Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1190

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1190

File number(s):

LNG 45 of 2020

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

31 May 2021

Catchwords:

MIGRATION – judicial review – Administrative Appeals Tribunal decision – student visa application – genuine applicant for study purposes – extensive visa history – changes in study pathway – no matters of principle – dismissed

Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) cl. 500.212

Number of paragraphs:

34

Date of last submissions:

18 February 2021

Date of hearing:

18 February 2021

Place:

Hobart (via Microsoft Teams)

The Applicant:

Appeared in person

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

LNG 45 of 2020

BETWEEN:

MAHMUDUL HASAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	31 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,464.00.

REASONS FOR JUDGMENT

JUDGE RIETHMULLER

1. This matter concerns an application for judicial review of an Administrative Appeals Tribunal (‘the Tribunal’) decision in which the delegate of the Minister was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student, as required by cl. 500.212 of the Migration Regulations 1994 (Cth) (‘Regulations’).

2. On 18 October 2017, a delegate of the Minister refused to grant the visa because the delegate found that the visa applicant was not a genuine temporary entrant for study purposes.

3. On 4 November 2017, an application for review by the Tribunal was lodged, and on 25 September 2019, the Tribunal conducted a hearing in Sydney, at which the applicant appeared to give evidence and present arguments. On 19 April 2020, the Tribunal published its decision, affirming the delegate’s decision to refuse the visa.

4. The applicant was self-represented at the hearing before me. He submitted written submissions, which I marked ‘Exhibit 1’.

   BACKGROUND

5. The applicant, a Bangladeshi citizen, arrived in Australia on 7 October 2007 on a Student visa. He has a long and detailed history of visas in Australia, set out by the Tribunal at paragraphs [16(a)-(l)] of the decision. Upon his arrival, the applicant initially indicated an interest in hospitality and chef-related experience and studies. He then switched to accounting and commerce focused study, which he finished in around 2014: see paragraph [18] of the decision. The applicant then enrolled in a Master of Accounting. Next, he applied for a 485 Temporary Graduate visa, allowing him to work full time.

6. During this period the applicant returned to Bangladesh, as the Tribunal recounted:

   21. The applicant told the Tribunal that at this time his mother was sick. He stated that when he went back to Bangladesh at this point his employer told him he had to resign and his employment was terminated. The applicant stated that after one and a half months he came back to Australia and did an interpreting course. He stated that he went for an exam for this course, but could not manage it. At this stage his 485 visa was close to ending.

   22. The applicant stated that he returned to Bangladesh again and consulted people, who suggested that he could do accounting, finance and banking as this is a booming field. He stated that he spoke to his migration agent about this, but his agent said to him that he had not done any banking studies. The applicant therefore enrolled in the Advanced Diploma of Banking Services Management. He stated that after one month of returning to Australia he got a job as an accountant. He applied made his current Student visa application, but the application was rejected.

   23. The applicant told the Tribunal that his mother suffered a brain stroke in 2018. He was on a Bridging visa class A at the time and left Australia without obtaining a Bridging visa class B. He stated that his mother was in a coma and after one month she passed away, on 5 December. He explained that after this he was considering what he should do. He stated that he has an eight year old sister, home he would also need to consider. He stated that his Bridging visa class A was terminated, so he applied for a Visitor visa and returned to Australia on 26 February 2019.

7. Upon to return to Australia in 2019, the applicant enrolled in a Leadership and Management course.

8. At the time of the hearing before me, the applicant was enrolled in a Diploma of Leadership and Management at Australian Ideal College and an Advanced Diploma of Leadership and Management.

   Tribunal Findings

9. The key issue expressed by the Tribunal was with respect to the Applicant’s long history of study and visas in Australia, and the fact that he has studied in various areas, seemingly inconsistently. The Tribunal had regard to the applicant’s PRIMS records of study enrolment: see paragraph [26] of the decision. The applicant’s extensive PRISM records are set out in paragraph [28(a)-(i)] of the decision.

10. The Tribunal Member indicated that the issue before them was whether the applicant was a genuine temporary entrant as a student. In paragraphs [8]-[11], the Member contemplated the principles to which they must have regard.

11. In the decision, the Tribunal placed great weight on the applicant’s Diploma of Leadership and Management, saying:

    52. The Tribunal has had regard to the applicant’s claims as to the value of his current courses of study to his future, but considers that his current studies at the vocational level are likely to provide only incremental value when considered against his existing Bachelor degree in Accounting, his studies towards a Master of Professional Accounting and his other vocational qualifications. The applicant did not provide any evidence of his attempts to find work in Bangladesh, or to support his claims that a vocational qualification in Leadership and Management would qualify him for the managerial positions which he seeks, in the absence of the related-field work experience which he stated potential employers sought at interview.

12. The Tribunal considered the applicant’s accounting firm proposal:

    53.The Tribunal gives little weight to the applicant’s claim that he intends to open his own accounting firm in Bangladesh with the skills he has gained from his Leadership and Management courses, which will give him the ability to lead and manage other accountants, who will then assist him with accounting practice. The applicant completed a Bachelor of Accounting in 2014 and then completed the majority of a Master of Professional Accounting. The applicant has now delayed his plans to open an accounting firm for a further two years in order to complete a course in Leadership and Management and does not appear to be in any hurry to take up such opportunities in his home country. For the same reason the Tribunal gives little weight to his claims that his current course will assist him with the management of his father’s business. Given the length of time the applicant has resided in Australia, and the range of courses he has undertaken in fields including Hospitality Management, Accounting and Banking Services Management, the Tribunal considers this stated opportunity is unlikely to provide a significant incentive for the applicant to return to his home country.

13. The Tribunal also gave consideration to the hardship faced by the applicant:

    54. Although the Tribunal has taken into account the difficulties which the applicant faced in 2018, which may have contributed to his inability to complete the course which was the subject of his visa application (the Advanced Diploma of Banking Services Management), the applicant is now enrolled in a course of study in a different field and has substantially changed his study pathway, extending his stay in Australia for a further two years. The Tribunal does not consider this consistent with the conduct of a genuine student who wishes to progress academically.

14. With respect to the applicant’s response to the concerns raised, the Tribunal stated at [55] that:

    …based on the evidence as a whole, including the applicant’s evidence of the reasons for enrolling in his current course, and his previous enrolment and visa history, the Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study in Leadership and Management, but is outlaying significant time and monetary commitment that this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future.

15. In summary, the Tribunal determined at [67] that:

    On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters, are sufficient to demonstrate that the applicant is a genuine temporary entrant.

    GROUNDS FOR REVIEW

16. In his Application, the applicant sets out a total of twenty-two grounds for review:

    1. I am a Bangladeshi national who made an application on 16 June 2017 for Student (Temporary) (Class TU) (subclass 500) visa.

    2. In support of my student visa application I have provided all the supporting documents including Genuine Temporary Entrant (GTE) and valid COE of the current course I was pursuing.

    3. After an initial assessment of my visa application was undertaken by then Department of Home Affairs I have received refusal letter on 18 October 2017 stating that not only did my course for student visa lodged without enough research but it also concerned to DHA my length of study in Australia henceforth I do not meet the clause 500.212. Another concern raised by DHA indicating that I am not a genuine temporary entrant.

    4. In response to which I have appealed to AAT. An application to AAT was submitted on 4 November 2017 and Tribunal delivered a decision on 19 April 20.

    5. The tribunal asked me to complete "Request for student information" form the had issues the information I have provided was accepted. I did hold current COE at the moment and was enrolled in a full-time registered course and to meet the mandatory requirements for grant of student visa. The tribunal raised issues about my current course regardless provided affluent evidence for this change in pathway to value my further career.

    6.In the decision Record of the AAT it was claimed that

    "He has now significantly changed his study pathway to an Advanced Diploma of Leadership and Management, and has not provided convincing evidence to support his reasons for this change in pathway or for the value of his proposed study. The Tribunal has concerns that the applicant has already completed a range of qualifications over the past 12 years and is not progressing academically by undertaking further studies in Australia at the vocational level. The Tribunal therefore considers that the applicant has enrolled in his current course of study, at a level below his existing qualifications, primarily for the purposes of the visa application, in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study or in obtaining the qualification for his stated reasons. "

    7. It was further recorded that

    “The Tribunal gives little weight to the applicant’s claim that he intends to open his own accounting firm in Bangladesh with the skills he has gained from his Leadership accountants, who will then assist him with accounting practice. The applicant completed a Bachelor of Accounting in 2014 and then completed the majority of a Master of Professional Accounting. The applicant has now delayed his plans to open an accounting firm for a further two years in order to complete a course in Leadership and Management and does not appear to be in any hurry to take up such opportunities in his home country. For the same reason the Tribunal gives little weight to his claims that his current course will assist him with the management of his father's business. Given the length of time the applicant has resided in Australia, and the range of courses he has undertaken in fields including Hospitality Management, Accounting and Banking Services Management, the Tribunal considers this stated opportunity is unlikely to provide a significant incentive for the applicant to return to his home country.”

    8. The tribunal also claim that:

    “On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters, are sufficient to demonstrate that the applicant is a genuine temporary entrant. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl. 500,212. “

    9. At the hearing I demonstrated my current scenarios and justified GTE requirement. I regret I appointed my agent 4 nations when I lodged my student visa application. During my tribunal hearing I had been asked to comment my future plan after finishing my current course and unable to finish my master's degree. I explained each part of my study period and undoubtedly intention to go back to my country to the honourable member, but he was not satisfied my circumstances.

    10. I believe that I reserve the right to add further grounds in support of my application. I am not bound by any pleadings in this matter.

    11. The Tribunal is required to act in fair manner. It is not fair for the Tribunal to overlook my genuine circumstances, which lead to this. The requirement to act fairly is different to the requirement to act reasonably. The requirement to act fairly is a substantive right. It is not mere statement of principal.

    12. The refusal was based on factors that the Department of Home Affairs and AAT failed to verify correctly.

    13.      The delegates failed to exercise its decision making power reasonably

    14. The Administrative Appeals Tribunal ("Tribunal") failed to exercise its jurisdiction by failing to consider "all aspects" of my claims.

    15. The decision by the Delegates is peppered with and based on presumption and/or erroneous findings.

    16. The decision of the Tribunal is not in accordance with the application law and rules.

    17.      The decision is against the weight of evidence available for the Tribunal.

    18. The Applicant reserves the right to amend the Application. The Applicant reserves the right to add further grounds in support of the Application. The Applicant is not bound by any pleadings in this matter.

    19. The decision by the Tribunal was unsatisfactory. The Li case and the decision of Mason CJ in the peko Wallsend have provided a definitive statement as to what constitute unreasonableness.

    20. The Tribunal is required to act in fair manner. It is not fair for the Tribunal to not consider my test result. The requirement to act fairly is different to the requirement to act reasonably. The requirement to act fairly is a substantive right. It is not mere statement of principal.

    21. The construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application.  Section 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date.

    22. The review before the Tribunal was a merit review. Section 353 of the Act makes it clear that the Tribunal is not bound technicalities, legal forms and rules of evidence and must act according to the substantial justice and the merits of the case. It cannot be dispute that the requirement of being a genuine temporary entrant was directly relevant to the merits of the case. Instead of deciding the case on its merits, the Tribunal adopted the technical approach and just endorsed the delegate's decision instead of deciding the case on its merits; the Tribunal adopted the technical approach and just endorsed the delegate's decision. This amounts to the failure on the part of the Tribunal to conduct a review. This approach of the Tribunal has led to a plain unfairness and absurdity.

17. The applicant did not articulate any facts or circumstances in this case that pointed to a ground for review, despite the long and rambling grounds set out above. The substance of the applicant’s complaint appears to be in the written submissions he provided at the hearing.

18. In his written submissions dated 18 February 2021, the applicant sets out the following argument:

    … I just want to clarify the FFC department that I have positively completed my previous courses undertaken and willing to complete the current vocational courses undertaken at the moment from Australia Ideal College (Confirmation of Enrolment for both the courses will be provided with the other necessary documents as evidence). I always believed in progressing towards my academic performance and if it’s my interest I would complete the subjects with my best performance, and this is what I did completing all the vocational courses which I opted for during my stay in Australia.

    My family has been always supportive of me and well established with stable finances, so the finances would not be of any concern during my further education in Australia. I would request the FCC department to please consider my review application and provide me with the opportunity to complete my desire education in Leadership and Community from Australia before returning to Bangladesh. Moreover, after completing my vocational education I am planning to apply for job roles in top banks back Bangladesh for managerial position after acquiring qualifications in Business accounting and leadership & management subjects’ areas suitable to work certain managerial position and support my family in future.

    I hope my visa application is considered and given one more chance to prove myself, as previously due to visa refusal and my mother’s demise I was shattered but I completed the desired courses with continuous course progression and will continue performing the same way towards my further education.   

19. The applicant challenges the Tribunal’s outcome and effectively seeks a merit’s review of the decision. His long visa history alone shows that it was open to the Tribunal to reach the decision that it did. The applicant does not point to evidence that was overlooked or ignored. No error of law is apparent.

20. The first nine paragraphs of the applicant’s grounds do not identify a ground for review, but recount the circumstances of the case from the applicant’s perspective. Ground 10 simply reserves the right to add further grounds and ground 18 reserves the right to amend the application. No further grounds have been articulated nor amendments made.

1. Grounds 13 and 15 relate to conduct of the delegate, which is not able to be reviewed in this court. The remaining grounds are conveniently summarised by Counsel for the Minister as follows:

   11.      The Tribunal acted unfairly by overlooking his ‘genuine circumstances’.

   12.      The refusal was based on factors that the Tribunal failed to verify correctly.

   14.      The Tribunal failed to consider ‘all aspects’ of the applicant’s claims.

   16.      The decision was ‘not in accordance with the application law and rules’.

   17.      The decision is against the weight of evidence available for the Tribunal.

   19.      The decision by the Tribunal was unsatisfactory.

   20.      The Tribunal acted unfairly by not considering his ‘test result’.

   21. The construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred.’

   22. The ‘Tribunal adopted the technical approach and just endorsed the delegate’s decision instead of deciding the case on its merits’ which ‘amounts to the failure on the part of the Tribunal to conduct a review’ and ‘has led to a plain unfairness and absurdity.’

2. Grounds 11 and 20 allege that the Tribunal acted unfairly. When discussing the grounds with the applicant, he said that employers were looking for people with experience, rather than degrees, which is why he changed his pathway of studies. The applicant also explained that he went to Tasmania and not Sydney, as he had a cousin in Tasmania. It appears clear that the Tribunal did consider these matters that were raised by the applicant as appears in paragraphs [24] and [33] of the decision, where the Tribunal says:

   24. He stated that he has a cousin who lives in Hobart, who recommended that he could come back to Australia. He told the Tribunal that he realised he could not finish his Banking and Finance qualification, so instead enrolled in Leadership and Management.

   …

   33. The Tribunal questioned whether the applicant may already be in a position to start his own accounting firm with his existing skills and experience. He responded that he doesn’t have that much experience and he would like some leadership skills. He stated that if he had work rights then he would have tried to get more experience.

3. It is difficult to see that the applicant has articulated a basis for judicial review under these grounds.

4. To the extent that Ground 12 relates to complaints of the Tribunal making findings of fact, the applicant was not able to point to any finding of fact made that was not open to the Tribunal. Counsel for the Minister suggested that perhaps this was a reference to the factors in Direction 69 (pursuant to s. 499 of the Migration Act 1958 (Cth)), however, the Tribunal made reference to these factors in its decision, and clearly enquired of the applicant as to his circumstances that would be relevant.

5. The applicant was unable to articulate any particulars for ground 14, which appears to have been an expression of his emphatic disagreement with the Tribunal decision. Merits review is not available in this court.

6. In ground 16, the applicant alleges that the Tribunal made an error of law, but was unable to point to any legal rule or principle that this ground is based upon. It appears clear that the Tribunal considered the appropriate conditions from the Migration Regulations 1994 (Cth), Direction 69, and the facts and circumstances before it. This ground cannot succeed.

7. With respect to ground 17, the applicant emphasised that he did not agree with the Tribunal’s findings. It does not appear that the conclusions reached by the Tribunal were unavailable to it, based upon the evidence that was before it. This ground appears to be seeking merits review and must therefore be dismissed.

8. The applicant was unable to articulate what he understood ground 19 to be about. It appears that this is in substance merits review ground must be dismissed.

9. In ground 20, the applicant refers to a test result, however, it is unclear what aspect of the decision this relates to.

10. The applicant was unable to articulate the issues that grounds 21 and 22 related to, when he made his oral submissions.  It appears that ground 21 relates to a claim that information should be able to be submitted after the time of lodging a visa application. There is nothing to indicate that the Tribunal prevented the applicant from providing further material, and indeed sent him a letter inviting him to do so on 26 April 2019. The applicant also completed a questionnaire and submitted additional documents. There is no basis for this ground. 

11. Ground 22 appears to allege that in substance the Tribunal only engaged in a technical review process and simply endorsed the delegate’s decision. It is apparent from the terms of the reasons that the Tribunal undertook a careful and substantive review of the applicant circumstances, before coming to its own conclusions. There is no basis for this ground.

12. The circumstances of this review application appear to be based entirely upon a claim for merits review. The grounds that have been provided do not appear to have been produced by the applicant, who for the most part, was unable to provide any explanation of the basis for the grounds, save for expressing his disagreement with the outcome.

13. I am not persuaded the applicant has identified a ground for judicial review in any of the grounds he has set out, and so the application must be dismissed. 

14. Costs should ordinarily follow the event in applications of this type and there is no reason to make an alternative order in this case. I am persuaded that costs at the scale rate are appropriate and I so order.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       31 May 2021