NAHAR v Minister for Immigration

[2018] FCCA 2101

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAHAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2101

Catchwords:
MIGRATION – Student visa – application for judicial review of Tribunal’s decision to affirm delegate’s decision to refuse to grant visa – ground of application that Tribunal erred as a matter of law – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 360, 476, 499

Migration Regulations 1994 (Cth), Sch 2 cl 572.223

Cases cited:

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94
Ghimire v Minister for Immigration and Border Protection [2014] FCA 899

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Border Protection v Guder [2018] FCA 626
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Applicant: NURUN NAHAR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2410 of 2015

Judgment of: Judge A Kelly

Hearing date: 5 April 2017

Date of Last Submission: 5 April 2017

Delivered at: Melbourne

Delivered on: 15 August 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed at $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2410 OF 2015

NURUN NAHAR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 27 October 2015, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 October 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant who is a Bangladeshi national aged 49 years first arrived in Australia in February 2008 on a student visa.  Upon its expiry, she was granted a further student visa and a Subclass 485 (Temporary Graduate) visa. On 3 September 2014, the applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa.

2. On 22 October 2014, the delegate refused the visa application. The delegate found that the applicant did not meet the criteria for the grant of a student visa as she did not meet the requirements of cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).

3. On 3 November 2014, the applicant lodged, with the assistance of a registered migration agent, an application for review of the delegate’s decision.  On 16 June 2015, the applicant was invited to appear at a hearing before the Tribunal on 16 July 2015 to give evidence and present arguments relating to the issues in her case. The applicant appeared on that date and was represented by her migration agent.

4. On 14 October 2015, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application (Reasons).

Tribunal decision

1. The Tribunal was not satisfied that the applicant met the criterion prescribed by cl 572.223(1)(a) of Sch 2 to the Regulations; namely, that the applicant was a genuine applicant for entry and stay as a student who intended genuinely to stay in Australia temporarily. In reaching that conclusion, the Tribunal had regard to the matters addressed by Direction No 53 Assessing the genuine temporary entrant criterion for student visa applications made under s 499 of the Act. The Tribunal correctly identified that the factors addressed by that Direction should not be employed as a checklist but instead used as a guide to evaluate the applicant’s circumstances as a whole: Ghimire v Minister for Immigration and Border Protection [2014] FCA 899, [3] (Gilmour J).

2. The Tribunal noted that the applicant had undertaken a diploma of community welfare work and a diploma of community services work in the period 2008 – 2013 and that she had been on an 18-month 485 visa which had been granted for her nominated occupation as a welfare worker. The Tribunal noted the further diploma courses which the applicant expressed a desire to undertake and considered the applicant had provided no coherent answer to why she had changed her various courses of study.  The Tribunal also noted the study gaps which had been identified by the delegate in addressing the application and noted that it had put to the applicant the grave reservations held about the applicant’s study history, her immigration history, the value of the proposed study for her future and why she had not pursued similar courses of study in Bangladesh.

3. The Tribunal concluded the applicant did not have any clear future plans which would provide her with an academic progression by which she could fulfil her stated future career goals.  The Tribunal concluded that the applicant was engaged in ad hoc inexpensive courses of study for the purposes of maintaining residence in Australia. For those reasons, the Tribunal was not satisfied the applicant intended genuinely to stay in Australia temporarily. Not being satisfied that the applicant fulfilled the criteria prescribed by cl 572.223(1)(a), the Tribunal affirmed the delegate’s decision to refuse the application.

Procedural history

1. On 27 October 2015, the applicant filed an application for judicial review of the decision made by the Tribunal on 14 October 2015.

2. By a Response filed on 2 November 2015, the Minister contended that the decision under review was not affected by jurisdictional error and sought that the application be dismissed.

3. The matter was listed for Directions Hearing on 30 March 2016.  On that day, orders were made, by consent, regulating the filing by the applicant of any amended application with proper particulars of the grounds of application, any supplementary Court Book and written submissions. The applicant did not take the opportunities provided by those orders to file any further material.

Ground of review

1. The sole ground of review in the application reads:

   The Tribunal affirmed the delegate’s decision. I have provided evidence to support the claim that I am a genuine student visa entrant and that I have completed with the requirements of my student visa. The AAT erred in not giving consideration to the evidence provided by the Applicant.  Accordingly the Tribunal has erred as a matter of law.

Consideration

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).

2. As the applicant was self-represented, I have re-examined the Reasons and the materials comprised in the Court Book.  Before me, the applicant was content to proceed without an interpreter.  The applicant did not have a copy of the application at the time of the hearing and was provided a copy by the solicitor for the Minister. 

3. By s 360 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As the purpose of s 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the applicant with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [60]-[61], (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [39], [42]-[45] (Griffiths J). In the latter case, Griffiths J observed that jurisdictional error may be demonstrated where an applicant has been denied a real and meaningful opportunity to present evidence and arguments in relation to the decision under review.

4. The applicant’s complaint might also be seen as a failure to give proper, genuine and realistic consideration to the issues arising or to material that is before it.  As to this, there is no doubt that the Tribunal must engage actively with those issues and such material as is presented: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [57]-[59] (Stone, Foster and Nicholas JJ). However, the authorities emphasise the need for caution in determining whether proper, genuine or realistic consideration was given: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [33]-[38] (Perram, Perry and O’Callaghan JJ).

5. It was a matter for the Tribunal to decide what weight should be given to the various factors that were in issue upon the merits review of the application: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 41 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ).

6. I consider that the applicant was afforded a real and meaningful opportunity to present evidence and arguments to the Tribunal and that she did so.  She was represented by her migration agent in the conduct of a merits review of the delegate’s decision.  The applicant’s affidavit merely exhibited the statement of reasons for the decision and adduced no evidence from which consideration could be given as to whether the applicant had any grievances as to the manner in which the Tribunal hearing had been conducted.

7. The delegate’s reasons put the applicant on notice of the issues that were likely to arise on the hearing before the Tribunal and on this account the applicant had no valid complaint of a want of procedural fairness. 

8. From my examination of the Reasons, I do not consider that the Tribunal failed to properly consider either the material that was before it or the issues arising on the decision under review. Having regard to the materials comprised in the Court Book and to the Reasons, I consider that there is no reason to conclude that the material or issues were not properly considered. The Tribunal had regard to Direction No 53 and summarised the factors which were relevant to its decision. In those respects the Tribunal observed its obligations under s 499(2A).

9. From the matters submitted before me, the gravamen of the applicant’s complaint was that she disagreed with the Tribunal’s decision and sought a further review of the merits of her application.  Mere preference for a different result is not a sufficient ground upon which to obtain relief by way of judicial review of an administrative decision: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [23] (per curiam).  Nor is it the task of this court to embark upon a further merits review of the matters the subject of the decision under review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

10. The Tribunal also considered whether the applicant was eligible for any other class of student visa and concluded that she was not.  It so concluded by reason that the applicant was not enrolled in any course of study and had no support from either the Minister for Foreign Affairs or the Minister for Defence. I also see no error in the decision of the Tribunal upon its consideration of an alternative visa.

11. In the course of the hearing, the applicant confirmed that she had in fact completed her course of study.  In those circumstances, had error been shown in the decision of the Tribunal a real question may have arisen whether there was any utility in the grant of relief.

12. In my view the Tribunal’s decision was fairly open.  Jurisdictional error not being demonstrated in relation to the Tribunal’s decision, the application for judicial review must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 15 August 2018