Khan v Minister for Immigration

[2015] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1598

Catchwords:
MIGRATION – Judicial review – whether gaps in study – whether genuine applicants for entry and stay as students – weight given to evidence is a matter for the Tribunal – attempt to review the merits – application dismissed.

Legislation:

Federal Circuit Court Rules, r.15.03.

Migration Act 1958 (Cth), ss.36(2), 65, 499(2A).

Migration Regulations 1994, Sch.2, cl.572.

Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Vatti v Minister for Immigration and Border Protection [2014] FCA 893
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

First Applicant: FAZAL INAYATH KHAN

Second Applicant: AYAAN INAYATH KHAN

Third Applicant: AASIYA KHATOON

Fourth Applicant: AFRAAJ INAYATH KHAN

Fifth Applicant: ARHAAN INAYATH KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 949 of 2014

Judgment of: Judge F. Turner

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Melbourne

Delivered on: 6 May 2015

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents: Ms Bosnjak of Clayton Utz

ORDERS

1. The application filed 11 August 2014 is dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 949 of 2014

FAZAL INAYATH KHAN

First Applicant

AYAAN INAYATH KHAN

Second Applicant

AASIYA KHATOON

Third Applicant

AFRAAJ INAYATH KHAN

Fourth Applicant

ARHAAN INAYATH KHAN

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 23 April 2014. That decision affirmed a decision of a delegate to the Minister not to grant the applicants a Student (Temporary) (Class TU) visas.

2. The application for judicial review is by the primary applicant, his wife, and three sons. The applicants applied for visas on 3 April 2013. The delegate refused to grant them temporary visas on 29 August 2013 because the primary applicant did not satisfy the requirements of cl.572.223(2)(b)(ii) of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) because, while holding a student visa, he had study gaps between March 2010 and January 2011 and between August 2011 and February 2012, and therefore is not a genuine applicant for entry and stay as a student (Court Book “CB” p.232 [3]).

3. The primary applicant and his wife appeared before the Tribunal on

   
   

   13 March 2014 to give evidence and present arguments. Having regard to the primary applicant’s principle course of study, the relevant subclause is cl.572 of the Regulations at CB p.232 [7]. The issue before the Tribunal was whether the primary applicant met at the time of decision the criterion in cl.572.223, which is as follows:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant meets the requirements of subclause (2).

   (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

   (a)the applicant gives the Minister evidence that the applicant has:

   (i)a level of English language proficiency that satisfies the applicant's eligible education provider; and

   (ii)educational qualifications required by the eligible education provider; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)any other relevant matter; and

   (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)the costs and expenses required to support each member (if any) of the applicant's family unit.

   (2)If subclause (1A) does not apply:

   (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)any other relevant matter; and

   (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

4. Paragraph 9 of the Tribunal’s decision states:

   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.

   Section 499(2A) of the Migration Act 1958 (the “Act”) requires compliance with those directions.

5. The Court refers to the Tribunal’s decision from [11]-[15] at CB pp.233 to 234 as follows:

   Background

   According to movement records, the applicant arrived in Australia on 16 December 2008 as the holder of a subclass 572 student visa current until 3 April 2011. He was subsequently granted a further student visa current until 6 April 2013.

   On 3 April 2013 Mr Khan lodged an online application for a further student visa listing his intended studies as an Advanced Diploma of Management, a Certificate IV and a Diploma of Marketing.

   There was insufficient information provided with the application to satisfy the delegate that Mr Khan met the criteria for his assessment level.

   On 4 April 2013 an e-mail was sent to Mr Khan via his migration agent requesting that within 28 days he provide a range of evidence and inviting him to comment on study gaps from 3 March 2010 to 23 January 2011 and from 3 August 2011 to 13 February 2012.

   In response regarding the study gaps, Mr Khan provided a psychological assessment dated 16 April 2013 which stated he had attended the psychologist for the first time on 9 April 2013. The report stated that depression, anxiety and stress as a result of marital difficulties and a suicide attempt by his wife as well is (sic ‘as’) the sudden death of a niece prevented him from studying.

6. And further at [18] on CB p.234:

   The primary decision maker noted Mr Khan did not seek deferral from his education provider and did not leave Australia during the time of his claimed illness and on 29 August 2013 made a decision to refuse the applications of the primary applicant and secondary applicants.

7. At the hearing before the Tribunal on 13 March 2014, the applicants were represented by a migration agent who told the Tribunal:

   …that there had not been sufficient time to do what should have been done and gain the evidence required in the past 12 months, that they had very little extra evidence regarding the study gap, however he believed there was evidence of real family problems. (CB p.234 [23]).

8. The Tribunal discussed with the primary applicant his study history in Australia (CB p.235 [26]). The primary applicant stated that he had a study gap from July 2011 for over six months because his wife was unwell during her pregnancy. He provided no evidence of the wife’s pregnancy (CB p.236 [36]).

9. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

10. The Court refers to the following decisions:

    ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

    “… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

1. The Court notes that the applicant failed to provide evidence of his wife’s pregnancy. The primary applicant stated the death of his niece was not the reason that he stopped studying, but it did contribute to his depression (CB p.236 [38]).

2. The Tribunal had a number of concerns with the application, which were discussed at the hearing as set out from [42]. The primary applicant had two significant study gaps first from March 2010 until January 2011, and the primary applicant claimed that marital difficulties and concerns for his wife prevented him from studying. The primary applicant stated that again to the Court today. The Tribunal did not believe that to be consistent with the wife applying for an intervention order against the applicant due to domestic violence by him. As a result of the police report, the Tribunal gave those claims little weight (CB p.236 [43]).

3. The Tribunal referred to the primary applicant’s desire to study multimedia (CB p.236 [45]), and that he only studied that for one month (CB p.237 [46]).

4. The Tribunal made a finding that it was not satisfied that the primary applicant is a genuine applicant for entry and stay as a student. Accordingly, he did not meet the requirements of cl.572.223(2)(b)(ii) or other subclasses within Class TU (CB p.237 [49]).

5. Section 65 of the Act requires the Minister to refuse to grant a visa if the relevant criteria are not met. That is what occurred in this case. The Tribunal affirmed the decision of the delegate (CB p.237 [49] and [50]). Having found that the primary applicant did not meet the requirements for a visa, the secondary applicants were not eligible for visas (CB p.237 [50]). The Court refers to ss.36(2)(b) and (c) of the Act which apply. The decision of the delegate to refuse visas for all applicants was affirmed.

6. The applicant filed his application for judicial review on 20 May 2014. The grounds for judicial review are as follows:

   (1)The tribunal fails to make a breach decision.

   (2)The tribunal fails to consider my children.

   (3)The tribunal fails to understand my marital problems.

7. By orders of Registrar Allaway made 20 August 2014, the applicant was ordered that on or before 14 days prior to the final hearing, he file and serve written submissions. He failed to do that. His explanation is that he could not find a lawyer to assist him to do that. The Court invited the applicant today to put submissions in support of his application for judicial review. However, the applicant repeated his claims that his marital problems affected his ability to study, and that this explained the gaps in his study. That is not a new submission as it was put to the Tribunal and rejected by it.

8. The applicant then applied for an adjournment of this hearing in order to find a legal representative. He stated that he had applied for legal aid, which had been refused, and could not find a lawyer. However, the Court noted that he had had since the orders of Registrar Allaway on 20 August 2014 to seek legal representation.

9. The primary applicant sought an adjournment of the hearing. Ms Bosnjak for the first respondent opposed an adjournment of this matter. The Court then refused the application for adjournment on the basis that there was no reason to suspect that an adjournment would enable the applicant to obtain legal aid, and he had had since 20 August 2014 to find a lawyer. The proceeding, therefore, continued.

10. The first respondent filed its written submissions on 22 April 2015, and the Court sought the consent of Ms Bosnjak, pursuant to r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”) to reach a decision without hearing oral submissions. That consent was given.

11. In the Outline of Submissions filed by the first respondent, the first respondent referred to the Tribunal’s statement at [42] of the decision that:

    As discussed at the hearing, student visas are granted to enable students to come here and learn and gain skills. The visas are granted with conditions and the expectation that students will remain enrolled and apply themselves to studies.

12. The Tribunal observed the two significant study gaps of the primary applicant and the reasons given by the primary applicant for those gaps. As stated above, the Tribunal found the claim by the primary applicant of being concerned for his wife, to be inconsistent with her seeking an intervention order against him. The Tribunal gave that claim of concern little weight (CB p.236 [43]).

13. The weight given to evidence in submissions before the Tribunal is a matter for the Tribunal and not for this Court. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court stated at [11]:

    “By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

14. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

15. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

    “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court.”

16. The Court finds that that principle would apply also to decisions of the Tribunal.

17. As to the finding of inconsistency between the claims that the applicant was concerned for the health of his wife and the fact that the wife had sought an intervention order against the applicant, the Court refers to the decision in Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at pp.558 to 559 the Full Federal Court said:

    “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”).  Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.”

18. The Court notes that the primary applicant gave no explanation for the inconsistency in the evidence that he was concerned for the health of his wife, and the fact that his wife sought an intervention order against him for family violence.

19. In Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467, Mansfield J stated at [36]:

    “It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.”

1. The finding of fact that the claim was inconsistent with the evidence and the weight given to it, were matters for the Tribunal that are not amenable to judicial review. The Tribunal noted that although the primary applicant claimed that he could not study because of his medical problems, he made no attempt to speak to the Department or to seek professional advice (CB p.236 [44]).

2. The Tribunal observed that although the primary applicant stated his reason for coming to Australia was to study multimedia, he studied that for one month only (CB p.237 [46]). On the evidence before it, the Tribunal found as a fact that the primary applicant was not a genuine applicant for purposes of cl.572.223(1)(a) and (2)(b)(ii) (CB p.237 [47] and [48]).

3. Ground one alleges that the Tribunal “fails to make a breach decision”. The Court considers this to mean that the Tribunal did not find that the decision of the delegate was incorrect. This is an attempt at merits review, which is not amenable to a judicial review.

4. As found in NAHI (supra), the Full Court decided at [10]:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

5. Ground one is dismissed.

6. Ground two claims that the Tribunal “fails to consider my children”. Their application depended on that of the primary applicant, as members of the family unit. It has not been established that the Tribunal failed to consider anything that it was required to consider. The Court refers to the Direction No.53 set out on p.233 of the CB. The Court finds that the Tribunal considered the matters referred to in [9] on p.233.

7. The Court refers to the following decisions:

   ·Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24.

   ·

   Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per

   
   

   Allsop J.

8. The Court finds the Tribunal is not required to consider the primary applicant’s children. Ground two is dismissed.

9. Ground three claims that the Tribunal “fails to understand my marital problems”. The Tribunal gave those problems significant attention.  They are referred to in paragraphs [15], [16], [24], [25], [28] to [32], [34], [36], [37] and [43] of the Tribunal’s decision. The finding of fact that the primary applicant’s marital problems were of little weight [43], and did not satisfy clause 572.223(1)(a) or (2)(b)(ii) ([47] and [48]), were open to the Tribunal and are not amenable to judicial review.

10. The Court accepts the first respondent’s submission that the Tribunal was entitled to rely on the gaps in the primary applicant’s study in reaching its finding. That finding read that the applicant was not a genuine applicant for the purposes of cl.572.223. The Court refers to the decision in Vatti v Minister for Immigration and Border Protection [2014] FCA 893 that the Tribunal was entitled to rely, as it did, on the applicant’s study gaps in reaching this finding in that case that the applicant was not a genuine applicant for the purpose of cl.572.223.

11. The Tribunal then found that the applicant did not meet the requirements of the other subclasses within class TU visas. Ground three is dismissed.

12. The application for judicial review is dismissed. The application by the primary applicant having been dismissed, the applications for judicial review by the other applicants are dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 11 June 2015