Ghanem v Minister for Immigration &

[2017] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHANEM v MINISTER FOR IMMIGRATION &
ANOR [2017] FCCA 2279

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings were open to it – whether Administrative Appeals Tribunal erred in finding that the applicant had not complied with mandatory criteria of his visa – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.572.223

Cases Cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: MOHAMED AHMED BAIOUMY AHMED GHANEM

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 986 of 2017

Judgment of: Judge Emmett

Hearing date: 13 September 2017

Date of Last Submission: 13 September 2017

Delivered at: Sydney

Delivered on: 13 September 2017

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms Shelley He (Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 986 of 2017

MOHAMED AHMED BAIOUMY AHMED GHANEM

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application filed by the applicant on 31 March 2017 seeking judicial review of a decision of the Administrative Appeals Tribunal dated 15 March 2017 (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a Student (Temporary) (Class TU) visa (“Student visa”).

2. The issue is whether the applicant intended genuinely to stay in Australia temporarily, as required by cl.572.223(1)(a) in Schedule 2 to the Migrations Regulations 1994 Cth (“the Regulations”).

3. The background of this matter, including the Delegate’s decision, and the Tribunal’s proceeding and its decision are summarised in the submissions of the first respondent filed on 6 September 2017 from paragraphs 2 to 10 as follows:

   “Background

   2. The applicant is a male citizen of Egypt. On 22 December 2015, he applied for a Student (Temporary) (Class TU) visa (CB 1-7) on the basis of his enrolment in Advanced Diploma of Marketing (CB 24).

   3. The applicant was assessed against the criteria for a Subclass 572 Vocational Education and Training Sector visa under Part 572 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he was enrolled to undertake an Advanced Diploma of Marketing. At the time of the visa application, cl.572.223(1)(a) in Schedule 2 to the Regulations required the following:

   (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

   4. In assessing whether the applicant is a “genuine applicant” the Minister is required to consider the factors set out in Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications (Direction 53): s 499(2A).

   5. On 5 February 2016, a delegate of the Minister emailed the applicant to request that he provide more information in relation to his visa application (CB 19-25). The request for information also invited the applicant to comment on information which the delegate considered was adverse to the visa application. The invitation noted that the applicant was first granted a Student visa on 12 January 2007. Since the applicant’s arrival in Australia on 30 January 2007, he has held either a Student visa or Bridging visa for more than nine years. In that time, the applicant was enrolled to undertake 22 courses, of which he completed only four. The delegate expressed the view that the applicant did not seem to have made significant progress or achieved a reasonable completion level for a student whose primary purpose for being in Australia was to study and progress academically and that his behaviour indicated that he was using the Student visa application as a means of maintaining residence in Australia. 

   6. On 11 March 2016, the applicant responded by email to the Department (CB26-34)). In an attached statement dated 2 march 2017 (27-29), he explained that he finished eight courses since his arrival in Australia and that he undertook so many courses because most of them were “packaged”. He explained the reasons for the cancellation in his courses. The packaged course for General English and Diploma of IT with “ASBT” was cancelled because the applicant arrived in Australia after the course start date, whereupon he was issued with new courses. The reason his second Diploma of IT was cancelled was because the college closed for business. His Advanced Diploma of E-Business with “ACET” was cancelled also because the college “went out of business”. His packaged course in Management with “GCA” was cancelled because his visa application was refused. Another reason his courses were cancelled was “because of travelling overseas due to the unrest situation in [his] home country and I was worried for the safety of my relatives”.

   7. On 5 May 2017, a delegate of the minister refused to grant the visa (CB 36-47). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student or that he intended to stay in Australia temporarily.

   Tribunal proceedings

   8. On 9 May 2016, the applicant applied for review of the delegate’s decision to the Tribunal and attached a copy of the delegate’s decision record (CB 48-49).

   9. On 23 February 2017, the applicant was invited to (CB 56-69) and attended a hearing before the Tribunal on 13 March 2017 (CB 69-71). The applicant provided the following documents at the hearing:

   a. Certificate of completion and record of results for a Certificate IV in Marketing from Queen Anne Business College dated 10 February 2014 (CB 72-73);

   b. Confirmation of enrolment (COE) in Advanced Diploma of Marketing from Queen Anne Business College dated 16 December 2015 (CB 74);

   c. Certificate of completion and record of results for a Diploma of Marketing from Queen Anne Business College dated 12 January 2015 (CB 75-76);

   d. Academic transcript for an Advanced Diploma of E-Business from the Australian College of Education and Training (CB 77-78) and letter confirming the applicant's attendance dated 1 April 2009 (CB 79);

   e. Certificate of completion for a Certificate IV in Business from Astute Training dated 16 August 2010 (CB 80);

   f. Certificate of completion and academic transcript for a Diploma of Business from Australian Hair & Beauty College dated 22 November 2011 (CB 81-82);

   g. Certificate of attendance and certificate of completion for Elementary Level (General English) from the Australian School of Business & Technology dated 22 May 2007 (CB 83-84);

   h. COE in Certificate IV in a Marketing at Queen Anne College dated 2 July 2013 (CB 85);

   i. COE in a Diploma of Marketing at Queen Anne College dated 12 March 2013 (CB 86);

   j. COE in an Advanced Diploma of Marketing a Queen Anne College (CB 87); and

   k. COE in a Bachelor of Business at Holmes Institute dated 22 January 2016 (CB 88-90)

   The Tribunal’s decision

   10. On 15 March 2017, the Tribunal affirmed the delegate's decision (CB 93-98).”

4. The applicant was unrepresented before this Court. Although the applicant had not requested an interpreter for the purpose of the First Court Date on 11 May 2017 before a registrar of this Court, he had on that occasion requested an interpreter for today’s hearing. However, no interpreter was available today. The applicant told the Court that he was prepared to proceed in the absence of an interpreter. Nothing in the hearing today suggested that the applicant was unable to participate meaningfully because he did not have an interpreter. Nor did the applicant make any further complaint about the lack of an interpreter or at any time request such assistance.

5. The applicant confirmed that he had no further documents to provide to the Court this morning and confirmed that he continued to rely on the grounds identified in his initiating application filed on 13 March 2017.  The grounds identified by the applicant appear at three sections in the application and make the following various complaints:

   i)   That the Tribunal’s decision is unjustifiable; and

   ii)    That once the applicant is successful with his appeal, it is his intention to enrol, finish his study and get a job in Egypt.

6. The applicant was invited to say whatever he wished in support of his application. The applicant reiterated the claims that were made as to why he is a genuine student, that he wishes to stay in Australia and that his father is rich in Egypt and he has enough money, but that it is difficult for him to get a good job in Egypt without a Bachelor of Business. The applicant further reiterated that he only has another 18 months of study to complete that Bachelor of Business.

7. At the time of the applicant’s visa application, pursuant to cl.572.223(1)(a) of the Regulations, relevantly, the applicant was required to satisfy the decision maker that he intended genuinely to stay in Australia temporarily, having regard to his circumstances, his immigration history and any other relevant matter.

8. The only real complaint made by the applicant in his application is that the decision of the Tribunal was unjustifiable. That assertion is unsupported by any particulars or relevant submissions, either oral or in writing. It is clear from the Tribunal’s decision record that the applicant attended a hearing. The Tribunal explored the applicant’s claims with him at the hearing and put to him matters of concern it had about his evidence. The Tribunal noted various explanations that the applicant gave as to why he had been in Australia for 10 years and had not yet completed a course that he said was necessary for him to obtain an appropriate job in Egypt.

9. In particular, the Tribunal asked the applicant why he had spent 10 years in Australia. The Tribunal noted the applicant’s response that he had initially intended to do some vocational courses, but then had the urge to do a degree. The Tribunal noted that the applicant said that he had intended to go back to Egypt, but that things were happening in Egypt. The Tribunal also noted that the applicant had travelled to other countries, including twice to Egypt in 2016.

10. The Tribunal had regard to the relevant criteria that the applicant was required to meet for the grant of a Student visa and further considered Direction No.53 in assessing the genuine temporary entrant criterion for student visa applications. The Tribunal also noted that Direction No.53 indicated that the factors specified should not be used as a checklist, but rather are intended to guide decision-makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entry criterion.

11. Ultimately, having heard the applicant’s evidence and explored the Tribunal’s concerns about that evidence with him, the Tribunal found that the applicant did not intend genuinely to stay in Australia temporarily. The Tribunal noted that he had finalised eight courses and that they had all been of the vocational type, but did not indicate a career path.

12. The Tribunal stated that it was astounded to hear in oral evidence the applicant’s assertion that he was unemployable in Egypt. The Tribunal found that statement to be at odds with the wealth of knowledge that the applicant had accumulated in the certificates he had undertaken. The Tribunal noted that many of those certificates were in the marketing and business area. The Tribunal further noted the applicant's explanation that he required a Bachelor's degree to be employable. However, the Tribunal found that the applicant had taken 10 years to make that decision despite his other successful studies.

13. The Tribunal also noted the applicant had stated that he was working part-time as a house painter and had regard to the various trips overseas the applicant had made to Egypt and to Malaysia. The Tribunal found those facts all pointed to the applicant having had sufficient income and time to have completed a university degree should he have chosen to do so and which he now claims is essential for employment in his home country or in the Gulf States.

14. The Tribunal found the applicant’s circumstances and history indicated that his prolonged stay in Australia amounted to a level of semi-permanent residence by doing continual vocational courses at colleges. The Tribunal did not accept that those courses would not now assist him to be employed in Egypt. The Tribunal noted that the applicant had benefited financially from his part-time painting contract business to a sufficient extent to enable him to take these trips overseas.

15. The Tribunal found that the applicant had failed to use his financial and academic success to progress to a Bachelor’s degree. The Tribunal noted that the applicant now says after 10 years of study he needs such a degree to achieve the employment prospects that he desires in Egypt.

16. The Tribunal found the reasons given by the applicant for a need to remain studying in Australia were implausible in light of his own oral evidence and individual circumstances.

17. Having considered all those circumstances, and all the evidence provided by the applicant, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and, therefore, has not met clause 572.223(1)(a) being a mandatory criterion of his visa.

18. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

19. The applicant’s submissions were confined to his disagreement with the Tribunal's conclusion that he was not genuine student. Such a complaint seeks merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.).”

20. In the circumstances, the Tribunal applied the correct law in the conduct of its review and its decision is not affected by jurisdictional error. The proceeding should be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  11 October 2017