Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 787
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 787
File number(s): SYG 1911 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 28 September 2022 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – seventh student visa sought by applicant – whether genuine temporary entrant – whether failure to give proper consideration Legislation: Migration Regulations 1994 (Cth) cl 500.212 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534
Navoto v Minister for Home Affairs [2019] FCAFC 135
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 21 April 2022 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Parish Patience Immigration Law Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 1911 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED AKBAR HOSSAIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 September 2022
THE COURT ORDERS THAT:
1.The application filed on 10 July 2018, as amended, is dismissed.
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 GIVEN:
Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2018 affirming a decision of a delegate (delegate) of the first respondent refusing to grant the applicant a Student (Temporary) Class TU) visa (visa).
Background
The factual background to the matter is not in dispute.
The applicant is a citizen of Bangladesh who arrived in Australia on 16 February 2007, since which time he held five student visas in addition to the visa upon which travelled to Australia (Court Book (CB) at 32).
The visa which is the subject of the decision on review in this Court was the seventh student visa sought by the applicant, the application for which was made on 21 September 2016 (CB 1 to 23).
The delegate refused to grant the visa on 11 November 2016 on the basis that the applicant did not satisfy the requirements of cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations) (CB 26 to 33) because he was found to not be a genuine applicant for entry and stay as a student, noting his lengthy period of residence in Australia on student visas and his lack of progression beyond bachelor level degrees.
The applicant sought review of the delegate’s decision by an application to the Tribunal made on 14 November 2019 (CB 34 to 36).
The Tribunal held a hearing on 9 January 2018 which the applicant attended to give evidence and present arguments (CB 89 to 91).
On 14 June 2018 the Tribunal affirmed the delegate’s decision (CB 97 to 100).
Tribunal’s decision
After setting out the background to the matter (CB 98 at [1] to [7]) and the relevant clause of the Schedule 2 to the Regulations (CB 98 to 99 at [8] to [9]), the Tribunal recounted the evidence given to it at hearing (CB 99 at [10]) and the documentary evidence (CB 99 at [11]).
At the conclusion of [11] the Tribunal recorded a concern that despite the applicant’s immediate family being in Bangladesh, this did not appear to have been an incentive for him to return, and that given the length of time the applicant had spent in Australia, that his ties to Bangladesh had further diminished.
The Tribunal found that the applicant had had “ample opportunity” to complete his Bachelor degree, which he studied from 2007 to 2012, and was not satisfied that he was continuing to study for the genuine purpose of completing that degree. In the Tribunal’s view it appeared instead that the applicant was pursuing a further student visa in order to maintain residency in Australia (CB 99 at [12]).
The Tribunal concluded by finding that on the basis of its foregoing findings it was not satisfied that the applicant was a genuine applicant for entry and stay as a student and therefore he did not meet cl 500.212 of the Regulations.
Application to this Court
By an application to show cause filed with this Court on 10 July 2018 the applicant seeks judicial review of the Tribunal’s decision and raised a single ground of review. The applicant has been represented by solicitors throughout the proceedings and was represented by Counsel at hearing. The matter was initially docketed to Judge Baird and, on 1 August 2018, a Registrar of the Court made orders in chambers which included a grant of leave to the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 13 September 2018, and stood the matter over for callover. Presumably because the originating application had been drafted by the applicant’s solicitors they did not consider it necessary to avail themselves of the grant of leave to amend. The matter was subsequently called over on 18 June 2018. It was later placed in the central migration docket where it remained until when, on 25 February 2022, it was brought into my docket and listed for hearing before me on 21 April 2022.
At the hearing of the matter the applicant sought to rely upon a proposed Amended Application in a form annexed to the applicant’s written submissions. The first respondent had met the proposed amended ground by his written submissions and leave, not being opposed by the first respondent, I made an order granting it.
At hearing the Court Book was received as Exhibit “1R” and each of the parties read an Affidavit (without objection) as follows:
(a)Affidavit of Amina Yousef made 26 September 2018, annexing a transcript of the Tribunal hearing prepared by a professional transcript service (whimsically named “Transcript Divas”) (Transcript), read for the applicant; and
(b)Affidavit of Stephanie Gaussen made 30 October 2018 which was read for the first respondent, annexing a written statement of the applicant submitted to the Tribunal, which had been omitted from the Court Book.
Accordingly, the matter proceeded on the basis of the Amended Application which raises the following ground of review (errors in original):
1.The Tribunal made a jurisdictional error by failing to give proper consideration to the Applicant's case.
a.Whether the Tribunal had failed to give proper consideration or active intellectual engagement was a matter of impression in the circumstances of the case, necessitating a qualitative assessment of whether in substance the requisite consideration occurred: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89];
b. Proper consideration requires more than mere acknowledgment of the Applicant's case and may require the Tribunal to make specific findings of fact with respect to the case: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 289 at [39];
c. The Tribunal's observation at [11] that “[i]t is not clear why the applicant left his undergraduate degree and studied Certificate and Diploma courses instead” did not grapple with the Applicant's direct evidence as to his difficulties completing his undergraduate degree and pursuit of sub-degree studies to aid that completion;
d. The Tribunal's statement at [11] that the Applicant "declared he now needs a further three and a half years to complete his studies" was an incomplete description of the Applicant's evidence, which referred to that figure as a maximum subject to institutional timetabling;
e. The Tribunal relied at [11] on the fact that the Applicant "had not returned to his home country since July 2014" to find that his family at home did "not appear to be an incentive for him to return" without grappling with the fact that he was studying during that period and in any event as relied upon by the Delegate had returned home a number of times before that date;
f. The Tribunal found at [11] that, given the length of the Applicant's presence in Australia, his "ties to [his] own country have further diminished" without grappling with the Applicant's evidence that he had no family in Australia which could limit diminution of ties to Bangladesh;
g. The Tribunal found at [12] that the Applicant "has had ample opportunity to complete his Bachelor degree", referring to a 5 year period, without grappling with the Applicant's evidence as to his difficulties with his Bachelor degree and his pursuit of an alternative pathway to its completion.
As required, in construing the reasons of the Tribunal’s decision in this matter I have adopted a beneficial construction: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and more recently XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27]:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] – [15] (Allsop J (as his Honour then was)).
Despite the length of the particulars to this ground, the point is a narrow one, having been refined by the experienced solicitors and Counsel who appeared for each of the parties, an exercise which has assisted the Court considerably and allows for the consideration in the matter to be brief. The ground alleges a failure to properly consider the applicant’s claims. The various particulars to the ground allege a failure to “grapple” with the applicant’s evidence and, in the case of particular (e), to grapple with a fact.
For the following reasons, the ground is not made out either by reference to any of the particulars, either individually or cumulatively.
Particulars 1(a) and 1 (b) are statements of principle.
By particular 1(c) it is alleged that the Tribunal failed to consider the applicant’s reasons for studying diploma courses, rather than seeking to complete his Bachelor of Accounting degree. The applicant relies upon a statement by the Tribunal’s statement at [11] that “[i]t is not clear” why the applicant left his undergraduate degree in order to complete diploma courses instead.
However, this overlooks the summary of the applicant’s evidence in the preceding paragraph namely that the applicant did not complete the bachelor course because he failed two subjects. While it is true that by reference to the Transcript (see in particular T4.9 to T5.1) the applicant went on to describe how he therefore studied the diploma level courses “to gain more experience on the field”, the omission of those words from the Tribunal’s decision does not mean they were overlooked.
It is well established that the Tribunal is not required to refer to every piece of evidence: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 per French, Sackville and Hely JJ at [46].
In my view, the expression employed by the Tribunal at [11] did not reflect an overlooking of the applicant’s evidence, but rather a non-acceptance of it. The Tribunal did not, for example, say that there was no evidence given as to why the applicant had chosen to go off piste with his studies. Rather it said it was “not clear”. In my view, and read with proper deference to the issue before the Tribunal, namely whether the applicant genuinely intended to stay in Australia temporarily, the Tribunal did not accept that the answer given by the applicant clarified the issue. The Tribunal was, in essence, saying that the explanation offered did not satisfactorily resolve the matter. While this could have been expressed more absolutely, there is no jurisdictional error in the Tribunal not having specifically referred to the explanation produced in its finding that it did not clarify the reasons for the change in the applicant’s course of study.
Even if the Tribunal had so overlooked that evidence, which I do not accept, a failure to refer to or adequately consider evidence even where probative, does not give rise to jurisdictional error even if it leads to an erroneous finding of fact: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 per Kenny J at [24].
Having regard to the authorities referred to at [23] and [25] above, I am similarly not persuaded that the lack of an express reference by the Tribunal to the applicant’s evidence that the addition 3.5 year “as a maximum subject to institutional timetabling” constitutes error.
As to particular 1(d), it is true that (at T6.7) the Transcript records the applicant doing a calculation which had some reference to part of the course potentially taking longer, if not all subjects aligned. However, his final answer on the subject is at the bottom of that page (T6) and after clarifying whether the Tribunal was asking how long the Courts would take from that point in time, the applicant answered that it was 3.5 years “in total to finish along with my Bachelor degree”. A full, fair and contextual reading of the Tribunal’s findings does not reveal error as alleged.
In relation to the Tribunal’s observation at [11] that:
…In addition, at the time of the hearing the applicant had not returned to his home country since July 2014…
the applicant says by particular 1(e)) the Tribunal overlooked the fact that he had been studying during this time. I reject this assertion. It is patent that the Tribunal was aware of the applicant’s study activities in Australia. Further, the applicant did not at any point suggest to the Tribunal that study had prevented him from travelling home to Bangladesh.
To the extent that by particular 1(f), the Tribunal is alleged to have failed to “grapple” with the fact that the applicant had no family in Australia, as a counterpoint to its finding about the applicant’s diminished family ties with Bangladesh, I am not persuaded that the proposition follows, much less gives rise to an error. Of course, if an applicant were to partner in Australia and/or have other family here, this might present additional factors for a Tribunal to consider in the full circumstances of a case. However, the fact that an applicant does not have family in Australia, but does have family in their country of origin, is not a complete answer either.
The Tribunal’s point, which is clearly made, is that while the applicant’s family remained in Bangladesh this did not appear to have been a sufficient incentive for him to return, even to see them for short periods. In the applicant’s particular circumstances, this was a finding open to the Tribunal to make without expressly analysing or even pointing to the applicant’s lack of family in Australia. There is no suggestion that the Tribunal misapprehended the applicant’s evidence in this regard. Even if it had, I refer to [25] above.
Lastly, by particular 1(g) the applicant says the Tribunal failed to consider his explanation for not completing his Bachelor degree when it came to its conclusion (at [12]) that he had had ample time in which to. Again by reference to the authorities cited at [17], [23] and [25] above, this assertion relies on a hypercritical reading of the Tribunal’s reasons. The first respondent says that the Tribunal did not overlook the applicant’s claim to be finding the degree difficult. Rather, the Tribunal considered that the time which had elapsed was a sufficient time in which the course could have been completed, in particular if the applicant had not taken a detour into other courses of study. Contrary to demonstrating that the applicant’s explanation was overlooked, in my view it simply reflects the Tribunal being unpersuaded about the applicant’s overall explanations about the pattern and duration of his study, within the context of the cl 500.212 criterion.
For the foregoing reasons, I am not satisfied that the Tribunal’s decision is affected by jurisdictional error as alleged, or at all. Accordingly, the application, as amended, is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 September 2022
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