MOHAMMED v Minister For Immigration and Anor (No.2)

[2018] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 1502

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) not to grant applicant a student visa on the ground the applicant did not satisfy the genuine temporary entry criterion – whether Tribunal failed to comply with s.359AA and s.359A of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.359A, 359AA, 499

Migration Regulations 1994 (Cth) Schedule 2, cl.572.223(1)(a)

Cases cited:

Minister for Immigration & Multicultural and Indigenous Affairs v VAF

(2004)206 ALR 471

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [15]

Applicant: SIDDIQ MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3385 of 2016

Judgment of: Judge Manousaridis

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Sydney

Delivered on: 31 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the First Respondent: Ms A Lucchese of Sparke Helmore

ORDERS

1. The applicant has leave to file in Court the affidavit made by the applicant on 30 May 2018.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3385 of 2016

SIDDIQ MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant, who is a citizen of India, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) class TU visa (Student visa).

Genuine temporary entry criterion

1. To have been entitled to the grant of a Student visa, the applicant was required to satisfy clause 572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth)(the Regulations), which provided as follows:

   The minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that 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; . . .

2. When considering whether an applicant satisfies this criterion, the relevant decision-maker was required to have regard to Direction 3, which is titled “Assessing the genuine temporary entrant criterion for student visa applications”, made under s.499 of the Migration Act 1958 (Cth) (Act).  Where an applicant is not a minor, Direction 53 requires the tribunal to have regard to a number of specified factors in relation to the applicant’s circumstances, the applicant’s immigration history and any other relevant matter.

Applicant’s education history in Australia

1. The applicant arrived in Australia on 2 April 2009 on a Student visa.  That visa was valid until 14 March 2012.  But while in Australia, the applicant either held a student visa or an associated bridging visa. 

2. The Provider Registration and International Student Management System (PRISMS) that was before the delegate recorded that the applicant completed only English language and vocational education and training level courses since arriving in Australia in 2009. PRISMS further recorded that the applicant had enrolled in 12 courses, but his enrolment in six of them had been cancelled.

Application for Student visa

1. In his form of application for a Student visa, in the box headed “Intended course” the applicant wrote “Diploma of Management”;  and in the box headed “Name of education provider or training body” the applicant wrote “Canterbury business College”. 

2. On 22 July 2015 the delegate sent a letter to the applicant inviting him to provide the information identified in an attachment to the letter headed “Request checklist and details”. The information requested included a “statement setting out your reasons for undertaking the course(s) of study specified in your application”. The attachment indicated that the statement should set out the applicant’s reasons for choosing to undertake the courses specified in the applicant’s application, the reasons for the applicant’s choice of education provider, the applicant’s reasons for choosing to study in Australia rather than in his home country, the relevance of the intended course of study to the applicant’s academic or education plans, and the relevance of the applicant’s intended course to his future career and education plans.

3. The applicant provided a response to this request on 2 September 2015.  The applicant said he chose the Diploma of Management course because he does not have knowledge of the subject,  and on a recent visit to India he applied for a job, and when he “mentioned to them” in his resume the applicant had done a Diploma in Information Technology, “they asked me to do relating management course”.  The applicant said he had chosen Canterbury Business College on the suggestion of a friend. The applicant also said he had chosen to study in Australia because it is valuable not only in India but also in the world, and that when he completes his Diploma of Management course he will submit the certificate “to an agency in India, they will be hire me as network administrator and management skills”. 

Before the Tribunal

1. The applicant appeared before the Tribunal to give evidence and present arguments on 3 November 2016.  The applicant told the Tribunal he had completed a Bachelor of Information Technology overseas, that in Australia he completed an English course and a Diploma in Information Technology, and that he had almost completed an Advanced Diploma in Information Technology, but he was unable to do so.  He was unable to complete that course because of his son’s death in 2013. 

2. The applicant informed the Tribunal that he was unable to study after his son’s death in 2013, but that he had enrolled in a Diploma of Leadership and Management, which was due to commence on 9 January 2017.  The Tribunal recorded that throughout the hearing the applicant often promised he would start and complete his studies if he were granted a student visa.

Tribunal’s reasons

1. After setting out the relevant background information and the evidence the applicant gave at the hearing before it, the Tribunal set out cl.572.223(1) of schedule 2 to the Regulations and then referred to Direction 53. The Tribunal noted that Direction 53 required the Tribunal to have regard to the following factors:

   a)the applicant’s circumstances in his or her home country, potential circumstances in Australia and the value of the course to the applicant’s future;

   b)the applicant’s immigration history, including previous applications for an Australian visa or for visas in other countries, and previous travel to Australia or other countries;

   c)if the applicant is a minor, the intentions of the parent, legal guardian or spouse of the applicant;  and

   d)any other relevant information provided by the applicant or information otherwise available to the decision-maker, including information that may be beneficial or unfavourable to the applicant.

2. The Tribunal also noted that Direction 53 indicated that the factors it identifies should not be used as a checklist, but that the factors there identified were intended to guide decision-makers to weigh up an applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant requirement.  After expressing sympathy to the applicant for the loss of his son, the Tribunal considered the factors identified by Direction 53, as those factors were discernible on the information that was before the Tribunal. 

3. The Tribunal first considered the applicant’s circumstances.  It noted the applicant has spent a substantial period of time in Australia since first entering Australia in 2009. The Tribunal also noted, however, that although the applicant has been unable successfully to study since 2013, according to his own evidence he had paid employment in Australia before he travelled to India in April 2016 and after his return to Australia in June 2016.  The Tribunal found that this indicates the applicant has a strong incentive to remain in Australia.

4. The Tribunal next considered the applicant’s circumstances in his home country, that is to say India. The Tribunal acknowledged that the applicant’s wife remains in India, but it considered relevant the evidence the applicant gave to the Tribunal that his wife would join him if he were granted a student visa. The Tribunal found the applicant’s wife’s plans to join him and the time the applicant had already spent in Australia indicated that the applicant has limited incentive to return to India.

5. The Tribunal also considered the value of the Diploma of Leadership and Management course to the applicant’s future.  It found that this course would have limited value in relation to increasing the applicant’s employment prospects in his home country, because it was at the diploma level, and the applicant had already achieved a Bachelor of Information Technology in India and a Diploma of Information Technology in Australia. In making these findings the Tribunal said it took into account the applicant’s evidence that his father’s friend owns a business and has offered him employment when he completes his current studies.  The Tribunal, however, said it had doubts about this evidence, due to its broad nature, and because the applicant referred to his need to complete business studies during the hearing, as opposed to his needing to complete the leadership and management course.  The Tribunal found that even if it accepted the applicant’s evidence, there were other avenues open to the applicant, through the education he has already obtained.

6. Finally, the Tribunal considered the applicant’s immigration history.  The Tribunal again noted that the applicant has spent a significant part of the last seven years in Australia and found this indicated a strong tie to Australia. In addition, the Tribunal considered that the applicant’s passport showed he re-entered Australia in June 2016 despite his spouse remaining in India, and despite the fact that he did not enrol in a course of study until 18 October 2016.  The Tribunal found that these factors together indicate that the applicant wants to remain in Australia, but not for the purpose of study. 

7. The Tribunal concluded by stating it had considered these factors overall, but that it was not satisfied that the applicant intends genuinely to stay in Australia temporarily.  The Tribunal therefore found that the applicant does not meet cl.527.223(1)(a) of the regulations.

Grounds of application

1. I finally turn to the grounds of application.  These are as follows (errors in original):

   1. The Administrative Appeals Tribunal failed to comply with section 359AA of the Act in that the Tribunal did not give to the Applicant clear particulars of the information that it considered would be the reason, or part of the reason, for affirming the decision that is under review.

   PARTCIULARS

   a) The Tribunals decision record at paragraph 25 states “The Tribunal raised concerns with the authenticity of this submission, and indicated it found the applicant’s evidence difficult to accept on face value”. The Tribunal failed to give Applicant clear particulars in regards to any concerns it had about the authenticity of the submission before, during or after the hearing.

   b) The Tribunal’s decision record at paragraph 26 states “The Tribunal again raised doubts in relation to this evidence and also pointed out there were many other potential employers within India”. The Tribunal failed to give Applicant clear particulars in regards to the doubts it had in relation to the evidence. The Tribunal was vague in informing the Applicant that there were many other potential employers within India and the Tribunal failed to give clear particulars to the Applicant in this regard.

   c) The Tribunal’s decision record at paragraph 27 states “The Tribunal also raised concerns with the genuineness of the applicant’s evidence that he was studying online”. The Tribunal failed to give Applicant clear particulars in regards to any concerns it had about genuineness of online study.

   d) The Tribunal’s decision record at paragraph 38 states “The Tribunal finds it would have limited value in relation to increasing his employment prospects in his home country”. Tribunal failed to give clear particulars to the Applicant in this regard.

   2. The Administrative Appeals Tribunal failed to comply with section 359AA of the Act in that the Tribunal did not inform the Applicant that he may seek additional time to comment or respond to the information that it considered would be the reason, or part of the reason, for affirming the decision that is under review.

   PARTICULARS

   a) the Tribunal failed to notify the Applicant during the course of the hearing conducted on 3 November 2016 that the Applicant could seek additional time to comment or respond to the information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review.

   b)  The Tribunal failed to notify the Applicant during the course of the hearing conducted on 3 November 2016 on each occasion when the Tribunal raised a concern with the Applicant that the Applicant could seek additional time to comment or respond to the information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review.

   3. The Administrative Appeals Tribunal failed to take into account relevant consideration

   PARTICULARS

   a) The Tribunal failed to consider that the Applicant stayed in Australia even after the tragedy of losing his child as a commitment towards his study obligations.

   b) The Tribunal’s decision record at paragraph 40 states “…the Tribunal notes that the applicant has spent a significant part of the last seven years in Australia, and this indicates a strong tie to Australia”. The Tribunal failed to consider any family, social, community, financial, and emotional ties relevant to this consideration of ties to Australia. The Tribunal irrelevantly applied one criteria, being the length of time the Applicant lived in Australia, as indicating strong ties to Australia.

   4. The Administrative Appeals Tribunal erred in procedural fairness

   PARTICULARS

   a) The Tribunal’s decision record at paragraph 40 states ‘…the Tribunal notes that the applicant has spent a significant part of the last seven years in Australia, and this indicates a strong tie to Australia”. The Tribunal wrongly applied on criteria, being the length of time the Applicant lived in Australia, as indicating strong ties to Australia. The Tribunal failed to consider any family, social, community, financial and emotional ties relevant to this consideration of ties to Australia.

   b) The Tribunal’s decision record at paragraph 39 states “in relation to the value of the course to the applicant’s future… even if the Tribunal accepts his on face value, it finds other avenues are open to the applicant through the education he has already obtained”. The Applicant informed the Tribunal he wants to complete business studies which is a qualification he has not previously completed. Accordingly, there are no other avenues open to the applicant through the education he has already obtained. The Tribunal failed to give clear particulars in this regard to the Applicant. 

2. The applicant, who is not legally represented, said to me that he understood his grounds, but he wanted to make no submission about them.  He did make one submission, however.  He said the Tribunal did not give him another chance.  The applicant said he asked the Tribunal for a second chance because his baby passed away and he was unable to concentrate on his studies.

3. I will first deal with the grounds set out in the application, and I will finally deal with the submission the applicant made to me at the hearing. 

Ground 1

1. Ground 1 claims the Tribunal failed to comply with s.359AA of the Act. That section must be read with section 359A of the Act. Subject to the exceptions stated in s. 359A(4), the sections apply to “information that the tribunal considers would be the reason or a part of the reason for affirming the decision that is under review”. Once there is such information before the Tribunal, and provided the exceptions do not apply, s.359A imposes certain obligations on the Tribunal to give to an applicant particulars of that information, as well as other details.

2. The particulars to ground 1 identify four items which the ground claims constitute information the Tribunal considered would be the reason or part of the reason for affirming the decision under review.  The items identified in paragraphs (a) and (c) of the particulars are said to be the “concerns” the Tribunal recorded as having raised with the applicant, in relation to the evidence identified in those paragraphs; and the item identified in paragraph (b) is “doubts” the Tribunal recorded as having raised with the applicant.  The item in paragraph (d) of the particulars is the Tribunal’s conclusion that the applicant’s current enrolment would have limited value in relation to increasing his employment prospects in his home country.

3. The items identified in paragraphs (a), (b) and (c) of the particulars to ground 1 are either subjective appraisals or thought processes of the Tribunal, and the item identified in paragraph (d) of the particulars is a determination.  It has been held, however, that “information”, as used in section 424A of the Act (which is identical to section 359A of the Act) “does not encompass the tribunal’s subjective appraisals, thought processes or determinations.”  That is a quote from the judgment of Justices Finn and Stone and in Minister for Immigration & Multicultural and Indigenous Affairs v VAF,[1] which were words included in a passage set out, with the approval of the High Court, in SZBYR v Minister for Immigration and Citizenship.[2]Thus, none of the items identified in paragraphs (a), (b), (c) or (d) of the particulars to ground 1 is “information” to which s.359AA or s.359A of the Act applied. That means the Tribunal was not required to give to the applicant clear particulars of those items.

   [1] (2004) 206 ALR 471 at 476‑477

   [2] [2007] HCA 26 at [15]

4. For those reasons, ground 1 fails. 

5. It is appropriate that I here record an additional submission that the Minister made in his written submissions, and in particular in paragraphs 15, 16 and 17 of those submissions. The submission there made is that to the extent that ground 1 complains that the Tribunal acted on information or referred to information when it expressed its concerns or doubts, the Minister submits that such information was provided by the applicant and, therefore, is information which is excepted from the operation of s.359A. I need not say anything further about that ground, other than if ground 1 is taken to be a claim that the Tribunal ought to have given particulars of information the applicant provided to the Tribunal on which the Tribunal relied, the Tribunal was not obliged to give any particulars because such information would be excepted from the operation of s.359A.

Ground 2

1. Ground 2 is premised on the existence of information which the Tribunal considered would be the reason or part of the reason for affirming the decision of the delegate. The ground, however, does not identify that information.  It is reasonable to infer that the information on which ground 2 is premised is the items that the particulars to ground 1 identify as information.  For the reasons I have already given, the items the particulars to ground 1 identify as information are not “information” to which s.359A or s.359AA of the Act applies.

1. Ground 2, therefore, also fails.

Ground 3

1. This ground identifies two matters which it is claimed the Tribunal ought to have taken, but failed to take, into consideration. The first is that stated in paragraph (a) of the particulars, namely, the applicant remaining in Australia after the tragedy of losing his child indicated a commitment towards his study obligations.  There are two matters to note about paragraph (a) of the particulars to ground 3: 

   a)The Tribunal was aware that the applicant had lost his child, and it was aware the applicant claimed that it was due to that loss that he was unable to study in Australia after 2013.  The Tribunal, however, considered that these matters were relevant to the applicant’s ability to study, and was also of the view that if the applicant was unable to study he should not be in Australia on a student visa.  It was reasonably open to the Tribunal to adopt that view and not consider the tragic loss of the applicant’s son as a reason in favour of finding that the applicant is a genuine applicant for entry and stay as a student.

   b)There is nothing to suggest that the applicant expressly submitted to the Tribunal that his remaining in Australia was an indication of a commitment of his intention to study; and it is impossible to conclude that the Tribunal ought reasonably to have understood the applicant impliedly to have made any such submission.  The natural inference that was available to be drawn from the applicant’s not studying in Australia was not that he was committed to studying in Australia, but that he was either unwilling or unable to undertake any study in Australia, and that his remaining in Australia was not connected to a desire to study, but was connected to a reason foreign to such desire.

2. Paragraph (b) of the particulars to ground 3 is directed to the Tribunal’s finding that the applicant’s having spent a significant part of the last seven years in Australia indicated the applicant had a strong tie to Australia.  Paragraph (b) of the particulars claims that in making that finding the Tribunal only considered the length of time the applicant lived in Australia, when the tribunal ought to have considered family, social, community and emotional ties.  There are three matters to note about this claim:

   a)The Tribunal’s finding was made specifically in its consideration of the applicant’s immigration history. That is one of the matters the Tribunal was required to consider under cl.572.223(1)(a) of schedule 2 to the Regulations; and its finding, based on its assessment of the applicant’s immigration history, that the applicant had strong ties to Australia was one that was reasonably open to it. There is nothing in cl.572.223(1)(a) of Schedule 2 of the Regulations that required the decision-maker, in this case the Tribunal, to make a finding about whether the applicant had strong ties in Australia, or that if the decision-maker were to make any such finding, the decision-maker was required to consider the matters the applicant claims the decision-maker ought to have considered.

   b)Second, in other parts of its reasons the Tribunal did consider matters that are relevant to the applicant’s ties to Australia.  One was the intention of the applicant’s wife to join the applicant, if the applicant were to be granted a Student visa.  The other was the applicant’s having re-entered Australia in 2016 without his wife, and without having enrolled in a course.

   c)Third, paragraph (b) does not identify the materials that were before the Tribunal which evidence or which ought to have evidenced what the paragraph claims are the family, social, community, financial and emotional ties the Tribunal failed to consider but which it ought to have considered when concluding the applicant had strong ties to Australia.

3. For these reasons, ground 3 fails.

Ground 4

1. This ground claims the Tribunal failed to accord the applicant procedural fairness. It is supported by two particulars. Paragraph (a) of the particulars to ground 4 repeats paragraph (b) of the particulars to ground 3.  Paragraph (a) of the particulars to ground 4 fails for reasons I have concluded that paragraph (b) of the particulars to ground 3 fails. 

2. Paragraph (b) of the particulars to ground 4 relates to the Tribunal’s finding at paragraph 39 of its reasons that even if the Tribunal took at its face value the applicant’s evidence that the applicant’s father’s friend owns a business and has offered the applicant employment upon completion of his current studies, there are other avenues open to the applicant through the education he has already obtained.  Paragraph (b) of the particulars to ground 4 claims the Tribunal failed to give the applicant “clear particulars in this regard”. To the extent this is a claim that s.359A applied to the Tribunal’s finding, the paragraph cannot succeed. The Tribunal’s finding is exactly that, a finding; or, as stated in VAF, it is a determination.  That is not “information” for the purposes of s.359A of the Act; and there is no other basis on which the Tribunal could be said to have been obliged to give any particulars in relation to that finding.

3. Paragraph (b) of the particulars to ground 4, therefore, also fails.

Oral submissions

1. I finally turn to the oral submission the applicant made before me. As I have already noted, the Tribunal did refer to the fact that the applicant had tragically lost his son. And I here refer to paragraphs 21, 23 and 35 of the Tribunal’s reasons. The question the Tribunal asked itself, however, was that which it was required to ask under clause 572.223(1)(a) of Schedule 2 to the Regulations, and that was whether the applicant was a genuine applicant for entry and stay as a student. The Tribunal was not satisfied, for the reasons it gave; the reasons on which the Tribunal relied were reasonably open to it; and its overall conclusion that the applicant did not satisfy clause 572.223(1)(a) of Schedule 2 to the Regulations was a finding that was reasonably open to it.

Disposition

1. For these reasons I propose to order that the application be dismissed.

Costs

1. The Minister applies for an order for costs, and that I set those costs in the amount of $5,000. The applicant says he does not have the financial capacity to meet those costs.  The applicant accepts that he was aware that the consequence of his losing the case would be that he would be exposed to an order for costs.  I informed the applicant that an inability to pay costs by itself is not a reason for not ordering costs.  The applicant also asked that I reduce the amount sought by the Minister.  I informed the applicant that the amount sought by the Minister, which is $5,000, is less than the amount provided for in the Federal Circuit Court Rules 2001 (Cth).

2. I am satisfied that, given the applicant has lost the application, that the usual order as to costs should be made; and I am satisfied that the amount sought by the Minister, namely $5,000, is reasonable. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 June 2018