Islam v Minister for Immigration

[2020] FCCA 599

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 599

Catchwords:
MIGRATION – Application for judicial review – student visa – intention to stay in Australia on a temporary basis – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499
Migration Regulations 1994 (Cth), cl.572.223

First Applicant: KAZI TAZUL ISLAM

Second Applicant: FARHANA MAHMUD

Third Applicant: AJWA ZUNAIRAH KAZI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1515 of 2016

Judgment of: Judge Riethmuller

Hearing date: 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Melbourne

Delivered on: 19 February 2020

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1515 of 2016

KAZI TAZUL ISLAM

First Applicant

FARHANA MAHMUD

Second Applicant

AJWA ZUNAIRAH KAZI

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a student visa refusal.  The applicant seeks review of a decision of the Administrate Appeals Tribunal (‘Tribunal’) made on 24 June 2016.  That decision affirmed the decision of a delegate of the Minister not to grant the applicant a Student Temporary (Class TU) visa.

2. The applicant comes from Bangladesh. He first arrived in Australia in 2004 on a student visa and has, in substance, remained here since that time. The applicant has held both student visas and, at one point, a temporary graduate visa, more recently, pending the litigation being resolved, he had a bridging visa.

3. The visa the subject of this Tribunal decision was a student visa he applied for on 21 May 2015, which was refused by the delegate on 27 July 2015. The delegate was not satisfied that the applicant intended to stay in Australia on a temporary basis as a student and therefore did not meet cl.572.223 of Schedule 2 of the Migration Regulations 1994: see delegate’s decision at Court Book page 41. In the broadest sense, this is hardly surprising, given that by this point, the applicant had been in Australia for 11 years.

The Tribunal hearing 

1. The applicant applied to the Tribunal for a review of the delegate’s decision and attended a hearing before the Tribunal. The applicant had the assistance of an agent and had made various submissions. The Tribunal decision recounts not only the evidence before it, but the interactions with the applicant in the way in which the hearing was carried out. The Tribunal member ultimately found that they were not satisfied that the applicant intends genuinely to stay in Australia temporarily, at this point, it being around 12 years since he arrived in Australia and therefore declined to grant the applicant’s visa.

2. The tribunal had regard specifically to clause 572.223 which sets out the relevant test as follows:

   (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

   …

3. The Tribunal also specifically had regard to Direction No.53, a direction under section 499 of the Migration Act 1958 (Cth) with respect to the criteria for assessing genuine temporary entrants: see [9] of Tribunal’s decision. It is not suggested in this case that the Tribunal failed to have regard to either the statutory test nor the Direction No.53 guidelines.

4. The Tribunal confirmed with the applicant that he arrived in Australia in October 2004 and that he appears to have undertaken studies around seven years during the period of time since his arrival in Australia; and that around five years of that time he had been undertaking no study at all. It seems that for part of that period, the applicant was not on a student visa, but on another form of visa when he became a financial controller for around 18 months at an organisation in Melbourne.

5. The applicant has, during his time in Australia had a child with his wife, who is now five years of age. The applicant explained to the Tribunal that his intention was to complete a Masters degree, although he has never reached the point of enrolling for a Masters degree. The applicant said that the death of his father in 2005 was a difficult blow for him and that it placed some financial pressure on him thereafter. At the time his father died, he was studying a 10 month course, a Diploma of Business Accounting, which he finished in 2005 and he felt he had some immediate family priorities to support his family financially and this interfered with his studies.

6. The Tribunal noted that the applicant ceased studying for the period when he was on a different visa whilst remaining in Australia and then went back to a student visa. The applicant said to the Tribunal that he nonetheless had an intention of going back to his studies, although it appeared that he had not been studying, at least since 2015, when he cancelled courses for different reasons, including non‑payment of fees.  The Tribunal noted that two specific courses in which he had certificates of enrolment had been cancelled.

7. Relying upon the PRISMS records, the Tribunal concluded that the applicant completed a Bachelor of Accounting three year degree in 2011 and that since then he had only done an 11 month course, being an Advanced Diploma in Marketing, which he had completed in 2015. 

8. The Tribunal was satisfied that the applicant was not currently enrolled in any course and, having regard to all of the circumstances, it concluded that the applicant was not a genuine temporary entrant for the purpose of studying. The Tribunal said:

   23. The Tribunal finds that that the applicant is genuine in his concerns for his family and financial situation. The Tribunal finds that the applicant is currently not enrolled in any course nor is currently studying any course. While it has taken into account the MA's submissions and the applicant's own entreaties as to his promised better performance in the future, taking into account the applicant's educational record, his current circumstances and in particular his expanding family commitments, the paucity of time actually spent by him in participating in any course over the past five years and by his own admission as to his continuing financial difficulties, the Tribunal finds that, on balance, the applicant does not intend to genuinely reside in Australia temporarily.

   24. The Tribunal finds that the applicant has been forthright and upfront about his present and challenging situation. Unfortunately, the Tribunal while having some discretion, it is not unfettered and it is still bound by the regulations and policy governing the genuine temporary student program.

9. The Tribunal did, before making this finding, note the applicant’s evidence that he said he had an intention to return to Bangladesh: see [22].

Application for Judicial review

1. The applicant’s application for judicial review sets out a number of grounds. The applicant also has written submissions prepared by a lawyer from Sydney. The applicant appeared before me today unrepresented and relied simply upon the written submissions. I allowed him to do so and heard oral submissions from Counsel for the Respondent (‘the Minister’). I then invited the applicant to comment on any of those oral submissions or to mention any further matters that may have come to mind having heard the submissions from the Minister and the Minister’s counsel’s interaction with the bench.

2. I turn then to consider the specific grounds.  Firstly, I note that the written submissions set out that the applicant does not press grounds 3 and 4 of this application, which I confirmed with him orally at the hearing. I therefore only deal with grounds 1, 2, 5 and 6.

Ground One

1. Ground 1 is laid out in the following terms:

   1. The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent failed to consider critical information given to it on 18 April 2016 by the First Applicant's Migration Agent about the various periods in which the Applicant was enrolled to study when finding at [ 19] of its decision that there has been nothing (in terms of study) since March 2015 and finding at [23] of its decision that the applicant was not enrolled in a course of study for a few years.

   Particulars

   a) On 18 April 2016 the Applicant's Agent sent the Second Respondent submissions that had attached a Confirmation of Enrolment for a Diploma of Management from 11 May 2015 to 6 May 2016 and a Confirmation of Enrolment for an Advanced Diploma of Management from 9 May 2016 to 7 April 2017.

   b) The Second Respondent at [19] found that the Applicant's last substantial course was a three year course completed in February 2011 and that he had completed a course in March 2015 (which it regarded as not substantial). It paid no regard to information which suggested the Applicant had a confirmation of Enrolment for an Advanced Diploma of Management from 9 May 2016 to 7 April 2017.

   c) The Second Respondent at [23] found that the applicant was at the time of the decision not currently enrolled in any course.

2. This ground specifically refers to paragraphs 19 and 23 of the Tribunal’s decision. A further relevant paragraph seems to me to be paragraph 20.  Those paragraphs read as follows:

   19. The Tribunal noted that the last substantial course that he completed was a three year course, according to PRISMS records, being a Bachelor of Accounting, which he completed in February 2011. The Tribunal continued that there has not been much since, namely, only an eleven month course, Advanced Diploma of Marketing, which was completed in March2015. There has been nothing since.

   20. The applicant concurred with the Tribunal that, although his family situation had redirected his financial interests and responsibilities in recent years, he still had an intention to reconnect with his studies here.

   23. The Tribunal finds that that the applicant is genuine in his concerns for his family and financial situation. The Tribunal finds that the applicant is currently not enrolled in any course nor is currently studying any course. While it has taken into account the MA's submissions and the applicant's own entreaties as to his promised better performance in the future, taking into account the applicant's educational record, his current circumstances and in particular his expanding family commitments, the paucity of time actually spent by him in participating in any course over the past five years and by his own admission as to his continuing financial difficulties, the Tribunal finds that, on balance, the applicant does not intend to genuinely reside in Australia temporarily.

3. It is apparent that the Tribunal preferred the PRISMS records as evidence as to the applicant’s studies and had raised that with him. This is confirmed by the fact that the applicant’s advisor had written to the Tribunal and made allegations that he had a deferral from an education provider.

4. However, no document was ever submitted by the applicant showing that he had a current enrolment or a deferred enrolment with that particular education provider. The only document appears to be at Court Book page 127, where there is a sheet that he appears to have completed seeking for a deferral until 2016, although on the photocopy, it is not clear whether the date in 2016 has been whited out or was never inserted into the document in the first place. That document looks to have been signed by the applicant in May 2015 and was in response to an inquiry of the education provider who simply sent the deferment form asking him to return it so that the provider could defer his enrolment: see the email at Court Book page 128.

5. It does not appear to me that there was evidence before the Tribunal, beyond the bare allegation by the applicant’s advisors, that there was in fact a current enrolment with that education provider that had been deferred. I also note the deferral request was only until 2016 and the Tribunal decision was being made in the middle of that year.

6. It is not surprising that the Tribunal would prefer the PRISMS records that it refers to in the decision, nor is it surprising that the Tribunal member, as appears from a fair reading of the decision, would have discussed that with the applicant at the hearing before making the finding.

7. Importantly, (at [20]) the Tribunal notes that the applicant had concurred with the Tribunal that his situation resulted in a refocusing of his interests and that he simply still had an intention to reconnect with his studies.

8. I also note that (at [19]) the Tribunal made a specific finding that there has been nothing other than what is set out in the PRISMS records. In the previous paragraph (at [18]), the tribunal did discuss in some detail other enrolments that the applicant had which had been cancelled.

9. When reviewing the matter as a whole, I am not persuaded that the applicant has made out ground 1, on the basis that the Tribunal had failed to consider the evidence. The Tribunal had a hearing and the evidence before it in the PRISMS record was clear. The claim about a deferral of some form to an unidentified date in 2016 was less than clear. There was no specific evidence of enrolment or a deferral from that education provider, nor does it fit with the tenor of the evidence it seems the applicant gave before the tribunal at the hearing. 

10. I am not persuaded that the applicant has made out his ground.

Ground Two

1. I turn then to Ground 2 which is phrased in the following terms:

   2. The Second Respondent made jurisdictional error by taking into account irrelevant considerations.

   Particulars

   a) The Second Respondent at [23] took into account the Applicant's expanding family commitments as a matter to determine that the Applicant does not intend to genuinely reside in Australia temporarily.

   b) The Second Respondent found at [16] that one of the conditions of his visa is that he continues study and that it was about the time of his Melbourne job that he appeared to stop studying; earlier, the Applicant indicated that he was granted a VC 485 visa and worked for about 18 months in Melbourne. There is no condition to study while on a VC 485 visa and any period of non study during this time is an irrelevant consideration and contradictory.

2. Ground 2 refers specifically to paragraph 16 of the decision which needs to be read in the context of paragraph 17 and those paragraphs provide:

   16. He said that it was important that he won the Melbourne job and he believed, in the context of his studies, that this job gave him invaluable work experience. The Tribunal indicated that one of the conditions of his visa is that he continues study and that it was about the time of his Melbourne job that he appeared to stop studying and he agreed. The applicant continued that he needed a break and he needed to earn money but could not do them both.

   17. The Tribunal indicated that it seemed he had grown out of the temporary student education program as a result of the new addition to his family and he agreed with that conclusion. He claimed that he had an intention, however, of going back to studies but the Tribunal reminded him that he had not studied anything since March 2015 having cancelled courses since for a variety of reasons, including non-payment of fees.

3. It does not appear to me that the Tribunal, in these paragraphs, is taking the view that the applicant had, in some way breached his visa conditions; rather, the Tribunal is noting that the applicant ceased study and took up a different visa for a period of time and then commenced studying again.  It forms part of the factual matrix that is the background of this case in the applicant’s particular circumstances which needed to be considered in order to make the ultimate decision in the case.

4. Every applicant’s personal circumstances will be slightly different and it is important that the Tribunal have regard to those circumstances.  Importantly, the Tribunal member did not suggest in its reasons that the applicant had breached any visa condition.  One would have expected that to be prominent in the reasons if that were a view that the Tribunal member took, as it would tell strongly against the grant of the visa. 

5. On a fair reading of the Tribunal’s decision, it does not appear to me that they have committed an error in this regard and I therefore dismiss this ground.

Grounds Five and Six

1. As Counsel for the Minister pointed it out, it is convenient to deal with these grounds together. They are on the following terms:

   5. The Second Respondent made jurisdictional error by failing to have regard to its own findings of credibility of the Applicant in relation to the evidence noted by the Second Respondent at (20] and (22] to the effect that the Applicant intended to reside in Australia temporarily.

   6. The Second Respondent made a decision which was irrational and /or unreasonable.

   Particulars

   a) The Second Respondent found the Applicant credible, forthright and upfront.

   b) The Applicant gave sworn evidence that he genuinely intended to stay in Australia temporarily.

   c) The Second Respondent made no finding that the evidence at (b) above was not true.

2. They rely upon the reasoning of the Tribunal at [20] and [22] of the decision. Paragraph 21 provides some further context. Those paragraphs are as follows:

   20. The applicant concurred with the Tribunal that, although his family situation had redirected his financial interests and responsibilities in recent years, he still had an intention to reconnect with his studies here.

   21. The Tribunal sympathised with the applicant's present position but indicated it is bound by objective criteria in coming to a determination on this review and that it noted that while there are reasons for the applicant stagnating academically and not participating actively in the temporary student program, there was very little it could except to apply the relevant policy direction and considerations irrespective of the applicant's present familial and financial situation.

   22. In coming to the end of the hearing the applicant claimed that despite his financial difficulties he still had an intention to return to Bangladesh and to re-commence his studies.

3. It is clear from the paragraphs that the Tribunal had some empathy for the applicant’s circumstances, balancing study and family, and considering the unusual course of his particular life arrangements in the context of this case.

4. The Tribunal goes on (at [23], quoted above) to accept that various parts of the applicant’s evidence were genuine, and (at [24]) that the applicant had appeared forthright and upfront about his present challenging situation:

   24. The Tribunal finds that the applicant has been forthright and upfront about his present and challenging situation. Unfortunately, the Tribunal while having some discretion, it is not unfettered and it is still bound by the regulations and policy governing the genuine temporary student program.

5. The grounds, as pressed by the applicant, are to the effect that because the Tribunal had accepted his evidence on these matters as being genuine and forthright, it was illogical or inconsistent for the Tribunal to then conclude that he was not a genuine student entering Australia temporarily. I do not accept that argument.

1. It is commonplace in decisions of Tribunals and Courts, for some parts of a witness’s evidence to be accepted and other parts to be rejected.  It seems to me that there is nothing unusual about accepting that the applicant was genuine in his concerns for his family and financial situation, and that he had been upfront and forthright about the particular factual circumstances of his current situation.  However, the decision had to turn upon the Tribunal’s view was of his intentions.

2. It was clearly open to the Tribunal, once accepting all of the factual circumstances that formed the matrix of facts around his particular life circumstances, to form the view it did as to whether he was intending to be a temporary entrant to Australia to pursue his studies. In these circumstances, I am not persuaded that the applicant has established a ground for judicial review in this regard.

3. As I am not persuaded that the applicant has established a ground, I must therefore dismiss the application. 

   [Further argument ensued.]

Costs

1. In this matter the applicant has been entirely unsuccessful. It is appropriate that there be costs in favour of the First Respondent. I therefore order that the applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  17 March 2020