Jan v Minister for Home Affairs

[2019] FCCA 739

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 739

Catchwords:
MIGRATION – Administrative Assessment Tribunal – application for a Student (Temporary) (Class TU) visas – whether the Tribunal failed to have regard to the whole of the applicants circumstances in their home country – whether the adverse findings by the Tribunal were illogical or irrational – whether the Tribunal had a real and meaningful engagement and had regard to paragraph 12 of Ministerial Direction 53 – whether the Tribunal failed to consider all of the applicant’s claims and evidence – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.476

Migration Regulations 1994 (Cth), cl.500.311, 573.223 of Schedule 2

First Applicant: AMMAR ASLAM JAN

Second Applicant: AYESHA SAQIB

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 314 of 2018

Judgment of: Judge Street

Hearing date: 25 March 2019

Date of Last Submission: 25 March 2019

Delivered at: Parramatta

Delivered on: 25 March 2019

REPRESENTATION

Counsel for the Applicant: Mr D Blades

Solicitors for the Applicant: Tang Law

Counsel for the Respondents: Ms C Walsh

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The hearing of the proceedings are to be by way of audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

2. Ayesha Saqib is joined as a second applicant to the proceedings and the Court dispenses with the need for the filing of any further document in that regard.

3. The amended application is dismissed.

4. The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 25 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PEG 314 of 2018

AMMAR ASLAM JAN

First Applicant

AYESHA SAQIB

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 May 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicants are citizens of Pakistan and the first applicant is the primary applicant and the second applicant is his partner and is included as a member of the family unit.

3. On 17 June 2016, the delegate found the first applicant had failed to meet the criteria for the grant of the visa. The delegate, in that regard, expressly referred to the requirements of cl 573.223(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) and also the Ministerial Direction No 53. The delegate referred to the PRISMS records and the short courses that the first applicant had undertaken. The delegate also referred to the fact that since the first applicant’s arrival in October 2011, the first applicant had spent 141 days outside Australia and the delegate was not satisfied as to the intentions of the first applicant to remain in Australia temporarily.

4. On 1 July 2016, the applicants applied to the Tribunal for review. By letter dated 22 January 2018, the applicants were invited to attend a hearing on 15 February 2018. The first applicant appeared on that date to give evidence and present arguments, together with the second applicant.

5. The Tribunal identified the background to the application for review and, in particular, drew attention to the requirements of Ministerial Direction 53 which was attached to the letter sent to the applicants in respect of the hearing and assessed whether the first applicant is a genuine applicant for temporary entry and stay as a student.

6. The Tribunal referred to the issue in the present case being whether the first applicant met the criterion in cl 573.223 of the Regulations and expressly identified that in considering whether the first applicant satisfies that criterion the Tribunal must have regard to Ministerial Direction 53. The Tribunal in that regard summarised the specified factors of the Ministerial Direction, which is relevantly as follows:

   - 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.

7. The Tribunal noted that those factors are not to be used as a checklist but rather, are intended to guide decision-makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

8. The Tribunal had regard to the first applicant’s study history and identified concerns in relation to the first applicant’s academic progress. The Tribunal referred to the first applicant’s recent engagement in a higher qualification two weeks before the Tribunal hearing. The Tribunal considered that the first applicant has lived in Australia for about six and a half years and his lack of academic progression beyond low level VET courses until January 2018, of which the Tribunal noted they indicate the first applicant is using a student visa program for the primary purpose of maintaining residence.

9. The Tribunal referred to the gaps in the first applicant’s study and summarised the courses the first applicant had completed from 2012 through to 2017. The Tribunal expressed concern as to how many courses the first applicant had enrolled in and then either withdrawn from or cancelled in 2013 and 2014. The Tribunal referred to the courses of a Diploma of Engineering, an Advanced Diploma of Engineering, and an Associate Degree in Network Technology which had not been completed, and a change of study from business, to engineering, to network technology, to human resources, and now back to business again.

10. The Tribunal expressly referred to the first applicant failing to return to Pakistan to assist his father in the expansion of the family’s business. The Tribunal also referred to recent job offers provided to the first applicant. The Tribunal referred to the first applicant’s working experience at the family pharmacy business from 2008 to 2011. The Tribunal referred to when the first applicant left his own country in 2011, when he was 22 years of age, and the Tribunal found that any management experience the first applicant gained in the family business for his father before then would have been fairly limited and unlikely to have provided him with the kind of skills and experience, even with academic qualifications, to be a general manager performing the sorts of duties detailed in the recent job offers.

11. The Tribunal noted the first applicant provided no evidence that he satisfies the Tribunal that he has obtained relevant job skills or experience since 2011 to perform the type of general manager role, or the alleged offer for that at a training company, or that the first applicant intends or is likely to gain such experience before he finishes his degree that he is currently enrolled in in 2021.

12. It was in these circumstances the Tribunal gave the job offer letter very little weight. The Tribunal did not consider it plausible that the company in Pakistan would genuinely be offering the first applicant a job that is conditional upon him finishing his studies, without a definite date for completion of the studies or commencement of the position.

13. The Tribunal also referred to the first applicant’s opportunity to assist his father in the expansion of the family business. The Tribunal expressed a view that the first applicant would have been qualified and experienced to return to Pakistan at the time of application, and remain so at the time of the Tribunal’s decision, to achieve his stated career goal of helping his father expand the family’s pharmacy business. The Tribunal referred to the first applicant having obtained several qualifications already in Business, Small Business Management and Human Resources. The Tribunal found, on the evidence, that the first applicant is equipped with the qualifications that he has obtained in Australia to return to his home and meet his stated career goal.

14. The Tribunal referred to the first applicant commencing a Bachelor of Business on 29 January 2018. The Tribunal noted that the first applicant had previously withdrawn from and cancelled courses and the Tribunal expressed concerns as to whether the first applicant will complete the course. The Tribunal took into account the first applicant’s explanation about being stressed and unsettled and did not accept that as a reasonable excuse.

15. The Tribunal referred to the first applicant’s travel offshore and the Tribunal expressly found that it does not consider the first applicant’s ties to be stronger than his incentive to remain in Australia where he has been living for most of his adult life and where he now resides with his wife.

16. The Tribunal referred to having considered all relevant facts and matters and was not convinced that the first applicant considers his time in Australia to be temporary.

17. The Tribunal referred to having considered the financial evidence provided indicating support from the applicants’ families and referred to the evidence of the applicants as working in Australia. The Tribunal identified no concern of the applicants’ ability to support themselves financially to cover study and living costs in Australia.

18. The Tribunal referred to the first applicant giving evidence at the hearing that he earns about $900 to $950 a week. This was clearly in error, as the transcript has been tendered and identifies that that occurred a fortnight. The Tribunal also referred to the earnings of the second applicant and the Tribunal noted evidence was provided that they have received assistance from family who live overseas.

19. The Tribunal referred to having considered all the documents on the files. The Tribunal referenced that it had considered the first applicant’s circumstances, immigration history, and other relevant matters. The Tribunal found it had not been satisfied that the first applicant intends genuinely to stay in Australia temporarily. The Tribunal found the applicant did not meet the criteria under cl 573.223(1)(a) of the Regulations.

20. The Tribunal found the secondary applicant, who is a member of the family unit, did not meet cl 500.311 of the Regulations and the Tribunal affirmed the decision on review.

The grounds

1. The grounds in the amended application are as follows:

   1. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Migration Regulations 1994 ("the Regulations") for Student visa applications by failing to have regard, as required by paragraph 9 of Direction No. 53 - Assessing the genuine temporary entrant criterion for Student visa applications ("the Direction"), to the following factors in considering the first applicant's circumstances in his home country.

   Particulars

   a. The Tribunal failed to have regard to paragraph 9a. of the Direction: "Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there".

   b. The Tribunal failed to have regard to paragraph 9b. of the Direction: "The extent of the applicant's personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country."

   c. The Tribunal failed to have regard to paragraph 9c. of the Direction: "Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country."

   2. The Tribunal made a jurisdictional error by acting on a mistaken understanding of the first applicant's evidence in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications, and engaging in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds.

   Particulars

   a. Paragraph 11a. of the Direction required the Tribunal to have regard to “The applicant’s ties with Australia which would present as a strong incentive to remain in Australia”

   b. Paragraph 9c. of the Direction required the Tribunal to have regard to: "Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country."

   c. At paragraph 30 (CB 152) of its statement of reasons, the Tribunal stated that it had considered the financial evidence provided and it concluded that it "has no concern about the applicants' ability to support themselves financially to cover study and living costs in Australia."

   d. In reaching the above conclusion, the Tribunal relied on oral evidence given by the first applicant at the hearing "that he earns about $900 to $950 per week and his wife earns anywhere from $700 to $850 a fortnight working in the kitchen of an aged care facility" (emphasis added).

   e. The first applicant told the Tribunal at the hearing at the 24:25 time on the recording that he earns "fortnightly 900, sometimes 930, 950" dollars.

   f. The Tribunal's statement at [30] that the first applicant earns the above amount of money on a weekly basis was incorrect.

   g. The Tribunal's conclusion that it "has no concern about the applicants' ability to support themselves financially in Australia" was therefore based upon a mistaken understanding of the first applicant's evidence as to his earnings.

   h. The Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds.

   3. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications by failing to have regard, as required by paragraph 12 of the Direction, to the following factors in considering the value of the course to the first applicant's future.

   Particulars

   The Tribunal failed to have regard, under paragraph 12 of the Direction, to:

   a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.

   b. Relevance of the course to the student's past or proposed future employment either in their home country or a third country.

   c. Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   4. The Tribunal made a jurisdictional error by failing to consider evidence of the first applicant’s personal ties to his home country and to his economic circumstances there, which was evidence relevant to the assessment of the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications.

   Particulars

   a. The first applicant provided the following documents to the Tribunal:

   i. "AFFIDAVIT OF SUPPORT From Real Father and Mother" which was dated 20 January 2018 and signed by the first applicant's parents, at CB 125;

   ii. supporting documents as to the financial circumstances of the first applicant's parents, at CB 112-124;

   b. The Tribunal gave no, or no proper, consideration to the affidavit of 20 January 2018 (CB 125) and the supporting documents and accordingly made a jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Blades of counsel, on behalf of the applicants, submitted that the Tribunal had failed to have a real and meaningful engagement with Ministerial Direction 53, because the Tribunal had not expressly answered to the questions identified by paragraph 9(a) to paragraph 9(c) in the direction. Those paragraphs are as follows:

   9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:

   a. Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.

   b. The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.

   c. Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.

2. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal expressly identified the obligation with regard to Ministerial Direction 53. The Tribunal’s reasons expressly refer to the subject matter of paragraph 9(a) in identifying the ability of the applicant to return home to pursue his objective working with the family with the qualifications that he has obtained. There is no proper basis to find that the Tribunal did not take into account paragraph 9(a) in its determination.

3. In relation to paragraph 9(b), there is an express reference in the Tribunal’s reasons to ties, as referred to above. Again, there is no proper basis for the Court to find that the Tribunal failed to consider or take into account paragraph 9(b) in its determination.

4. In relation to paragraph 9(c) and the reference to the economic circumstances of the applicant that were presented, as a significant incentive for the applicant not to return. It is apparent that the Tribunal identified, albeit erroneously, the earnings of the applicant and his wife and also the support provided to the applicant from his family, who is not in Australia. On the face of the Tribunal’s reasons, there is no basis to find that the Tribunal did not have a real and meaningful engagement in respect of the whole of the requirements of paragraph 9 in Ministerial Direction 53. I do not accept that the Tribunal in the present case identified adversely to the applicant an economic circumstance of the kind there identified. However, it is clear on a fair reading of the Tribunal’s reasons that the Tribunal took into account the subject matter of paragraph 9(c).

5. There was no failure by the Tribunal to have a real and meaningful engagement with paragraph 9(a) to (c) as alleged in ground 1.

6. Further, the expressed reasons of the Tribunal had referred to the requirements of Ministerial Direction 53 including the references as referred to above to having regard to all the circumstances are consistent with the Tribunal having a real and meaningful engagement with the applicants’ submissions and having regard to Ministerial Direction 53. The Tribunal was not required to answer questions but rather to engage in a thoughtful process taking into account Ministerial Direction 53. The Tribunal did so. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Blades took the Court to the transcript in relation to the error made in the Tribunal’s reasons in respect of fortnightly income as opposed to weekly income. For the reasons already given, it is not apparent that the error was treated adversely by the Tribunal in weighing the applicant’s circumstances. The error on its face was immaterial and had no significance in the determination of the visa application beyond identifying an income stream being received by primary applicant and his spouse. In that regard the Tribunal also referred to the applicant receiving financial assistance from the family overseas.

1. Given the reference to receiving assistance from the family overseas, the error is not capable of being characterised as noted. Nor was the finding one in respect of which there is any adverse finding against the applicants by reason of the mistake as to the weekly income of the first applicant. Accordingly no jurisdictional error arises by reason of ground 2.  

Ground 3

1. In relation to ground 3, Mr Blades took the Court to paragraph 12 of Ministerial Direction 53 paragraphs (a) to (c), which is relevantly as follows:

   12. Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:

   a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.

   b. Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.

   c. Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

2. Mr Blades, again, submitted that there was a failure by the Tribunal to make express findings in accordance with what was said to be the questions posed by paragraph 12.

3. The observations made by the Tribunal as to concern in respect of the academic progress of the applicant is itself sufficient to make it patent that the Tribunal had regard to the subject matter now at paragraph 12(a). The reference to the applicant already having skills and qualifications to return to work with his father’s pharmacy is entirely consistent with the Tribunal having regard to the substance of paragraph 12(b).

4. In relation to paragraph 12(c), it is apparent that the Tribunal expressed concern in relation to the qualifications the applicant was seeking to pursue, given his objectives, could potentially return to work for an alleged company, the letter of employment opportunity in his home country which was given no weight by the Tribunal and, alternatively, returning back to his father in respect of that he already had adequate qualifications. There is no proper basis to find that the Tribunal did not have regard to paragraph 12(c). On the face of the Tribunal’s reasons, the Tribunal had a real and meaningful engagement and had regard to paragraph 12 of Ministerial Direction 53. The Tribunal was not required to make further findings in that regard. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Blades took the Court to the affidavit by the parents identifying the potential prospect of the applicant returning to work for the parents in the pharmacy or identifying the benefits that might flow in that regard. It is clear from the reasons of the Tribunal already summarised that the Tribunal took into account the substance of the affidavit in relation to the applicant returning to the family business. There is no proper basis to find that the Tribunal did not have regard to the evidence referred to, being the evidence of the mother and father, and no proper basis to find that the Tribunal did not have regard to the supporting documents as to their financial circumstances. It is not necessary for the Tribunal to refer to every piece of evidence before it.

2. I do not accept that the joint statement by the parents required any express reference in the circumstance of the present case or any further reference to the financial circumstances of the applicants beyond that identified by the Tribunal. No jurisdictional error as alleged in ground 4 is made out.

3. As the amended application fails to make out a jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 May 2019