MUHAMMAD v Minister For Immigration and Anor (No.2)
[2020] FCCA 1587
•17 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUHAMMAD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1587 |
| Catchwords: MIGRATION – Application for Student visa – finding by Tribunal that applicant did not genuinely intend to remain in Australia temporarily – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.499. Migration Regulations 1994 (Cth), Sch.2, cl.500.212, Sch.8, cl. 8516. |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 68. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | NOOR MUHAMMAD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 881 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 15 June 2020 |
| Date of Last Submission: | 15 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Lawyers |
| Counsel for the First Respondent: | Mr Psaltis |
| Solicitors for the First Respondent: | Clayton Utz |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The Amended Application for Review filed on 10 December 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 881 of 2019
| NOOR MUHAMMAD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who arrived in Australia on 20 October 2015 as the holder of a Higher Education Student visa which was valid from 20 August 2015 until 15 March 2018. The applicant had based his application for such visa upon his having indicated that he intended to undertake a course of study to obtain a Master of Information Technology degree. Such visa is to be distinguished from the Student (Temporary) (Class TU) (Subclass 500) visa that was the subject of the applicant’s later visa application considered by this Court.
After his arrival in Australia, the applicant was not enrolled in any course of study for the period from October 2015 until February 2016. The applicant accepted that such period of non-enrolment was contrary to the conditions attached to the grant to him of the Higher Education Student visa.
The applicant was enrolled in the Master of Information Technology course which commenced in February 2016, but such enrolment was cancelled on 29 March 2017 because the applicant did not meet the course requirements for such degree.
Between 29 March 2017 and the date of expiry of the applicant’s Higher Education Student visa on 15 March 2018, the applicant undertook the following vocational education and training courses: [1]
a)Certificate III in Spoken and Written English – course started in May 2017 and ended in July 2017;
b)General English – course started in March 2018 and ended in March 2018;
c)Graduate Diploma of Telecommunications Networking Engineering – course started in March 2018 and was due for completion in March 2019.
[1] Court Book (CB) p. 82.
The applicant made a second student visa application on 15 March 2018 – that being the date of expiration of the first visa granted to the applicant, as well as being the date some days before the commencement of the Graduate Diploma of Telecommunications Networking Engineering course. The Graduate Diploma of Telecommunications Networking Engineering course was nominated by the applicant as being the course upon which his second visa application was based. [2]
[2] See applicant’s “Statement of Purpose” document in support of visa application – CB p. 33.
It is apparent that the applicant was not enrolled and studying in any course between July 2017 and March 2018. It is also the case that though the applicant was not notified until December 2017 that he would not receive a Confirmation of Enrolment (CoE) certificate for a Masters course of study, the applicant was only enrolled in vocational education and training courses up until June 2019.
On 8 May 2018, a delegate of the Minister refused to grant to the applicant the Student (Temporary) (Class TU) (Subclass 500) visa applied for by him on 15 March 2018. The delegate was not satisfied that the applicant satisfied the criteria as provided for in cl. 500.212 to Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 relevantly provided as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
a) 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; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
On 25 May 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
In June 2019, whilst on a bridging visa, [3] the applicant commenced a Master of Business Innovation Systems course of study at the Torrens University. Such course was due for completion in August 2020.
[3] CB p. 38.
A hearing before the Tribunal took place on 13 September 2019. The Tribunal orally affirmed the decision of the delegate on 13 September 2019. On 30 September 2019, written reasons of the Tribunal were provided to the applicant.
On 10 October 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. At the hearing before this Court, the applicant relied upon one ground of review as set out in an Amended Application for review filed on 10 December 2019. Such ground of review was as follows:
“Grounds of Application
1. The decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to consider important evidence, in its true import, or seriously misconstrued evidence before it, in a way that was material to the outcome, in that the Tribunal failed to appreciate that the Graduate Diploma course was at an academic level that is higher than the applicant’s earlier Bachelor degree.”
Ground 1
It was asserted by the applicant that the decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to appreciate that the Graduate Diploma course commenced by the applicant in March 2018 was of a higher academic standard than the Bachelor of Science and Computer Engineering degree which the applicant had obtained in Pakistan prior to his arrival in Australia. It was claimed that there was no basis for the Tribunal finding, at [32] of its reasons, that the Bachelor degree obtained by the applicant in Pakistan was of a higher academic level than the Graduate Diploma course of study undertaken and completed by the applicant in Australia, which was said to be study at the vocational education and training sector level. Paragraph [32] of the reasons of the Tribunal relevantly provided as follows:
“[32] The tribunal notes that the applicant has already completed a Bachelor of Science and Computer Engineering in Pakistan. The tribunal considers this university level study completed by the applicant in Pakistan to be at a higher level than the study at the vocational education and training sector level and it is of concern to the tribunal that the applicant was already a university graduate before ever coming to Australia and has, since his confirmation of enrolment certificate in the Master of Information Technology was cancelled, chosen to study qualifications in the vocational education and training sector at a level below his university accomplishment.”
The Court does not accept the validity of the submissions made on behalf of the applicant.
At [6] of its reasons, the Tribunal set out the requirements of cl. 500.212 of Schedule 2 to the Regulations. It was alive to the need for it to consider whether, based upon the information before it, the applicant only intended genuinely to stay in Australia temporarily.
At [7] of its reasons, the Tribunal noted that for the purposes of determining whether the applicant satisfied the cl. 500.212(a) criteria, it must have regard to factors set out in Ministerial Direction No. 69 made pursuant to the provisions of s. 499 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal noted that Ministerial Direction No. 69 factors to be so considered and taken into account were as follows:
·“the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
·the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.”
At [10] of its reasons, the Tribunal considered information given to it by the applicant about his having a brother who lived in Melbourne, as well as his family circumstances in Pakistan. The Tribunal recorded that it did not consider that the applicant’s family and community ties with Australia constituted a strong incentive for him to remain in Australia.
At [13] of its reasons, the Tribunal found that it did not accept the applicant’s evidence as to why he had not been enrolled in a course of study between October 2015 and February 2016, in circumstances where it was pointed out to the applicant that the stated purpose for him to travel to Australia was to study. The Tribunal also could not reconcile the applicant’s excuse for his not having studied during that period (namely the death of his sister in law and the consequence that that might have upon her six children) with the applicant’s evidence that he did not know that in not studying he was breaching a visa condition.
At [14] of its reasons, the Tribunal recorded that the applicant had said that he had not been enrolled in a course of study between March 2017 and May 2017. A Masters course in Information Technology, which the applicant had commenced in February 2016, was cancelled in March 2017 because the applicant had not met course requirements.
At [15] and [16] of its reasons, the Tribunal recorded that the applicant had said that after the cancellation of his Masters course in March 2017, he had become quite disturbed due to his parents’ health in his home country, and further that he had been diagnosed with a major depressive order for which he had received treatment since May 2016. The applicant confirmed that he had not advised the Department that his enrolment for the Masters course had been cancelled in March 2017.
At [17] of its reasons, the Tribunal noted that the applicant had indicated that he was not enrolled in, or studying for, any course of study between July 2017 and March 2018.
At [19] of its reasons, the Tribunal recorded that the applicant had been asked by the Tribunal as to why it was that he had been able to enrol in a Masters course commencing in June 2019, whereas he had said that he had been unable to have his enrolment for any such course confirmed for a July 2017 enrolment. The applicant stated that in July 2017 it was a stressful situation and that he couldn’t obtain any confirmation of enrolment. He did not provide any further explanation.
At [22] of its reasons, the Tribunal recorded that a letter from the Torrens University dated 29 August 2019 did not indicate or provide any information about the applicant’s level of attendance at his then course of study, nor as to whether the applicant would conclude such study before August 2020.
At [26] of its reasons, the Tribunal recorded that though the applicant had worked as a casual shop assistant between May 2016 and August 2017, he was working as an Uber driver at the time of the Tribunal hearing, and that he had been so working since March 2019.
At [27] – [31] inclusive of its reasons, the Tribunal highlighted aspects of the applicant’s claims and future aspirations, highlighting inconsistencies in some of the answers provided by the applicant.
At [33] of its reasons, having already found at [32] that the applicant’s course of study in Australia was of a lower academic level than that of the Bachelor degree which had been obtained by the applicant in Pakistan, the Tribunal did not accept that the applicant had provided any meaningful detail as to why he needed a Master of Business Information Systems degree in order to achieve his future life plans. At [34], the Tribunal recorded that since arriving in Australia in 2015, the applicant had left Australia on three (3) occasions – twice in 2017 for periods totalling three (3) months, and once in April 2019 for three (3) weeks.
At [35] of its reasons, the Tribunal noted that since his arrival in Australia there had been an extended period of at least one (1) and a half years when the applicant had not been enrolled in a Master’s program, in circumstances where he had nevertheless continued to complete courses in the vocational education and training sector. The Tribunal did not consider that the applicant’s academic progress since his arrival on the first visa was that of a genuine student. It was of the view that the applicant’s enrolment in his latest course of study was one where the applicant’s primary objective was to maintain his ongoing residence in Australia.
At [36] – [42] inclusive of its reasons, the Tribunal recorded that it had questioned the applicant about his income earning capacity in Pakistan and in Australia. At [43], the Tribunal found that because the applicant was able to continue to earn approximately AUD$25,000 per annum from the use of agricultural land held by him in Pakistan, irrespective of whether he lived in Pakistan or not, as well as the fact that the applicant was earning approximately AUD$20,800 per annum from employment in Australia, there was a significant incentive for the applicant to remain in Australia.
At [46] of its reasons, the Tribunal found that the applicant’s failure to notify the Department of the cancellation of the initial Masters course enrolled in by him until some two (2) years after such cancellation was a failure to comply with condition 8516 of the student visa. The Tribunal also found that the applicant was required to maintain enrolment in a course in the higher education sector, and not in the vocational education and training sector. The Tribunal recorded that it had taken into account the breach of condition 8516 when arriving at its decision.
At [50] of its reasons, the Tribunal, when finding that a further student visa may be used primarily by the applicant for maintaining ongoing residence in breach of cl. 500.212 of Schedule 2 to the Regulations, said as follows:
“[50] … However, taking into account the amount of time the applicant has now spent in Australia on student and associated bridging visas and the fact that the applicant already has a Bachelor of Science in Computer Engineering, the fact that there was a period of one and a half years where the applicant continued to complete courses in the vocational education and training sector and was not enrolled in a Masters course, as well as the fact the applicant has given conflicting information about his future plans and he has failed to explain in any meaningful detail why he would request a Master of Business Information Systems in order to complete his future plans, on balance the tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.”
At [51] of its reasons, the Tribunal found that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and that the applicant therefore did not meet the cl. 500.212 criteria.
The applicant had submitted that a Graduate Diploma course was a course of higher academic standing than that of the Bachelor degree course which had already been completed by the applicant in Pakistan and that, therefore, there was no basis for the Tribunal finding at [32] of its reasons that such graduate course of a lower level than the Bachelor degree obtained in Pakistan.
There was no admissible evidence before the Court which irrefutably could have assisted the Court in concluding whether the applicant’s submission as to relative academic degree levels were higher or lower than each other, but it was not the Court’s role to do so. It is clear that the Tribunal undertook an assessment as to whether the courses in fact undertaken by the applicant since his arrival in Australia were vocational education and training courses in character, rather than higher level education courses, such as the Master of Information Technology course which the applicant initially enrolled in. In that regard, it is of note that the applicant’s PRISMS record (Exhibit 2) indicated that the Master of Information Technology course first commenced by the applicant on 27 July 2015 was cancelled on 30 June 2017 because of non-commencement of studies, and that a second Master of Information Technology course commenced on 29 February 2016 was cancelled on 31 December 2017 because of unsatisfactory course progress. Whether such records refer to the same enrolment or not is of no moment. What the records do indicate, however, is that the applicant first intended to commence study in Australia for a Master’s degree rather than a Graduate degree. The Tribunal was entitled to have regard to the obvious level of academic difference between the courses actually undertaken by the applicant, as opposed to the course first intended to be so undertaken by the applicant, when considering whether the applicant intended to genuinely remain temporarily in Australia or not.
Insofar as the applicant’s submissions constitute a criticism of the Tribunal’s findings at [32] of its reasons, such submissions have been made with an eye keenly attuned to error. [4] As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:
[4] Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593 at
[46] – [47] per French, Sackville and Healy JJ.
“They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
(footnotes omitted)
It was for the Tribunal to weigh up all of the evidence before it and arrive at a considered decision as to whether the relevant cl. 500.212 criteria had been met or not. The Tribunal made a reasonable decision having undertaken that weighing up exercise. It did not fall into jurisdictional error in the way in which it arrived at its decision, even if another logical, rational and reasonable decision maker may have arrived at a different decision. The Authority clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The Tribunal’s finding about the level of a Graduate degree relative to a Bachelor degree obtained in Pakistan was not critical to its consideration of the fundamental issue for its determination, namely as to whether or not the applicant genuinely intended only to remain in Australia temporarily. Even if the finding at [32] of the Tribunal’s reasons was in error, it was not of so fundamental a character so as to destroy the foundation of the decision, and thereby give rise to jurisdictional error. [5]
[5] Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 68 at [6] per Gyles J.
It cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 17 June 2020
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