Issa v Minister for Immigration

[2016] FCCA 2637

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISSA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2637

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 477

Migration Regulations 1994 (Cth), cls.573.211, 573.223

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14

Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632; [2006] FCA 375

Dranichnikovv Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26

Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393

Applicant: MOHAMED ISSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3640 of 2014

Judgment of: Judge Barnes

Hearing date: 30 September 2016

Delivered at: Sydney

Delivered on: 30 September 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

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

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3640 of 2014

MOHAMED ISSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 11 December 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a student visa. 

2. The Applicant, a citizen of Egypt, arrived in Australia in 2007 as the holder of a student visa. Relevantly, on 18 December 2012 he applied for a further student visa. That application was refused by a delegate of the First Respondent in December 2012 in essence on the basis that the provisions of Schedule 3 to the Migration Regulations 1994 (Cth) (Migration Regulations) (which applied to the first application lodged after the visa applicant’s substantive visa had ceased) could not be met because Mr Issa had relied on Schedule 3 on a previous occasion and hence that he did not meet the criterion in cl.573.211 in Schedule 2 to the Migration Regulations.

3. The Applicant sought review.  On 10 July 2013 the Tribunal (as originally constituted) affirmed the delegate’s decision. 

4. Mr Issa sought judicial review of that Tribunal decision.  The matter was remitted by consent in February 2014 on the basis that the Tribunal had erred in not considering that the visa application in question was made prior to the date on which the Applicant’s last substantive visa ceased.

5. On 16 April 2014 the Tribunal as reconstituted found that Mr Issa met the criterion in cl.573.211 and remitted the matter to the Department to reconsider on that basis. It is what occurred thereafter that is the subject of these proceedings.

6. On 2 May 2014 a delegate of the First Respondent emailed the Applicant asking him for certain information and putting to him the lengthy periods of time for which he had not been studying.  The delegate sought an explanation, supporting documents and for other matters to be addressed.  I mention this email because it emerged in the hearing today that the Applicant contended that he had not received this email. 

7. The delegate refused the visa application on 27 June 2014 on the basis that he was not satisfied that at the time of decision Mr Issa was a genuine applicant for entry and stay as a student (as required in cl.573.223).  This criterion included a requirement that the decision-maker be satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to specified matters and any other relevant matter. 

8. The delegate was not satisfied that Mr Issa genuinely intended to stay in Australia temporarily on the basis of information about his past enrolments, cancellations, the variety of courses he had undertaken and his failure to progress beyond vocational qualifications since 2007.

9. Mr Issa again sought review by the Tribunal on 7 July 2014. This is the Tribunal review which is the subject of these proceedings. The application to the Tribunal was lodged within the time provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act).

10. The Tribunal wrote to Mr Issa on 8 July 2014 informing him that if he wanted to provide material or written arguments for the Tribunal to consider he should do so as soon as possible.

11. On 29 October 2014 the Tribunal invited Mr Issa to a hearing on 10 December 2014 to give evidence and present arguments relating to the issues in his case.  The hearing invitation letter instructed Mr Issa to provide all documents on which he intended to rely to establish that he met the criteria for the visa within seven days of receipt of the letter.  It informed him that the Department’s decision to refuse to grant the visa should have set out the reasons why he did not meet the criteria and that he should have regard to these reasons and to any changes in his circumstances in providing documents and preparing for the Tribunal hearing. 

12. In addition, Mr Issa was asked to provide particular information so that a decision could be made quickly, including enrolment documents, documents that showed his past studies in Australia and an explanation for any gaps in his enrolments and any documentary evidence relevant to his explanation. The Tribunal also informed him that it would assess whether he intended genuinely to stay in Australia temporarily, as required by the applicable criterion (said to be cl.572.223(1)(a) in Schedule 2 to the Migration Regulations). It explained that a direction from the Minister known as Direction 53 was relevant to this requirement. A copy of the Direction was provided to Mr Issa. He was asked to provide a written statement addressing the issue of whether he was a genuine temporary entrant by referring to that Direction.

13. The Tribunal also advised the Applicant that it may make a decision at the end of the hearing and that if he did not attend the hearing it may make a decision without taking any further action to allow or enable him to appear before it.  Further information was provided about his rights and the hearing.

14. Mr Issa responded to the Response to Hearing Invitation by indicating that he would attend the hearing.  On 6 November 2014 he provided some documents in relation to his studies and achievements, including a current confirmation of enrolment in an Advanced Diploma of Marketing course, documents from education providers granting him release from certain past courses, records of transfer of courses and transcripts in relation to some past courses.  It appears that he did not provide a written statement addressing the issue of whether he was a genuine temporary entrant by reference to Direction No. 53 or documents other than those relating to his academic achievement in Australia or from educational institutions, including confirmations of enrolment.

15. Mr Issa attended the Tribunal hearing on 10 December 2014.  The only evidence before the court as to what occurred in the Tribunal hearing is the Tribunal account in its reasons for decision, a matter to which I will return. 

16. In its reasons for decision of 11 December 2014 the Tribunal made it clear that it was reviewing the departmental decision of 27 June 2014.  It found, having regard to the Applicant’s proposed course of study, that the relevant subclass was Subclass 572.  No issue is taken in this respect.  I note that the documents the Applicant provided to the Tribunal indicated that his current course of study was an advanced diploma course (rather than a Bachelor of Business (Accounting) degree as had been proposed at the time of his 2012 application).

17. The Tribunal explained that the issue was whether the Applicant met the time of decision criterion in cl.572.223(1)(a) that the decision-maker was satisfied that he was a genuine applicant for entry and stay as a student because the decision-maker was satisfied that he intended genuinely to stay in Australia temporarily having regard to his circumstances, immigration history and any other relevant matter.

18. The Tribunal acknowledged that in considering whether the Applicant met this criterion it must have regard to Direction No. 53.  The Tribunal recorded that this Direction required it to have regard to a number of specified factors in relation to the Applicant’s circumstances in his or her home country; potential circumstances in Australia; value of the course to the Applicant’s future; his or her immigration history; and any other relevant information provided by the Applicant or available to the decision-maker, including information that may be either beneficial or unfavourable to the Applicant.  The Tribunal recorded that the Direction also indicated that these factors were not to be used as a checklist, but were intended to guide decision-makers to weigh up the Applicant’s circumstances as a whole. 

19. The Tribunal had regard to the Applicant’s arrival in Australia in April 2007 on a Student visa, the fact that he had held successive student and associated bridging visas since that time and that he had not left Australia.  It was of the view that he had been enrolled in what it described as a “diverse range” of courses since arriving in Australia, including vocational courses in business, hospitality and hairdressing.  It found that he had been enrolled in a Bachelor of Business course in November 2013 which was cancelled for non-commencement of studies and that he was currently enrolled in an Advanced Diploma of Marketing course.

20. The Tribunal stated that the Applicant had provided documentary evidence that since arriving in Australia in 2007 he had successfully completed five units of a Diploma of Business Management course in 2008, a one-month English course in 2011 and a Diploma of Marketing in March 2013.  The Tribunal recorded that at the hearing the Applicant had confirmed that these were his academic attainments and that when asked why he had made “so little academic progress in more than 7 years” in Australia he had said that his father had become sick and he was not able to concentrate on his studies.  When asked why he had not visited Egypt since arriving in Australia, the Applicant told the Tribunal that he had previously had problems in his relations with his family in Egypt, although those problems had been resolved.  When asked about his career plans, the Applicant responded that on completion of his studies he intended to return to Egypt “to work”.  When asked to expand on the nature of the work he envisaged, he said he would take any job he could find, or perhaps set up his own business.  The Tribunal also recorded that all the Applicant’s family members lived in Egypt and that when asked about ties in Australia, he said he had an Australian girlfriend. 

21. The Tribunal concluded:

    On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily as a student.  Accordingly, the applicant does not meet clause 572.223(1)(a).  In making this finding, the Tribunal has attached most weight to the applicant’s failure to complete almost all of the many and diverse courses in which he has enrolled in the extended period he has been in Australia.  The applicant has attributed his poor academic progress to the affects on him of the ill health of his father but has provided no documentary evidence to support this claim.  The Tribunal also considers that the applicant’s failure to visit his home country since arriving in Australia in 2007 and his failure to articulate any firm plans for his career when he returns to Egypt suggest that the applicant does not intend genuinely to stay in Australia temporarily.

22. The Tribunal stated that it had found that the Applicant did not meet an essential requirement for a Subclass 572 visa.  It found for the same reasons that he did not meet the identical criterion for other subclasses within Class TU and that there was no evidence to suggest that he met the criteria for the remaining subclass of Student Guardian visa. 

23. The Tribunal affirmed the decision under review on 11 December 2014. 

24. The Tribunal decision was sent to the Applicant by email of 12 December 2014.  The Applicant sought review by application filed in this court on 29 December 2014.

25. The application contains a somewhat confusing ground which is as follows:

    To the best of my knowledge, Dept. of immigration cancelled my student visa, so I applead (sic) to MRT and MRT rejected the application, so I filed for a review by Federal Court and Lawyer for immigration requested me to withdraw and wait for Dept. of Immigration Letter to re-instate and you waited around 2 months while checking every week with them & suddenly you were told whereas I did not receive any previous emails (errors in original).

26. I have considered the reference in this ground to cancellation of a Student visa.  That was not the nature of the Tribunal decision before the Court.  Rather, the issue before the Tribunal was whether the Applicant met the criteria for the grant of a further Student visa.  It is not clear whether the Applicant was intending to address some past proceedings in the Federal Court in relation to some earlier cancellation of a student visa.  Such issue is not the subject of the present proceedings and does not establish jurisdictional error on the part of the Tribunal. 

27. It initially appeared that the Applicant may have been of the view that he was outside the time for a judicial review application provided for in s.477(1) of the Migration Act and needed an extension of time. However, the Tribunal decision was dated 11 December 2014. Mr Issa filed his application to this court on 29 December 2014. This was within the 35-day time limit provided for in s.477(1) of the Act. There is no issue in that respect. He does not require an extension of time.

28. I gave the Applicant the opportunity to clarify what he meant by this ground. It eventually emerged that he was concerned that he had not received the email of 2 May 2014 which the Department sent to him asking him for an explanation about what he had been doing in Australia while not studying and also for other information relevant to the issue of whether he satisfied the genuine temporary entrant criterion.  As indicated, the delegate’s decision of 27 June 2014 was made on the basis that the Applicant had failed to provide a response to this email.  However the delegate considered the enrolment and study history before the Department.

29. Insofar as this is the Applicant’s concern, it is not the subject of these proceedings, which relate to the subsequent review and decision by the Tribunal.  I observe in passing that, in any event, the Tribunal review was a de novo review which considered afresh the issue of whether Mr Issa met the applicable criteria for a student visa.  Moreover, in its initial acknowledgement letter and its hearing invitation letter, the Tribunal gave Mr Issa an opportunity to provide the sort of information that had been requested by the delegate.  The information requested also included a written statement.  This was not provided by the Applicant. 

30. Insofar as it may be intended to be suggested that the Tribunal decision and/or procedure was in some way affected by the asserted (albeit not proven) failure of the Applicant to receive the Department’s email of 2 May 2014 in a manner constituting jurisdictional error, that is not made out.  In particular, insofar as the Applicant intended to suggest generally that he had not been asked for relevant documentary information, but that the Tribunal made a decision based on the absence of relevant documentary information, such a claim is not made out, having regard to the Tribunal’s hearing invitation. 

31. In oral submissions, the Applicant also expressed a concern that he had not been believed by the Tribunal, in particular in relation to the issue of his father’s ill health.  It appears from what the Applicant said (and consistent with the Tribunal’s account in its reasons for decision), that at the hearing he claimed that the reason he had made such little academic progress in seven years was that his father had been sick and he had not been able to concentrate on his studies.  In submissions he took particular issue with what was said to have been a failure by the Tribunal at the hearing to ask him specifically for documentary evidence in relation to his father’s ill health.  He indicated to me that his father had passed away.  He also indicated that he now had a bundle of documents in relation to his father.  He conceded that he had not provided these documents to the Tribunal and that he had not sought additional time to provide any such documents to the Tribunal.  Rather, his concern was that he had not been asked to provide specific material in relation to his father’s health.  He expressed this concern in circumstances where the Tribunal had recorded that while he attributed his poor academic progress to the effects on him of the ill health of his father, he had provided no documentary evidence to support this claim. 

32. The Applicant appeared to be asserting that the Tribunal was under some obligation to prompt him and stimulate him to provide documents or to investigate the issue further before making such a finding or, possibly, of its own volition to volunteer to give him additional time to provide documentary evidence in support of his claim.  In essence, the Applicant submitted that there was an obligation on the Tribunal to ask him for documentary material to support his explanation for his limited academic progress and that it did not do so. 

33. There is no suggestion by Mr Issa that he sought any adjournment of the Tribunal hearing.  Rather it appears that it was only after he saw the reference in the Tribunal decision to the absence of documentary evidence that he considered that he should have been asked to provide specific documentary evidence.  He has not put a transcript of the hearing in evidence to support his claim about what occurred (or did not occur) at the hearing.

34. This claim does not establish jurisdictional error.  It is well established (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14) that it is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of his contention that he or she meets the criteria for a visa. The Tribunal must then decide whether that claim is made out. Similarly, as stated in Dranichnikovv Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26, the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. It is for an applicant to put forward the information and materials on which he relies in support of his claims. The Tribunal is not in the position of a contradictor. It is not required to accept uncritically any and all allegations made by an applicant. In particular, it is not required to accept a claim merely because positive evidence to the contrary is absent. Nor is it obliged to prompt and stimulate an elaboration an applicant has chosen, or may have chosen, not to embark upon Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632; [2006] FCA 375 per Allsop, Jacobson and Graham JJ at [26]. Relevantly, as Keane CJ indicated in Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41 the Tribunal is not duty bound to press an applicant to call further evidence on an issue or to seek an adjournment of a hearing to enable him to do so or to seek out such evidence itself.

1. While these general principles were expressed in cases reviewing Refugee Review Tribunal decisions, they nonetheless apply generally to Migration Review Tribunal procedures. 

2. I have borne in mind the Tribunal’s obligation under s.360 of the Act to afford an applicant a meaningful opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review and the obligation to identify dispositive issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [35]). However it is apparent on the material before the Court that in the hearing invitation letter the Tribunal not only afforded the Applicant a general opportunity to provide any material and supporting documents on which he sought to rely, but that it also drew his attention to the issues the delegate had considered relevant (which included the fact that he had not provided reasons for not studying for extensive periods). While he claimed that he did not receive the Department’s email, there is no suggestion that he was not aware of the content of the delegate’s decision (as distinct from the email) which put him on notice of the need for supporting documents and evidence in relation to matters of relevance to the genuine temporary entrant for study criterion.

3. In addition, in its hearing invitation the Tribunal spelt out (in some detail), relevant information the Applicant should provide before the Tribunal hearing, including an explanation of any gaps in his enrolment, any documentary evidence relevant to his explanation and a written statement addressing the issue of whether he was a genuine temporary entrant by referring to Direction No. 53, a copy of which was provided and which included reference to the Applicant’s circumstances in his home country as well as his immigration history and other issues of relevance to the issue for determination.  There is nothing in the material before the Court to indicate that the Tribunal failed to raise dispositive issues with the Applicant, not only in the hearing invitation but also (as it indicated in its reasons) at the hearing.  Indeed, in the absence of a transcript of the hearing, there is no evidentiary basis for the Applicant’s claim that the Tribunal did not ask for documentary material.   

4. Moreover, the Tribunal did not reject the application simply because it did not believe the Applicant because of the absence of documentary evidence about his father’s ill-health.  Rather, it found on all of the evidence before it, having considered the Applicant’s circumstances, immigration history and other matters, that it was not satisfied that he intended genuinely to stay in Australia temporarily as a student.  The Tribunal attached most weight to the Applicant’s failure to complete almost all of the many diverse courses he had enrolled in in the lengthy period he had been in Australia.  It noted that he had attributed this to the effect on him of the ill health of his father, but also noted the absence of documentary evidence to support this claim.  It did so in circumstances where it was apparent that, as the Tribunal stated, the Applicant had made very little academic progress in the more than seven years he had been in Australia. 

5. While the Tribunal did not accept that the unsubstantiated explanation the Applicant provided for his poor academic progress was such as to support his claim that he intended genuinely to stay in Australia temporarily as a student (despite his poor academic achievement), this is not a case in which the Tribunal made a general adverse credibility finding on the basis of an absence of corroborative documentary material.  Rather it considered this factor as part of all the circumstances.  It was reasonably open to it to proceed on this basis 

6. The issue that the Applicant raises in relation to the Tribunal decision is not such as to establish jurisdictional error, whether by way of a failure to comply with s.360 or more generally in relation to the manner in which the Tribunal conducted the review. In particular, the Applicant’s oral claim to the Tribunal about his father’s health was not such as to give rise to any obligation on the Tribunal to conduct its own investigations. This was not a case in which there has been shown to be a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. If the Applicant had wished to explain his lack of academic achievement or the gaps in his enrolment on the basis of his father’s ill health, it was for him to put such material as he relied on before the Tribunal. The Tribunal was under no obligation to ask him for documentary evidence in that respect.

7. The Applicant also appeared to take issue with whether or not the Tribunal had understood that he had a girlfriend in Australia (a matter he referred to briefly).  The Tribunal recorded and accepted his evidence in that respect.  I note that this was not a cancellation decision in which the impact on other persons may be one of the factors relevant to be considered in relation to the discretion to cancel a visa. 

8. More generally, as the First Respondent submitted, considered independently of the application or the ground of review as explained orally, the Tribunal decision record does not reveal any jurisdictional error on the part of the Tribunal. There is nothing to suggest any failure to comply with the Tribunal’s procedural fairness obligations in Part 5 of Division 5 of the Act. I have referred to s.360. There is nothing to indicate any failure by the Tribunal to comply with s.359A, in particular having regard to the fact that the Applicant provided oral evidence to the Tribunal in relation to his academic attainments (see s.359A(4)(b)).

9. The Tribunal was obliged to comply with Direction No. 53.  It was clearly aware of that Direction.  It provided the Applicant with a copy of the Direction, inviting him to provide a written statement.  That Direction makes it clear that an applicant for a student visa must (as was stated in Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393 at [13]) be both a genuine temporary entrant and a genuine student. It also contains detailed information as to the matters that guide the Tribunal in assessing whether the genuine temporary entrant requirement is satisfied.

10. There is nothing to suggest that the Tribunal failed to have regard to that Direction.  Nor is there anything to indicate that the Tribunal misunderstood or failed to apply correctly the legal test in relation to the genuine temporary entrant criterion or that it otherwise erred, whether in the manner contended for by the Applicant or otherwise in such a way as to constitute a jurisdictional error.  In such circumstances, the application must be dismissed. 

11. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $5,800.  The Applicant asked, “How can I pay them?” which I take to be an indication of a lack of funds or impecuniosity.  However such a lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 13 October 2016