Kazmi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 783
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kazmi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 783
File number: MLG 3221 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 29 August 2024 Catchwords: MIGRATION – Judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – Whether the Tribunal failed to take into account relevant considerations – No Jurisdictional error – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 359, 359C, 360, 363A, 499
Migration Regulations 1994 (Cth) cl. 500.212
Cases cited: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Singh v Minister for Immigration and Border Protection [2017] FCA 217
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Division: Division 2 General Federal Law Place: Melbourne Number of paragraphs: 37 Date of last submissions: 15 August 2024 Date of hearing: 15 August 2024 Applicant: In person Solicitor for the First Respondent: Mr Mangos of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3221 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED AUN MUHAMMAD KAZMI
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $4,189.
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 CHAMPION:
INTRODUCTION
Mr Syed Aun Muhammad Kazmi seeks judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the First Respondent (Minister) to refuse the grant of a Student (Temporary) (Class TU) (Subclass 500) visa.
WHAT ARE THE ISSUES?
I need to deal with three issues.
The first issue is that I denied the Applicant’s application for an adjournment of the hearing first raised before the hearing and renewed orally at the hearing. I indicated that I would set out my reasons for refusing the adjournment in the judgment.
The other issues are as follows:
(1)whether the Tribunal failed to give the Applicant an opportunity to appear and respond at the hearing, which requires consideration of whether the Tribunal complied with the legislative scheme under ss. 359C, 360(3) and 363A of the Migration Act 1958 (Cth) in the conduct of its review under Part 5; and
(2)whether the Applicant has proved that the Tribunal “took into account irrelevant considerations” (Ground 1) or “failed to take into account… relevant considerations” (Ground 2).
I will dismiss the application. My reasons follow.
WHAT IS THE RELEVANT BACKGROUND?
The Applicant is a citizen of Pakistan.
On 27 December 2011 the Applicant first arrived in Australia as the holder of a student visa. Since arrival, he has held three further student visas.
On 14 March 2017 the Applicant applied for the visa the refusal of which is now the subject of the judicial review application before the court.
On 25 May 2017 a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the Applicant met the genuine temporary entrant criterion set out in cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
On 26 September 2018 the Tribunal affirmed the delegate’s decision not to grant the Applicant a visa.
PROCEEDINGS IN THIS COURT
I turn now to the three issues identified above.
(1) Why did I not grant the Applicant an adjournment?
On 5 August 2024, in this Court and shortly before the scheduled hearing on 15 August 2024, the Applicant sought an adjournment. Before trial, the Applicant provided a letter dated 2 July 2024 from his general practitioner, Dr Mohd Mustaza, referring the Applicant to a psychologist for “depression secondary to chronic lower back pain and chronic left shoulder pain since 2018” (Ex. A2). The Applicant provided to the Court a letter from an accredited mental health social worker, apparently written as a result of that referral, from Mrs Smitha Sugathan dated 1 August 2024, which detailed that “Mr. Kazmi is experiencing significant stress-related symptoms”. Further, Mrs Smitha Sugathan expressed a professional opinion that it was crucial that the Applicant be “granted a period of exemption from these proceedings to focus on his recovery” (Ex. A1). After the First Respondent communicated that it opposed the adjournment, on the Applicant renewing his adjournment application at trial, an attempt to contact Dr Mohd Mustaza to obtain further details of how and why it was that the Applicant was unable to participate effectively in the proceeding was unsuccessful.
Although the material relayed that the Applicant was experiencing stress-related symptoms and depression secondary to back and shoulder pain and a professional opinion that he be granted a period in which to focus on his recovery, the correspondence did not explain to me “why it is or how it is” the Applicant was unable effectively to present his case. His attendance at the hearing and the fact of his submissions in support of the adjournment application suggested he was in fact able to participate effectively in the hearing. In Singh v Minister for Immigration and Border Protection [2017] FCA 217 Murphy J held at [13] that “for a medical certificate to be meaningful it must establish why it is or how it is that an appellant is unable to attend the hearing”. To similar effect, Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [42] said:
While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why - and not just whether - the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
(Emphasis added)
I must consider on any application for adjournment case management principles but ultimately the issue is whether an adjournment is in the interests of the administration of justice. Because I was not persuaded in this case that the Applicant was unable effectively to participate in the hearing because of his stress-like symptoms and his depression secondary to chronic back pain and shoulder pain, I refused the adjournment.
(2) Did the Tribunal fail to comply with the statutory scheme to give the Applicant an opportunity to appear and respond at a hearing?
Although the Applicant submitted that “the tribunal failed to give the applicant an opportunity to appear and respond at a hearing” as part of Ground 2 (below), it is convenient to deal with this submission as the second issue in my reasons because it is accurate to note that the Applicant did not appear at the Tribunal hearing and that the Tribunal resolved his review application “on the papers” (Reasons, [16]).
The scheme under Part 5 of the Act is such that the Applicant’s right to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review is subject to ss. 359(2), 359C, 360(2)(c) and, critically, s 360(3).
Under s. 359(2) the Tribunal may invite a person to give information. Under s. 359C(1), if a person is invited in writing under s. 359 to give information and does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.
If s. 359C(1) applies, s. 360(2)(c) operates to relieve the Tribunal of its obligation to invite the Applicant to appear before it under s. 360(1). In fact, the Applicant is not entitled to appear before the Tribunal under s. 360(3). As the Full Court noted in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [27] (although it was dealing with s. 359A rather than s. 359C), if an applicant fails to provide information that has:
the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
On 7 August 2018 the Tribunal emailed a letter to the Applicant’s representative inviting the Applicant to provide information under s. 359(2) of the Act. The Tribunal invited the Applicant to give “information about your proposed course(s) of study and your entry and stay in Australia as a student.” The invitation noted that if the information was not received by 20 August 2018, the Tribunal may make a decision on review without taking any further action to obtain the information and the Applicant would “also lose any entitlement [he] might otherwise have had… to appear before us to give evidence and present arguments”.
On 28 August 2018, the Applicant’s representative informed the Tribunal via email that the Applicant was in Pakistan undergoing medical treatment and requested an adjournment until 26 September 2018.
On 28 August 2018 the Tribunal emailed the Applicant’s representative:
…
Unfortunately, the time to respond or request an extension to the 359(2) Invitation has now lapsed.
Please feel free to submit your submissions as soon as possible, prior to the Member making a decision
When he did not provide information before the time for giving the information has passed, the Applicant attracted the “cascading operation” of ss. 359C(2), 360(2)(c) and, critically, s 360(3) of the Act as explained in Hasran.
As a result, the Tribunal was correct in its findings at [15]:
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear…
The Applicant has not made out that part of Ground 2 in which he submits that the Tribunal failed to give the Applicant an opportunity to appear and respond at the hearing. The opportunity to appear before the Tribunal to give evidence and prevent arguments is not at large. It is subject to the statutory scheme. To make good his claim of jurisdictional error, the Applicant needed to prove that the Tribunal did not provide the opportunity to give evidence and prevent arguments in accordance with the scheme of Part 5 of the Act. Because the Applicant had not provided the requested information, ss. 359C and 360(3) operated to deny him that right to an invitation to give evidence and present arguments before the Tribunal. The Tribunal complied with the relevant provisions of Part 5 of the Act.
The Applicant has not proved any jurisdictional error as to any failure to give him an opportunity to appear and respond at a hearing.
(3) Did the Tribunal take into account irrelevant considerations (Ground 1) or fail to take into account relevant considerations (Ground 2)
The third issue is to address directly Grounds 1 and 2 of the judicial review application.
Did the Tribunal take into account irrelevant considerations (Ground 1)?
As to Ground 1, the Applicant says:
1.The Tribunal took account of irrelevant considerations.
Particulars
· The Tribunal took account of irrelevant considerations when it concluded that the applicant has no interest to return to his home country.
· The Tribunal took account of irrelevant considerations when it concluded that the applicant is using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.
· It was not open for the Tribunal to doubt the applicant's intentions to pursue an automotive career due to his previous business studies.
The Tribunal noted (correctly) at [5] of its Reasons that s. 499 imposed a statutory duty upon it to have regard to “Direction Number 69 – Assessing The Genuine Temporary Entrant Criterion For Student Visa And Student Guardian Visa Applications” when conducting its review (Direction No. 69). It further noted that the factors set out in Direction No. 69 “should not be used as a “checklist” but a “guide” (Kaur v Minister for Home Affairs [2019] FCA 2026 at [30]-[31] (Steward J)). Each of the considerations the Tribunal referred to was a relevant consideration under Direction No. 69. The Tribunal referred (among other matters) to the fact that the Applicant’s “study path would extend the applicant’s stay in Australia to more than 8 years”. The Tribunal referred to the fact that there was a “contradictory nature” between the Applicant’s visa application in March 2016 which referred to his interest in accounting, and his 2017 visa application which referred to an interest in a different career path, namely an “automotive career” (Reasons, [18]).
I do not accept the Applicant’s submissions that the Tribunal took into account “irrelevant considerations” when it considered the Applicant’s significantly shifting career intentions in assessing whether it was satisfied he met the genuine temporary entrant criterion.
Ground 1 has not been made out.
Did the Tribunal fail to take account of relevant considerations (Ground 2)?
Ground 2 is as follows:
2.The Tribunal failed to take account of relevant considerations
Particulars
•The Tribunal failed to give sufficient weight to the applicant's circumstances in his home country (Pakistan) as it was required to do under cl. 9 and 10 of Ministerial Direction Number 69.
•The Tribunal failed to give sufficient weight to the applicant's potential circumstances in Australia as it was required to do under cl. 11 of Ministerial Direction Number 69.
•The Tribunal failed to give sufficient weight to the value of the course to the applicant's future as it was required to do under cl. 12 of Ministerial Direction Number 69.
•The Tribunal failed to give sufficient or any weight to the fact that the applicant had a genuine desire to pursue an automotive career in his home country.
•The Tribunal failed to give the applicant an opportunity to appear and respond at a hearing.
The Tribunal noted that at the time of decision the Applicant had already been onshore for more than six years and “had not progressed beyond VET level courses and he appeared to have enrolled in a variety of study areas with no clear career goal.” (Reasons, [19]).
The Tribunal’s conclusion is set out at [24] of its reasons as follows:
Overall, given lack of evidence of academic progress, his study history, his immigration history and the lack of value of the courses to his future, the Tribunal finds that the applicant is using the Student visa program to circumvent the intention of migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.
The Tribunal’s discussion at [19] and [24] of its reasons set out in the preceding paragraphs conformed with its obligations to have regard to those matters set out in cl. 12 of Direction No. 69. The Tribunal brought its mind to bear on the relevant factors.
As the plurality in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24] observed, once the Tribunal had brought its mind to bear upon the essential components of the Applicant’s claim the “weight to be afforded” to the different factors was a matter for the decision-maker. I find no error in the Tribunal’s approach in its consideration of the components of the Applicant’s claim or in its consideration of factors identified in Direction No. 69.
Ground 2 as far as it alleges that the Tribunal failed to take into account relevant considerations has not been made out. I have dealt with Ground 2 as far as it alleges that the Tribunal failed to give the Applicant an opportunity to appear and respond at the hearing above.
WHAT IS MY CONCLUSION?
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $4,189 as the First Respondent sought.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 29 August 2024
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