Malik v Minister for Immigration

[2019] FCCA 2334

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALIK v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2334

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal made an unsatisfactory decision – whether the applicant intended to stay in Australia temporarily – no jurisdictional error made out – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.500.212

Cases cited:

Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MUHAMMAD SHAHARYAR MALIK

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1377 of 2018

Judgment of: Judge Humphreys

Hearing date: 22 August 2019

Date of Last Submission: 22 August 2019

Delivered at: Parramatta

Delivered on: 22 August 2019

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Ms Perotti, Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The oral application made in Court by the Applicant for an adjournment is dismissed.

3. The application is dismissed.

4. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1377 of 2018

MUHAMMAD SHAHARYAR MALIK

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Request for an Adjournment

1. A preliminary matter has arisen in that the applicant has made, today at the commencement of the hearing, an application for an adjournment of the hearing. The applicant has stated that he received late advice of the fact that the hearing would be here today, although he has been on notice that a hearing would occur for some considerable period of time. The applicant said that he has not been able to save up enough money to find a lawyer. The applicant’s financial situation has been made worse by the fact that he needed to travel overseas as his father passed away and he has only just come back and has not been able to save any money since then.

2. The applicant has told the Court that he put the application in himself and he realises now that he should have had legal advice in relation to the application, and, indeed, should have legal advice in relation to the hearing here today. The first respondent opposes any adjournment. The first respondent noted that the matter has been on foot since 16 May 2018 and as at today, it is some 15 months of age. The solicitor for the first respondent submitted that in circumstances where the applicant has been unable to find sufficient funds to obtain the services of a lawyer, there is no certainty if the matter was adjourned that the applicant would be able to save sufficient funds to engage the services of a lawyer in the future.

3. In considering the matter, I have to be mindful that there are thousands of migration applications here before the Court. There is enormous pressure on the Court to finalise matters. Case management is a relevant consideration I need to take into account when considering the ultimate fairness of granting an application for an adjournment in a matter such as this. In considering the matter, I note that no application was made prior to the hearing date.

4. There is no certainty that the applicant will be able to turn round and obtain the services of a lawyer. It is not a situation whereby the applicant has approached a lawyer and the lawyer is here today saying, “I have only recently come into the matter, please can the matter be adjourned so that I can get on top of it.” That is not the case. It is merely a bold assertion that if “I am given time I will be able to turn round and save the necessary funds to engage the services of a lawyer”.

5. Whilst I am conscious of the disadvantage to the applicant by being unrepresented, I am also conscious of the fact that the matter has been on foot for some 15 months and the applicant has not taken appropriate steps to obtain legal representation. I am not satisfied that it is in the interests of justice, bearing in mind, as I said, the history of the matter and the lack of action to obtain legal representation to date. It is also a situation whereby he did not have legal representation previously and that legal representation has withdrawn.

6. In these circumstances, taking account of the matters that I have outlined, I propose to refuse the application for an adjournment.

Introduction

1. The applicant is a national of Pakistan and is currently about 27 years of age. The applicant first arrived in Australia in April 2011 as the holder of a subclass 572 Student visa granted on the basis of his involvement in a Diploma of Business course. The applicant completed that course. The applicant then commenced but did not complete an Advanced Diploma of Accounting course, but did complete an Advanced Diploma of Management. The applicant was granted a subclass 573 visa and commenced a Bachelor of Business course but did not complete it. The applicant did, however, complete a Certificate IV in Commercial Cookery.

2. On 8 September 2016, the applicant applied for a Student (Temporary) (Class TU) visa on the basis of his involvement in a Diploma of Hospitality Management. A delegate of the Minister refused the visa on the basis they were not satisfied that the applicant demonstrated a genuine intent to remain in Australia on a temporary basis only. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 2 May 2018, the Tribunal affirmed the delegate’s decision to refuse the further visa. The applicant now seeks judicial review of the Tribunal’s decision.

3. At the commencement of the hearing, the applicant sought to adjourn the matter on the basis that he was legally unrepresented and required further time to get together sufficient funds for a legal representative. The adjournment was refused.

The Tribunal Decision

1. At paragraph 9, the Tribunal noted the delegate’s concerns being:

   Since his initial arrival in 2011, he’s departed Australia once, for a 29 day period in October 2013.

2. I note that the applicant has given evidence that he departed Australia again following the death of his father. However, I can only deal with this matter on the basis of the material as before the actual delegate. I cannot take into account subsequent matters. Further, the applicant failed to comply with condition 8516 that was attached to his subclass 573 visa. This raised concerns as to whether the applicant would comply with conditions attached to further visas. The applicant has not maintained study at a higher education sector level. The applicant has also changed from a distinct vocational pathway to an apparently generalised notion of future employment in the hospitality sector.

3. At paragraphs 12 and 13, the Tribunal noted the applicant had completed the Certificate IV in Hospitality and was now undertaking a Leadership and Management course. The applicant stated that he wished to study courses in Australia as they were internationally recognised.

4. At paragraph 18, the Tribunal noted that the applicant stated he wished to return to Pakistan and start a small restaurant business with his father. The applicant also wanted to work for large hospitality employers to gain further experience. At paragraph 19, the Tribunal noted the applicant was currently working as a chef at the Opera Bar of the Sydney Opera House, earning between $450 and $500 per week working on a part time basis.

5. At paragraph 20, the applicant told the Tribunal he has no military commitments in Pakistan or fears due to civil or political unrest. At paragraph 22 onwards, the Tribunal dealt with the consideration of the evidence and the applicable policy and law. Reference was also made to Part 500 of Schedule 2 to the Migration Regulations 1994, in particular to clause 500.212 of the Regulations as well as Ministerial Direction 69.

6. At paragraph 27, the Tribunal accepted that the applicant’s wish to work as a chef for his current or similar employers was a strong motivation to reside in Australia. At paragraph 28, the Tribunal found his explanation for undertaking a Diploma in Leadership and Management unconvincing. The Tribunal considered the applicant’s wish to continue to work for the Opera Bar to actually be quite sincere. The applicant was enjoying it, he liked the work and this was his primary reason for wishing to remain in Australia.

7. At paragraph 29, the Tribunal was not persuaded by the applicant’s evidence of his incentive to return to Pakistan and placed no weight on his claims to want to work in a small restaurant in his home country. At paragraph 30, the Tribunal considered the length of time the applicant had spent in Australia, along with his stable employment and career advancement in the hospitality sector. The Tribunal concluded these were indicative of strong ties and reasons to remain within Australia as compared to being here on a temporary basis with an intention to return home upon the completion of studies.

8. At paragraph 32, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily. Accordingly, the applicant did not meet the requirements of clause 500.212. The Tribunal affirmed the decision under review not to grant the visa.

The Grounds of Appeal

1. The grounds of appeal are set out in the application to the court and are as follows, as written:

   (1) The decision has been made by the AAT is not satisfactory. I am not happy with the decision and request the Federal court to review my case. I was a genuine student and was fulfilling my visa requirements. My studies can still continue providing all AAT documents.

Applicant’s Submissions

1. The applicant appeared unrepresented. The applicant was not assisted by an interpreter and clearly did not need one. The applicant’s English skills were excellent. No written submissions, however, were filed in support of the applicant’s claim. The applicant told the Court that he did not realise he needed legal advice and asked for the matter to be adjourned. That was refused. After the application for an adjournment was refused, the applicant was asked if he wished to say anything to the Court. The applicant was given an opportunity have a short adjournment to collect his thoughts. The applicant declined that opportunity. The applicant told the Court that he did not wish to say anything in respect of his right to speak to the Court initially. The applicant did not have anything to say in response to the submissions made by the lawyer representing the Minister.

First Respondent’s Submissions

1. It was submitted that insofar as the grounds of appeal may be appropriately characterised, they do no more than invite impermissible merits review. See Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It was submitted that the Tribunal correctly identified the evidence before it and that all claims of the applicant were considered. It correctly instructed itself as to the relevant law and had regard to relevant policy, being Direction 69 and clause 500.212(a). The Tribunal gave appropriate reasons for the outcome it reached. The outcome was open to the Tribunal on the evidence before it. No jurisdictional error was revealed.

Consideration

1. It is not for the Court to engage in merits for review. This was explained to the applicant at the opening of the hearing. The Court can only find in the applicant’s favour if it can find jurisdictional error in the decision. I am satisfied that the Tribunal correctly identified the relevant law and policy. The Tribunal correctly applied the law and policy to the facts that it found before it. It is a matter for the Tribunal to find facts. It is not a matter for the Court to find facts. There is nothing in the reasoning of the Tribunal that could be characterised as unreasonable, illogical, or irrational. It came to a considered view based on all of the evidence that the applicant was seeking to use the study visa to prolong his stay in Australia for the reasons I have set out above.

2. I can find no procedural error in the way that the Tribunal went about its decision such that it would satisfy jurisdictional error. Given that the applicant is unrepresented, I have carefully reviewed the decision for any other jurisdictional error which was not raised or articulated by the applicant and I can find none. I am unable to identify any error on a jurisdictional basis in the Tribunal’s decision.

3. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  25 September 2019