Munir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1724

FEDERAL CIRCUIT COURT OF AUSTRALIA

Munir v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1724

File number(s):	LNG 34 of 2020
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	9 June 2021
Catchwords:	MIGRATION – judicial review – student visa – no matters of principle – application dismissed
Number of paragraphs:	37
Date of last submission/s:	9 June 2021
Date of hearing:	4 and 9 June 2021
Place:	Hobart (via Microsoft Teams)
The Applicant:	Appeared in person
Solicitor for the Respondent	Australian Government Solicitor
Counsel for the Respondent:	Mr Wilson

ORDERS

LNG 34 of 2020

BETWEEN:

FAROOQ MUNIR

First Applicant

TAYYABA JAVED

Second Applicant

MARYAM FAROOQ

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	9 JUNE 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal), with respect to a student visa class TU, subclass 572 (‘the visa’).

   BACKGROUND

2. The applicant in this matter first arrived in Australia in February 2011. Since that time he has held three different student visas and a Subclass 485 graduate work visa, which was granted to enable him to obtain work experience following his completion of a Bachelor of Commerce and Accounting degree. Through the more than ten years that the applicant has been in Australia on the various visas, he has visited his family in Pakistan on six occasions, most recently in December 2017. It should be noted, however, that in more recent times, travel has been severely restricted as a result of the impact of the COVID-19 pandemic.

3. The Tribunal identified the courses that the applicant had undertaken and the outcomes at paragraph [18] of their decision dated 25 February 2020 (‘the decision’), saying:

   18.      Since arriving in Australia, the applicant has undertaken the following courses:

   •A Diploma of Management which he did not complete;

   •A Certificate IV in Business which he completed;

   •A Diploma of Business which he completed;

   •A Diploma of Building and Construction Management which he completed;

   •A Bachelor of Commerce (Accounting) which he completed

   •A Graduate Diploma of Management which he did not complete; and

   •A Diploma of Tourism and Management which the applicant is studying presently and which is scheduled to conclude in July 2020.

4. Ultimately, the Tribunal was not satisfied that the applicant was in Australia as a genuine temporary entrant for the purpose of studying as required by the visa conditions, and therefore, refused to grant the applicant the visa.

5. The applicant’s application for judicial review relies upon six grounds that he sets out in his application, and supports with some written submissions. The applicant also appeared before me to make oral submissions.

6. The case was initially adjourned, as the matters raised by the applicant in his oral submissions indicated that there may have been matters that were said during the course of hearing with the Tribunal that were significant. The Minister appropriately obtained a copy of a transcript of the proceedings before the Tribunal Members, so that accurate evidence was available, as to what was said to the applicant during that hearing. That transcript has been filed in the proceedings and was available for the parties to refer to in making submissions.

   GROUNDS FOR JUDICIAL REVIEW

   Ground 1

7. The first ground that the applicant relies upon is as follows:

   1.The course, I was enrolled in, was closely related and relevant to my previous studies.

8. The applicant made submissions in his written submissions as follows:

   The course I was enrolled in at the time of my visa application was rejected was “Graduate diploma of Management” which is a post graduate qualification and was directly related to my previous studies in commerce (Accounting), I have never contended that the diploma of travel and tourism and management – was “closely related” and “relevant to” my previous studies. I have started Diploma of travel and tourism in 2019 which I have finished in 2020. And I have started this diploma after I decided to leave the accounts and business related field of study. (Recording of tribunal hearing attached).

9. The difficulty for the applicant, with respect to this ground, is that it effectively seeks a merits review of the Tribunal’s decision.

10. The history of his study indicates that he commenced studying management and business, and then changed to study building and construction, he then obtained a commerce accounting degree, and he then pursued a tourism diploma.

11. The applicant has covered a very wide range of fields in his studies over the nine years leading up to the Tribunal decision. The Tribunal had regard to these matters, noting, at paragraphs [33] to [36], the following:

    33. Further, while it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change pathways to the extent that the applicant has (evidenced from the courses set out above) where it is not objectively demonstrated how those pathway changes will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.

    Value of the course to the applicant’s future

    34. The Tribunal has had regard to the value of the courses of study to the applicant’s future, as follows:

    Is the course consistent with the applicant’s current level of education?

    •The Diploma of Tourism and Management is a regression from the Bachelor of Commerce (Accounting) degree and Bachelor of Arts degree already held by the applicant.

    Will the course assist applicant to obtain employment or improve employment prospects?

    •The applicant contends the course will improve his employment opportunity.

    Relevance of course to past study?

    •The applicant holds Bachelor Degrees in Commerce and Arts. His current course is a Diploma of Tourism and Management.

    Expected remuneration using qualifications in home country compared to what is receivable in Australia?

    •The applicant did not give evidence as to remuneration.

    35. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has not provided any objective evidence as to how the completion of his current course will improve employment prospects or add value to his earning capacity given the degrees and work experience he already holds.

    36. Further, given the extent of the applicant’s study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve his remuneration or employment prospects in his home country to an extent that is outweighed by the current cost of completing the course. He holds a Bachelor of Commerce (Accounting) degree already and has work experience as an accountant, as such, the Tribunal is of the view that the applicant has demonstrated that he is more than qualified to return home and find employment.

12. The Tribunal also had regard to the applicant’s professional work experience and career changes at paragraphs [26] to [27], saying:

    26. The applicant contended in his evidence that he’s done is professional 3 month work experience in accounting and that it was hard to find a job in accounting so he decided to do a graduate diploma of management, which he didn’t complete because his visa application was refused. He claimed to be stressed and depressed because of his visa situation and that’s why he left accounting as it had given him nothing. So he decided to change course to construction which he also did not like. He decided to change to tourism because the Pakistani government has initiated a tourism campaign and there’d be opportunity in that field.

    27. While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the qualifications he already holds.

13. It is clear that the Tribunal was well aware of the different nature of the courses of study, and had regard to the applicant’s case about the extent to which they were interrelated. The different nature of the course, at lease prima facie, indicates that they are not interrelated. However, the Tribunal carefully considered the arguments in this regard.

14. Ultimately, the Tribunal made its findings, and was not satisfied that the applicant continues to pursue a career development option with the respect to his more recent courses, given the nature of his earlier studies. It appears to me that these conclusions were open to the Tribunal in the circumstances of this case, and that, therefore, ground one is, in substance, a ground seeking merits review of the Tribunal’s decision. It is not open to the court to engage in merits review and, therefore, I do not find that the applicant has established this ground.

    Grounds 2 and 5

15. Grounds 2 and 5 are framed as follows:

    2.The visa officer claimed that while I was granted temporary skilled visa CUC-485, I did not undertook any studies, but I have provided my professional year certificate which I studied during 485 visas and I could not enrolled in two courses at the same time.

    ...

    5. As I have attached my professional year certificate with my student visa application, but visa officer still argued that why I did not studied on my 485 visa which indicates that visa officer did not go through all the documents and being judgemental.

16. The applicant's written submissions, with respect to these grounds, argue:

    Ground 2:

    The delegate claimed in the decision record that I did not undertook any studies while I was on my visa 485 and applying this visa for just to stay in country, but I have provided evidence that I have completed my professional year during that visa, which gives weight to my argument that delegate did not go through my file in detail before making the decision and rejected my visa. The tribunal acknowledged that after I have provided my certificate of professional year at the time of appeal hearing. (Recording of tribunal hearing attached).

    …

    Ground 5:

    My visa was refused because delegate failed to assess my application properly because of the claim made about me not carrying out any studies while I was on post graduate visa VC 485 but contrary to that, I have completed my accounting professional year during that period of time and evidence was provided to tribunal as well which was acknowledged by the tribunal.

17. It is apparent that both of these grounds concern matters that occurred before the delegate, with respect to the applicant’s claims. Importantly, the applicant alleges that the delegate either failed to understand him or made errors in considering his circumstances, which led to an erroneous decision by the delegate. However, the applicant does not contend that the Tribunal made the same mistakes, and was not able to point to an adverse or erroneous finding by the Tribunal in these regards.

18. The purpose of the Tribunal hearing is to rehear the case, which is arranged so as to ensure that any errors that may have been made by the delegate, either in considering the evidence or in reasoning about the case, are corrected. In these circumstances, it is not relevant that the delegate may have made an error if the Tribunal has not made the error that the delegate made. It is not suggested that there is any conduct by the delegate which in some way impugns the decision or the process adopted by the Tribunal. In these circumstances, grounds 2 and 5 must be dismissed.

    Ground 3

19. In ground 3, the applicant alleges:

    3.Through my stay in Australia, I have been very consistent with my studies and completed my courses, which indicates that I am a genuine temporary entrant.

20. In his written submissions, the applicant says:

    Apart from my diploma of management in 2011 and Graduate diploma of management in 2018 on which my visa was rejected, I have completed all my studies and never left it Incomplete, which indicates that I am a genuine student and have kept my focus on my Studies.

21. The applicant confirmed in submissions, that the Tribunal’s list of courses that the applicant had undertaken and the outcomes set out above (contained in paragraph [18] of the Tribunal's reasons), is correct. The Tribunal did have regard to the submissions and saying, at paragraphs [38] and [41], as follows:

    38. The applicant’s visa history and study history in Australia demonstrate that the applicant has spent approximately 9 years in Australia undertaking a series of courses which are inconsistent with one another. The Tribunal does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.

    Any other relevant matters

    39. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

    •Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

    40. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.

    41. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed some studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

22. It does not appear to me that this is a judicial review ground based upon a legal error or a process error by the Tribunal, but rather, a complaint about the merits or the decision that the Tribunal made. In these circumstances, ground 3 cannot succeed.

    Ground 4

23. Ground 4 is framed as:

    During my hearing at AAT, the member have agreed and mentioned that because of my grades in my bachelor degree, I was a good student, which also points out towards being a genuine student.

24. In the written submissions, the applicant said with respect to ground 4:

    During the hearing, Tribunal have acknowledged and given a very positive response about my good grades which also gives weight to my claim of being a genuine student and Tribunal was told that I have changed my field of studies because of spending 5 years in Commerce without any return in terms of getting a job or career progress.

25. Ground 4, in the way that it was the subject of submissions on the previous occasion, indicated that there may have been some statement by the Tribunal Member indicating acceptance of various propositions, which may have led the applicant not to lead further evidence. The receipt of the transcript has clarified that.

26. The applicant points to the question of the Tribunal Member, which appears at page 2.2 of the transcript, where the Tribunal member says:

    Right. You've got a Bachelor of Commerce, Accounting degree. I can quite clearly see from your academic transcript that you have been a good student. So, the concern is, the concern of the delegate and the concern for me is that you've been here since, goodness, 2011. Is that right?

27. It does not appear to me that this indicates that the Tribunal member accepted that the applicant was a genuine student for the purpose of the visa, but rather, that he had been a good student in courses that he has successfully undertaken.

28. The terms of the question by the delegate highlight the real concern of the delegate and the Tribunal Member, which is the extent of time that the applicant had been in Australia pursuing studies, and squarely addressed the applicant with that point, so as to enable him to make submissions about that. In the circumstances, I am not persuaded that the action has established a ground for judicial review under ground 4, and I therefore, dismiss this ground.

    Ground 6

29. The applicant framed ground 6 as follows:

    As I have my parents and siblings in back home and I do not have any financial ties in Australia, it clearly indicates that I am a temporary entrant.

30. In his written submissions, the applicant said:

    My and my wife’s families are back home are our strong ties to Pakistan and we do not have any family or financial commitments to Australia which indicates that we are here as temporary entrants.

31. The applicant pursued this ground on the basis that the Tribunal Member failed to have regard to the entirety of his circumstances, when considering whether the applicant was a genuine temporary entrant and, in particular, that the Tribunal Member focused upon his relationship with his spouse and child, to the exclusion of his relationships with other family members. Such an argument appears to emanate from a reading of paragraph [28] of the decision in isolation. Paragraph 28 of the decision says:

    28. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on his evidence at the hearing, as follows:

    Applicant’s ties with Australia

    ·The applicant’s spouse and daughter are included in the applicant’s visa application as dependant persons.

    ·The applicant is working 40 hours per week as a taxi driver in Australia.

    Evidence visa program being used to circumvent migration program

    ·The applicant has been enrolled in multiple courses since 2011, some of which are at the vocational level, some which he did not complete and most importantly, are inconsistent with one another from a course content perspective and a regression from the Bachelor of (Commerce) Accounting degree he already holds.

    Primary and secondary applicants relationship of concern

    ·The applicant’s spouse and daughter are included in the applicant’s visa application as dependant persons.

    Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course

    ·He became familiar with his current course provider with the help of a consultant and chose it because of the education provider’s location and exposure to tourism.

32. The Tribunal member also considered aspects of the applicant's circumstances in earlier parts of the decision, and, in particular:

    14. Since arriving in Australia in February 2011, the applicant has returned home six times to visit his family in Pakistan.

    …

    22. Although the Tribunal acknowledges that the applicant has returned home 6 times to visit family in his home country, the Tribunal finds that this family connect is not outweighed by a stronger family connection to Australia, in the form of the applicant’s wife and child who live in Australia with him. Moreover, there is no evidence before the Tribunal of any economic incentive for the applicant to return to Pakistan, as there is no evidence before the Tribunal of any assets held in the name of the applicant in Pakistan. These aforementioned matters suggest that the applicant intends to remain in Australia on a more permanent basis.

    …

    24. The Tribunal finds that the applicant has a strong economic incentive to remain in Australia, demonstrated by the fact that he has admitted that he is presently working full time hours as a taxi driver. The applicant’s ongoing work history provides an incentive to remain in Australia on a more permanent basis.

    …

    31. The Tribunal gives significant weight to the fact that the applicant’s wife and child are in Australia with him, as a factor which serves as a significant incentive not to return to Pakistan. This leads to the conclusion that the applicant’s desire to study in Australia is secondary to his intention to remain in Australia on a more permanent basis.

1. It appears clear, when reading the Tribunal’s decision as a whole, that the Tribunal did have regard to the applicant’s overall circumstances, and importantly, the extent of his connection with family in Pakistan. Ultimately, in the circumstances of the case, the Tribunal Member was not persuaded that the applicant’s family connections resulted in a conclusion that he was a genuine temporary entrant.

2. It should be borne in mind that family connections from parents and extended family are, in the common scenario of student cases, more significant, because students are often younger people who have not yet commenced their own family and, therefore, are more intimately involved with their family of origin, that is, their own parents and siblings. In this case, the Tribunal Member, not surprisingly, had regard to the fact that the applicant has a spouse and a daughter, and, therefore, had started his own family unit. The applicant, as most people do as they become older, experienced a transition from being a family member of a family unit with his parents, to having a family of his own. This does not mean that the applicant would not continue to have close ties to extended family, as was acknowledged in the Tribunal decision. Ultimately, the weight to be placed upon these matters is for the Tribunal. The Tribunal did have regard to the various family connections of the applicant, as well as his various other connections to Australia and, for example, him continuing to work 40 to 45 hours per week as a taxi driver, and reached the same conclusion that the delegate for the Minister reached.

3. It seems to me that, firstly, there was not a failure by the Tribunal to take into account relevant material and, secondly, that the conclusion the Tribunal reached was indeed open to it. In these circumstances, this ground cannot succeed.

   CONCLUSION

4. As I have found that none of the applicant’s grounds are successful, I must, therefore, dismiss the applicant’s application, and I will make orders accordingly.

   Costs

5. In this matter, the applicant has been entirely unsuccessful. There is no reason that costs should not follow the event. With respect to the quantum of costs, Counsel for the Minister very reasonably only seeks the scale fee of $7,467.00, even though this matter has had a previous listing and was adjourned for the Minister to obtain a copy of the Tribunal transcript. I therefore order that the applicant pay the Ministers costs fixed at $7,467.00.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:  

Dated:       28 July 2021