MASOOD v Minister for Immigration

[2017] FCCA 3085

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASOOD v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3085

Catchwords:
MIGRATION – Student visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the claims of the applicant – whether the time taken for the Tribunal to conduct its hearing and come to its decision was unfair – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), cl.572.223 of sch.2

Applicant: FOWAD MASOOD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2430 of 2016

Judgment of: Judge Smith

Hearing date: 13 November 2017

Date of Last Submission: 13 November 2017

Delivered at: Sydney

Delivered on: 13 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2430 of 2016

FOWAD MASOOD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Pakistan who arrived in Australia on 21 April 2013 on a student (subclass 573) visa.  On 16 October 2015, he applied for a student (subclass 572) visa.  It was a criterion for the grant of that visa that the Minister be satisfied that the applicant was a genuine applicant for entry and stay as a student.  For the Minister to be satisfied the applicant intended genuinely to stay in Australia temporarily, the Minister has regard to a number of matters including the applicant’s circumstances, his immigration history and any other relevant matter: see sub-cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (Cth) (Regulations).

Background

1. On 30 October 2015, an officer of the Department wrote to the applicant setting out some of the applicant’s history of enrolment in Australia, indicating that that history gave rise to concerns about the applicant’s genuineness as a temporary entrant as a student, clearly being referrable to the criteria in sub-cl.572.223(1)(a) of the Regulations.  The applicant was invited to provide a statement addressing those issues and to provide any further information.

2. The applicant provided that information, explaining amongst other things that his father had been ill in Pakistan and was undergoing certain treatment.  He also explained that his certificate of enrolment (COE) had been cancelled by one college and that he was preparing for another diploma when his father suffered from a severe cardiac arrest and was admitted to hospital.  He also explained that, as a result of his father’s health, he suffered from deep anxiety. 

3. On 14 December 2015, a delegate of the Minister made the decision to refuse to grant the applicant a visa.  The delegate was not satisfied that the applicant met the criteria in sub-cl.572.223(1)(a).  The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. 

4. By letter dated 1 August 2016, the applicant was invited to attend a hearing to be conducted by the Tribunal; was also told that the Tribunal would assess whether the applicant intended genuinely to stay in Australia temporarily; and that the Tribunal would have regard to the matters set out in a direction made by the Minister pursuant to s.499 of the Migration Act 1958 (Cth), known as Direction No.53. A copy of that Direction was enclosed with the Tribunal’s letter.

5. The applicant responded to that invitation indicating that he would attend the hearing and also with a document entitled “STATEMENT OF PURPOSE”[1], addressed the question of whether he genuinely intended to stay temporarily in Australia as a student.  In that statement, the applicant referred again to the health of his father and to various matters relating to his enrolment, as well as his own psychological health, referring to treatment that he had undertaken.

   [1] Emphasis in original.

Tribunal’s decision

1. The Tribunal conducted a hearing on 5 September 2016. The applicant attended that hearing, and amongst other documents, provided the Tribunal with a letter from a doctor dated 9 August 2016 referring to the applicant’s anxiety and depression arising from the severe medical problems of the applicant’s father, being severe diabetes and open heart surgery in Pakistan.  On the same day as the hearing the Tribunal made the decision to affirm the delegate’s decision.

2. Like the delegate before it, the Tribunal was not satisfied that the applicant met the criteria in sub-cl.572.223(1)(a).  Its essential reasons were set out at [18]-[22] of its reasons, which I set out below: 

   18.In the current circumstances, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criteria. The reasons for this are set out below. The applicant’s immigration history indicates that the applicant has spent a substantial amount of time in Australia, with very limited success in his studies. That is the applicant originally entered Australia on 21 April 2013 as the holder of a Tertiary student Visa (TU573) and has only successfully completed one English language course. The applicant has also spent a substantial amount of time in Australia since first entering, with limited time overseas. The applicant’s circumstances indicate that he is using a student Visa system to maintain residence in Australia, rather than for the purpose of study.

   19.In relation to the value of the course to the applicant’s future, the Tribunal notes the applicant’s own evidence was that he did not complete the Diploma of Business Administration listed in the original student Visa application. In addition, in relation to his current course of study, the applicant was unable to name the course he is currently enrolled in, and his evidence at hearing was that he had delayed his intake until October 2016, despite the large gap since his last studies. The applicant was unable to name any of the subjects offered in his current enrolment. This indicates that future study in Australia will be of limited relevance or interest to the applicant.

   20.In relation to the applicant circumstances, the applicant has given evidence that his family live in Pakistan and that his (sic) concerned about his father’s ongoing health problems. This indicates strong ties to Pakistan. However, opposed to this, the applicant has spent the majority of his time in Australia since entering in April 2013, despite his submissions that his father’s illness has prevented him from studying. In relation to circumstances in Australia, the applicant gave evidence that he is employed in Australia as a cleaner, and he was able to work despite not studying. This indicates an economic incentive for the applicant to stay.

   21.The Tribunal has taken into account the medical evidence provided by the applicant, being a letter from Dr Osman Qadri, dated 9 August 2016. The letter states the applicant is suffering from anxiety and depression due to severe medical problems suffered by his father, and he attended the practice since December 2015 for counselling twice a month until April 2016, and thereafter once a month until June 2016. The letter goes on to state the applicant has been very mentally disturbed and unable to concentrate during this period. The letter fails to outline what the process of diagnosis that employed for the applicant to reach the finding of anxiety and depression. The Tribunal finds the letter is limited, as it fails to provide an explanation as to why the applicant would be unable to study during the relevant period, and it fails to provide any evidence as to why the applicant completed his treatment in June 2016. Therefore, although the Tribunal has taken this letter into account, it finds it provides limited weight to the applicant’s claims.

   22.In relation to the applicant’s evidence regarding why one of his Certificates of Enrolment was cancelled, being that his English language course was delayed, the Tribunal accepts this evidence on face value based on the correspondence provided to the Tribunal during hearing (on email via the applicant’s telephone). However, the Tribunal notes the department outlined that eight certificates of enrolment had been cancelled, and the applicant has only provide (sic) an explanation for one. In addition, the applicant’s own evidence at hearing was that he did not complete the relevant course at any later date. Therefore, the Tribunal again finds his evidence to provide limited weight regarding the applicant’s overall behaviour whilst in Australia as the holder of the student Visa.

3. It concluded at [23] that, overall the applicant’s circumstances indicated that he was using the student visa system to maintain residence in Australia rather than for the purpose of study.  The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

1. There are three grounds in the application. 

First ground

1. The first ground is that the Tribunal did not consider the applicant’s case appropriately, even though he had provided it with all of the relevant evidence.  This appears to be a suggestion that the Tribunal ought to have accepted the applicant’s claims and that in not doing so the Tribunal made some error.  Understood in that way, the ground is no more than an attack on the merits of the Tribunal’s decision, rather than an assertion that the Tribunal’s decision was affected by jurisdictional error.  It is not within the proper scope of the authority of this Court to reconsider the merits of any Tribunal’s decision, and for that reason the first ground is rejected.

Second ground

1. The second ground is that the Tribunal did not understand the applicant’s mental stress, due to which the applicant was incapable of concentrating, and due to the high level of stress he could not manage to get any consultation.  Once again, that appears to be an attack on the merits of the case.  However, on one view it could be taken to be an allegation that the Tribunal did not consider the applicant’s health situation.  Indeed, that is the way that the applicant initially put it at the hearing, where he said that the Tribunal did not consider his health situation.

2. That submission, however, flies in the face of what the Tribunal wrote at [21] of its reasons, in which it addressed the letter from the doctor given to it by the applicant at the hearing.  Essentially, the Tribunal took the letter into account, but because of the limitations in the contents of the letter, it gave limited weight to it.  In other words, the Tribunal found that it did not properly support the applicant’s claims.

3. Ultimately, when the applicant’s attention was drawn to that paragraph, the applicant accepted that his argument was that the Tribunal erred by not accepting the health situation as put forward by him in support of his visa application and application for review.  Understood in that way, the ground is clearly only aimed at the merits of the Tribunal’s decision rather than the legality of the decision and once again that is beyond the proper scope of judicial review, and so must be rejected.

Third ground

1. The third ground is that the “Decision did not come out injust (sic) I was not satisfied with decision I waited 8 months I was sure that decision will be in my favour”.

2. The applicant explained at the hearing today that what he means by the ground is that he waited eight months from the time he had made his application to the Tribunal for its decision, and thought that because of that delay he would be granted a visa.  I should note that the delay was more in the vicinity of nine months, but that there was, in fact, no real delay.  Once the applicant was invited to a hearing, as he was in August of 2016 there was only a little over one month until the Tribunal’s decision.  Indeed, as I have also observed, the Tribunal’s decision was given on the same day as the hearing.

3. Whether or not the time between the application for review and the time of the decision gave rise to some expectation by the applicant that he would be successful, that does not give rise to any jurisdictional error.  Even if it were framed by a reference to procedural unfairness, the ground would be rejected because what was expected was the substantive outcome, and procedural fairness is not addressed to outcome, but rather the process by which that outcome is arrived at. 

4. There is no unfairness in the time taken by the Tribunal.  It was not such as to divert the Tribunal from its task of properly reviewing the delegate’s decision, or indeed from considering the material that was put before it in addition to the material that was before the delegate.  For that reason, this ground does not give rise to any proper basis for the relief sought by the applicant and it is rejected.

5. In my view, the Tribunal properly addressed the issue before it and considered each of the claims made by the applicant and the material relied upon by him, and arrived at a conclusion that was open to it on that material. 

Conclusion

1. For those reasons, the Tribunal’s decision was not affected by jurisdictional error, and the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     14 December 2017