Hussain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3231
•5 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUSSAIN v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3231 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal’s findings were open to it on the evidence and material before it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.474, 476 |
| Cases cited: Singh v Minister for Immigration & Anor [2018] FCCA 3423 |
| Applicant: | MOHAMMED SARFARAZ HUSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 742 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Siva Valliappan (DLA Piper Australia) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 742 of 2018
| MOHAMMED SARFARAZ HUSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 22 February 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 5 February 2016 refusing the applicant a Student (Temporary) (Class TU) visa (“Student visa”).
The background and the decision of the Tribunal are accurately summarised in the first respondent’s written submissions as follows:
“Background
2. The applicant is a male citizen of India. He applied for a Student (Temporary) (Class TU) (subclass 573) visa on 24 August 2015.
3. Pursuant to clause 573.223(1)(a) of schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), it was a criterion for grant of the visa that the Minister be satisfied that the applicant intended genuinely to stay in Australia temporarily. At the time of the visa application clause 573.223(1)(a) provided as follows:
573.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(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. By letter dated 26 August 2015, the first respondent's Department invited the applicant to comment on his circumstances in relation to the above criterion. The correspondence also invited the applicant to comment on the fact that Provider Registration and International Student Management System (PRISMS) records indicated the applicant was not enrolled in a course of study for a period of 9 months.
5. On 13 October 2015 the applicant's representative provided a response. To explain his poor enrolment record, the applicant claimed, among other things, that his father's business had suffered severe financial loss, and his father was therefore unable to send money for the applicant's education.
6. On 5 February 2016, a delegate of the first respondent refused the visa application. The delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily.
7. On 11 February 2016, the applicant applied to the AAT for review of the delegate's decision, and provided a copy of the delegate's decision with his application.
8. By letter dated 11 October 2016, the applicant was invited to attend a hearing before the AAT. A copy of Direction No. 53 was attached to this letter. The letter also requested that the applicant provide a written statement at least 7 days before the hearing addressing the issue of whether he is a genuine temporary entrant. The applicant did not provide a response.
9. On 8 November 2016, the applicant appeared before the AAT.
10. On 9 November 2016, the AAT affirmed the decision under review.
11. On 29 March 2017, the applicant sought judicial review of the AAT's decision.
12. On 30 May 2017, the Federal Circuit Court remitted the matter by consent, on the basis that the applicant's submission to the Department dated 13 October 2015 was not considered by the AAT.
13. On 3 November 2017, the applicant appeared before the AAT, differently constituted.
14. On 22 February 2018, the AAT affirmed the decision under review.
The decision of the Tribunal
15. The AAT noted that the applicant did not dispute that he was not enrolled for a period of nine months. The applicant explained that his father was unable to supply the funds, however, the AAT noted that applicant did not seek to defer his studies, or return to India until he was in a better financial position. The AAT noted that the applicant did not provide independent evidence to support his reasons for failing to maintain enrolment. Nor did he provide evidence of an English course he claims to have completed and the AAT found that it had no evidence of it ([18]).
16. The AAT noted that the applicant declared in his written statement in 2015 that he realised he needed to study Professional Accounting in order to support his father in business. Later in the same statement from 2015, the applicant outlined why he wanted to study Professional Accounting, in particular, because of the priority given to job candidates who have overseas qualifications in India and the fact that his studies will help him pursue his career as a CPA. The AAT considered that the applicant's written statement included inconsistent information because the applicant declared he wanted to manage his father's business, but also that he wanted to seek employment as an accountant, in which case he said his Australian qualifications would allow him to differentiate himself from local candidates. The AAT noted that in his evidence to the AAT, the applicant emphasised his desire to study an MBA and return to India to manage a family transport business. When asked why he needed an MBA to fulfil this plan, he could only state in general terms that it will give him the skills to improve and expand the business ([19]).
17. The AAT noted that, during the hearing, the applicant said he would discontinue studying the Diploma and Advanced Diploma courses in which he was enrolled and instead study an MBA. The AAT found that it therefore appeared that the applicant enrolled in those courses for the purpose of securing a visa rather than genuine interest in the field. The AAT considered that the applicant did not explain satisfactorily why he needed an MBA given his stated plans, or why he had enrolled in an accounting course previously but discontinued it. While the AAT accepted that an applicant may decide to change the direction of their studies, in this case, the applicant had qualifications in Engineering and was intending to study IT; he changed to Accounting, then to Leadership and Management and then declared an intention to study an MBA ([21]).
18. The AAT was not satisfied the applicant had satisfactorily explained why he was not enrolled for a period of nine months without seeking a deferment, or why he is now studying at Diploma level when he came to Australia to undertake a post-graduate degree. The AAT was also not satisfied the applicant had provided clear plans for the future, or demonstrated how an MBA will assist him in running a family business ([21]).
19. The AAT found the applicant's evidence to be contradictory and without detail. On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the AAT was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the AAT found that the applicant did not meet clause 573.223(1)(a) ([22]).”
The applicant was unrepresented before this Court, although had the assistance of an interpreter.
The applicant confirmed that he attended a directions hearing before a Registrar of this Court on 12 April 2018. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support. The applicant was also provided at that time with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The matter was set down for callover before me on 30 June 2019 and on that occasion the applicant was again directed to file and serve submissions and the matter was set down for hearing today, 5 November 2019.
On 16 October 2019, the applicant filed a document headed Submission and on 22 October 2019, the applicant filed an affidavit of his affirmed on 22 October 2019. That affidavit was objected to by the first respondent and rejected by me on the basis that all but two of the documents attached to the affidavit were documents that were not given to the Tribunal by the applicant. In respect of the other two documents, copies are in the Courtbook.
The applicant acknowledged that the documents attached to his affidavit had not been given by him to the Tribunal.
I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the ground identified in his affidavit filed in support of his application on 20 March 2018. That ground is as follows:
“On February 22nd, 2018 Administrative Appeals Tribunal (AAT) has made a decision of my application for review (See attached Annexure A). On November 3rd, 2017, I appeared in tribunal and explained the circumstances related to my case. But the tribunal officer has not given due consideration to my circumstances. I feel the tribunal officer has not given me a fair chance to review my application, so I believe AAT made an unfair decision on my application for review.”
That ground was interpreted to the applicant and he was invited to say whatever he wished in support.
The applicant’s Submission is more in the nature of a re-statement of his claims. It does not contain any further allegation of error beyond that contained in his affidavit.
At the heart of the applicant’s complaint is an assertion that he believed he was not given a fair chance by the Tribunal in relation to his review application and that the Tribunal made an unfair decision on his application. The applicant has not given any further particulars this morning as to why it is that he believed the decision to be unfair. He did say to the Court that he could not submit documents and that he told the respondent about documents, but he was unable to submit them and had insufficient time.
In fact, the applicant appeared before the Tribunal on 3 November 2017 and the Tribunal’s decision was not handed down until 22 February 2018. In those circumstances, the applicant had sufficient time to provide to the Tribunal any further documents that he may wish the Tribunal to consider.
There is no evidence before this Court of any attempt made by the applicant to provide further documents to the Tribunal or any request for further time. In the circumstances, I accept as accurate in their entirety the submissions of the first respondent from paragraphs 24 to 29. Rather than paraphrase those submissions, I adopt them as correct. They are as follows:
“Grounds raised in applicant's affidavit 20 March 2018
24. The first respondent submits that properly construed, the affidavit of the applicant amounts to an expression of disagreement with the merits of the AAT's decision. At its highest the affidavit alleges some unspecified unfairness.
25. The first respondent submits that the AAT decision is comprehensive and indicated that the AAT had regard to the evidence submitted by the applicant and his claims, including the submission to the Department dated 13 October 2015. Further, the AAT had regard to Direction 53 (see [15]-[16]) and the first respondent submits that in so far as the applicant's evidence addressed matters contained in the Direction, this evidence was discussed by the AAT in its decision record (see [17]-[21]).
26. The first respondent acknowledges the decision of Judge Riley in Singh v Minister for Immigration & Anor [2018] FCCA 3423 (Singh), in which her Honour held that the AAT is required to consider each factor specified in Direction No. 53 either expressly or impliedly. The first respondent submits that the preferable approach is that taken by Judge A. Kelly in Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 at [49] and [51]. In that decision his Honour reviewed the authorities in relation to the proper approach to consideration of the guidelines and found at [51]:
The use of guidelines in the exercise of statutory discretionary powers is not uncommon. The trend of reasoning in the authorities respecting Direction 53 and to which my attention was drawn confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.
27. The first respondent submits that in the present case, although the AAT did not have express regard to a number of factors in Direction 53, this is because the applicant did not make any submissions nor provide any evidence which engaged with those particular matters. For example the applicant did not provide evidence as to why he could not undertake the study in his home country (paragraph 9(a) of the Direction), or any military service commitments or political and civil unrest in his home country (paragraph 9(d) and (e) of the Direction). The only evidence provided to the AAT by the applicant was the evidence of his enrolments, and it is for this reason that the AAT's decision focussed upon his study history and the value of his course to his future. In these circumstances, the Court should conclude that those factors which were not expressly mentioned were considered but were not considered sufficiently germane to warrant express mention.
28. Finally, the first respondent submits that the AAT has complied with its procedural fairness obligations pursuant to Division 5 of Part 5 of the Act.
28.1 The applicant attended a hearing as required under section 360 of the Act, and he was clearly on notice of the dispositive issues in the review, from the delegate's decision and from the AAT's discussion with the applicant at the hearing (see the AAT's summary of the discussion at the hearing at [6]-[11]).
28.2. The AAT's obligations under section 359A(1) of the Act were not enlivened in this case. In particular, the information regarding the applicant's enrolment and study history was provided by the applicant to the AAT in his evidence to the AAT (see [6], [8], [9] of the AAT decision) and in the delegate's decision which the applicant provided. The information therefore fell within the exception in section 359A(4)(b) of the Act.
Applicant's written submissions
29 The applicant's written submissions address the merits of the genuine temporary entrant criterion. They do not allege, and cannot establish, jurisdictional error on the part of the AAT.”
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at the hearing and had regard to all material provided in support.
The Tribunal summarised various exchanges that it had with the applicant in relation to concerns it had about the history of the applicant’s studies in Australia and noted the applicant’s responses. The Tribunal had particular regard to Direction No.53: Assessing a Genuine Temporary Entrant Criterion for Student Visa Applications, insofar as it was relevant to the applicant’s claims. The Tribunal noted that Direction No.53 indicated that the factors specified should not be used as a checklist, but were intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entry criterion.
While the Tribunal accepted that the applicant may decide to change the direction of his studies, the Tribunal noted that the applicant had qualifications in engineering and was intending to study Information Technology. He had changed to accounting, then to leadership and management and now expressed to the Tribunal an intention to study a Master of Business Administration (“MBA”). The Tribunal noted that since his arrival in 2013, the applicant had not completed any approved course at a vocational or higher education level.
The Tribunal was not satisfied that the applicant satisfactorily explained why he was not enrolled for a period of nine months without seeking deferment or why he is now studying at diploma level when he came to Australia to undertake a post-graduate degree.
The Tribunal was also not satisfied that the applicant had provided clear plans for his future or demonstrated how an MBA would assist him in running a family business.
In the circumstances, the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and, therefore, does not meet cl.573.223(1)(a) of Sch.2 of the Regulations, being a mandatory requirement of his visa.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. Those findings were logically probative of the issues before the Tribunal and were not without an intelligible foundation. It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-9, [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30]).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision.
The ground identified by the applicant does not disclose any jurisdictional error and none is apparent on the face of the Tribunal’s decision record. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) this Court has no power to interfere with the Tribunal’s decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 November 2019
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