by the Applicant’s lawyer.
The amended grounds (Amended Grounds) are as follows:
The applicant has not been provided an opportunity to explain his situation. The appellant has provided all the required documents to the Tribunal. The applicant met the criteria envisaged in the Migration Act 1958 (Cth) and Migration Regulation 1994 (Cth). The Tribunal didn't take into account all the relevant factors of the case. The relevant documentation and the required documents have been provided.
The Tribunal considered the case very objectively since all the relevant information provided is very subjective. The applicant had very genuine intentions to extend his stay in Australia to complete his study as evident from his current academic record.
The applicant had very personal circumstances that distinguished him subjectively. He has provided all the information and enrolments to secure the visa.
The applicant has genuine intentions to undertake the course as mentioned in the genuine temporary entrant statement and as per his academic record. The applicant also has very serious family problems that is father’s health.
The Minister provided supplementary written submissions dated 11 February 2019 in response to the Applicant’s Written Submissions and Amended Grounds.
The Minister submitted that the Amended Grounds essentially overlap with the Original Application. Further, as no formal amended application was filed, the Minister submitted that the Court should address both the grounds contained in the Original Application and the Amended Grounds.
The Court agrees with the approach proposed by the Minister and has proceeded on that basis.
An Order will be made that the Applicant have leave to rely on the Applicant’s Written Submissions and Amended Grounds, and such be accepted for filing.
The Court further notes that at the hearings on 6 December 2018 and 14 February 2019 the Applicant was represented by Mr Warraich of HUK Legal. While Mr Warraich did not file any notice of acting, no objection was taken to him appearing on behalf of the Applicant.
Consideration
Failure to take into account relevant considerations
Ground 3 of the Original Application provided to the Court by the Applicant contains a bare assertion that the Tribunal failed to take in to account a relevant consideration. Ground 7 of the Original Application is also unparticularised and fails to identify with any specificity what “relevant facts” or “merits” were not given proper, genuine and realistic consideration by the Tribunal. Ground 4 refers to supporting documents not being taken into account. Ground 6 refers to the evidence the Applicant gave to the Tribunal at the hearing, that inferably he is suggesting was not considered properly.
As for the Amended Grounds, grounds 1, 3 and 4 refer to the “relevant documents” (including the Applicant’s genuine temporary entrant statement and academic records) and the Applicant’s personal circumstances (such as his father’s health). At the hearing on 14 February 2019, Mr Warriach submitted that the Tribunal did not consider all of the relevant considerations, more specifically the “subjective elements” of the Applicant’s circumstances.
The Court agrees with the Minister’s submission at the hearing on 14 February 2020 that the Applicant is simply engaging in a merits review of the Tribunal’s Decision. The matters that are said not to have been considered were properly considered, the Applicant simply does not agree with the conclusions reached.
The Tribunal identified that the relevant consideration was cl.572.223 of the Regulations. It also identified that Direction 53 was required to be considered. In particular:
a)The Tribunal considered the Applicant’s circumstances including the circumstances in the Applicant’s home country[22], the Applicant’s circumstances in Australia[23] and the value of the course to the Applicant’s future[24];
b)The Tribunal considered the Applicant’s previous immigration history[25], including the courses of study the Applicant had completed or undertaken since arriving in Australia; and
c)The Tribunal referred to other matters it considered relevant such as the Applicant’s withdrawal of his proposed course of study and the fact that the Applicant had, on his own evidence, completed what he needed to in order to start his automotive business in Pakistan[26].
[22] CB 163 at [12].
[23] CB 164-165 at [20]-[24].
[24] CB 164-165 at [18], [22], [26] and [29].
[25] CB 163-164 at [13], [18] and [22].
[26] CB at [17] and [20].
In relation to the Tribunal failing to consider “supporting documents” (as is referred to in ground 4 of the Original Application and grounds 1, 3 and 4 of the Amended Grounds):
a)The Tribunal made express reference to the Applicant’s two genuine temporary entrant statements (one provided to the Minister’s Department and one provided to the Tribunal)[27]. The Tribunal engaged with the Applicant’s “claims” to meet the genuine temporary entrant criterion in significant detail. For example, at [28]-[32], the Tribunal considered the Applicant’s claimed incentives to return to Pakistan (which were the matters he put to the Tribunal in relation to his being a genuine temporary entrant);
b)The Tribunal made reference to the Applicant’s evidence provided at the hearing, including noting his response to particular questions that were asked[28]. The Tribunal expressly quoted the Applicant stating that he was “happy to go back” to Pakistan upon completing his course in 2016 (which is what the Applicant refers to in ground 6 of the Original Application)[29]. The Tribunal made findings based on the Applicant’s oral evidence at the hearing, such that it cannot be said that it did not demonstrate an active and intellectual consideration;
c)The Tribunal acknowledged the information provided about the Applicant’s past enrolments and also confirmed that the Applicant had provided a current confirmation of enrolment (referred to in ground 3 of the Amended Grounds)[30]. The Tribunal considered these courses and the relevance and value of them to his planned career path. For example, the Tribunal considered that the courses that the Applicant had previously undertaken gave him the necessary skills to open up his business in Pakistan. The Tribunal has thus engaged with the evidence;
d)The Tribunal referred to the photograph that the Applicant provided to show that he had property in Pakistan that his father had purchased for him to trade his business from[31]. The Tribunal asked the Applicant particular questions in relation to the structure of the business which clearly demonstrates that the Tribunal considered and engaged with the evidence; and
e)As for the Applicant’s father’s ill health and “family problems” (ground 4 of the Amended Grounds), the Tribunal made reference to this at [13(e)]. The Tribunal did not consider this any further, nor did it need to, as the context in which the Applicant’s father’s health and family problems were provided to the Tribunal was to explain previous study gaps. The Tribunal gave no adverse weight to the study gaps (unlike the Delegate). The extent to which the Tribunal was required to consider the Applicant’s family was to assess the extent of those family ties and connections serving as an incentive. The Tribunal did so at [31] when it says that the Applicant would have departed Australia to “reunite” with his family if he was, in fact, a genuine student.
[27] CB 163-164 at [12]-[13].
[28] CB 163-165 at [12]-[13], [16]-[17] and [23]-[24].
[29] CB 164 at [20].
[30] CB 163-164 at [13]-[14].
[31] CB 164 at [19]-[20].
The Applicant’s suggestion that the Tribunal failed to take into account relevant considerations is without merit. The Tribunal took into account all that it was required to consider.
To the extent grounds 3, 4, 6 and 7 of the Original Application and grounds 1, 3 and 4 of the Amended Grounds plead that the Tribunal has erred in failing to take into account a relevant consideration, they are dismissed.
Procedural Fairness
The latter part of ground 4 of the Original Application suggests the Applicant was not asked for supporting documents. Ground 5 of the Original Application suggests the Applicant was not given a sufficient opportunity to respond to the Tribunal’s concerns at the hearing.
The Court has considered whether there has been any breach of the obligations of procedural fairness provided for by pt.5, div.5 of the Act.
There is nothing on the evidence to suggest that there has been any breach of the obligations of procedural fairness in this case. Here:
a)The determinative issue before the Delegate was the same as the “major issue” before the Tribunal. Therefore, there was no need for the Tribunal to place the Applicant on notice that it had concerns that he was not a genuine temporary entrant;
b)The Tribunal invited the Applicant to a hearing in accordance with s.360 of the Act. The Tribunal hearing lasted approximately 90 minutes[32]. The Tribunal records in its decision the Applicant’s responses to the questions asked in the Tribunal hearing. This account of the exchanges that occurred demonstrates that the Applicant was given an opportunity to participate and respond and that he did, in fact, do so;
c)The Applicant was specifically advised in the invitation to the hearing that he should provide information concerning the genuine temporary entrant criterion and a copy of Direction 53 was also included[33]. At the hearing, the Tribunal further advised the Applicant what it would be considering to ensure he was aware of what he was required to address[34]; and
d)It is also the case that the Applicant was represented before the Tribunal and did in fact provide a large number of documents to the Tribunal in support of his application. It was for the Applicant to place before the Tribunal the supporting documents which he relied upon in order to be granted the visa: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. It was not for the Tribunal to “ask” for supportive documents.
[32] CB 155.
[33] CB 93-102 and 103-107.
[34] CB 162-163 at [11].
Ground 4 and the first part of ground 5 in the Original Application do not identify any error.
The latter part of Ground 5 of the Original Application states that the Applicant was stressed at the hearing and he did not understand the outcome of the Tribunal’s decision when he received it.
Again, there is nothing on the evidence to suggest that the Applicant was unable to meaningfully participate in the Tribunal hearing. Rather, the Tribunal’s decision indicates that the Applicant was able to give evidence and respond questions. Further, that the Applicant did not understand the outcome of the Tribunal’s decision does not identify any error in the actual decision itself.
Finally, the first part of ground 1 of the Amended Grounds states that the Applicant did not have an opportunity to explain his situation. For the reasons already stated above, the Applicant was afforded the opportunity to explain his situation. He did explain his situation by virtue of submitting a number of supporting documents and attending a hearing.
To the extent that grounds 4 and 5 of the Original Application and ground 1 of the Amended Grounds assert some kind of denial of procedural fairness, they must be dismissed.
Error of Law
Ground 2 of the Original Application merely asserts there has been an “error of law”. The Court has considered grounds 2 and 3 of the Amended Grounds as particularising ground 2. In effect, the Court is assuming that the “error of law” that the Applicant is asserting is that the Tribunal misapplied the law as it considered very subjective matters objectively.
The Minister calls ground 2 of the Amended Grounds “incomprehensible”. The Court agrees.
In effect, by grounds 2 and 3 the Applicant is saying that the Tribunal was wrong because the Applicant believes that he is a genuine student. He had “subjective” (i.e., personal) reasons why he was a genuine temporary entrant, yet the Tribunal assessed him objectively.
There was nothing errant in the Tribunal’s approach. The Tribunal was required to consider the information and materials before it and determine whether it was satisfied that the information demonstrated the Applicant was a genuine temporary entrant. The Tribunal did so having regard to the matters that were relevant (and to be taken into account) making a determination on this issue.
As was recently remarked by Logan J in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar):
6. Much, perhaps too much, judicial time has been spent in judicial review and in the exercise of appellate jurisdiction in respect of merits based evaluations as to whether a particular person is a “genuine” student. I cannot help but think that this is in no small part due to a failure on the part of the profession to appreciate the nature of the evaluative criterion mentioned, the limits in relation thereto of judicial review, an overly narrow reading of the Minister’s directions and an uncritical assimilation of them with subordinate legislation prescribing criteria relevant for the purpose of the making of a quite different administrative decision.
7. This was a routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the appellant had put his claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the appellant was a genuine student. They were sufficient unto the day. Not to recognise this would be to make student visa decision‑making more unwieldy, delayed and consumptive of public resources than it should be.
Here, however “subjective” the Applicant’s circumstances were, the Tribunal’s reasons rationally explain why the Tribunal, on the materials that were before it, was not satisfied that the Applicant was a genuine student.
Ground 2 of the Original Application and ground 2 of the Amended Grounds fail to identify any jurisdictional error.
Other matters
Ground 1 of the Original Application refers to the Tribunal taking into account an “irrelevant consideration”. The Court has reviewed the Tribunal’s decision and is not satisfied that the Tribunal took into account any irrelevant considerations. All of the matters that the Tribunal considered were relevant and probative of the issue of whether the Applicant was a genuine temporary entrant.
Ground 1 of the Original Application, accordingly, is dismissed.
While not specifically pleaded as a ground of review, the Minister in its role as a model litigant referred the Court to the case of Singh v Minister for Immigration [2018] FCCA 3423 (Singh). The Minister submitted that there was no error of the kind identified in Singh, as the Tribunal in this matter had had proper regard to each of the matters in Direction 53.
The Tribunal’s reasons as a whole demonstrate a sound knowledge of the need to have regard to Direction 53. The Tribunal expressly acknowledged that it needed to do so and it spent time explaining and going through Direction 53 with the Applicant[35]. While the Tribunal did not refer to the “Civil or Political unrest” or economic incentives (which are “factors” of Direction 53), this is perhaps because the Applicant did not advance or address these factors in his statement to the Tribunal.
[35] CB 162-163 at [9]-[11].
The Tribunal’s reasons demonstrate that it had regard to the requirement to consider the factors in Direction 53 that the Tribunal regarded as relevant and, more specifically, what the Applicant put to the Tribunal. The Applicant’s submissions directly addressed particular factors of Direction 53 which the Applicant obviously considered relevant. For example, the Applicant’s submissions addressed his reasons for studying the courses, his career plan, his living arrangements in Australia and his ties to his home country. The absence of any evidence or reliance on a particular factor of Direction 53 in this case, gives rise to an inference that it was not considered relevant to the Tribunal’s determination.
The Tribunal’s reasons demonstrate that it had regard to the Applicant’s circumstances as a whole and determined which factors were material to the Applicant’s particular circumstances and the evidence and claims that were advanced. The Tribunal’s approach in this matter is not dissimilar to what was described in Kumar at [104]-[106].
The Court is satisfied that the Tribunal did not err in its consideration of the matters in Direction 53.
It is to be noted that at the hearing of this matter, Mr Warriach did not advance any substantive submissions in relation to the grounds of review. Rather, he expressed some disagreement with the Tribunal’s findings and stated that the Court should remit the matter to the Department. The Applicant would then withdraw his student visa application. Mr Warriach argued that the “refusal” would create a stigma and the Applicant was now going to seek a visa using other avenues[36]. With the greatest respect, a submission of this nature demonstrates a major misunderstanding of the role of this Court on judicial review.
[36] Transcript from the hearing on 14 February 2019, page 3, line: 3-7.
Finally, the Minister made a submission that even if there was an error in the Tribunal’s finding that the Applicant was not a genuine student, there was a separate and independent finding that the Applicant did not have a proposed further course of study which was a requirement for the grant of the Visa.
The Court accepts the Tribunal’s decision will not be vitiated by error if there is a separate and independent basis that an applicant cannot be granted the Visa: Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328, at [14]-[15].
The Applicant had provided a confirmation of enrolment for a course of study to the Tribunal. Hence, there was material before the Tribunal that the Applicant met the enrolment criterion. However, at the hearing before the Tribunal, the Applicant indicated that he intended to withdraw from this course of study. Arguably, it was open for the Tribunal to be satisfied that the Applicant did not meet the enrolment criteria as the Applicant himself seemed to confirm that he would withdraw from the course of study.
The Court is not prepared to express a view on this matter as it is not satisfied that the Tribunal has erred in its determination that the Applicant did not meet cl.572.223 of the Regulations.
The Court is otherwise not satisfied that the Applicant has identified any error in the Tribunal’s decision.
Conclusion
The Applicant’s Original Application and Amended Grounds have failed to identify any jurisdictional error. The application must be dismissed.
The Minister seeks the sum of $7,467 for costs, which is the scale costs allowed in Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth). An Order will accordingly be made that the Applicant pay the Minister the sum of $7,467 for costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 22 April 2020
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