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

[2021] FCCA 1410

FEDERAL CIRCUIT COURT OF AUSTRALIA

Imani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1410

File number(s):

CAG 59 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

13 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – subclass 572 Student visa – whether the Tribunal decision was infected by error of law –  whether the decision of the Tribunal was unreasonable –  whether jurisdictional error is made out –   no jurisdictional error is made out – the application is dismissed

Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) cl 500.212 Schedule 2

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Multicultural Affairs v Shatku (2001) FCA 1857

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

WZABW v Minister for Immigration and Border Protection (2016) FCA 760

Number of paragraphs:

39

Date of last submission/s:

13 May 2021

Date of hearing:

13 May 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Swan of Counsel for the First Respondent.

ORDERS

CAG 59 of 2020

BETWEEN:

ABDUL RAHMAN BIN ABDULLAH IMANI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	13 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6100.00.

REASONS FOR JUDGMENT
(As revised from transcript)

JUDGE HUMPHREYS

INTRODUCTION

1. These reasons are being given orally.  The applicant has been advised that should he wish to obtain a copy of the reasons in writing, he can contact my chambers and they will be provided to him.  The applicant is a citizen of India.  The applicant first came to Australia on 27 February 2007 as the holder of a subclass 572 Student visa.  Since the applicant’s arrival, he has been granted a further five Student visas and a Subclass 485 Temporary Graduate visa.  On 19 April 2018, the applicant applied for a further Student temporary class two-year visa.  On 30 May 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant. 

2. The applicant sought merits review at the Administrative Appeals Tribunal.  In a decision dated 4 December 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.  The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

3. After setting out the background to the matter, the Tribunal noted that the applicant’s Statement of Purpose submitted on 9 September 2020, together with a Confirmation of Enrolment (“CoE”) in an Advanced Diploma in Leadership and Management from 28 September 2020 to 28 November 2021, together with a further CoE for a Graduate Diploma in Management from 10 January to 4 December 2022. 

4. At paragraphs 10 through to 13 of its decision, the Tribunal instructed itself as to the relevant legislation, being whether or not the applicant satisfies cl 500.212 of the Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), together with the considerations under Direction Number 69 made under s 499 of the Migration Act 1958 (Cth) (“the Act”) entitled “Assessing the Genuine Temporary Entrant Criteria for Student Visa and Student Guardian Visa Applications”. 

5. At paragraph 14 of its decision, the Tribunal considered the applicant’s circumstances in his home country.  This included that the applicant is 36 years old, married with a four year old child and extended family members living in India.  The applicant was asked about ownership of property or assets in his home country in the context of economic ties to India.  The applicant referred to family-owned properties but did not provide any evidence of this.  The Tribunal accepted that the applicant has ongoing personal ties to his home country but was not satisfied that those circumstances would serve as a significant incentive for him to return. 

6. At paragraph 15 of its decision, the Tribunal noted the evidence of the applicant that he chose to study in Australia, because of the educational and learning environments here, which the Tribunal accepted.  The Tribunal noted that since the applicant’s arrival in 2007, he has completed courses of study that would allow him to pursue a career in India either as an Accountant or in Business.  The Tribunal was not satisfied, however, that the applicant needs to continue studying in Australia in order to pursue a career in his home country.  This weighed against the applicant when considering whether or not he meets the criteria as a genuine temporary entrant for the purpose of study. 

7. At paragraph 17 of its decision, the Tribunal noted that the applicant claims that he is financially supported by his family overseas and has friends and relatives in Australia.  The applicant stated that he was working in customer service for EG Australia, a petrol station chain.  The Tribunal placed weight on the applicant’s ties to Australia, such as ongoing employment, and found that the Student visa program was being used to maintain ongoing residency. 

8. In terms of the value of the course to the applicant’s future, the Tribunal found that it was unable to adequately assess the relevance of those courses to the applicant’s proposed future employment because he did not demonstrate through reliable evidence what he will achieve using the qualifications gained in Australia.  The Tribunal found that the applicant had ample opportunities to complete his study goals in Australia since 2007. 

9. At paragraph 19 of its decision, the Tribunal considered the applicant’s immigration history.  The Tribunal noted that if the applicant was granted this visa, he would have been in Australia for some 15 years and nine months by the time he completed his qualifications in 2022.  The applicant had been granted a number of Student Study visas and one Temporary Graduate visa.  The Tribunal noted that the applicant had returned home to India on a number of occasions between 2010 and 2017.  The Tribunal assessed that the applicant’s immigration history weighed against him in assessing whether he continues to be a genuine student and a genuine temporary entrant.

10. Considering all of the evidence, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily, and affirmed the delegate’s decision. 

    GROUNDS OF JUDICIAL REVIEW

11. The grounds of judicial review relied upon are contained in an Initiating Application filed with the Court on 24 December 2020.  They are as follows verbatim:

    Ground One

    The Tribunal decision is infected by error of law and the decision made contrary to the provided information and is not based on probative evidence from the part of the Tribunal.

    Ground Two

    I provided confirmation of enrolment for an advanced Diploma of Leadership and Management from 28 September 2020 to 28 November 2021. Also CoE for a Graduate Diploma of Management from 10 January to 4 December 2022. That should lead that I am genuine student and I have honoured my student visa at all times.

    Ground Three

    Contrary to the finding of the Tribunal I provided evidence which should satisfy the genuine temporary entrant criterion.

    Ground Four

    I agree that since my arrival on 27 February 2007 I completed courses of study that would allow me to pursue a career in India and I continue to complete courses of study which I believe are relevant to my future in India. The Tribunal must accept my claims and explanation as adequate and that the Tribunal failed to accept that I have strong ties with India. It was the Tribunal's problem being unable to adequately assess the relevance of the courses and I provided reliable evidence as to what I will be able to achieve in India using the qualifications gained in Australia.

    Ground Five

    My many visits to India (6 times) between 2010 and 2017 is an indication of my strong ties with India which was not understood by the Tribunal.

    Ground Six

    The Tribunal finding that my immigration history in Australia weighs against me is not supported by logical evidence.

    Ground Seven

    The decision of the Tribunal is not reasonable.

    THE APPLICANT’S SUBMISSIONS

12. The applicant appeared before the Court unrepresented.  The applicant did not request the assistance of an Interpreter and the Court was satisfied that the applicant was able to meaningfully participate in the hearing.  Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court books and a copy of the first respondent’s written submissions.  The applicant was also supplied with a pen and paper so that he could take notes during the course of the hearing, should he wish to. 

13. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of a review.  The Court also explained the procedure by which the Court hearing could be undertaken.  Despite Court orders, the applicant did not supply any written submissions or other material in support of his application. 

14. The applicant told the Court and reiterated that he had been an active student and that he had complied with all of the policies and requirements during the time that he was here.  The applicant said that in the recent past, his family had travelled from India to Australia, and that since COVID-19, he had been unable to travel back to India.  It was explained to the applicant that the Court was not in a position to overturn and deal with the factual findings of the Tribunal.  That was outside the remit of the Court.  All the Court could do, would be look at the findings of the Tribunal to see whether or not they were legally unreasonable. 

    THE FIRST RESPONDENT’S SUBMISSIONS

15. Ground one alleges that the Tribunal decision is infected by an error of law.  At this level of generality, the ground cannot succeed as the alleged error is not identified and no error of law is apparent on the face of the Tribunal’s reasons.  The ground also alleges that the Tribunal’s decision was made “contrary to the provided information” and is “not based on probative evidence”.  Without any greater or particular iteration, these arguments are, in substance, no more than an expression of the applicant’s disagreement with the Tribunal’s findings, thereby inviting the Court to engage in impermissible merits review.

16. Ground two alleges that the applicant provided a CoE for an Advanced Diploma of Leadership and Management and a further CoE for a Graduate Diploma of Management.  That is the case, and the Tribunal accepted as much.  Insofar as this ground alleges that the confirmation of enrolment: “Should lead that I am genuine student and have honoured my student visa at all times”. This ground is simply is no more than an expression of the applicant’s disagreement with the Tribunal’s factual findings, thereby invited merits review. 

17. Ground three alleges that: “Contrary to the findings of the Tribunal, I have provided evidence which should satisfy the genuine temporary criteria”.

18. This ground, again, is no more than an expression of disagreement with the Tribunal’s factual findings and invites the Court to engage in merits review.

19. The Tribunal considered the applicant’s evidence but was simply not satisfied that at the current point of time he met the genuine temporary entrant requirement. 

20. Ground four alleges that the applicant has complete the course of study: “…which I believe are relevant to my future in India”. And that: “The Tribunal must accept my claims an explanations as adequate, and the Tribunal failed to accept I have strong ties in India”.

21. It was submitted that it was for the Tribunal to assess the relevance of the applicant’s proposed courses to his future career, and the fact that the applicant “believes” that they are relevant is not to the point.  The Tribunal is not obliged to uncritically accept the applicant’s explanations or statements of claims: (see; Minister for Immigration and Multicultural Affairs v Shatku (2001) FCA 1857 at [19]. In any case, the Tribunal was not satisfied that the applicant had adequately explained to it the relevance and benefit of the proposed courses, and also explained why they did not accept that his ties to India were a significant incentive for him to return.

22. Insofar as the ground alleges that it was the “Tribunal’s problem” that it could not properly assess the relevancy of his proposed courses of study, this contention misunderstands the Tribunal’s role.  It was for the applicant to forward the evidence and provide the evidence to satisfy the Tribunal that he meets the requirements for the visa: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [76]).

23. Ground five refers to the applicant visiting India on six occasions between 2010 and 2017.  The Tribunal was aware of this and referred to it in its reasons.  Insofar as the applicant alleges that these visits are “an indication of my strong ties with India”, they are no more than an expression of the applicant’s disagreement with the Tribunal’s factual findings, thereby inviting merits review. 

24. Ground six alleges that the Tribunal’s finding that: “My immigration history in Australia weighs against me is not supported by logical evidence”. The point being made by the Tribunal is that the applicant has been in Australia since 2007 and has held at least seven different visas, and his proposed course would take until 2022 in December to complete.  This would mean that the applicant would have remained in Australia for 15 years and nine months.  The Tribunal’s point is that this tended towards the view that the applicant was not a genuine temporary entrant into the Australia.  This is a view that a rational, and reasonable Tribunal could have reached.  There was not illogicality or unreasonableness in this finding. 

25. Ground seven alleges that the decision of the Tribunal was not reasonable.  This is no more than an expression of the applicant’s disagreement with the Tribunal’s decision.  Disagreement, even emphatic disagreement, does not establish jurisdictional error: (see; SZMDS at [124].

    CONSIDERATION. 

26. The Tribunal is not required to accept uncritically any and all of the applicant’s claims: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).

27. The test for legal unreasonableness is stringent and will only arise in rare cases.  Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgments made by a decision maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]). A disagreement, even an emphatic disagreement, with the Tribunal’s factual findings without more is not jurisdictional error. The Court cannot undertake merits review: (see; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [53] to [54]).

28. Ground one is a bare assertion of jurisdictional error in that the decision is: “Infected by error of law and made contrary to the provided information” and is: “Not based on probative evidence”.

29. No particulars are provided in relation to the alleged error of law.  If a ground for jurisdictional review is not supported by particulars for this reason alone, it is liable for dismissal: (see; WZABW v Minister for Immigration and Border Protection (2016) FCA 760 at [35]). Ground one has not merit.

30. Ground two asserts that the applicant provided Confirmations’ of Enrolment in relation to certain other courses that he was intending to undertake.  The applicant asserts that the provision of this information should lead to the conclusion that he was a genuine student.  The Tribunal accepted that the applicant had met his obligations by being enrolled in courses during his time in Australia, but was not satisfied that he was using the educational system for the purposes of study as a genuine temporary entrant.  Given that the applicant had been in Australia since 2007, this is hardly a surprising conclusion.

31. Ground two is, again, no more than an expression of the applicant’s disagreement with the Tribunal’s factual findings.  It invites the Court to undertake impermissible merits review.  Ground two has no merit. 

32. Ground three is, again, no more than an expression of the applicant’s disagreement with the factual findings and seeks to engage the Court in merits review.  The Tribunal considered the applicant’s claims, but was not satisfied he met the genuine temporary entrant criteria.  Ground three has no merit.

33. Ground four is an assertion that the Tribunal had to accept the applicant’s claims and explanation for his continued need to stay in Australia and undertake further courses as adequate.  The Tribunal in not required to accept uncritically any or all of the applicant’s claims.  The conclusion of the Tribunal that the applicant is using study as a means of maintaining his residency in Australia was reasonably open to the Tribunal on the evidence that was before it, and is not subject to any legal unreasonableness, illogicality, or irrationality.  The Tribunal properly considered the applicant’s claims and rejected them.  Ground four has no merit. 

34. Ground five asserts the fact that the applicant returned to India on a number of occasions during the period of time he was in Australia and that this was a strong indicator of his ties to India.  Again, this is no more than an expression of the applicant’s disagreement with the Tribunal’s factual findings.  It has no merit. 

35. Ground 6 alleges the Tribunal’s finding that: “my immigration history in Australia weighs against me is not supported by logical probative evidence”.  The finding of the Tribunal that the applicant was using the study program to maintain residency in Australia, given the time period the applicant had been in Australia and the further time that was being sought, was a finding that was open to the Tribunal on the evidence that was before it and for the reasons it gave.  There’s nothing illogical or unreasonable in that finding and ground six has no merit.  

36. Ground seven is simply an expression of disagreement of the decision of the Tribunal.  As pointed out, emphatic disagreement does not establish jurisdictional error. 

37. As indicated above, the decision of the Tribunal was open to it on the evidence that was put forward, and the reasons it gave.  Ground seven has no merit. 

38. As the applicant is unrepresented, the Court has considered the Tribunal decision.  However, the Court is unable to detect any jurisdictional error that has not been articulated by the applicant.

    CONCLUSION

39. Accordingly, the application is dismissed.

    The Court notes that as at 22 June 2021, the parties have not requested written reasons for judgment. Written reasons have been prepared, published and provided to parties on 23 June 2021.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate: 

Dated:       23 June 2021