Muhammad v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1140
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Muhammad v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1140
File number(s): SYG 1496 of 2020 Judgment of: JUDGE LAING Date of judgment: 8 November 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (as it was) – whether the Tribunal misapplied the criteria in issue – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider evidence – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.01
Migration Act 1958 (Cth) ss 359A, 359AA, 360 & 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Division: General Number of paragraphs: 40 Date of hearing: 25 October 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr S Knuckey of Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1496 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IRFAN MUHAMMAD
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
The applicant is a citizen of Pakistan. On 20 September 2016, the applicant applied for the student visa that is the subject of these proceedings.
The Delegate refused the application on 8 December 2016. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.
On 20 December 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. On 26 February 2018, the Tribunal affirmed the Delegate’s decision.
The applicant applied to the Federal Circuit Court of Australia (as it was) for review of the Tribunal’s decision. The matter was remitted to the Tribunal by consent on 15 August 2019.
On 18 May 2020, a differently constituted Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERION
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
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.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(1)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(2)the applicant’s immigration history; and
(3)any other relevant information.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the criterion in issue and the effect of Direction No. 69 at [1]-[12] of its decision.
The Tribunal considered the applicant’s circumstances in his home country at [16]-[22] of its decision, before finding at [23]:
a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.
b.The applicant does have family ties to his home country through the residence of his mother and siblings, his frequent return travel, and family and personal property. In considering the period of time the applicant has been in Australia (since 2008), his changing migration intentions, and the limited specific plans in relation to his proposed future employment, these circumstances are not a significant incentive to return.
c.The applicant is supported financially during his study in Australia by his brother. The applicant did not previously engage in paid employment in Pakistan. The Tribunal notes the applicant’s living expenses in Pakistan are likely to be less than in Australia, however, the applicant’s future employment and income are uncertain and he has no arranged employment. The applicant’s anticipated income is derived from discussions with friends. The applicant currently earns approximately AUD400 to AUD500 per week on a part-time basis in Australia. In considering these matters as a whole, the Tribunal considers these circumstances do not demonstrate a significant incentive for the applicant to return.
d.The applicant does not have any military service commitments which would provide an incentive not to return home.
e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia, to remain indefinitely.
f.There is no relevant evidence regarding the applicant’s circumstances in his home country, relative to others in that country, and the Tribunal makes no findings concerning the applicant in that respect.
The Tribunal then considered the applicant’s circumstances (and potential circumstances) in Australia at [24]-[31] of its decision, before finding at [32]:
a.The applicant has ties to Australia given the period of time the applicant has been living in Australia, and through his work and study since 2008. The Tribunal is satisfied the applicant has developed friendships in Australia through work and study, and considers the social and emotional connection to Australia to provide a strong incentive to remain.
b.The applicant’s limited academic progression, pattern of enrolment and change in fields of study, and periods of non-enrolment is evidence the student visa program is being used to circumvent the intentions of Australia’s migration program.
c.In considering the matters set out in these reasons for decision, including the applicant’s period of time in Australia, academic progression, pattern of enrolment, changes in fields of study and periods of non-enrolment, the student visa is primarily being used to maintain ongoing residence in Australia.
d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia, and has a reasonable understanding of the proposed course of study, education provider and his current study and living arrangements in Australia, which he intends to continue.
The Tribunal considered the value of the proposed course of study to the applicant’s future at [33]-[37], before finding at [38]:
a.The applicant’s current course of study is a progression from the qualifications the applicant has already attained in Australia.
b.The applicant’s proposed course is not relevant to previous employment but is relevant to the applicant’s stated career goals and aspirations. A Bachelor degree will assist the applicant in obtaining employment or in improving his employment prospects. However, the applicant has already completed Diploma level qualifications in the same field and has had the opportunity to obtain a Bachelor qualification since 2012 when he first enrolled in a tertiary course.
c.The remuneration the applicant can expect in his home country is uncertain. Notably the applicant has not applied for any positions.
d.There is no evidence before the Tribunal in relation to comparative remuneration the applicant would receive in Australia and in Pakistan, in utilising the qualifications the applicant seeks to obtain, and the Tribunal makes no findings in that regard.
The Tribunal considered the applicant’s immigration history for the purposes of the visa application at [39]-[43], before finding at [43]:
a.Other than the matters set out in the delegate’s decision record and these reasons there are no instances where visa applications have been undecided or considered for refusal or cancellation to Australia.
b.Prior to travelling to Australia in 2008 the applicant had not previously travelled to Australia.
c.The applicant has not held a visa that had been cancelled or considered for cancellation.
d.The applicant has not travelled to Australia from countries other than Pakistan and the UAE on multiple occasions since arriving in 2008.
e.The applicant travelled to Australia in 2008 for the purposes of study. The applicant has completed English courses and two Diploma qualifications since 2008. The applicant has changed his field of study and remained unenrolled in any course of study for some three and a half years. The Tribunal considers the applicant is enrolling in this course of study for the primary purpose of maintaining his residence in Australia.
f.The applicant has complied with the immigration laws of other countries to which he has travelled, namely the UAE.
Having regard to the above, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The Tribunal accordingly found that the applicant was unable to meet cl 500.212 and affirmed the Delegate’s decision (at [46]-[49]).
PROCEEDINGS BEFORE THIS COURT
On 19 June 2020, the applicant applied for judicial review of the Tribunal’s decision. The application contained the following grounds:
1.The Second Respondent misapply the criterion on the clause 500.212 and Direction No. 69 in reaching to the subject decision.
Particulars
Paragraph 10 to 12 of the subject matter.
2.The Second Respondent failed to comply with s.359AA(b) of the Migration Act 1958 properly and therefore made an error.
Particulars
The Tribunal put adverse information to the applicant during the interview without Giving sufficient notice is unfair and unreasonable and against the spirit of Section 359AA. Paragraph 13 of the subject decision.
3.The Second Respondent failed to consider relevant evidence provided in support of the student visa application therefore the subject decision is unreasonable.
Particulars
Paragraph 32 and 33
(As per the original)
Hearing of the matter
At the time the application was filed, the applicant was represented by a lawyer. The notice of listing of the hearing was sent to the address for service provided by the lawyer. After the notice was sent, the applicant filed an affidavit indicating a personal address. However, no Notice of Address for Service was filed providing formal confirmation of a change in the applicant’s representation status and/or address for service. Nor was any Notice of Withdrawal as Lawyer filed in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
This situation may have generated some confusion had the applicant not appeared on the day of the hearing and explained his intention to represent himself. It seems that the applicant believed that his affidavit had provided the requisite notice of his updated contact details and representation status. The applicant was accordingly given leave to file a Notice of Address for Service form in Court.
In future, however, it would be preferable if any lawyer ceasing to act provided clarity through withdrawing in accordance with r 9.03 of the GFL Rules if no notice has been filed by or on behalf of an applicant in accordance with r 9.01(2) of the GFL Rules. Not doing so has the potential to create confusion, which may raise questions regarding costs in the event that a hearing is unable to proceed: see for example Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98 at [11] (Judge Given).
Ground 1 – did the Tribunal misapply cl 500.212 and/or Direction No. 69?
Ground 1 contended that the Tribunal misapplied cl 500.212 and/or Direction No. 69. Reference was made to [10]-[12] of the Tribunal’s decision, which stated:
10.In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•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.
11.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
12.The applicant arrived in Australia on 18 March 2008 as the holder of a TU-572 Student visa to study English and a Diploma of Business Administration. The applicant subsequently applied for and was granted a number of further student visas.
It is not apparent how the Tribunal could be said to have fallen into relevant error in its summary at [10]-[12] of its decision. Having reviewed the balance of the Tribunal’s decision, I accept the Minister’s submission that this similarly does not reveal any relevant misapplication of cl 500.212 or Direction No. 69. The Tribunal expressly considered matters required under cl 500.212(a), including the applicant’s circumstances, immigration history and other matters the Tribunal considered relevant. The Tribunal also appears to have assessed the applicant against the matters required in Direction No. 69, as were found by the Tribunal to be relevant to present case. As the Minister observed, the Tribunal was under no obligation to formulaically address or “laboriously set out” each and every matter in Direction 69: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [106] (Derrington and Thawley JJ). Matters considered relevant to the applicant’s circumstances or sufficiently material to the application appear to have been given weight by the Tribunal.
When asked about the ground at the hearing before the Court, the applicant submitted that he ought to have been provided with further opportunity to provide evidence and arguments. He also disagreed with the Tribunal’s reasoning that he was not a genuine temporary entrant and suggested that his representative before the Tribunal had provided him with inadequate assistance.
As was discussed with the applicant, there is no transcript of the Tribunal hearing in evidence demonstrating exactly what was or was not said on that occasion. However, the Tribunal’s decision record indicates that the applicant’s agent submitted at hearing that the Tribunal ought to confine its decision to the issue of whether the applicant had a current confirmation of enrolment. The Tribunal then explained that it would be assessing the applicant against the other criteria “as set out in the regulations and the Ministerial Direction” (at [14]). The balance of the Tribunal’s decision suggests that matters relevant to the genuine temporary entrant criterion were discussed at the Tribunal hearing.
The above indicates that issues relevant to cl 500.212 were sufficiently raised by the Tribunal for the purposes of s 360 of the Act. There is no evidence before the Court demonstrating the contrary.
Paragraph 14 of the Tribunal’s decision indicates that the applicant’s agent stated at the Tribunal hearing that they would obtain some “instructions”. However, more than 8 weeks then passed without further submissions being made to the Tribunal. In these circumstances, it is not apparent how the Tribunal could be said to have acted unreasonably in making its decision when it did. As the Minister submitted, there is no evidence that any further time was sought by or on behalf of the applicant.
As was also discussed at the hearing before the Court, the applicant’s suggestion that his agent provided inadequate assistance did not appear to rise above a claim of negligence. There is authority to the effect that mere negligence, without more, does not provide a sufficient basis for setting aside the Tribunal’s decision: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [53] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443 at [30]-[33] (Tamberlin, Finn and Dowsett JJ).
It is understandable that the applicant may disagree with the Tribunal’s finding that he is not a genuine temporary entrant. However, as was discussed at hearing, the mere fact of that disagreement is incapable of providing a basis for setting aside the Tribunal’s decision. The Tribunal’s conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily appears to have been open to the Tribunal for the reasons that it gave. Those reasons are summarised above. In essence, the Tribunal was concerned by the length of time that the applicant had spent in Australia and his limited academic progression (notwithstanding his successful completion of some courses). The Tribunal considered that the applicant’s ties to his home country did not provide sufficient incentive for his return and that he had incentives for remaining in Australia. These matters were found to outweigh the matters that appeared to support his claimed intention towards temporary residence in Australia.
Such reasoning was intelligible, and logically probative of the conclusion reached by the Tribunal. I accept that another decision maker may have reached a different conclusion on the evidence. However, this is insufficient to demonstrate that the Tribunal’s approach was logically closed to the Tribunal: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
Ground 2 – did the Tribunal comply with s 359A?
Ground 2 contended that the Tribunal failed to comply with s 359AA(1)(b) of the Act. Section 359AA provided a mechanism by which the Tribunal could comply with s 359A of the Act, which required that certain information be put to an applicant in accordance with a specified procedure. Section 359AA(1) provided:
359AA Information and invitation given orally by Tribunal while applicant appearing
1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The Tribunal appears to have followed this procedure in relation to certain material that was before it. The applicant identified no other information said to have been capable of enlivening s 359A of the Act. At [13] of the Tribunal’s decision, the Tribunal stated:
13.Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System’s (PRISMS) database and a copy of the applicant’s movement record. The Tribunal explained to the applicant the relevance of the records that are reviewed before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information, and comment on and respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.
It has not been demonstrated that the Tribunal failed to comply with the letter of the requirements under s 359AA(1)(b) of the Act. However, the particulars to the ground suggested that the issue complained of was failure to comply with its “spirit”. The particulars suggested that the level of notice provided by the Tribunal was unreasonable.
However, it is difficult to see how this ground could be made out in the circumstances of this case. Those circumstances include that the applicant appears to have been notified by the Tribunal of his ability to seek additional time during the Tribunal hearing. Notwithstanding this, the applicant does not appear to have elected to seek additional time in which to respond. Instead, he elected to respond during the hearing before the Tribunal.
At the hearing before the Court, the applicant was provided with copies of ss 359A and 359AA of the Act and invited to expand upon why the Tribunal’s approach was said to have been unreasonable. The applicant indicated that he accepted the Tribunal had given him sufficient time to respond during the hearing. Noting that the applicant is unrepresented and did not seek formally to abandon the ground, I have nonetheless considered whether the ground might reveal some form of relevant error on the part of the Tribunal. For the reasons given above, I do not consider that it does so.
For these reasons, the ground is unable to succeed.
Ground 3 – did the Tribunal fail to consider relevant evidence?
Ground 3 contended that the Tribunal failed to consider relevant evidence.
The particulars referred to [32]-[33] of the Tribunal’s decision. Paragraph [32] summarised the Tribunal’s findings regarding the applicant’s potential circumstances in Australia. The substance of this paragraph is set out above. Paragraph 33 recognised that the applicant’s proposed course of study was a progression from the qualifications already attained in Australia.
The applicant made reference at the hearing before the Court to the situation with his father’s passing and the impact that this had upon his studies. However, this was considered by the Tribunal at [29]-[30] of its decision. The applicant also referred to his Confirmation of Enrolment being cancelled in relation to his Bachelor of Information Technology. The Tribunal considered at [26] of its decision that the applicant’s enrolment in this course, and other courses, had been cancelled. The Tribunal also considered what was said to have been the explanations provided by the applicant at the Tribunal hearing. It has not been demonstrated, by reference to evidence before the Court, that the applicant offered some additional explanation at the Tribunal hearing that was not considered by the Tribunal.
When asked about the ground at hearing, the applicant did not identify any evidence that the Tribunal failed to consider. It is not apparent from my own review of the materials that the Tribunal failed to consider any evidence that it was obliged to consider in this matter.
Having regard to the above, ground 3 is unable to succeed.
CONCLUSION
For the reasons given above, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 November 2024
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