Khan v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1103
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1103
File number(s): SYG 1179 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 30 October 2024 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Class TU) (Subclass 500) visa – cl 500.212 – whether applicant satisfied genuine temporary entrant criterion – whether Tribunal overlooked matter in manner which involved jurisdictional error – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 477, s 499, s 359AA
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 17 October 2024 Place: Parramatta Applicant: In person Solicitor for Respondents: Mr J Fyfe of Minter Ellison ORDERS
SYG 1179 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD IMRAN HAIDER KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,900.
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 ZIPSER
INTRODUCTION
On 13 May 2020, the applicant filed an application (Application), under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.
For the reasons that follow, the application is dismissed.
BACKGROUND
On 21 November 2017, the applicant applied for a Student (Class TU) (subclass 500) visa.
On 3 February 2018, a delegate of the first respondent refused to grant the visa as they were not satisfied the applicant intended genuinely to stay temporarily in Australia.
On 15 February 2018, the applicant lodged an application for review of the delegate's decision with the Tribunal.
On 12 April 2019, the Tribunal wrote to the applicant inviting him to provide information that indicated he was enrolled in a registered course of study, and a genuine applicant for entry and stay as a student. The applicant responded by lodging an online 'Request for Student Visa Information' form.
On 13 May 2019, the Tribunal wrote to the applicant inviting him to attend a hearing on 5 June 2019.
On 5 June 2019, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments about his case.
On 17 April 2020, the Tribunal affirmed the decision under review.
TRIBUNAL’S DECISION
A key consideration for the Tribunal was whether the applicant fulfilled the genuine temporary entrant criterion in subclause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2). Subclause 500.212 provided at the time:
The applicant is a genuine applicant for entry and stay as a student because:
(a)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 intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal, with reference to Direction No. 69 issued under s 499 of the Act, noted that consideration had to be given to the applicant's circumstances in their home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future, the applicant’s immigration history, and any other relevant information provided by the applicant. The Tribunal made the following notable findings.
Applicant's circumstances in home country: The Tribunal had regard to the applicant's future business plans in Pakistan, his family ties, the fact he owned no assets and his lack of military service obligations. The Tribunal relevantly concluded that the applicant did not have a reason to avoid returning to Pakistan, but did not have a strong incentive to do so either.
Applicant's potential circumstances in Australia: The Tribunal had regard to the applicant not having any family in Australia, his familiarity with Australia through his years spent here, the numerous degrees the applicant had completed and the nature of his enrolment history. The Tribunal considered that the applicant's diverse range of study areas and the inconsistent gaps between enrolments did not suggest the applicant intended to complete his education and return home, or that he had any concrete plans to do so, and instead suggested he was using the student visa system to maintain residence.
Value of applicant's courses to his future: The Tribunal expressed uncertainty on this point, but ultimately decided that the value of the course gave some weight in the applicant's favour in terms of his visa application.
Applicant's immigration history: The Tribunal noted that the applicant had not breached any visa conditions, but found that the length of the applicant's stay in Australia as well as his course enrolment history ultimately weighed against the applicant.
After considering the above matters, the Tribunal found, at paragraph 37 of its decision, that it was “not satisfied that the applicant intends genuinely to stay in Australia temporarily [and] accordingly the applicant does not meet clause 500.212(a)”.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 13 May 2020, the applicant filed the Application in this Court which contained the following grounds (verbatim):
1.I have done Advance Diploma of Leadership and Management and has completed it successfully and have completed other courses as well.
2.My intension was to complete my cookery course and establish my business back in Pakistan.
3.My entire family including my wife is back in Pakistan, then why will I remain in Australia after my studies.
On 2 July 2020, a registrar of the Court made orders requiring the applicant to file and serve a written submission by 24 September 2020. The applicant did not file a written submission.
After a period of inactivity, in 2024 the matter was prepared for a final hearing. On 20 March 2024, a registrar of the Court made orders requiring the applicant to file and serve a written submission by 5 April 2024. The applicant did not file a written submission. In the following few months, the matter was listed for hearing on 17 October 2024.
Applicant’s submissions
At the hearing on 17 October 2024, the applicant appeared before the Court unrepresented. He was assisted by an interpreter. At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of relevant documents. The Court also explained it was undertaking judicial review, not merits review, and the difference between the two types of review.
The applicant made oral submissions which principally disagreed with the findings of the Tribunal without identifying any error in those findings. Two issues raised by the applicant sought to identify an error in the Tribunal’s findings as follows. First, ground 1 in the Application stated “I have done Advance Diploma of Leadership and Management”. There was evidence before the Tribunal, including in a PRISMS record, that between October 2016 and September 2017 the applicant undertook and completed a course called “Advanced Diploma of Leadership and Management” (ADLM Course). The Tribunal, in paragraph 24 of its decision, listed the applicant’s record of study in Australia between 2011 and 2021. The list did not include the ADLM Course. This raises a question as to whether the Tribunal overlooked the ADLM Course in a manner which involves jurisdictional error. If the Tribunal’s reasons for decision suggested it overlooked the ADLM Course, a related question is whether the error was “material” in the manner discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT). Second, the applicant asserted at the hearing on 17 October 2024 that he owned assets in Pakistan. He complained about the Tribunal’s finding in paragraph 17 to the effect that, based on the evidence before it, the applicant did not own assets in Pakistan.
First respondent’s submissions
On 11 April 2024, the first respondent filed a written submission. At the hearing on 17 October 2024, Mr Fyfe made submissions which developed the first respondent’s written submissions. The first respondent’s submissions are referred to further below.
CONSIDERATION
Ground 1 in Application
The Tribunal stated in paragraphs 24 and 25 of its decision:
24.At the date of this decision, the applicant has resided in Australia for a little over 9 years. In that time he has returned to Pakistan three times, for a total of 125 days. The applicant's record of study in that period has been as follows:
Dates Course (a) 11 Apr 2011 - 14 Oct 2011 Certificate IV in Business (b) 9 Jan 2012 - 6 Mar 2012 Diploma of Business (cancelled by applicant) (c) 8 Mar 2012 - 31 Mar 2014 Certificate III in Bricklaying/Blocklaying (d) 21 Apr 2014 - 14 Dec 2014 Diploma of Business (e) 5 Jan 2015 - 14 Jun 2015 Certificate IV in Human Resources (f) 6 Jul 2015 - 20 Dec 2015 Diploma of Human Resource Management (g) 4 Jan 2016 to 22 Jan 2016 IELTS Preparation (h) 22 Feb 2016 - 21 Aug 2016 Advanced Diploma of Business (i) 29 Nov 2017 - 17 Dec 2017 General English (j) 15 Jan 2018 - 23 May 2018 Certificate III in Commercial Cookery (cancelled by applicant) (k) 13 May 2019 - Sept 2019 Certificate III in Commercial Cookery (cancelled by applicant) (l) 26 Oct 2019 - 10 Oct 2020 Certificate III in Commercial Cookery (m) 12 Oct 2020 - 1 Apr 2021 Certificate IV in Commercial Cookery (n) 19 Apr 2021 - 24 Sept 2021 Diploma of Hospitality Management
25.This account has been constructed from the applicant's PRISMS record, which was put to him at hearing pursuant to s.359AA of the Act, and from his evidence at hearing generally. The applicant's PRISMS record is in fact considerably longer, as it contains records of a number of cancelled Confirmations of Enrolment (CoE). The Tribunal is satisfied that many of these cancellations are purely administrative in nature, and has not mentioned them in the above account of the applicant's studies. The Tribunal has, however, noted enrolments that were cancelled by the applicant.
As stated above, the applicant’s PRISMS record before the Tribunal recorded that the applicant undertook and completed the ADLM Course between October 2016 and September 2017. In circumstances where the Tribunal did not list the ADLM Course in paragraph 24 of its decision, a question is whether the Tribunal overlooked the ADLM Course in a manner which involved jurisdictional error. The first respondent contended there was an oversight by the Tribunal in typing the list of courses completed by the applicant in paragraph 24 of its decision but, for two reasons, the Tribunal did not overlook or fail to have regard to the ADLM Course. First, the Tribunal had regard to the applicant’s PRISMS record as a whole and, as recorded in paragraph 25 of its decision, put the PRISMS record to the applicant for comment under s 359AA of the Act. In this manner, the Tribunal had regard to the whole document, including the information in the document. Second, the Tribunal, in paragraph 27 of its decision, stated that one of its concerns was “the long gap [in enrolments] between” 23 May 2018 when the applicant withdrew from a course and 13 May 2019 when the applicant resumed the course. The Tribunal questioned the applicant about the gap and, after considering the applicant’s evidence, found “the applicant’s explanation of the gap in his enrolments between 23 May 2018 and 13 May 2019 unconvincing”. Mr Fyfe explained, that if the Tribunal had overlooked the ADLM Course, it would also have questioned the applicant about a gap in course enrolments between October 2016 and September 2017, and the fact that the Tribunal did not refer to such a gap in paragraph 27 of its decision supports a conclusion that the Tribunal did not overlook the ADLM Course. The Court agrees with the first respondent’s submissions on this issue and is not persuaded that the Tribunal overlooked the ADLM Course in a manner which might involve jurisdictional error. Mr Fyfe also contended that, even if the Tribunal overlooked the ADLM Course, the error was not material in the sense explained in LPDT. In that case, the High Court stated at [14] and [16]:
[14] The question in these cases is whether the decision that was in fact made could not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
…
[16]In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Mr Fyfe explained that, as stated by the Tribunal in paragraph 26 of its decision, “the number of short vocational level courses [the applicant] has undertaken in [Australia] are issues of concern” to the Tribunal. Mr Fyfe contended that if the Tribunal held this concern without having regard to the ADLM Course, its concern would have been greater if it had regard to the ADLM Course. That the Tribunal recorded in paragraph 25 of its decision that it put the PRISMS record to the applicant under s 359AA of the Act, meaning that the Tribunal considered the information in the document was adverse to the applicant, is consistent with Mr Fyfe’s point. Further, Mr Fyfe took the Court to the reasoning process in paragraphs 27 to 30 of the Tribunal’s decision which led to the Tribunal’s conclusions in paragraph 30 that “the evidence indicates that [the applicant] is using the student visa system to maintain residence” and “this weighs heavily against the applicant’s claim to be a genuine temporary entrant”. Mr Fyfe contended that, in light of the reasoning process, even if the Tribunal overlooked the ADLM Course, the conclusions in paragraph 30 would not realistically have been different. The Court agrees with these contentions. Even if the Tribunal overlooked the ADLM Course, the Court is not persuaded the error was material to its decision. Further, for similar reasons, even if the Tribunal overlooked the ADLM Course, it was not important to the exercise of the Tribunal’s function in the sense explained in cases such as Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111].
For the above reasons, ground 1 is not made out.
Grounds 2 and 3 in Application
The applicant states in ground 2 that “My intention was to complete my cookery course and establish my business back in Pakistan”. The Tribunal had regard to this evidence of the applicant concerning his intentions, such as in paragraphs 29 and 31 of its decision. That the Tribunal did not accept the applicant’s evidence is not a jurisdictional error.
The applicant states in ground 3 that “My entire family including my wife is back in Pakistan, then why will I remain in Australia after my studies”. The Tribunal had regard to evidence concerning the applicant’s family in Pakistan in paragraph 16 of its decision, but doubted “that any bond there is between [the applicant and his family in Pakistan] constitutes a significant incentive for the applicant to return home at the end of his studies”. Ground 3 does not identify a jurisdictional error.
Challenge to Tribunal’s finding about assets in Pakistan
The applicant asserted at the hearing on 17 October 2024 that he owned assets in Pakistan, and he complained about the Tribunal’s finding in paragraph 17 to the effect that the applicant did not own assets in Pakistan. Although this complaint is not contained in any ground in the Application, Mr Fyfe did not object to the Court considering the applicant’s complaint.
The Tribunal stated in paragraph 17 of its decision:
The applicant gave no evidence of owning any assets in Pakistan, despite being specifically asked about this.
At the hearing on 17 October 2024, the applicant did not dispute this finding. That the applicant might today own assets in Pakistan does not establish any error in the Tribunal’s finding, based on evidence before it in circumstances where “the applicant gave no evidence of owning any assets in Pakistan”. This complaint does not identify a jurisdictional error.
Conclusion
For the above reasons, the Application is dismissed.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties accepted that costs should follow the event. The first respondent sought costs fixed in the amount of $5,900. The applicant did not oppose this amount. An order will be made accordingly.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 30 October 2024
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