Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 608
•9 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 608
File number(s): SYG 1441 of 2018 Judgment of: JUDGE EGAN Date of judgment: 9 July 2024 Catchwords: MIGRATION LAW – Whether Tribunal considered irrelevant facts, and failed to have regard to relevant facts – whether Tribunal carried out a proper review – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Sch 2, cl. 572.223
Ministerial Direction No. 53
Ministerial Direction No. 69
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] – [11]
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35]
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 21 March 2022 Date of hearing: 4 April 2022 Place: Brisbane Solicitor for the First Applicant: Mr T. Islam, appearing on his own behalf Solicitor for the First Respondent: Ms D. Stone Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 1441 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD TARIQUL ISLAM
First Applicant
RASHNA SHARMIN SHANTA
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 JULY 2024
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 12 August 2018 be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the Amount of $7,853.
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 EGAN
INTRODUCTION
The first applicant and the second applicant are citizens of Bangladesh. The first applicant arrived in Australia on 26 October 2006 as the holder of a Student (Class TU) (Sub-Class 572) Visa.
On 19 August 2015, the first applicant applied for a Student (Temporary) (Class TU) Visa to study for an Advanced Diploma of Marketing due to be completed on 15 August 2016. The second applicant was the first applicant’s spouse, and she was included in the visa application as a dependent member of the family unit.
On 11 January 2016, a delegate of the Minister refused to grant the visa on the ground that the applicant did not satisfy the genuine temporary entrant criterion under cl. 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The first applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (“the Tribunal”).
On 11 and 16 January 2018, the first applicant provided further submissions to the Tribunal, together with evidence that he was at the time enrolled in a Bachelor of Business, majoring in Business Management, the course having a completion date of 11 December 2020.
On 17 January 2018, the applicants appeared before the Tribunal with the assistance of their representative.
On 18 April 2018, the Tribunal affirmed the decision of the delegate.
On 23 May 2018, the applicants’ lawyer filed an Originating Application for Review of the decision of the Tribunal.
An Amended Application for Review was filed on 12 August 2018, the grounds of which were as follows:
Ground one
The Tribunal at (38) took into consideration irrelevant facts, and based its decision on those facts that the applicant had failed to provide evidence to the Tribunal to substantiate those irrelevant facts.
Particulars
(1) The applicant read (38) of the Tribunal decision in its entirety.
(2) Despite having accepted a (38) that the applicant had passed numerous subjects listed (at 38), the Tribunal makes this statement:
" .... However, the successful completion of courses is but one of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily."
(3) In the quotation at (2) above, the Tribunal has incorrectly stated the law, as considered on the facts before it, as the issue whether an applicant “intends genuinely to stay in Australia temporarily”, is a term applied to a situation where an applicant has not successfully completed the subjects and has also provided valid reasons for the breaks in his study and it is in such a situation, as in the instant case, that the issue arises whether the applicant “intends genuinely to stay in Australia temporarily.”
(4) Further to (3) above, it became even more relevant for the Tribunal to give weight to the various reasons provided by the applicant and stated at (7) of the Tribunal.
(5) The “various reasons”, which the Tribunal has failed to consider, in addition to the those referred to above, appear at the following pages of the Court Book:
a. The submissions of the applicant, at pp. 29-30.
b. The submissions of the applicant’s representative at pp. 31-33.
c. The submissions of the applicant’s representative at pp. 65-66.
d. The submissions of the applicant at pp. 106-107.
e. The submissions of the writer (Mani Nair) appearing at pp. 177-180.
f. There is another submission by the applicant, not included in the CB. This we would pursue with the lawyers for the first respondent.
(6) Considered in light of the various facts before the Tribunal, it has paid scant regard to those facts
(7) At (8), the applicant’s mother passed away only a few months after his arrival in Australia.
(8) At (8) again, the applicant’s sister passed away in April 2014.
(9) As to the Tribunal’s question at (7) “why the applicant did not study in certain periods”, the applicant’s responses are recorded against seven (7) dot points at (7).
Ground two
The Tribunal’s decision was in law, legally an unreasonable decision.
Particulars
(1)The applicant repeats the particulars for Ground one.
(2)This is the second time this matter has returned to this Court.
(3)This matter was in this Court previously as a result of the adverse decision dated 21 October 2016 of the previously constituted Tribunal. The decision of that Tribunal appears at pp. 112-116 of the Court Book.
(4)The applicant sought a judicial review of that adverse decision of this Court. FCCA File No: SYG3191/2016.
(5)The ORDER dated 15 June 2017, BY CONSENT, appears at pp. 117-118.
(6)The decision of the subsequently constituted, Tribunal as stated above, has paid scant regard to the material before it and has reached a decision which cannot be supported on the facts.
(7)For the foregoing reasons, the decision of the Tribunal, is a legally unreasonable decision.
A hearing proceeded before the Court on 4 April 2022. After the hearing, for reasons unknown, normal administrative procedures within Chambers were not followed, namely the preparation and saving of a judgment template for this matter, which, if saved, would have flagged that judgment in respect of the proceeding was due to be handed down in a timely manner. The absence of the handing down of judgment only came to the Court’s attention on 4 July 2024 after a file search of outstanding matters was undertaken. That search revealed that the only judgment outstanding was judgment in this matter. In circumstances where the Court generally hands down judgments within a month of a hearing in matters such as the present, it came as a surprise, not only that judgment was outstanding, but also that the Court had not been earlier advised of that fact by either the applicant, or the lawyers for the first respondent.
In any event, the Court is satisfied that the handing down of the Court’s reasons for judgment has not been affected by the delay in the handing down of judgment.
Ground 1 of the Amended Application for Review was a claim that the Tribunal had taken irrelevant considerations into account, and had failed to take relevant considerations into account, when arriving at its decision. It was also a claim that the Tribunal had failed to undertake a proper consideration of certain matters.
The reference in Ground 1 to the first applicant’s successful completion of courses being but one consideration to be taken into account by the Tribunal when considering whether the first applicant genuinely intended to stay in Australia temporarily or not, related not only to the Tribunal’s finding at [38] of its reasons, but also to [39] of the reasons of the Tribunal. Those reasons were as follows:
[38] As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Bangladesh. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia and wishes to undertake are considered as having a better reputation than the equivalent in Bangladesh. The Tribunal accepts that he has close and strong family ties in Bangladesh, including his father and sister. It notes his wife is with him in Australia although as a dependent. It accepts that his circumstances in Bangladesh are indicative of a person who is only a temporary entrant and wishes to return to their country.
[39] The Tribunal also accepts that the applicant currently has an offer to study a Bachelor of Business to December 2020. While it has concerns as to whether he is actually enrolled in this course as the payment fee he detailed was different to that stated in the Offer, it is prepared to accept he is. It also accepts he has successfully completed a Diploma of Accounting, a Diploma of Tourism, a Certificate IV and Diploma of Human Resources Management, and a Diploma of Business. It accepts he was enrolled and successfully completing courses from his arrival in 2006 until June 2012 when he finished the Diploma of Business. It accepts he was enrolled and successfully completed an Advanced Diploma of Marketing from August 2015 to August 2016. However the successful completion of courses is but one of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The applicant’s alleged misapplication of the law arose out of a consideration of the terms of cl. 573.223(1)(a) of Schedule 2 to the regulations, which relevantly provided:
Clause 573.223(1)(a):
(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:
(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
(b) …
On the question as to the meaning of “… intends genuinely to stay in Australia temporarily …”, the applicant, in his written submissions filed on 11 March 2022, referred to the requirement that the Tribunal have regard to Ministerial Direction No. 69. As is apparent from [35] of its reasons, the Tribunal had regard to the relevant Ministerial Direction governing genuine temporary entrant criterion for student visa applications at the time of the handing down of its decision, namely Ministerial Direction No. 53. Paragraph [35] of the reasons of the Tribunal provided as follows:
[35] In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student Visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances
in Australia, and the value of the course to the applicant’s future;•the applicant’s immigration history, including previous applications for an
Australian visa or for visas to other countries, and previous travel to Australia
or other countries;•if the applicant is a minor, the intentions of a parent, legal guardian or spouse
of the applicant; and•any other relevant information provided by the applicant, or information
otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.The applicant submitted that the Tribunal had ignored the contents of the Ministerial Direction, and that it did not have regard to the Direction. It was submitted that the Tribunal was “preoccupied” and that the applicants had been denied natural justice and procedural fairness. It was submitted that “Preoccupation is clearly authenticated in its decision.”
It was submitted on behalf of the Minister that the Tribunal had had regard to the matters set out in Ministerial Direction No. 69, and that such was evident from its reasons.
As to the first criteria of Ministerial Direction No. 53 (namely the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future), at [40] – [44] of its reasons, the Tribunal set out the first applicant’s long history of study in Australia as being a factor that it took into account when considering whether the first applicant genuinely intended to stay in Australia only temporarily. It found at [42] of its reasons that the first applicant had provided inconsistent evidence as to why he was then enrolled to study a Bachelor of Business. At [43] of its reasons, the Tribunal found that the applicant had conducted no research, including no online research, as to the course content of the course in which he had then been enrolled. The first applicant was unable to name any of the subjects in such course, and he could not provide any information about the course.
At [42], [45] and [46] of its reasons, the Tribunal dealt with the second and fourth criteria under Ministerial Direction No. 53, namely the applicant’s immigration history and previous travel to Australia and other countries, as well as other relevant information provided by the first applicant that was both beneficial and unfavourable to the first applicant. At [40] of its reasons, the Tribunal had referred to the fact that since the first applicant’s arrival in Australia in 2006, he had returned to Bangladesh on two occasions, namely in 2008 and 2010. At [45] of its reasons, the Tribunal recorded that there was no evidence before it that indicated that the first applicant had previously travelled to Australia, or anywhere else, before 2006, or that he had applied for a permanent visa or other visa either to Australia or elsewhere.
At [46] – [48] of its reasons, the Tribunal found as follows:
[46] In making the decision the Tribunal has considered all the evidence before it, including that he is enrolled/under and offer of enrolment, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has stronger family ties in Bangladesh than Australia, the reasons he did not achieve course progression previously, that he is now able to study as he has overcome past problems and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
[47] Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above. Accordingly, the applicant does not meet cl.573.223(1)(a).
[48] The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a Student Visa, it must affirm the decision under review.
The Court does not accept that the Tribunal erred in the way in which it had regard to the relevant criteria under the then governing Ministerial Direction No. 53. The Tribunal considered all relevant matters in a reasonable and logical way. As to the first applicant’s claim that the Tribunal failed to consider the matter set out at [5] of Ground 1 of the Amended Application for Review, it is well established that the Tribunal is not required to set out each and every of the matters it considered prior to arriving at its decision. The Tribunal dealt with all relevant matters and had regard to the first applicant’s claims, including the protracted illnesses/deaths referred to by the first applicant as having interrupted his course of study, at [11] – [13] of its reasons as follows:
[11] He submitted a number of statements to the Tribunal (differently constituted) adding the following.
•As to the intention to cancel his visa in 2010, he claims his beloved
grandfather was ill and he took a holiday from school between 12 April 2010 and 29 May 2010 but his grandfather died on his flight back from Sydney. He claims he informed the college and sent the death certificate but claims he was devastated by his death and could not recover from his mental devastation. He claims his grandfather was very dear to him and he mostly grew up with him. He claims this was particularly so after the death of his mother. He claims he was suffering from depression. He claims he was sent the first warning letter while he was overseas and then he started to recover
and went back to school in September 2010. He claims he was reported to the Department but submitted a written appeal in October 2010 but did not hear back. He attached the death certificate of his grandfather and a Doctor’s report. Attached also was a letter from the Department dated 3 December 2010 advising it had decided not to cancel his visa.•In October 2010 his wife came to Australia and her uncontrolled behaviour, going out without being asked placed him under much pressure. He claims she asked for money and all the time went out with friends. He claims his wife’s behaviour heavily interrupted his study in 2011 and 2012.
•He claims in 2013 his grandmother died and he became upset. He claims his then College became aware.
•He again referred to the death of his sister’s husband who suddenly died in 2014. He notes that this affected his father and the business, resulting in his father being unable to send money. He claims his sister was also distressed. He said this was the main reason why he was not enrolled between August 2014 and August 2015.
•He claims due to the death of close family members in the previous 7/8 years (as he was writing this in 2015) due to this and the behaviour of his wife he was totally unable to concentrate on his studies and this resulted in him being unable to successfully continue.
•He argues that his failure to complete his studies and be enrolled was due to his mental state and the compassionate and compelling circumstances he has outlined.
[12] He also submitted an Affidavit from his father dated 9 October 2016 outlining that his son will return to Bangladesh and take care of his firm. He attached the Trade Certificates for his father’s business. The applicant attached a medical imaging report and receipts from August 2016 as to having a colonoscopy. There was also a medical report from August 2015 included as to having an incision and drainage of a perianal abscess.
[13] His representative added in a submission dated 13 October 2016 that his father owns a business in Bangladesh and wants the applicant to join it. He claims joining his father’s business gives the applicant incentive to return home. He submits the applicant is the only son and while he has two sisters they are not interested in the family business. He notes in Australia the applicant works as a part-time taxi driver and his wife in a patisserie. He notes the applicant has been unable to work for the last few months and attached the medical certificate referred to above. He notes that the cancellation of a number of COES was due to changes in course rather than ceasing study.
The Tribunal had regard to all relevant facts and did not rely upon irrelevant facts when arriving at its decision. The reasons of the Tribunal were considered and substantial.
There is no merit to Ground 1 of the Application for Review.
As to Ground 2, it was claimed that the decision of the Tribunal was legally unreasonable. The applicants relied upon each of the grounds referred to in Ground 1. Such claim was an attempt to cause this Court to undertake an impermissible merits review.
Second, the ground is so lacking in particularity as to not permit the Court to understand the basis on which such claim is made. The applicants failed to articulate the claim as made. That, by itself, is a ground for dismissing the claim. [1]
[1] WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J
Third, it has been held that the test for unreasonableness is necessarily stringent. [2]
[2] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] – [11] per Kiefel CJ
On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
The Court accepts the submission made on behalf of the first respondent that there was nothing before the Court to support a conclusion that the findings of the Tribunal were arbitrary, capricious, without common sense or plainly unjust. The applicants failed to articulate any basis upon which it could be found that the decision of the Tribunal was legally unreasonable.
Ground 2 is without merit.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 July 2024
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