Hossain v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 82
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hossain v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 82
File number: SYG 1445 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 29 January 2025 Catchwords: MIGRATION - Student (Temporary) (class TU) (Subclass 500) visa – Administrative Appeals Tribunal – application for judicial review – no jurisdictional error established – application dismissed Legislation: Migration Regulations 1994 (Cth) Sch 2, cl 500.211, 500.212 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Home Affairs [2019] FCA 2026
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 22 January 2025 Place: Parramatta Solicitor for the Applicants: Sel-represented litigant Solicitor for the First Respondent: Ms Juarez (MinterEllison) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1445 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD IMAM HOSSAIN
First Applicant
AFRUZA AKTER
Second Applicant
AFRAN HOSSAIN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the Second Respondent be substituted to read ‘Administrative Review Tribunal’.
2.The application is dismissed.
3.The First and Second Applicant are to pay the First Respondent’s costs, fixed in the sum of $5,900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review, filed on 15 June 2024, of a decision by the Administrative Appeals Tribunal (“the Tribunal”) dated 28 May 2020 to affirm the refusal of a student visa application for failing to meet Genuine Temporary Entrant (“GTE”) Criteria.
For the reasons outlined below, the application should be dismissed.
BACKGROUND
The applicants are citizens of Bangladesh. The first applicant is the primary applicant (“the applicant”) of the visa. The applicant’s wife (“the second applicant”) and child (“the third applicant”) were included as dependant applicants in the visa application.
The applicants first arrived in Australia on 18 March 2011 having been granted a Student (Class TU) (subclass 572) visa on 6 February 2011 which was valid until 13 September 2012. Since arriving, the applicant held three student visas and associated bridging visas.
On 14 March 2018, the first applicant applied for a Student (Temporary) (class TU) (Subclass 500) visa (“the visa”).
In a decision dated 29 May 2018, a delegate of the Minister (“delegate”) refused to grant the student visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criteria under cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth)(“the Regulations”).
At the time of the decision, the first applicant was enrolled to undertake an Advanced Diploma of Accounting which would have required the applicant to remain onshore until 12 March 2021. This would bring the applicant’s total time in Australia on student temporary visas to approximately ten years.
Records from the System (PRISMS) indicate that the applicant was previously enrolled in a number of courses (as of May 2018), specifically:
·English for Academic Purposes
·Diploma of Business
·Diploma of Information Technology
·Certificate III in Commercial Cookery
·Diploma of Hospitality
·Certificate III in Travel
·Certificate IV in Travel and Tourism
·Diploma of Travel and Tourism
·Advanced Diploma of Travel and Tourism
·Diploma of Accounting
Following the decision to refuse the additional visa by the delegate, on 6 June 2018, the applicant lodged an application with the Tribunal to review the delegate’s decision.
On 28 May 2020, the Tribunal affirmed the refusal of the student visa application on the basis that it was not satisfied the applicant met the GTE criteria. Consequently, the secondary applicants were refused a visa as they were not the members of a family unit of a person who held a visa pursuant to cl 500.311.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal summarised the question for determination as being whether the applicant could establish whether he was genuinely intending to stay in Australia temporarily, whilst he undertook a further course of study.
The Tribunal at [7] cited in full cl 500.212 of the Regulations:
The applicant is a genuine applicant for entry and stay as a student because:
(a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal identified that it had regard to Direction No.69 in the consideration of the application for review.
At [10], the Tribunal set out the documents that the applicant had provided and the documents the Tribunal had regard to, and from [11] to [12] set out the applicant’s current study history.
Under the heading “Circumstances in the applicant’s home country” the Tribunal noted it was unconvinced by the explanation proffered by the first applicant, as to why he wanted to pursue a Diploma of Accounting in Australia rather than undertake a similar course Bangladesh.
At 14] the Tribunal provided the following summary of its reasoning:
In the time three years it would have taken the applicant to study the Diploma and Advanced Diploma of Accounting in Australia, the applicant would have been able to complete a Bachelor degree in Accounting in his home country. The fact that the courses are run by non-English speaking trainers is irrelevant given that the main applicant states it is his intention to establish a restaurant and hotel in Bangladesh. In relation to the course materials not being internationally recognised, again this is not relevant given the applicant’s plan to return and work in Bangladesh were a Bangladeshi qualification would be recognised.
In addition, the Tribunal at [16] to [18] considered that the applicant is able to maintain his relationship with his family in Bangladesh, whilst he remained in Australia with his wife and child, which of itself, is not indicative of an intention to return to Bangladesh.
At [19] to [23] the Tribunal noted that the first applicant’s economic circumstances in Bangladesh did not represent a significant incentive not to return, mainly due to his father’s assets, which he would inherit.
In the context of the applicant’s circumstances in Australia, the Tribunal expressed at [27] to [28] concerns that the applicant’s repeated changes to his field of study over the past nine years indicated a misuse of the student visa program to prolong residence in Australia.
The Tribunal further noted at [30] that these changes were all confined to Vocational Education and Training (“VET”) courses, which are inconsistent with the applicant’s previous education qualifications, including a Bachelors and Masters degree in Sociology from Bangladesh.
The Tribunal was not persuaded that there was any correlation between the applicant’s stated goal of establishing a restaurant and hotel business, in Bangladesh, with his current course of study at the VET level. Therefore, the Tribunal found that the applicant was using the student visa system to circumvent the migration program and did not genuinely intend to stay in Australia temporarily.
These various factors led the Tribunal at [37] to [40] to reach the conclusion that he had not satisfied the various criteria specified in cl 500.212. As such, it affirmed the decision of the delegate to not grant the applicants visas.
GROUNDS OF JUDICIAL REVIEW
The Originating Application filed on 23 July 2020 contains two grounds of judicial review. They are as follows:
Ground one
The Administrative Appeals Tribunal has failed to apply the correct test pursuant to clause 8202(2)(b) of the Migration Regulation 1994 (Cth).
Particulars:
ln dealing with the applicant's claim under clause 8202(2)(b) of the Migration Regulation 1994, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under the provision.
Ground Two
The AAT fell into error by failing to deal with an integer of the Applicant's claims leading to a failure to exercise jurisdiction.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no formal written submissions were provided to the Court by the applicant in support of his case. Written statements, included in affidavits filed on 15 November 2020 and 27 August 2024, were treated as submissions but were not accepted into evidence. The applicant told the Court he provided the Tribunal with all relevant documents that supported his claim for a further study visa, and he could not understand why he was rejected by the Tribunal. He was asked to address his two grounds of judicial review but was unable to provide any meaningful material as to there being any jurisdictional error within the Tribunal decision.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered again that he provided all relevant documents to support his further visa application.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent noted that the grounds of review relied upon by the applicant appear to be “template grounds” that have “no application in this matter”. For this reason and in the absence of any particulars to make the grounds meaningful, it was submitted that these grounds should be dismissed: (see: SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21]).
In relation to ground one, it was submitted that the applicant had erroneously raised cl 8202, which is not applicable to this matter, rather than cl 500.212.
The first respondent submitted that the Tribunal correctly interpreted and applied the requirements in cl 500.212. The Tribunal had regard to the evidence and material submitted by reference to Direction No 69 and provided “logical and rational” reasons for its findings: (see: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31]).
Ground two contends that the Tribunal failed to consider the integer of the applicant’s claims. The respondent submitted that there is no identifiable claim the Tribunal failed to consider.
Further, in his oral submissions, the applicant did not raise any matter that went to jurisdictional error, rather only addressed the Court on matters that went to merit.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
The Tribunal decision record properly sets out the background to the matter. The Tribunal then correctly instructed itself as to the relevant matters required to be considered under cl 500.212, including Direction No 69. The Tribunal set out all the matters it had considered, including material relating to land owned by the applicant’s parents and a letter relating to a surgical procedure that the applicant’s father underwent in 2017. The Court is not satisfied that the Tribunal overlooked or failed to consider any of the material that was before it.
The decision record sets out the applicant’s study history in Australia and then, in an orthodox manner considers the material before the Tribunal in relation to the matters set out in Direction No 69. The discussion of the various factors relates to the evidence that was before the Tribunal and the conclusions that it reached are rational, logical, and based on the evidence that was before the Tribunal.
Ground one
Ground one, which makes reference to condition 8202(2)(9) rather than cl 500.212, even if substituted to read cl 500.212, has no merit. The Tribunal correctly identified the relevant matters it was required to consider, and then set out the evidence that related to the particular considerations under both cl 500.212 and Direction No 69. The Court can detect no error in the approach taken by the Tribunal in its consideration of the evidence and the manner in which it came to the conclusions it did.
Ground two
Ground two is again difficult to understand. It lacks any meaningful particular to describe what matter the Tribunal failed to take into account that it should have. For this reason alone, the ground can be dismissed. Further, when pressed, the applicant could only point to issues relating to his father’s illness in the valuation of the land belonging to his parents, which were specifically referred to and taken into account in the Tribunal’s consideration. The Court is satisfied all relevant matters were taken into account. Ground two has no merit.
CONCLUSION
As the applicant is unrepresented, the Court has perused the court book and in particular, the Tribunal decision record. The Court is unable to detect any articulated jurisdictional error. The application must be dismissed.
As the second and third applicants, being the first applicant’s wife and child’s visas are dependent upon the first applicant having a visa, their applications must also be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 29 January 2025
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