Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 784
Federal Circuit and Family Court of Australia
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 784
File number(s): SYG 1909 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 September 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the application before the Court was incompetent – whether any potential basis for contending jurisdictional error was apparent in the decision or procedure of the Tribunal – belated request for adjournment – application dismissed. Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cls 500.212, 500.212(a)
Cases cited: FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 304
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 16 September 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared in person Solicitor for the First Respondents Mr E. Taylor (Mills Oakley) appeared on behalf of the First Respondent. ORDERS
SYG 1909 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAHEEM KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
16 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application filed in this Court on 10 July 2018 be amended so that the first two boxes on page 3 under the heading “Final orders sought by applicant/s” are selected, dispensing with the need for the filing of any further document in this regard.
2.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”, dispensing with the need for filing of any document in that regard.
3.The application be dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $5,400.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a citizen of India. He arrived in Australia on a Student (Class TU) (Subclass 572) visa on 15 December 2009. On 17 August 2016, he applied for the student visa that is the subject of the decision under review.
The Delegate refused the applicant’s visa application on 31 October 2016. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 18 November 2016, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 11 January 2018.
On 18 June 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion in issue before the Tribunal was set out in cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
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.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction), which was made under s 499 of the Migration Act 1958 (Cth). That Direction required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
The Direction indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
TRIBUNAL’S DECISION
At [1]-[15] of its decision, the Tribunal summarised the background to the matter as well as the material that was before it. This included the evidence given by the applicant during the hearing before the Tribunal.
The Tribunal set out the relevant criterion in issue and the effect of Direction No. 69 at [17]-[20].
The Tribunal then, at [21]-[25], assessed the applicant’s circumstances in relation to cl 500.212(a). As this part of the decision is reasonably concise, it is convenient to set it out in full:
21.The applicant's circumstances in India are that his extended family and his wife continue to reside there while one brother is in Australia. Prior to coming to Australia the applicant had obtained a Bachelor degree in Pharmacy but did not pursue a career in that field. The applicant has returned to India since he first arrived in Australia and more often since he married in 2015.
22.In Australia the applicant has completed nine courses of study from Certificate III to Advanced Diploma. These qualifications are in Business, Management, Marketing and Human Resources. The applicant's studies have not followed a natural progression and he only advanced on to higher education after more than six and a half years studying in Australia. This was despite the applicant having a Bachelor degree when he arrived. Since the applicant already held an undergraduate degree, he could have studied at post-graduate level, including a Master's degree when he first arrived. It is not clear to the Tribunal why the applicant enrolled in and completed so many Certificate and Diploma courses. The is particularly the case when the applicant said his studies prior to the MBA only provided him with theoretical knowledge and he needs the MBA to obtain practical qualifications. According to his visa application form dated 17 August 2016, the applicant said he wanted to continue studying to start his own business in charity sales and marketing and provide his expertise and knowledge to people in India. From this it appears the applicant only decided to pursue a role with UNICEF once his application for a visa was refused by the Department and leads the Tribunal to doubt his motives for seeking to continue to study.
23.The applicant has been employed in Australia as a Sales Manager with Xplore Services, a fundraising agency since June 2015. According to a letter of reference from the Director, the applicant is an integral member of the organisation with a significant range of duties. The applicant gave evidence that in this role he undertook a trip to Zambia which was related to the company's work for UNICEF. The Tribunal considers that the applicant's ongoing work in Australia is a strong incentive for him to seek to remain. This is also based on the fact the applicant applied for 457 Business Sponsorship on two occasions with the same employer as sponsor. The first application for a 457 visa was refused on 18 May 2016. The applicant then applied for a further student visa on 12 August 2016 before a second 457 visa application was refused on 13 October 2016. This suggests the applicant was seeking a visa to remain in Australia rather than applying for another student visa for a genuine purpose. The Tribunal also finds it likely the applicant's main focus while in Australia is his work, as opposed to study, which is why he has continued to enrol in lower level, lower cost courses and has applied for business sponsorship twice.
24.The applicant is proposing to extend his stay in Australia to 31 December 2018, which would be a total of nine years as a student. He declared his original plan in coming to Australia to study was to obtain managerial and marketing skills in order to develop his own business in India and to help extend his father's existing food business. The Tribunal accepts his plans may have changed since he studied Pharmacy but the applicant continued to study similar courses in Business, Management and Marketing and only decided upon a more specific goal of working for UNICEF once his visa was refused by the Department on 31 October 2016. The Tribunal is concerned the applicant is seeking a pathway to migration in Australia since he has applied for work sponsorship before and is seeking to extend his stay by undertaking a Master's degree.
25.In making the decision the Tribunal has considered all the evidence before it, including that the applicant is currently enrolled in a Master of Business Administration, has indicated he wishes to apply for a job with UNICEF in India or Zambia, has successfully completed Certificate and Diploma courses, has ongoing family ties in India and has not had any gaps in study; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather he is using the student visa program to maintain residency in Australia.
Based upon the above, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant was unable to meet cl 500.212 and affirmed the Delegate’s decision (at [26]-[29]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court on 10 July 2018. The following was stated under “Grounds of application”:
I feel highly unfair, that I am not allowed to complete my masters.
I have future in my home country, after doing masters.
I only have one semester to complete my masters.
I have spent lot of money on masters.
I like to complete my masters on compassionate basis and go back
My masters will bring confidence and will be able to complete my masters here in Australia.
The applicant ticked no boxes specifying the relief sought in his application form. There are decisions of this Court to the effect that this may result in an application being incompetent unless remedied: see FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 at [14]- [21] and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 304 at [25] and [33]. At the Court’s invitation, the applicant sought leave to amend his application to address the issue without requiring any further document to be filed. An order to this effect was made without objection at the commencement of the hearing.
The application form also did not identify any recognised ground for contending jurisdictional error. Instead, it expressed the applicant’s feelings that it would be unfair for him not to be allowed to finish his degree in circumstances where he had spent lots of money on it, he only required limited time in which to finish it, and he would benefit from being allowed to do so. The applicant’s approach, as a self-represented litigant, is understandable. However, I am obliged to accept the Minister’s submission that the matters raised by the applicant in his written application did not identify any matter capable of sustaining a finding of jurisdictional error.
At the hearing of this matter, I sought to explain the Court’s role on judicial review and how it differed from the role of the Tribunal. I explained that the Court cannot simply substitute its own decision for the decision of the Tribunal. What the Court can do is consider whether any material legal error is apparent in the decision or the procedure of the Tribunal.
The applicant submitted that his earlier Diploma courses were different from his Masters degree. It was the first time he had applied to complete a Masters degree and he was passionate about completing it. The applicant stated that his intention was to gain in-depth knowledge from such a degree, which he submitted would assist him in his chosen field. He emphasised that he was a genuine temporary entrant. He explained that he was negatively impacted by the Tribunal’s decision.
Again, these matters went to the merits rather than the legality of the Tribunal’s decision. Even if I accepted all of what was said by the applicant in this regard, it would not provide me with a basis for setting aside the Tribunal’s decision.
The applicant further raised that the Tribunal should have asked him about why he had previously completed his diplomas. He stated that before his trip to Zambia, he didn’t have sufficient reason to do a Masters. His desire to complete a Masters occurred after he had worked in Zambia.
However, as I discussed with the applicant, there is no general duty upon the Tribunal to make inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1] and [25]). The applicant was on notice from the Delegate’s decision that his motives and his previous completion of 9 vocational courses were in issue. In any event, the Tribunal does appear to have discussed with the applicant his reasons for previously undertaking the diploma courses and yet wishing to undertake a Masters course (at [9]). The Tribunal considered the explanations that he gave in this regard (at [9]-[10], [22] and [24]). I accept the Minister’s submission that it remained open to the Tribunal to find that the applicant’s history raised concerns, despite those explanations.
The applicant further disputed that he had applied twice for a 457 Business Sponsorship visa, as was suggested in the Delegate’s decision. This part of the Delegate’s decision was referred to at [12] and [23] of the Tribunal’s decision. The applicant told the Court that, as best as he knew, he had only applied once for this visa.
However, there is no evidence before the Court indicating that any evidence in this regard was provided by the applicant to the Tribunal. The Delegate’s decision appears to have been provided by the applicant’s representative to the Tribunal without any dispute being raised in relation to this issue. The applicant appears to have been represented before the Tribunal by a migration agent. In these circumstances, I am unable to conclude that it was closed to the Tribunal to refer to this evidence in the manner that it did.
At the conclusion of the hearing, the applicant asked if he could attend a further hearing before this Court after speaking with a lawyer. This was opposed by the Ministers’ representative. Ultimately, I was not persuaded that it would be an appropriate use of my discretion to allow such an adjournment in the present case. These proceedings have been before the Court for some years. There is no evidence that the applicant has previously taken any step to seek legal assistance or representation. If I were to grant a further hearing in this case, that hearing would be unable to be allocated to another applicant who may also have been waiting for some years for adjudication of their matter.
Whilst I am not unsympathetic to the difficulties faced by unrepresented parties that come before this Court, it is not unusual for applicants to appear before this Court without representation. I have been conscious in this matter that the applicant lacked representation. With this in mind, I have carefully considered the materials before me with a view to identifying any potential issue with the procedure or decision of the Tribunal which might sustain a viable ground of review, in respect of which legal representation may assist the applicant. I have identified no such ground. Ultimately, and having regard to the case management considerations that I am obliged to consider, I was not persuaded that an adjournment ought to be granted in the circumstances of this case.
CONCLUSION
For the reasons that I have given, I am not persuaded that jurisdictional error has been demonstrated in either the approach or the decision of the Tribunal. It follows that the application must be dismissed.
The Minister sought costs fixed in the amount of $5,400. Noting that this amount is considerably below the Court’s scale, I accept that it is appropriate taking into account the work performed in this matter.
27 I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 16 September 2022
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