HAMEED v Minister for Home Affairs and Anor

[2018] FCCA 3969

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMEED v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3969

Catchwords:

MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.500.212

Applicant: ABDUL HAMEED

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: LNG 29 of 2018

Judgment of: Judge Riethmuller

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Hobart

Delivered on: 16 November 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondents Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 29 of 2018

ABDUL HAMEED

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth).

Background

1. The applicant first arrived in Australia in September 2009 on a student visa.  Whilst here, the applicant then applied for further student visas which were granted: in April 2011, July 2013 and October 2014. 

2. The applicant was then granted a further student visa in January of 2015.  By this point, the applicant had finished a Bachelor’s degree in accounting and applied for a 485 skilled graduate work visa.  This visa was granted to the applicant in March 2015 and valid until September 2016.  It enabled the applicant to do his professional year following his accounting degree. 

3. Thereafter, the applicant applied for another student visa in September 2016 which was refused by the delegate. At the time of the decision of the Tribunal, the applicant was studying a Diploma of Leadership and Management which began in July 2017 and was due for completion in July of this year. 

4. The Tribunal goes through the courses that the applicant had studied since his arrival some nine years ago at p.3 of their decision. The applicant has undertaken an English course, a Certificate IV in Business, a Diploma in Business, a Bachelor of Accounting, a Graduate Diploma of Management, a professional work experience year and then subsequently gone back to seek to do a Diploma of Leadership and Management which he was studying at the time of that decision: see [13].

5. Not surprisingly, the Tribunal found it unusual that somebody who had reached a post graduate diploma level by obtaining a Graduate Diploma of Management in 2014 would go back to a course that is only at the diploma level, that is, below the level of a bachelor’s degree, to, again, study management.  Although the applicant pointed out to the Tribunal that the diploma included leadership as well as management and that he did not think he had done enough courses or studies involving these issues in the variety of certificates, diplomas and degrees that he had undertaken already.

6. The Tribunal then went on to consider whether or not the applicant satisfied the relevant criteria and, importantly, had regard to Direction No. 69 as to the method of assessing whether or not somebody is a genuine temporary entrant for a student visa.  The Tribunal summarises the Direction at p.3 identifying the main areas which must be considered in a given case.  Importantly, the Tribunal does carefully consider the applicant’s circumstances in his home country which are set out at p.4 of the decision. 

7. The applicant’s potential circumstances (which appear at [17] to [19]) further touched on his home circumstances. 

8. The Tribunal looks at the value of the various courses and this particular course to his future: see [22] and [24].  The Tribunal also recounts the applicant’s immigration history including previous visas: see [11] to [13].

9. In this case, the applicant is not a minor, and, therefore, the relevant considerations under Direction No. 69 to do with minors or those who have legal guardians do not apply. 

10. There does not appear to be any significant other relevant information.  It is certainly not the subject of submissions that there is other relevant material that has not been considered by the Tribunal. 

11. In short, the Tribunal came to the conclusion that after nine years and a large variety of courses at various higher levels, that it was not satisfied that the applicant was a genuine temporary entrant for the purpose of studies and returning to do a low-level leadership and management course.

Grounds of Application

1. The applicant sets out, effectively, four grounds for judicial review.  Although, they are only numbered as three and in the following terms:

   1. I am no satisfied with the decision of the Administrative Appeals Tribunal so therefore I would like to appeal to Federal Circuit Court to reconsider the decision which was made by AAT.

   2. The DIBP and AAT erred in applying Ministerial Direction No. 69, Assessing the genuine temporary entrant criterion for student and Student Guardian visa applications’ towards the assessment of GTE (Genuine Temporary Entrant) requirements for my application.

   3. The DIBP and AAT made error in applying the Clause 500.212 in Schedule 2 of the Migration Regulations towards assessing whether the applicant is a Genuine Application for entry and stay as a student.

   The DIBP and AAT failed in applying procedural fairness and natural justice.  The value of the proposed course was misinterpreted by the delegate and applicant’s education, migration history and career goals were not fully considered towards my ‘Genuine student criteria’ Assessment.

Ground 1

1. The first ground is that the applicant is simply unsatisfied with the decision of the Tribunal.  In judicial review proceedings, it is not open to the Court to review the decision of a Tribunal on the merits, but only on the basis of jurisdictional error. 

2. In these circumstances, this ground cannot be successful and does not demonstrate any form of arguable case. 

Ground 2

1. The second ground alleges that the tribunal failed to appropriately apply Ministerial Direction No.69.  The applicant was unable to articulate any specific argument in this regard.  As set out above, it is clear that the Tribunal were aware of Direction No.69, had clearly read it and summarised its requirements, and in the course of their reasons (as I have set out above), addressed each of the factors that were relevant in the context of this particular case.  No arguable error is identified.

Ground 3

1. The third ground alleges that the Tribunal made an error in applying cl.500.212 of the Migration Regulations 1994 to the case.  It is difficult to see that that is an error given that it is one of the requirements for the grant of the visa.

2. To the extent that it is said that it was an error because it was not correctly applied, it is difficult to see how such an argument could be developed given that, again, the Tribunal has set out the matters that must be considered under that regulation and the variety of matters listed there are traversed in the course of its reasons.  Nothing has been identified by the applicant to indicate that there is a particular error in this regard.

Ground 4

1. The fourth ground is that the Tribunal failed to apply procedural fairness or natural justice, and it lists a number of different matters.  This was repeated in the written submissions that the applicant had lodged with the Court.  I asked the applicant about these matters at the oral hearing before me in order to ascertain whether there was some indication of an arguable case in these issues.  The applicant was not able to advance the argument beyond what is in the written material. 

2. The value of the course to the applicant was discussed by the Tribunal.  To the extent that the ground alleges that the delegate made an error, this does not appear to be relevant, as it is the Tribunal’s decision that I must consider, not the delegate’s decision. 

3. The Tribunal sets out in some detail its reasoning process about the importance of the course to the applicant and, in my view, logically and reasonably comes to the view that it does not appear to be a significant course given the applicant’s previous studies and the much higher level of studies that he had engaged in.

4. The Tribunal clearly had regard to the applicant’s education, setting out in detail his educational achievements whilst in Australia.  It also had regard to his migration history setting out in detail the history of the large number of visas that he has obtained over the last nine years to enable him to remain here for studies and for work experience.  The Tribunal also discusses the career goals that the applicant explained about returning to work in his country.  It does not appear to me that the Tribunal can be said to have failed to consider any of these matters. 

5. The applicant does not identify anything that he says he put forward to the Tribunal that is relevant or significant that was not considered by the Tribunal in the reasons that they gave. 

6. In the circumstances, it does not appear to me that the applicant has articulated an arguable case under any of the grounds that he has put forward, and nor has he raised a matter before me orally that would indicate some form of arguable case, should he be able to amend to include it in his application. 

7. In these circumstances, the application ought to be dismissed at this show cause hearing.

Adjournment Request

1. I should, as a matter of completeness, also record briefly my reasons for not having granted the applicant an adjournment of the proceedings when he sought such and before I heard the matter today.

2. The applicant had informally sought an adjournment of the proceedings earlier in the week on the basis of a claim that a nephew had passed away last week and that he wished to be able to return home.  The Court offered the applicant the opportunity of having his hearing on Tuesday so as to enable him to be able to travel later in the week should he wish to do so, but that offer was declined. 

3. At the hearing before me today, the applicant said that he was only notified a month ago that a public advocacy service would not be representing him in these proceedings and that he had not yet arranged a lawyer.

4. The proceedings have been pending since July and his application in the proceedings contains a written outline by him.  The claim that his nephew had passed away last week is not supported by any evidence or medical certificates. 

5. In the circumstances of the case, I was not persuaded that the applicant had established a proper basis for me to adjourn these proceedings for a show cause hearing.  Had the applicant, or if the applicant were to show that there was an arguable point, the matter would have to be put over in any event so that more detailed material could be filed and more detailed arguments heard.  It was for those reasons that I did not accede to the request for an adjournment in this case. 

Conclusion

1. In the circumstances therefore, I dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  25 February 2019