Khursheed v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 767

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Khursheed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 767  

File number(s):

SYG 2614 of 2019

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

23 August 2024

Catchwords:

MIGRATION LAW – Administrative Appeals Tribunal - Student Visa (Class TU) refused - proper regard to s 359AA - natural justice and relevance of existing studies - application dismissed.

Legislation:

 Migration Act 1958 (Cth) - ss 65, 357A, 359AA.

Migration Regulations 1994 (Cth) - Sch 2.

Cases cited:

 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] HCA 60

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

SZMUF v Minister for Immigration and Citizenship [2009] FCA 182

Division:

Division 2 General Federal Law

Number of paragraphs:

32

Date of hearing:

19 August 2024

Place:

Parramatta

Solicitor for the Applicant:

In person

Solicitor for the First Respondent:

Mr Kovacs (Clayton Utz)

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2614 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SYED ARIEF KHURSHEED

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	23 AUGUST 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s cost fixed in the sum of $6000.00.

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 D HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of India. The applicant first arrived in Australia on 31 May 2009 as the holder of an initial student visa, valid for 12 May 2009 until 16 September 2010. Thereafter, the applicant held a series of further Student or Bridging visas. On 10 March 2017, the applicant applied for a Student (Temporary) (Class TU) visa (“the visa”) under s 65 of the Migration Act 1958 (Cth) (“Act”).

2. A delegate of the then Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa on 28 June 2017. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”) on 15 July 2017. The applicant appeared before the Tribunal for hearing on 12 March 2019. In a decision dated 10 September 2019, the Tribunal affirmed the decision not to grant the applicant a further student visa.

3. The applicant now seeks judicial review of the Tribunal’s decision. For the reasons set out below, the application must be dismissed.

   ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

4. The Tribunal explained at [6] to [7] the criteria for the visa as set out in Sch 2 of the Migration Regulations 1994 (Cth) (“Regulations”). The Tribunal identified the issue in the applicant’s case as whether, pursuant to cl 500.121(a) of Sch 2 of the Regulations, he was a temporary entrant and genuinely intended to stay temporarily in Australia. The Tribunal also identified and had regard to Direction No.69 which contains a number of specified factors which the Tribunal must have regard to when assessing genuine temporary entrant criterion. 

5. The Tribunal, at [10] to [22], set out and considered the circumstances of the applicant and found that:

   (a)Not all the courses in which the applicant had previously enrolled in the past had been pursued to finality.

   (b)The Tribunal accepted the applicant’s evidence of the anomalies in his Provider Registration and International Student Management System (“PRISMS”) record as a possible explanation, namely that the Sydney Institute Technical College incorrectly made the first entry point in time, that the second entry in point of time was correct but that the course was terminated before completion, as the college collapsed.

   (c)The reality is that, due to the length of time between the visa’s refusal and the hearing before the Tribunal, the applicant had achieved the time extension he required and all his declared purposes for the visa have in fact been achieved by simple effluxion of time.

   (d)There was a demonstrated lack of career direction and lack of detailed information about the relevance of the course to the applicant’s employment in the future, notwithstanding the applicant’s de facto completion of the courses.

   (e)The applicant’s visa and study history indicate that he appears to have enrolled in courses for the purposes of securing further student visas rather than pointing to a genuine interest in study and to advance his academic progress. The Tribunal also found that this was notwithstanding that, whilst awaiting the hearing of the review application, the applicant did in fact complete both of his courses.

   (f)The applicant has personal and economic ties to India as evidenced by his wife, parents, and a sibling residing in India and by the fact that he owns property in India. The applicant also has an incentive to return to India now he has completed his intended courses. However, the Tribunal found that the visa and study history indicated the applicant appeared to have enrolled in courses for the purposes of securing further student visas, rather than due to a genuine interest in study and academic progress.

6. The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and accordingly he did not meet cl 500.212(a) of Sch 2 of the Regulations. The applicant appeared before the Tribunal unrepresented. He was assisted by an interpreter. The Tribunal affirmed the delegate’s decision not to grant the applicant the visa.

   THE GROUNDS OF JUDICIAL REVIEW

7. The grounds for judicial review are as contained in the Originating Application filed on 10 October 2019, namely (less particulars):

   1.The Administrative Appeals Tribunal failed to give proper regard to section 359AA of the Act during the Tribunal hearing.

   …

   2.The decision of the Administrative Appeals Tribunal is contrary to natural justice.

   THE APPLICANT’S SUBMISSIONS

8. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the First Respondent’s written submissions had been translated to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the hearing, should he so wish to.

9. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

10. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that the Tribunal had erred by not asking him how his Business degree would assist him in this future plans. Further, he did not have time and should have been given the opportunity to consider the PRISMS record he was shown. He claimed that the Tribunal decision deprived him of the opportunity to seek a further work visa as a graduate to enable him to gain work experience in Australia in his chosen field of occupation.

11. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  He again stated that he should have been given time to address the PRISMS record.

    THE FIRST RESPONDENT’S SUBMISSIONS

    Ground one

12. The first respondent submits that the Tribunal’s obligations under s 359AA of the Act were not enlivened by the Applicant’s PRISMS record.

13. Section 359 AA of the Act sets out:

    359AA Information and invitation given orally by Tribunal while applicant appearing

    (1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) if the Tribunal does so—the Tribunal must:

    (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

14. The applicant argues that the Tribunal failed to give proper regard to this section during the Tribunal hearing by not taking into account the PRISMS record. However, the information in the record had been considered by the delegate and formed part of its decision to refuse the visa application. This information was subsequently given to the Tribunal by the applicant “for the purpose of the application for review” as prescribed by s 359A(4)(b). The applicant also provided the Tribunal with a completed ‘Request for Student Visa Information” which set out information regarding his “Enrolment and study in Australia”. As such the Tribunal’s duty under s 359A was not enlivened therefore the duty under s 359 AA was also not enlivened.

15. The applicant should have been aware that the PRISMS record was an issue that would form part of the decision being made for the application under review.

16. In the absence of any evidence by the applicant that there was non-compliance on behalf of the Tribunal, the Court should conclude that the Tribunal complied with its obligations, in the event that s 359AA was enlivened; (see: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38]; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19]).

    Ground two

17. In particular (a) of ground two, the applicant contends that the Tribunal “failed to ask [ the applicant] the relevance of his existing studies” in a Bachelor of Business as it related to his “ambitions in operating a business in India”. The first respondent submitted that the onus is on the applicant to make out his own case and not the Tribunal to “bolster or resolve deficiencies in his case” by asking clarifying questions to the applicant.

18. The applicant was on notice that an issue before the delegate was the relevance of his current studies as the delegate had found that the applicant provided a “lack of detailed information about the relevance of the courses” to his employment future (CB 75). At [20] of the Tribunal decision, the member sought clarification as to the applicant’s career direction.

19. In regard to particular (b), the Applicant contends they had an interaction with the Tribunal member where they asked, “Are you satisfied with my case?” and the Tribunal member replied “Yes, yes, time has moved on”. The first respondent submits that there is no evidence to suggest that interaction occurred. The Tribunal afforded the applicant the opportunity to put forth his case, provide evidence and present arguments but he availed himself of this.

20. The Tribunal was not required to put every detail of its reasoning process to the applicant before making a decision, or the case it would rely on, or all the possible reasons the application might fail; (see: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [54] per Gummow and Heydon JJ (Gleeson CJ agreeing) and at [85]-[86] per Kirby J and Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31], cited with approval in SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] per Flick J.

    CONSIDERATION OF THE GROUNDS OF REVIEW

21. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

22. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant;( see : Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].

23. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).

24. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”;( see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].

25. Ground one is a complaint that the Tribunal failed to give proper regard to s 359AA of the Act. Two particulars are relied upon, the first being a failure to give additional time to respond to the PRISMS record. Secondly, the applicant asserts that the Tribunal failed to ensure the applicant understood the importance of the PRISMS record and the consequences of it being relied upon.

26. The applicant was provided with his PRISMS record during the course of the Tribunal hearing. The Tribunal hearing took place in March 2019. The PRISMS record indicated an extensive study history, with enrolment in some 16 courses set out at [12]. As at the date of the decision, being 10 September 2019, the applicant was anticipated to have completed a Bachelor of Business which was shown as having a completion date of 23 August 2018. The Court notes in this regard that there was a significant delay in the delivery of the decision, given the Tribunal hearing occurred on 12 March 2019. By this stage the applicant had been in Australia for over 10 years. The delay also allowed the applicant to finish the course he was at that stage enrolled in. He confirmed this at the hearing before the Court.

27. The Court accept the first respondent’s submission that the requirements under s 359AA were not engaged in this matter. The applicant’s PRIMS record formed part of the delegate’s decision record. The applicant himself gave the information regarding his enrolment and study in Australia. That information is subject to the exception under s 359A(4)(b). It was thus not provided to the applicant by the Tribunal and the Court is satisfied that the obligations under s 359AA were not enlivened, requiring the Tribunal to advise the applicant pursuant to s 359AA(1)(b)(iii) that he could seek additional time to comment on or respond to the information.

28. Further the Court is satisfied that the applicant was given a copy of the PRISMS record at the hearing. The Tribunal records at [16] the deviation in the applicant’s study from ‘technology, to business and management to hospitality and then commercial cookery only to return to business’. The Tribunal was under no obligation to ensure the applicant was able to put forward his best case or improve on the evidence. Further the Tribunal accepted that in relation to some of the courses of study shown as not completed this was as a result of the collapse of the educational institution and not the fault of the applicant. Ground one has no merit.

29. Ground two is a complaint that the decision of the Tribunal is contrary to natural justice. He complains the Tribunal failed to ask the relevance of his existing studies (Bachelor of Business) to that of his ambitions in operating a business in India. Again, it was for the applicant to put forward his case in sufficient detail to the Tribunal to reach a sufficient state of satisfaction that the applicant met the criteria for the grant of the visa.

30. The Tribunal record indicates at [16] and [17] its interactions with the applicant at the hearing and the opportunities he was given to explain his course progression and changes in areas studied. The Tribunal was under no obligation to provide a running commentary of its concerns or the basis upon which the Tribunal would make its decision ; ( see: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Applicant S154/2002 [2003] HCA 60 at [54]).

31. The applicant was invited prior to the hearing to provide information for the purpose of the review. He availed himself of that opportunity. He was invited to subsequently attend a hearing for the purposes of giving evidence and presenting argument. The Court is unable to detect any breach of the rules of natural justice, noting that the rules are restricted by the operation of s 357A of the Act. Ground two has not merit.

32. Given the applicant is unrepresented, the Court has perused the decision record and other documentation relevant to the matter. The Court is unable to detect any unarticulated jurisdictional error. The application must be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate: HM

Dated:       23 August 2024