Ishfaq v Minister for Immigration

[2016] FCCA 2945

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISHFAQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2945

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: MALIK ISHFAQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2394 of 2014

Judgment of: Judge Riethmuller

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Melbourne

Delivered on: 12 October 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2394 of 2014

MALIK ISHFAQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) (as it then was) dated 28 October 2014 affirming the decision of a delegate of the Minister declining to grant him a student visa.

2. At the hearing before me, the Applicant identified in detailed submissions with supporting documents four significant matters that he said the delegate did not get correct when making the decision. They are as follows:

   1. The visa officer claims that the evidence produced for achieved certificates was missing as the office said that Mr. Ahmed has only completed a certificate III in hospitality (commercial cookery) and diploma of business since he first arrived in Sep 2007.

   2. Mr. Ahmed had a significant period of study deferral between June 2008 to Sep 2009, this was over one year. Mr. Ahmed did not provide any explanation to department regarding these deferred courses.

   3. Mr. Ahmed got study gaps between Dec 2007 and April 2008, between 2010 and Jan 201, As well as between April 2012 and July 2012.

   4. Mr. Ahmed has enrolled in various un related courses and had changed course several times from 2007 to 2013.Mr Ahmed has chosen courses that was typically of the short duration and of low cost which indicates that he does not genially intend to stay in Australia temporarily.

3. Before this Court, however, the relevant decision to be reviewed is that of the Tribunal and not of the delegate.  This is not a case where the Tribunal has adopted the findings of the delegate or failed to independently review the facts and circumstances.  Importantly, the Tribunal sets out submissions that it received from the applicant’s representative at paragraph [10] of the decision, which includes a detailed timeline showing all of the courses that the applicant had undertaken since his arrival in Australia to study in September 2007.  These submissions also include, in point form, explanations for why there was a gap in his study and the reasons why he says he was a genuine entrant for study purposes.

4. The Tribunal at paragraph [11] specifically note that he has done four different courses so far, excluding the English course that he undertook.  The Tribunal notes that the applicant started doing an IT course after he arrived in Australia then completed a Certificate III in Commercial Cookery and then a Diploma in Hospitality Management.  After that, he obtained work in the industry and said that he didn’t enjoy work in the hospitality industry. The applicant then entered the printing industry but a friend told him that that was unlikely to be a benefit to him in Pakistan and so he decided he would undertake accounting and commenced accounting studies. 

5. Whilst it doesn’t seem he formally undertook a course in printing, he certainly pursued training in that industry by working.  The Tribunal were concerned in their decision that the history of his study and occupations in Australia indicated a number of different fields:  IT, hospitality, printing and accounting.  This was for the Tribunal a significant factor when considering the various factors specified in the relevant Direction (Direction 53) in order to weigh the evidence about whether or not the applicant was a genuine student.  The Tribunal also took into account submissions made by the advisor saying at paragraph [14]:

   14. The applicant’s advisor made submissions that the Diploma he was not pursing would highly equip him with knowledge. The representative said that whatever course he undertook he has completed, so he has an intention to complete, and he ties with his family who he has visited four times over the past seven years. The representative said that he did not see any hope for the applicant getting permanent residence in Australia, and even if he applies for another visa he will not get it. He said the applicant has to take some decisions to stay or return, there is no hope for hi in Australia after the completion of this course.

6. There is no doubt that the Tribunal ensured that the applicant was aware of the issues that were concerning the Tribunal, as they recount at paragraph [13] where the Tribunal members says:

   13. I explained that the things that caused me concern were whether, in his case, the student visa was being used to maintain ongoing residence in Australia, given he had been here since  2007 and had studied in four distinct fields, and I had concerns with his explanations for why he had changed his field of study so many times, and I needed to consider whether in his case the student visa regime was being used to circumvent the migration program, and the fact that he had studied relatively low level courses for the period of his stay in Australia. He said that the reason for the changes was that if you see something from the outside it is different to when you are experiencing it. He said he had considered hospitality which was not big in Pakistan but was big here but then actually doing the job was stressful. The applicant said that he just needed nine months to complete his studies.

7. The applicant before me seeks to rely upon further evidence by way of a job offer that he says he has received on 1 August 2016 in Pakistan in the accounting area.  This document was not placed before the Tribunal and therefore the Tribunal cannot be in error for failing to have regard to it. As the matter goes to a question of fact, it is not a basis upon which I am able to conclude that the Tribunal erred in their considerations.

8. For these reasons, I am not persuaded that the applicant has in this regard established a ground for judicial review.

9. Ultimately, this case involved a factual decision for the Tribunal to determine. In circumstances where a person has undertaken studies or work in four different areas, it seems to me that it would ordinarily be open to the Tribunal to come to the view that the person was not, in fact, a genuine student.

10. The applicant claims the decision was not taken fairly, although it’s not suggested there was any particular process difficulty. 

11. The review of the decision as discussed above makes clear that the Tribunal had careful regard to submissions made by the applicant’s advisor, that the Tribunal told the applicant of issues that were troubling the Tribunal. There is no doubt that the Tribunal engaged with the arguments put before it beyond even quoting them at paragraph [10], when one has regard to the discussion in paragraph [14].

12. The third ground of review that the applicant raises is that he’s not happy with the decision of the member. This ground seeks a merits review.  A merits review is not open to the applicant before this Court.  The Tribunal can engage in a merits review of the delegate’s decision, but the Court can only judicially review a Tribunal decision and not engage in a merits review. 

13. The final matter identified in the application is a claim that the member’s decision is solely based on discrimination.  I sought from the applicant details of why he says this, and he explained that he had received an email from the solicitors for the respondent which had spelt his name as Ishar rather than describing him as Mr Ishfaq or, more accurately, Mr Ahmed. It seems that there is good basis for some confusion having followed concerning his name given that the application he filed in this Court was filed in the name of Malik Ishfaq, and that on the face of the application the applicant does not include his surname, Ahmed.  That appears to me to reasonably explain why the email, if it were sent, would be attempting to use the name Ishfaq rather than Ahmed and I would not draw any adverse inference from that.  The applicant said that the name was spelt as Ishar rather than Ishfaq.  It seems to me that this is more likely to be a typographical error than anything.  The applicant pointed out that this is a word used in India as the name of one of the gods in India and the misspelling has significance in his own language.  However, it does not appear to me that in the circumstances of this case indicates any proper basis for judicial review, nor that it is anything more than a typographical error. There has obviously been confusion about the correct and appropriate name for the applicant given that his surname does not appear on his application to this Court. 

14. In these circumstances, I'm not persuaded that this is a ground for judicial review.  As I have not been able to identify a ground for judicial review, I have no option but to dismiss the current application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 15 November 2016