Farooq v Minister for Immigration
[2016] FCCA 376
•1 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAROOQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 376 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal decision – Student (Temporary) Class TU visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65(1), 476, 499 Migration Regulations 1994 (Cth), Sch.2, cl.572.223(1)(a) |
| Khanna v Minister for Immigration [2004] FMCA 53; (2004) 180 FLR 241 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 |
| Applicant: | ADNAN FAROOQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 225 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 18 February 2016 |
| Date of Last Submission: | 18 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 1 March 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 225 of 2015
| ADNAN FAROOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application for judicial review
On 13 May 2015 the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) made a decision (“Tribunal Decision”) to affirm a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant, Mr Adnan Farooq (“Mr Farooq”) a Student (Temporary) Class TU visa (“Temporary Student Visa”).
Under s.476 of the Migration Act1958 (Cth) (“Migration Act”) Mr Farooq has now made an application to this Court for judicial review of the Tribunal Decision (“Judicial Review Application”).
A copy of the Tribunal Decision appears at the Court Book (“CB”) at 169-178.
Criteria
The criteria applicable to the Tribunal Decision with respect to Mr Farooq’s application for a Temporary Student Visa were as follows:
a)clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) which was required to be satisfied at the time of the Tribunal Decision, and which was as follows:
(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.
(“the genuine temporary entrant criterion”).
b)the Tribunal was also required to have regard to the relevant Ministerial direction given in relation to cl.572.223 of Schedule 2 to the Migration Regulations, which is Direction No 53 (“Direction 53”). Direction 53 was given under s.499 of the Migration Act and by operation of s.499(2A) of the Migration Act the Tribunal was required to comply with it. Direction 53 requires the Tribunal to have regard to a number of specified factors which the Tribunal set out in the Tribunal Decision as follows:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
CB 174 at [28].
Tribunal Decision
The Tribunal found as follows:
a)in considering Mr Farooq’s circumstances in his home country the Tribunal:
i)accepted that Mr Farooq’s family members live in Pakistan. It considered that it was significant that Mr Farooq chose not to visit his mother when she was diagnosed with cancer so that he could remain in Australia, despite the fact that he was working, but not studying: CB 175 at [33]. The Tribunal was not satisfied that Mr Farooq’s ties to his home country served as a significant incentive for him to return: CB 175 at [33];
ii)found that Mr Farooq’s economic circumstances, and specifically that he was able to obtain employment in Australia but not elsewhere, would present as a significant incentive for him not to return to his home country: CB 175 at [35]; and
iii)found that political or civil unrest in Mr Farooq’s home country, which was not where Mr Farooq’s family lived, was not a motivating factor for Mr Farooq’s Temporary Student Visa application: CB 175 at [36];
b)in considering Mr Farooq’s potential circumstances in Australia that:
i)Mr Farooq had no family members or partner in Australia: CB 175 at [37];
ii)Mr Farooq said that when he first came to study in Australia he did not have much information about the courses available to him so he enrolled in a multi-media course because “he just wanted to get admitted into something to study in Australia”: CB 176 at [38];
iii)after his Temporary Student Visa application was refused, and although he had a bridging visa which permitted him to study, Mr Farooq did not do so, but applied to have the no work condition removed from his bridging visa and for almost a year has been working 30 to 32 hours a week as a security guard at Perth Airport: CB 176 at [39];
iv)at a hearing before the Tribunal in September 2014 (“Previous Tribunal Hearing”) Mr Farooq provided the Tribunal with certificates of enrolment for three Business and Management courses at the VET level which he said he wanted to do because his father had suggested that they start a business together in Pakistan, although they had not yet decided what type of business, but despite this Mr Farooq did not commence any of these courses, but continued to work: CB 176 at [40]-[41];
v)Mr Farooq claimed he wanted to undertake a Diploma of Occupational Health and Safety but had not yet enrolled in a course and did not have an offer of enrolment, asserting that he wanted to see if he was granted the Temporary Student Visa before paying the fees: CB 176 at [42];
vi)it was not clear why Mr Farooq did not apply for enrolment and obtain an offer of enrolment in the Diploma of Occupational Health and Safety given that he was not required to pay any fees until he accepted an offer of enrolment: CB 176 at [42];
vii)Mr Farooq came to Australia without clear study goals and without a career path: CB 176 at [44];
viii)it appeared Mr Farooq had been more interested in working than studying, having studied for only about two and a half years out of his five and a half years in Australia: CB 176 at [45]; and
ix)the visa program was being used to circumvent the intentions of the migration program and to maintain ongoing residence: CB 176 at [45].
c)in relation to the value of the course to Mr Farooq’s future that:
i)Mr Farooq’s proposed course was consistent with his level of education and relevant to his future employment in his home country or a third country: CB 177 at [47]; and
ii)as Mr Farooq has completed a Diploma of Engineering (Oil and Gas) and a Certificate IV in Occupational Health and Safety, and has been unable to obtain employment in a related field in Australia, the Middle East or his home country, it was not satisfied the proposed course (the Diploma of Occupational Health and Safety) would assist Mr Farooq to obtain employment or improve his employment prospects in his home country: CB 177 at [48]-[49];
d)in considering Mr Farooq’s immigration history, that:
i)Mr Farooq had been in Australia for five and a half years but had only studied for a total period of approximately two and a half years, having “undertaken two short, relatively inexpensive courses in Australia”, which the Tribunal did not consider to be an acceptable level of course completion: CB 177 at [52];
ii)Mr Farooq had not studied in Australia since November 2013, “despite having study rights while holding various bridging visas”: CB 177 at [53];
iii)Mr Farooq had therefore remained onshore for the previous 18 months without studying, despite having told the Tribunal that he intended to do so: CB 177 at [54];
iv)the Temporary Student Visa application was being used primarily to maintain ongoing residence in Australia: CB 177 at [54];
v)Mr Farooq was refused a UK student visa for financial reasons: CB 178 at [55];
vi)Mr Farooq had never travelled to another country apart from Australia: CB 178 at [55]; and
vii)there was nothing to suggest Mr Farooq did not comply with the conditions of his previous Australian visas or had a previous visa cancelled or considered for cancellation: CB 178 at [55]; and
e)the Tribunal was not satisfied that Mr Farooq intended to genuinely stay in Australia temporarily: CB 178 at [56], and therefore found that Mr Farooq did not meet the genuine temporary entrant criterion in cl.572.223(l)(a) of Schedule 2 to the Migration Regulations: CB 178 at [56].
Judicial Review Application
Mr Farooq’s Judicial Review Application contains three grounds as follows:
1.I have sufficient funds to support my study and other expenses as per requirement.
2.I have described all my plans after completion and reason of continuing my study.
3.I couldn’t find any solid ground for refusal of my application.
In an affidavit affirmed 26 May 2015 (“Mr Farooq’s Affidavit”) Mr Farooq asserted as follows:
1.My last visa application refused due to lack of my funds and now in the review I have explained well my current financial situation as per requirement.
2.I have described everything in detail which Tribunal asked me, however I am not satisfied from their decision.
The reference to Mr Farooq’s “last visa application” and its refusal “due to lack of my funds” in Mr Farooq’s Affidavit at [1] is a reference to the Delegate’s Decision, the Previous Tribunal Hearing and an earlier decision of the Tribunal (differently constituted) (“Previous Tribunal Decision”) on Mr Farooq’s application for a Temporary Student Visa, which was the subject of consent orders of this Court on 18 February 2015 remitting it to the Tribunal for reconsideration: see CB 170 at [4]-[6]. The Tribunal Decision was the result of that reconsideration.
Although orders of a Registrar of this Court made on 5 August 2015 permitted Mr Farooq to file an amended Judicial Review Application, and any further affidavits and a written outline of submissions, he did not do so.
Consideration
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Satisfaction
Section 65(1) of the Migration Act requires that in order for the Tribunal to grant Mr Farooq a Temporary Student Visa the Tribunal needs to be satisfied that any relevant criteria for the grant of the Temporary Student Visa have been met. In this case the Tribunal set out the relevant criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, and the factors to be considered under Direction 53. The Tribunal then proceeded to apply and have regard to those criteria and factors in relation to the facts, which are not essentially in dispute, in order to form a view as to whether the Tribunal was satisfied that Mr Farooq “intends genuinely to stay in Australia temporarily” on a Temporary Student Visa. The Tribunal was not so satisfied.
The Tribunal’s approach was orthodox, and there is nothing in that approach, or the procedural outcomes arising from that approach, which is indicative of jurisdictional error. It remains to consider the specific grounds raised by Mr Farooq.
Ground 1
This ground contends that Mr Farooq had sufficient funds to support his study and other expenses as required. The financial capacity requirements were not considered by the Tribunal, and the Tribunal did not refuse the Temporary Student Visa on that basis. There is no error in the Tribunal not considering the financial capacity requirements, because, if, as here, one essential visa criterion has not been satisfied then the Tribunal is not obliged to make a finding in relation to any other visa criterion: Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J, followed in Khanna v Minister for Immigration [2004] FMCA 53; (2004) 180 FLR 241 at [9] per Scarlett FM.
For the above reasons there is no jurisdictional error arising from ground 1.
Grounds 2 and 3
These grounds contend that Mr Farooq described all his plans after completion and his reason for continuing study and could “not find any solid ground for refusal of my application”. These grounds constitute no more than a plea for merits review based on Mr Farooq’s lack of satisfaction with the Tribunal Decision. The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. The Tribunal clearly identified the correct issue, and asked the correct questions, by reference to the criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations and the factors in Direction 53, and dealt with those matters in a reasonably detailed fashion before arriving at conclusions which were open on the evidence. That what is now sought by Mr Farooq is merits review is reinforced by Mr Farooq’s Affidavit at [2] where Mr Farooq says that in relation to matters about which the Tribunal asked him he “described everything in detail … however I’m not satisfied from their decision”.
Mr Farooq was on notice of the issues and was afforded the opportunity to deal with them. The basis of the Previous Tribunal Decision concerned the satisfaction of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations: CB 130-133. Furthermore, during the Tribunal hearing which lead to the Tribunal Decision, issues relating to those criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations and the factors in Direction 53 were discussed with Mr Farooq: CB 170-174.
The Tribunal Decision demonstrates that it considered Mr Farooq’s evidence and engaged in an “active intellectual process” and gave “genuine” consideration to the factors set out in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations and Direction 53: Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26, both of which the Tribunal referred to. The Tribunal then made findings in relation to the criteria and factors that had practical relevance to Mr Farooq’s circumstances and evidence.
The Tribunal’s finding that Mr Farooq did not meet the criteria for the grant of a Temporary Student Visa was reasonably open to it. It was not a finding upon which “no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ.
For the above reasons there is no jurisdictional error arising from grounds 2 and 3 of the Judicial Review Application.
Conclusions and orders
Mr Farooq has failed to establish any jurisdictional error arising from the grounds of his Judicial Review Application. It follows that there must be an order dismissing his application, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 1 March 2016
1