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

[2021] FCCA 1011

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mustafa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1011

File number(s):

SYG 396 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

12 May 2021

Catchwords:

MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – whether the Tribunal afforded the applicant a fair hearing opportunity considered – no jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), ss 359, 360, 366C, 476

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

BBT16 v Minister for Home Affairs [2018] FCA 1225

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Nobarani v Mariconte (2018) 92 ALJR 1031

Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883

Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507

Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32

Singh v Minister for Immigration & Multicultural Affairs (2001) FCR 1

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Number of paragraphs:

46

Date of hearing:

12 May 2021

Place:

Sydney

The Applicant appeared in person

Solicitor for the Respondents:

Ms M Kelly of Sparke Helmore

ORDERS

SYG 396 of 2020

BETWEEN:

SHEERAZ MUSTAFA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	12 MAY 2021

THE COURT ORDERS THAT:

1.The application filed on 21 February 2020 is dismissed.

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicant, Mr Mustafa, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 January 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Mustafa a temporary student visa.  Background facts relating to this matter are conveniently set out in initial written submissions filed on behalf of the Minister, which I adopt.

2. Mr Mustafa, a citizen of Pakistan, arrived in Australia on 28 May 2015 as the holder of a student (Class TU) (Subclass 573) visa.[1]  Mr Mustafa applied for that visa on the basis of his enrolment in an Intensive English course and Masters of Accounting. Whilst he completed his English course, he did not complete either of the accounting courses he had enrolled in, and on 27 January 2017, his confirmation of enrolment (CoE) associated with a Master of Professional Accounting course was cancelled for unsatisfactory course progress.

   [1] Court Book (CB) 47

3. On 16 January 2018, Mr Mustafa applied for the visa in order to study a Master of Business Administration (MBA) with an expected completion date of 3 May 2019.[2]

   [2] CB 1-17; 37-38

4. On 16 March 2018, the delegate refused the visa on the basis that Mr Mustafa did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In assessing whether Mr Mustafa met clause 500.212(a), the delegate considered the factors set out in Ministerial Direction 69 (Direction 69) and found that he did not genuinely intend to stay in Australia temporarily.[3]

   [3] CB 45-52

5. On 3 April 2018, Mr Mustafa applied to the Tribunal for review of the delegate’s decision.[4]

   [4] CB 53-54

6. On 24 October 2019, the Tribunal wrote to Mr Mustafa pursuant to s 359(2) of the Migration Act 1958 (Cth) (Migration Act) inviting him to provide information to satisfy it that he was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student.[5]  Mr Mustafa responded to that invitation, providing to the Tribunal a completed “Request for Student Visa Information” form.[6] On 15 January 2020, Mr Mustafa provided further documents to the Tribunal in support of his application.[7]

   [5] CB 59-60

   [6] CB 66-75

   [7] CB 83-164

7. On 23 December 2019, and again on 16 January 2020, the Tribunal invited Mr Mustafa to attend a hearing on 21 January 2020,[8] which he attended.[9]

   [8] CB 77-79; 168-171

   [9] CB 173-175

8. As noted above, On 24 January 2020, the Tribunal affirmed the delegate’s decision.[10]

   [10] CB 170-196

   The Tribunal’s decision

9. The Tribunal identified that the issue was whether Mr Mustafa was a genuine temporary entrant and met clause 500.212 of Schedule 2 to the Regulations. In considering the issue, it further identified that it was required to have regard to Direction 69.[11] The Tribunal considered the evidence provided by Mr Mustafa and gave:

   (a)little weight to his evidence that he had psoriasis in December 2016;[12]

   (b)no weight to the evidence that he had “depressive thoughts” due to an absence of corroborating medical evidence;[13]

   (c)no weight to his evidence that a fire at his residence affected his ability to study as this was not previously mentioned as a causative factor in his failure to advance his studies;[14]

   (d)little weight to his evidence that he failed to pay his university fees due to personal stressors in association with his visa refusal, parental expectations and the apartment fire;[15]

   (e)some weight to a letter of employment.[16]

   [11] CB 180-181, [7]-[8]

   [12] CB 186-187 [20]

   [13] CB 187 [21], [25]

   [14] CB 187 [23]

   [15] CB 187 [24]

   [16] CB 187 [25]

10. The Tribunal also found Mr Mustafa’s submissions with respect to the incorrect birthdate appearing on his CoE causing issues with subsequent visa applications to be “confused”, as they overlooked the fact that he had only completed two short English courses whilst in Australia.[17]

    [17] CB 187 [23]

11. With reference to Direction 69, the Tribunal then made the following findings:

    (a)though Mr Mustafa had demonstrated social, family and financial ties to Pakistan, having regard to the length of time spent in Australia and the intended period of future stay, he did not have a significant incentive to return to Pakistan;[18]

    (b)the length of Mr Mustafa’s proposed additional stay in Australia suggested that he had decided to extend his stay by utilising the student visa programme;[19]

    (c)having regard to his previous qualifications and experience, further time and expense to obtain the MBA was not required in order to meet the requirements of an account manager role;[20] and

    (d)Mr Mustafa’s study history in Australia was inconsistent with his career plans as expressed when he first arrived in the country.[21]  He had not established that there was a realistic prospect the proposed study would provide him significant benefits in his proposed career.[22]

    [18] CB 187-188 [27]

    [19] CB 188 [28]

    [20] CB 188 [29]

    [21] CB 188, [30]-[31]

    [22] CB 188, [33]

12. As the Tribunal was not satisfied that Mr Mustafa had demonstrated the value of the proposed course to his future, it expressed concern that his intention to live in Australia was motivated by factors other than study.[23] Further, it gave weight to the evidence that since Mr Mustafa’s arrival in 2015, he had only spent 28 days outside of Australia which it considered indicated he did not have strong ties to Pakistan. In light of this, the Tribunal assessed Mr Mustafa’s incentive to return to Pakistan as minimal.[24]

    [23] CB 189, [37]

    [24] CB 189, [38]

13. Overall, weighing the above findings, the Tribunal found that Mr Mustafa had commenced the MBA in order to secure a further stay in Australia, rather than out of any genuine interest in the area of study or his overall academic progress.[25] It was satisfied that Mr Mustafa had sought to use the student visa programme as a means of maintaining ongoing residence in Australia and did not have a genuine intention to stay in Australia temporarily.[26]

    [25] CB 189, [39]

    [26] CB 189, [40]

14. On the basis of the above, the Tribunal was not satisfied that Mr Mustafa intended genuinely to stay in Australia temporarily, as required by clause 500.212(a). Accordingly, the Tribunal affirmed the delegate’s decision.[27]

    [27] CB 190, [43]-[46]

    THE CURRENT PROCEEDINGS

15. These proceedings began with a show cause application filed on 21 February 2020.  There are 10 grounds in that application:

    1.My name is Sheeraz Mustafa (D.O.B. 11/07/1985) and I am holder of Passport No. ….

    2.My visa was refused on 16th January 2018 under s.65 of the migration act because the delegate thought I was not a genuine temporary entrant and did not meet c.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

    3.I then apply to Administrative Appeals Tribunal (AAT) for a review of this decision as I knew I was genuine student and I felt I met this criteria. I even appeared before tribunal on 21st January 2020 to give evidence and present arguments.

    4.The AAT did not consider my reasons or justification fairly and affirmed the decision of immigration department on 24th January 2020.

    5.I believe that both the AAT and Department of Home Affairs did not consider the facts, reasons and evidence I provided to support my application and they did not give me proper chance to show I am genuine student.

    6.The unfair decision of the department and AAT will have a horrible impact on my life and I would like Federal Circuit Court to consider this when looking at my case.

    7.I think AAT has made jurisdictional error in making decision for my application and I would like the Federal Circuit Court to review this.

    8.I would like the court to find this jurisdictional error so that my application will be returned to the AA T for further reassessment.

    9.I guarantee that I am good hearted person who will abide by all laws and conditions that are put on me and respect the values of Australia during the short time I am here. I just wish to complete my studies after which I must return home to my country.

    10.I can provide the court any information they need to help me in this situation and I thank the court for taking time to consider my application.

16. The matter came before me for a show cause hearing on 17 September 2020.

17. At that time, Mr Mustafa appeared in person by telephone and requested the assistance of an interpreter in the Urdu language.  Notwithstanding that Mr Mustafa had stated in his show cause application that he did not require an interpreter, that request was met.  Mr Mustafa continued to rely upon his show cause application and the affidavit filed in support of it.  I received that affidavit as a submission.

18. I received as evidence the court book filed on 16 April 2020. 

19. At the show cause hearing, Mr Mustafa told me that his main concern with the Tribunal review was the hearing that he attended. He told me that he attended that hearing without an interpreter, and found it difficult to understand and respond to the Tribunal member’s questions. I accepted that if there were indeed interpretation problems at the hearing or the lack of an interpreter, then an issue arose as to the adequacy of the hearing, for the purposes of s 360 of the Migration Act.

20. I ordered Mr Mustafa to file and serve a transcript of the Tribunal hearing no later than 31 December 2020.  Mr Mustafa complied with that order on 1 December 2020.  It follows that order 2 made on 17 September 2020 applies. 

21. The matter came before me today for a final hearing on that basis. The issue identified was whether the Tribunal had met its obligation to provide a fair hearing opportunity under s 360.

    CONSIDERATION

22. Only the Minister provided further written submissions in relation to that issue.  I invited oral submissions from Mr Mustafa.  Mr Mustafa told me that he was nervous at the hearing.  He submits that he needed an interpreter, notwithstanding that he had not asked for one, and had been studying the English language over some time.  He accepts that he could, in general terms, follow what was happening at the hearing, but submits that he had particular problems with particular questions.

23. Mr Mustafa took me to questions and answers given at pages 13, 15 and 16 of the transcript to illustrate his submission.  Mr Mustafa also told me that he found the air conditioning in the hearing room to be too cold, and asked for it to be adjusted, but it could not be.  Mr Mustafa also told me that his documents in support of his visa application had been mixed up and were in a haphazard state.

24. On my examination of the hearing transcript, I accept that several questions were repeated, but find that Mr Mustafa was able to answer the questions put to him.  Mr Mustafa did not request an interpreter for the Tribunal review or for the hearing conducted for the purposes of that review.  He raised no complaint about the absence of an interpreter during the hearing.

25. I am unable to determine whether the air conditioning issue had any impact on the conduct of the hearing. As to the state of Mr Mustafa’s documents, it was not apparent to me that that was the fault of the Tribunal, rather than Mr Mustafa’s agent. I otherwise agree with and adopt the Minister’s submissions concerning the Tribunal’s compliance with its obligations under s 360.

26. Section 366C of the Migration Act imposes an obligation on the Tribunal to provide an interpreter where a request is made by a person appearing before it to give evidence, unless the Tribunal considers the person sufficiently proficient in English. The Tribunal is also obliged to provide an interpreter if it considers that a person appearing before it to give evidence is not sufficiently proficient in English, even if no request for an interpreter has been made.[28]

    [28] section 366C(3)

27. Whether an applicant is sufficiently proficient in English is to be determined on a case-by-case basis.[29]

    [29] See, for example, Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883; Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32

28. In Singh v Minister for Immigration & Multicultural Affairs (2001) FCR 1, the Full Federal Court observed at [28] that:

    …the proficiency in English contemplated by s 427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised. It does not require any greater expertise in English. If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s 425(1) will have been satisfied.

29. While s 427(7) is in slightly different terms to s 366C, in that the appointment of an interpreter is discretionary, the Full Federal Court’s comments in respect of English proficiency hold true.

30. For the reasons that follow, the Tribunal’s obligation in s 366C to provide an interpreter was not enlivened.

31. First, in his application to the Tribunal for review of the delegate’s decision, Mr Mustafa answered “No” to the question “Need an interpreter?”.[30] In the “Request for Student Visa Information” form, Mr Mustafa responded “No” to the same question.[31] Further, the email from Mr Mustafa’s representative to the Tribunal requesting an in-person hearing did not indicate that an interpreter was required.[32]

    [30] CB 53

    [31] CB 67

    [32] CB 80

32. Secondly, the evidence before the Court illustrates that Mr Mustafa completed an “Intensive English Course” and achieved an English level of “Higher Intermediate”[33] and that he completed a further “General English” course in May 2017.[34]

    [33] CB 20

    [34] CB 71

33. Thirdly, turning to the transcript filed by Mr Mustafa, at no stage during the hearing did Mr Mustafa contend that he was not sufficiently proficient in English or that he required an interpreter to assist him at the hearing. At the outset of the transcript, the Tribunal Member confirms with Mr Mustafa that he had “been conversing in English”, to which Mr Mustafa responded “Yeah”.[35]

    [35] Page 1 of the Transcript annexed to the applicant’s affidavit filed 30 November 2020 (Transcript). It is noted that there are two pages of the transcript numbered “1” and two pages of the transcript numbered “2.” This exchange appears on the second page “1” (page 6 of the PDF file)

34. While the transcript indicates that Mr Mustafa had some difficulty understanding the Member’s question as to whether his medical condition had stopped him from studying,[36] it is clear that the Member clarified and rephrased this question such that Mr Mustafa was able to provide a responsive answer, that his medical condition had prevented him from studying in the middle of 2017 and throughout the middle and end of 2018.

    [36] Pages 14 to 15 of the Transcript

35. The remainder of the transcript demonstrates that Mr Mustafa was able to understand and give responsive answers to the Member’s questions. Mr Mustafa was able to provide clear details of his education and employment history,[37] and the effect of the erroneous date of birth on his confirmation of enrolment on his studies.[38]  At the conclusion of the hearing, the Member asked Mr Mustafa whether there was anything else he would like to add, to which Mr Mustafa responded in the negative.[39]

    [37] Pages 1 to 8 of the Transcript

    [38] Pages 15 to 18 of the Transcript

    [39] Page 19 of the Transcript

36. On the evidence before the Court, there is nothing to suggest that Mr Mustafa at any time requested an interpreter for the purposes of the Tribunal hearing or that he was not sufficiently proficient in English such that the Tribunal was obliged by s 366C to provide an interpreter to assist him. Nor is there anything to suggest that the hearing was conducted in such a way that prevented Mr Mustafa from comprehending the full significance of the Tribunal’s questions and communicating his evidence in response. The transcript demonstrates that Mr Mustafa was sufficiently proficient in English and was able to communicate the substance of his case and to respond to issues raised. This is not a matter where, whilst Mr Mustafa had sufficient knowledge of English, he was not so proficient such as to be able to cope adequately with the giving of evidence and the making of submissions before the Tribunal.[40]

    [40] Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [34]-[36]

37. To the extent that the original grounds of review advanced by Mr Mustafa have any continuing relevance, I agree with and adopt the Minister’s submissions concerning them. 

38. Mr Mustafa advanced ten grounds of review as noted above.

39. Overall, Mustafa’s grounds are not proper grounds of review but instead contain a narrative history of his proceedings and bare assertions of error. Mr Mustafa asks the Court to look at the “horrible impact” the Tribunal’s decision will have on his life, which misunderstands the limited role of the Court in conducting judicial review proceedings.

40. Further, to the extent Mr Mustafa makes complaints about the decision made by the Minister’s Department, the Court does not have jurisdiction to review the delegate’s decision.[41]

    [41] section 476(2) and (4) of the Migration Act

    Grounds 1, 2, 3, 6, 7, 8, 9 and 10

41. These grounds make bare assertions of error or otherwise recite the procedural background of the matter and raise no arguable case for the relief claimed.

    Grounds 4 and 5

1. Insofar as these grounds may be understood as contentions that the Tribunal failed to consider Mr Mustafa’s evidence and submissions or otherwise failed to afford him procedural fairness, they are insufficiently particularised so as to be meaningful and would fail on that basis alone.[42] Whilst the Court may exercise patience and leniency in the standard of compliance with the requirement to particularise, a self-represented litigant remains subject to them.[43]

   [42] WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969

   [43] BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5], citing Nobarani v Mariconte (2018) 92 ALJR 1031 at [47]

2. In any event, it is clear from the Tribunal’s reasons that it actively engaged with Mr Mustafa’s evidence and his submissions,[44] and made findings based on that material that were open to it. The weight that the Tribunal gave to the evidence and submissions was a factual matter for the Tribunal.[45] Further, there is no evidence before the Court, nor is it apparent from the Tribunal’s reasons, that the Tribunal did not comply with its procedural fairness obligations.

   [44] CB 181-187, [10]-[25]

   [45] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282

   CONCLUSION

3. I conclude that Mr Mustafa is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Mustafa indicated that he did not oppose a costs order, and indeed, he would pay it.

5. I will order that Mr Mustafa is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       18 May 2021