Farooq v Minister for Immigration - [2020] FCCA 861

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
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Singh v Minister for Immigration [2018] FCCA 3423

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 861
Decision Date: 22 April 2020

CaseChat Overview and Summary

This matter concerned an application by the Applicant to the Federal Circuit Court of Australia, presided over by Judge C. E. Kirton QC, challenging a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a delegate's decision to refuse the Applicant a student visa, finding that the Applicant did not satisfy the genuine temporary entrant criterion under cl.572.223(1)(a) of the Migration Regulations 1994 (Cth). The Applicant contended that the Tribunal failed to take into account relevant considerations, denied him procedural fairness, and made an error of law.

The central legal issue before the Court was whether the Tribunal had committed a jurisdictional error in its assessment of the Applicant's genuine temporary entrant status. This required the Court to determine if the Tribunal had properly considered all relevant factors, including Ministerial Direction No. 53, and whether its findings were supported by the evidence presented. The Applicant's intention to genuinely stay in Australia temporarily, and whether his proposed course of study was primarily for the purpose of extending his stay, were key aspects of this assessment.

The Court adopted the Minister's submissions, finding that the Tribunal had adequately considered the Applicant's circumstances, including his family ties in Pakistan and elsewhere, his family's business interests, and his stated plans to open an automotive business in Pakistan. The Tribunal noted that the Applicant remained in Australia after his initial course completion and that the subsequent course he proposed offered little incremental value and appeared to extend his stay. The Tribunal also considered that holding property overseas was not a strong incentive to return. Based on these findings, the Tribunal concluded that the Applicant intended to stay in Australia indefinitely with a view to obtaining permanent residency, and therefore did not satisfy the genuine temporary entrant criterion. The Court found no jurisdictional error in the Tribunal's reasoning or its application of the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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].

Ratio Decidendi

Legal Principle Established

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