Lateef v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1013
•10 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lateef v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1013
File number(s): SYG 2511 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 10 October 2024 Catchwords: MIGRATION – application for judicial review – student visa – review of a decision by the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal correctly particularised its statutory task – whether the Tribunal ignored relevant facts – whether the Tribunal afforded procedural fairness – no jurisdictional error - application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 30 September 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr M Gao, HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2511 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED ASGHAR LATEEF
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
10 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application filed on 5 November 2020 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
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 MCCABE:
The applicant in these proceedings, Mr Syed Asghar Lateef (Mr Lateef), first arrived in Australia in 2009. He was able to remain in this country under four student visas and associated bridging visas. In November 2018, he enrolled in a new course and applied for a further Student (Temporary) (Class TU) (subclass 500) visa (student visa). A delegate of the Minister for Immigration and Multicultural Affairs (Delegate) rejected that application in March 2019. The applicant asked the Administrative Appeals Tribunal (Tribunal) to review the Delegate’s decision. The Tribunal affirmed the decision on 8 October 2020. In its reasons for decision provided in late October 2020 to the applicant and Department of Home Affairs, the Tribunal recounted the applicant’s history and other matters and concluded the applicant did not meet the criteria for a student visa set out in cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations). In particular, the Tribunal said it was not satisfied the applicant was a genuine temporary entrant for the purposes of cl 500.212(a) of the Regulations. The Tribunal found the applicant was instead using the student visa program as a way to stay in Australia.
Mr Lateef sought judicial review of that decision. In dealing with his application, this Court is required to consider whether the Tribunal’s decision is affected by jurisdictional error. If the court is satisfied there was a legal or procedural error in the Tribunal’s decision-making that amounts to a material jurisdictional error, the matter should be referred back to the Tribunal for reconsideration according to law. That is because the power to approve visas is not vested in the Court: the statute allocates that power to the Minister, acting through the Delegate and the Tribunal on review. As I explained to the applicant, that means – as a practical matter – these proceedings do not focus on whether he should get a visa, or whether the Tribunal should have made a decision to that effect.
The applicant was not represented at the hearing. He was assisted by an Urdu interpreter although the applicant was able to answer some questions and make oral submissions with limited assistance. I had regard to the applicant’s grounds of review and arguments at the hearing. I also heard from the Minister’s representative who provided updated written submissions, given the first iteration of those submissions was provided in 2021. I also attempted to identify whether any other issues were apparent.
I am not satisfied the Tribunal’s decision (or its decision-making process) was affected by material jurisdictional error. It follows the Tribunal’s conclusion that the applicant did not satisfy the ‘genuine temporary entrant’ criteria must stand, and the application for review must be dismissed.
I have also decided it would be appropriate to make an order as to costs.
I explain my reasons below.
Background to the application for judicial review
The factual background to these proceedings is set out in paragraphs [4]-[21] of the written submissions dated 16 September 2024 filed on behalf of the first respondent . In summary:
(a)The applicant is an Indian citizen. He first entered Australia in July 2009 on a student visa. While he has periodically returned home to India for visits, the applicant has otherwise stayed in Australia on successive student and bridging visas since that time.
(b)The applicant has property in India, and he has family ties there – including a wife whom he married in 2014 and a daughter born in 2015.
(c)The applicant has enrolled in several different courses while he has been in Australia. I understand those courses include a number information technology and business management courses. From approximately August 2016, the applicant has been undertaking catering or hospitality based studies and has had enrolments in a Certificate IV in Commercial Cookery, Diploma of Hospitality, and also a Certificate III in Commercial Cookery. On 16 November 2018, the applicant applied for the student visa at issue in this case so he could study a Diploma of Hospitality Management. On 27 March 2019, he informed the Department of Home Affairs (DHS) that his confirmation of enrolment in the Hospitality Management course had expired. In the meantime, he informed DHS he had enrolled in a commercial cookery course.
(d)The Delegate refused the application for a student visa on 8 March 2019 because the Delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily.
(e)The applicant applied to the Tribunal for review of the Delegate’s decision on 25 March 2019. On 23 April 2020, the Tribunal wrote a letter containing an invitation to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth). On 7 May 2020, the applicant provided a Confirmation of Enrolment for a Diploma of Hospitality Management commencing on 18 May 2020 which would run for a year. The applicant also provided written submissions in advance of an oral hearing.
(f)The oral hearing was conducted by telephone on 8 October 2020. (The presiding member noted in his reasons for decision (at [5]) that he had discussed whether the matter should proceed on the phone.[1] In the absence of any objection, they decided it was appropriate to do so.) The applicant attended that hearing with his representative, a registered migration agent. An interpreter was present on the line. Mr Lateef confirmed to the Tribunal that he only needed the assistance of the interpreter occasionally in that telephone hearing. There is no record or other evidence of difficulties with the interpreter or the telephone connection.
(g)After hearing from the applicant, the member gave an oral decision to refuse the visa. He provided written reasons in support of his decision on 26 October 2019.
(h)The applicant filed an application for judicial review of the Tribunal’s decision.
Tribunal’s Application of the Rules
The Delegate and the Tribunal both recognised the outcome of the visa application turned on the question of whether ‘the applicant intends genuinely to stay in Australia temporarily’ having regard to the matters set out in cl 500.212(a) of the Regulations. The Tribunal noted (at [12]ff) it was required to take into account a range of matters specified in Direction 69[2] when having regard to the matters enumerated in cl 500.212(a).
[2] Direction 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ was made under s 499 of the Migration Act.
In its reasons for decision, the Tribunal referred to the information before it and summarised the applicant’s circumstances at [18], a lengthy multi-part paragraph. The Tribunal’s findings were set out in a compendious paragraph [27].
The grounds of review and the other criticisms contained in the applicant’s submissions
The application for review identified two grounds of review:
(1) The Tribunal gave me an Oral decision on 8 October 2020 and I do believe that the Member failed to take into consideration that I am a genuine student and I have a genuine intention to return to my country after I complete the Certificate III in Commercial Cookery.
(2) Even though I have been in Australia in excess of 10 years but I have honoured my student visas and never became unlawful and that should lead that I have family ties to India and I have incentive to return to India and the cookery study would assist me to open my own business in India with Australia qualifications. [sic]
The affidavit filed in support of the application provides no further information on the grounds of review.
The grounds of review amount to little more than an argument to the effect that the Tribunal should have been persuaded to make a different decision on the merits. Read in isolation, the grounds of review amount to little more than an argument to the effect that the Tribunal should have been persuaded to make a different decision on the merits. The statement of grounds does not clearly describe anything that amounts to a jurisdictional error.
The applicant’s written submissions filed on 18 September 2024 come closer to alleging error. While the first numbered submission saying “I repeat that I continue to believe that I was a genuine student…” is unhelpful, the second and third submissions merit closer attention because they attempt to articulate error. The second submission says:
I do believe that the Tribunal’s factual findings are not correct and involve an error of law and the tribunal asked itself the wrong question and made a decision contrary to the facts before it. The Tribunal failed to refer to every piece of evidence submitted as referred to in point 22 in the Respondent’s Outline of Submissions [ie, the initial submissions filed in 2021 that were superseded by the submissions dated 16 September 2024]. In my view the Tribunal acted unreasonably in the exercise of its power as it failed to take into account all the evidence before it.
The third submission dealt with the procedural unfairness said to arise out of the fact the Tribunal hearing was conducted by telephone. I will return to that argument below. The fourth submission also asserts “a denial of natural justice by making a decision which should not have been made…” but that – once again – is really an invitation to reach a different conclusion which is impermissible merits review.
I asked the applicant about these submissions at the hearing. He said he had not written them himself and it was apparent he did not really understand – and could not explain – the allegations of error that were made in the second and third submissions in particular. I will nonetheless do my best to engage with what I understand those arguments to be.
Did the Tribunal ask itself the wrong question?
The Tribunal summarised its statutory task at [24]-[25] of its reasons for decision where it said:
24.As noted, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue the considerations set out in cl.500.212 of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
25.In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No. 69. As also noted above, the Direction is not to be used as a checklist, but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies that genuine temporary entrant criterion.
The applicant was unable to identify any defect in that formulation of the statutory question the Tribunal was required to answer in the circumstances of the case. I am satisfied in any event the Tribunal correctly summarised its task. It follows there is nothing to this critique.
Did the Tribunal fail to refer to and take account of every relevant piece of evidence?
Once again, the applicant was unable to identify examples of evidence that the Tribunal failed to consider. Which is not to say the Tribunal referred to every single fact or circumstance mentioned in the evidence provided to it at some point in the proceedings: the Tribunal is not bound to slavishly reproduce in its reasons every detail supplied by the applicant regardless of relevance. Experienced decision-makers know that, in many cases, most of the facts which are genuinely relevant to the issues in dispute can be found in a small sub-set of the evidence. The question in every case will be whether the decision-maker has, as a matter of substance, considered all the relevant facts which are necessary for their decision: see Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ. As the Full Court went on to explain in that case:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
Approaching the reasons on that basis, it is apparent the Tribunal did have regard to the important and relevant evidence supplied by the applicant For example, the Tribunal dealt with:
(a)Valuation evidence and other information concerning returns from the applicant’s property in India. The information was provided by the applicant to DHS in 2018 (see court book at pp 26ff). The Tribunal recorded its findings on this issue at [18(j)] of its reasons and considered the information in the course of its deliberations on the substantive question: see [27(y)] of its reasons in which the Tribunal reflected on the applicant’s circumstances in his home country, a relevant consideration under Direction 69.
(b)Information supplied by the applicant regarding a franchise opportunity in India (see court book at p 29) which is the subject of findings at [18(r)]. The import of that evidence is carefully evaluated in sub-paragraphs [27(s)] and [27(t)] of the reasons for decision. The Tribunal correctly appreciated the evidence was relevant to an assessment of the applicant’s circumstances in his home country.
(c)The material included in the Request for Student Visa Information form together with supporting documents and submissions which the applicant provided to the Tribunal on 7 May 2020, together with further submissions supplied on 1 October 2020. That material is reproduced in the court book at pp 124ff, and it is noted at [14] of the Tribunal’s reasons. The material is further summarised in the compendious paragraph [18].
Counsel for the first respondent took me through the Tribunal’s decision – in particular, paragraph [27] which included most of the operative reasoning – and cross-referenced sub-paragraphs of the reasons with the terms of Direction 69. I have extracted the relevant passages of Direction 69 in ‘Appendix A’ to this judgment, which includes annotations recording the corresponding sub-paragraphs of the reasons for decision where the matter was addressed.
Suffice to say, I am satisfied the Tribunal addressed all the matters it was required to address, and weighed them in a conventional manner to reach a logical conclusion that is supported by the evidence. The Tribunal’s reasoning does not disclose any material jurisdictional error.
Was the hearing procedurally unfair?
The applicant’s submissions argued the hearing was procedurally unfair. He said holding a hearing over the telephone denied him a meaningful opportunity to present his argument.
I have already noted the hearing was held in October 2020. The operations of the Tribunal were still being seriously impacted by the COVID pandemic at that time. Save in a few exceptional cases, most Tribunal hearings in most registries were conducted by telephone or using Microsoft Teams during this period because of the public health concerns. That reality was reflected in the Tribunal’s invitation to attend a hearing dated 20 September 2020, reproduced at pp 116 of the court book. The hearing invitation included advice to the effect that an applicant who could not participate in the scheduled telephone hearing would need to explain the difficulty to the Tribunal – although in fairness, the note really referred to requests for adjournments rather than inviting expressions of concern over the format of the hearing.
There is no doubt the Tribunal had the discretion to take evidence and conduct proceedings by videolink or telephone: see s 366 of the Migration Act 1958 (Cth). Improvements in technology and the hard-won experience of operating during the pandemic have demonstrated that many – perhaps most – hearings in most caseloads can be conducted satisfactorily using video technology in particular, even where questions of credit are at issue. In any event, the discretionary control over the format of the proceedings is vested in the member conducting the hearing, subject to any binding practice directions issued by the President of the Tribunal. The presiding member in this case clearly turned his mind to the appropriate format. His reasons for proceeding by phone are set out at [5]-[6] of his reasons for decision. He referred to the exigencies of the pandemic and the fact the presiding member was in Brisbane (where, I would interpolate, pandemic restrictions were less onerous) while the applicant and his agent were in Sydney (where the extant public health orders were different and more restrictive) as reasons for proceeding remotely. While the Tribunal did not expressly discuss whether there were important issues of credit at stake that might count against a telephone hearing in particular, I note the reasons record the applicant agreed to proceed by telephone: at [6].
The applicant was represented by his migration agent and assisted by an interpreter. He had ample opportunity to present and explain his case at the hearing. I am not satisfied the conduct of the proceedings by telephone amounted to a denial of procedural fairness.
CONCLUSION
For the reasons above, there is no jurisdictional error apparent in the Tribunal’s decision. The application for judicial review is dismissed.
COSTS
That leaves only the question of costs. Mr Gao, for the first respondent, asked for an award of costs fixed in the amount of $5,600.00. He pointed out that amount was less than the amount indicated by the scale in the Court’s rules. He said that was the amount of costs actually incurred by the first respondent.
When asked for his views about an award of costs in the event he was unsuccessful, the applicant said he could not afford to pay such an amount if were ordered. The applicant’s inability to pay is not ordinarily regarded as a reason not to order costs.
There is no reason to doubt that the amount requested by the first respondent was indeed expended by the first respondent in these proceedings. I do not see any reason why costs should not follow the event. I order that costs be awarded against the applicant in the fixed amount of $5,600.00.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 10 October 2024
APPENDIX A – Paragraphs 9 to 15 of Direction 69 with annotations
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant; (Addressed in clause 27(a) to (d) of the decision under review. This matter was a neutral consideration)
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country; (Addressed in clause 27(e) to (f) of the decision under review. This matter was a relevant consideration)
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia; (Addressed in clause 27(g) of the decision under review. This matter was a relevant consideration)
d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; (Addressed in clause 27(h) to (i) of the decision under review. This matter was a neutral consideration) and
e. political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa. (Addressed in clause 27(h) to (i) of the decision under review. This matter was a neutral consideration)
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country. (Addressed in clause 27(j) of the decision under review. This matter was a neutral consideration)
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties; (Addressed in clause 27(k) of the decision under review. This matter was a relevant consideration)
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme; (Addressed in clause 27(l) of the decision under review. This matter was a relevant consideration)
c. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence; (Addressed in clause 27(l) of the decision under review. This matter was a relevant consideration)
d. whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; (Addressed in clause 27(m) of the decision under review. This matter was an irrelevant consideration) and
e. the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements. (Addressed in clause 27(n) to (o) of the decision under review. This matter was a neutral consideration)
Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; (Addressed in clause 27(p) of the decision under review. This matter was a relevant consideration) and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. (Addressed in clause 27(q) of the decision under review. This matter was a neutral consideration)
The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors (Addressed in clause 27(u) to (x) of the decision under review. This matter was an irrelevant consideration):
a. Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b. Previous travels to Australia or other countries, including:
i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant. (Addressed in clause 27(s) and (t) of the decision under review. This matter was a relevant consideration)
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