Fathima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 441
•28 April 2022
FEDERAL COURT OF AUSTRALIA
Fathima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 441
Appeal from: Fathima v Minister for Immigration [2021] FCCA 796 File number: VID 269 of 2021 Judgment of: MOSHINSKY J Date of judgment: 28 April 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – student visa – whether the Administrative Appeals Tribunal failed to consider significant material – whether the Tribunal failed to give proper, genuine and realistic consideration to the appellant’s submissions and supporting evidence Legislation: Migration Act 1958 (Cth), s 360
Migration Regulations 1994, Sch 2, cl 572.223
Cases cited: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of hearing: 1 April 2022 Counsel for the Appellants: Mr M Kenneally Solicitor for the Appellants: Lawson Bayly Counsel for the First Respondent: Mr V Murano Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 269 of 2021 BETWEEN: MASRATH FATHIMA
First Appellant
ZAKEER HUSSAIN
Second Appellant
JUWARIYAH HUSSAIN
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs, to be fixed as a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of any agreement:
(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);
(b)within a further 14 days, the appellants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The appellants appeal from a judgment of the Federal Circuit Court of Australia. The first appellant was the applicant for the relevant visa, which was a student visa. The second and third appellants applied for visas as dependants of the first appellant. For ease of expression, I will refer to the first appellant as “the appellant” in these reasons.
For the reasons that follow, the appeal is to be dismissed.
Background facts
In February 2009, the appellant arrived in Australia on a student visa.
Since the expiry of that visa, the appellant has been granted two further visas.
On 9 March 2016, the appellant applied for a Student (Temporary) (Class TU) visa.
On 26 April 2016, the Department of Immigration and Border Protection requested the appellant to provide additional information.
On 23 May 2016, the appellant’s migration agent responded to the request.
On 10 October 2016, a delegate of the first respondent (the Minister) refused the application for the visa.
The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
The Tribunal requested the appellant to provide all documents upon which she intended to rely to establish that she met the criteria for the student visa.
On 29 May 2018, the appellant, who was representing herself, provided a written submission to the Tribunal (AB 252). Relevantly for present purposes, the submission stated on page 4:
… As my long-term plan is to build and run my own hotel in India it was absolutely crucial for me to learn more about marketing department so I can address my weak areas where I lacked these knowledges hence I enrolled myself in Diploma OF Marketing and Advanced Diploma of Marketing at South Pacific Institute (Sher-E-Punjab Pty. Ltd) Cassel den Place 2 Lonsdale Street, Melbourne.
I started my courses on 15th January 2016 at this college which was supposed to be finished on 11 February 2018. I had paid full fees of $14,000 to the college and around October 2017, without any contact or any prior notification or notice the college abruptly got shut-down. I was completely left in vain and agony. I was falsely advised by the management staff that the college is to reopen and I can resume my study in the same college and I had a hope that college will reopen as I had paid my full fees $14,000. However, every time I was told a lie and finally I figured out in despair that all my money is lost and gone in vain.
(Errors in original; emphasis added.)
Annexed to the appellant’s submission dated 29 May 2018 were a number of documents. These included a printout from a website headed “asqa.gov.au” (AB 288) (the ASQA printout). This was a one-page document headed “Cancellation of registration as a provider of vocational education and training (VET) services”. The page listed a number of providers whose registrations had apparently been cancelled. These included Sher-E-Punjab Pty Ltd, trading as South Pacific Institute. The document stated that the decision was “to take effect from 12 October 2017”.
On 2 July 2018, the appellant appeared before the Tribunal to give evidence and present arguments. The principal issue before the Tribunal was whether the appellant met the criterion in cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) as it stood at the time the visa application was lodged. Clause 572.223(1) relevantly stated:
(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; and
(b) …
During the hearing, the Tribunal raised a matter with the appellant and invited her to respond. The matter was a Provider Registration and International Student Management System report produced on 18 December 2017 (AB 213) (the PRISMS report) that provided details of the appellant’s enrolments in various courses. The Tribunal put to the appellant various matters, including that the PRISMS report showed that: she had been enrolled in 20 courses over the almost 9.5 years she had been in Australia; 12 of the courses she had enrolled in were recorded as being cancelled; she had not completed or graduated from a course of study since November 2015.
The latest two enrolments recorded in the PRISMS report were a Diploma of Marketing and an Advanced Diploma of Marketing. It is apparent from other material that these courses were at the South Pacific Institute. Both of these courses are recorded as “cancelled” in the PRISMS report.
The material before the primary judge included the transcript of the hearing before the Tribunal (AB 353). This relevantly records the following:
(a)On page 6 of the transcript, it is recorded that, in response to questions about the Diploma of Marketing, the appellant said: “I study but because of the college shut down I did not complete it”. After making another reference to the college shutting down, she said: “I went to the college until January 2018 but the college was shut down”. She also referred to losing money.
(b)On page 10 of the transcript, it is recorded that the appellant said: “Before I finish my study they, the college, was shut down. Until January, until around January, after the holidays, I went there, I saw the college was shut down.”
At the hearing, the appellant provided the Tribunal with a document headed “Tuition Protection Service” (AB 335) (the Tuition Protection Service document). This appears to be a printout from an Australian government website. The document includes information “posted” on 29 January 2018 in relation to Sher-E-Punjab Pty Ltd, trading as South Pacific Institute. The document states that the Tuition Protection Service has been advised that Sher-E-Punjab Pty Ltd, trading as South Pacific Institute, has stopped teaching its international students as of Monday, 29 January 2018.
The Tribunal decision
On 13 August 2018, the Tribunal decided to affirm the delegate’s decision not to grant the appellant a Student (Temporary) (Class TU) visa.
The Tribunal identified the issue to be determined as whether the appellant met the criterion in cl 572.223(1)(a): see the Tribunal’s decision at [11]. In essence, the issue was whether the Tribunal was satisfied that the appellant intended genuinely to stay in Australia temporarily.
The Tribunal concluded, at [35], that it was not satisfied that the appellant intended to stay in Australia temporarily. Accordingly, the appellant did not satisfy the criterion in cl 572.223(1)(a). It followed that the dependent applicants (being the appellant’s husband and children) did not satisfy the criterion applicable to them: see the Tribunal’s decision at [37]-[39].
At [21] of its decision, the Tribunal described the PRISMS report and the matters raised with the appellant during the hearing in relation to that report.
Relevantly for present purposes, the Tribunal stated at [23]:
The applicant responded to the Tribunal that the last course of study she had completed and graduated in was the Advanced Diploma of Management on 22 November 2015. The applicant claimed that the education provider for the Diploma of Marketing and Advance Diploma of Marketing closed down in January 2018 and that the applicant had been seeking a refund on the fees she had paid. The Tribunal does not accept the applicant’s claims regarding the Diploma and Advanced Diploma of Marketing as the PRISMS report was obtained on 18 December 2017. At the time of the PRISMS report the COE’s had already been cancelled. Considering the applicant’s oral evidence that she has not completed a course of study since 22 November 2015 the Tribunal finds the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.
The Tribunal made additional findings at [24]-[34] that were supportive of its conclusion that the appellant did not satisfy the relevant criterion.
The judgment of the Federal Circuit Court
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.
The appellant was represented by counsel at the hearing before the primary judge. The appellant relied on four grounds of review. The primary judge dismissed each of these grounds: Fathima v Minister for Immigration [2021] FCCA 796.
The first three grounds are broadly similar to those pursued on the appeal to this Court. The fourth ground of review is not the subject of appeal and can be put to one side.
I will refer to the primary judge’s reasons for judgment later in these reasons, in the course of considering the appeal grounds.
The appeal to this Court
The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant relies on three grounds of appeal in her amended notice of appeal. These are, in summary:
(a)The Federal Circuit Court erred in not finding that the Tribunal’s decision was unreasonable, irrational and/or illogical or based on a finding for which there was no logical or probative basis (ground 1).
(b)The Federal Circuit Court erred in not finding that the Tribunal constructively failed to exercise its jurisdiction, and/or denied the appellant a real and meaningful hearing pursuant to s 360 of the Migration Act 1958 (Cth), by failing to consider significant and critical material (ground 2).
(c)The Federal Circuit Court erred in not finding that the Tribunal failed to consider, or give proper, genuine and realistic consideration to, the appellant’s written submissions and supporting evidence (ground 3).
At the hearing of the appeal, counsel for the appellant indicated that the part of ground 2 relating to s 360 of the Migration Act was not pressed.
It is convenient to deal first with grounds 2 and 3, and to consider these grounds together, and then consider ground 1. This is consistent with the way in which the appellant’s case was presented.
Grounds 2 and 3
The appellant submits that: the critical issue in the review was whether the appellant had remained engaged in study since November 2015; the appellant’s account was that she had attended the South Pacific Institute, but her studies had been interrupted by the closure of the institute; the Tribunal rejected that narrative solely on the basis that the PRISMS report (which was dated 18 December 2017) showed that her courses had been cancelled by that date.
The appellant submits that: the Tribunal’s decision did not refer to the evidence that the South Pacific Institute’s registration had been cancelled in October 2017 (i.e. the ASQA printout); the cancellation of the registration occurred before the date of the PRISMS report; the Tribunal did not exclude the possibility that the appellant’s enrolment was cancelled due to the cancellation of the South Pacific Institute’s registration.
The appellant submits that the Tribunal did not consider the appellant’s written and documentary evidence that the closure of the South Pacific Institute occurred or commenced in October 2017. The appellant submits that the failure to consider the written material is an error of the type identified in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[120], namely a failure to consider cogent and significant corroborative material.
It appears from the appellant’s submissions that the two pieces of evidence or material that are relied on in support of these grounds are: (a) the ASQA printout; and (b) the appellant’s submission to the Tribunal dated 29 May 2018.
The appellant is correct in submitting that the Tribunal did not refer to the ASQA printout. In relation to the appellant’s submission dated 29 May 2018, and specifically the reference to the South Pacific Institute being shut down in October 2017, the Tribunal did refer to this at [27] of its decision. The appellant acknowledges this, but submits that this reference was in a different context, and the Tribunal did not identify that the date of closure in the written submission appeared to differ from the appellant’s oral evidence.
In my view, no error is shown in the conclusions of the primary judge in relation to the comparable grounds in the proceeding in the Federal Circuit Court.
First, the focus on the Tribunal’s reasoning at [23] of its decision was the fact that the appellant had not completed or graduated from a course of study since November 2015. This was one of the points that the Tribunal raised with the appellant on the basis of the PRISMS report: see the Tribunal’s decision at [21]. In the first sentence of [23] of the Tribunal decision, the Tribunal recorded that the appellant responded that “the last course of study she had completed and graduated in was the Advanced Diploma of Management on 22 November 2015”. In other words, the appellant in her oral evidence accepted that she had not completed a course of study since November 2015. There is no issue about the correctness of the Tribunal’s finding that the appellant had not completed a course of study since November 2015.
Secondly, as the primary judge stated at [71], while it is true that the Tribunal did not refer to the ASQA printout, this was not necessary as the Tribunal was not ultimately determining the question of when the South Pacific Institute had closed. In any event, as the primary judge noted, there may be a factual distinction between the formal deregistration of the South Pacific Institute and its closure. The primary judge noted that the Tuition Protection Service document stated that the South Pacific Institute “stopped teaching its international students as of Monday 28 January 2018”.
Thirdly, as the appellant accepted below, and the primary judge stated at [73], the Tribunal is not required to refer to every piece of evidence before it.
Fourthly, as the primary judge noted at [74], the focus was on whether the appellant had undertaken and/or completed any study since November 2015. The appellant had not provided any documentary evidence to support her contention that she had continued to study throughout 2016 and 2017, despite this issue having been raised with her in correspondence before the Tribunal hearing. In this context, it is unsurprising that the Tribunal did not refer to the ASQA printout in its reasons. Its failure to do so does not lead to an inference that it failed to consider the ASQA printout or the relevant part of the appellant’s submission dated 29 May 2018.
For these reasons, grounds 2 and 3 are not made out.
Ground 1
The appellant submits that, if the Tribunal did consider the appellant’s evidence that the South Pacific Institute closed in October 2017, and the evidence that its registration was cancelled, then the Tribunal’s reasons at [23] were irrational and illogical. The appellant submits that the Tribunal’s reasons do not reveal any rational basis for excluding the possibility that the appellant’s enrolment may have been cancelled (as recorded in the PRISMS report) as a result of the deregistration in October 2017.
In my view, no error is shown in the conclusion of the primary judge in relation to the comparable ground in the Federal Circuit Court proceeding.
As the primary judge noted in [42], the point being made in [23] of the Tribunal’s decision was that, on the basis of the PRISMS report, which was dated 18 December 2017, the appellant’s enrolment in the relevant courses had already been cancelled as at that date. This provided a logical and rational basis to reject the appellant’s oral evidence that she continued to study at the South Pacific Institute until January 2018.
Given the nature and context of the issue that it was determining, it was sufficient for the Tribunal to focus on the appellant’s oral evidence, and to provide a logical and rational basis for rejecting that evidence. It was not necessary for the Tribunal to refer to the possible inconsistency between the material the appellant had provided earlier and her oral evidence at the hearing.
Further and in any event, for the reasons given by the primary judge at [55]-[58], any error by the Tribunal was not material.
Accordingly, this ground is not made out.
Conclusion
For the above reasons, the appeal is to be dismissed. At the hearing, both parties accepted that costs should follow the event. Accordingly, I will also make an order that the appellants pay the Minister’s costs of the appeal, to be fixed as a lump sum.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 28 April 2022
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