Nehal v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1276
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nehal v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1276
File number(s): SYG 494 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 29 November 2024 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (class TU) visa – whether applicant satisfied genuine temporary entrant criterion – no jurisdictional error established – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) s 65, s 476
Migration Regulations 1994 (Cth) cl 500.212(a) of Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 14 November 2024 Place: Parramatta Applicants: In person Solicitor for the Respondents: Mr M Gao of HWL Ebsworth ORDERS
SYG 494 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANUM FATIMA NEHAL
First Applicant
NEHAL DANISH
Second Applicant
SARIM NEHAL
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first and second applicants pay the first respondent’s costs in the amount of $5,600.
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 ZIPSER
INTRODUCTION
On 2 March 2020, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 February 2020. The Tribunal affirmed the decision of a delegate of the first respondent to refuse to grant the applicants a Student (Temporary) (class TU) visa under s 65 of the Act, on the basis that the primary applicant did not satisfy cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
The first applicant (Applicant) is a Pakistani national who first arrived in Australia on 27 August 2014 as the holder of a subclass 485 Student visa (dependant). The Applicant’s husband was the primary visa holder. The second applicant is the Applicant’s husband. The third applicant is a child of that marriage and a minor.
On 9 November 2017, the applicants applied for a Student (Temporary) (class TU) visa with the Applicant as the primary applicant. The Applicant proposed to undertake a Master of Arts (TESOL) in Australia. TESOL is an anacronym for Teaching English to Speakers of Other Languages.
On 25 January 2018, a delegate of the first respondent refused to grant the visa on the basis that the Applicant did not satisfy the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2.
On 12 February 2018, the applicants applied to the Tribunal for review of the delegate’s decision.
On 7 January 2020, the Tribunal invited the applicants to attend a hearing on 29 January 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review.
On 29 January 2020, the Applicant and her husband attended a hearing before the Tribunal.
On 5 February 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants the visas.
TRIBUNAL’S DECISION
The Tribunal considered whether the Applicant “intends genuinely to stay in Australia temporarily” as referred to in cl 500.212(a) of Schedule 2. In considering this matter, the Tribunal had regard to the matters in Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69).
The Tribunal considered the Applicant’s circumstances in her home country and accepted that the Applicant had family and business ties to Pakistan that may have presented as an incentive to return to Pakistan.
The Tribunal considered the Applicant’s potential circumstances in Australia, found that the applicants have a settled and stable life in Australia that presents as an incentive to remain in Australia, and gave this matter considerable weight in considering that the Applicant was not a temporary entrant to Australia.
The Tribunal considered the value of the TESOL course to the Applicant’s future, and found that the value the course had to the Applicant was that it would prolong her stay in Australia and that the applicants were using the student visa program to prolong their stay in Australia.
The Tribunal concluded that it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily, and therefore the Applicant did not satisfy cl 500.212(a).
PROCEEDINGS IN THIS COURT
Application and steps up to hearing
On 2 March 2020, the applicants filed an application for judicial review in this Court (Application) which contained the following grounds (as written):
1.The Applicant was denied procedural fairness due to the Tribunal failing to keep an open mind as to accepting the Applicant’s evidence and as such the Tribunal conducted itself in a manner that displayed actual and/or apprehended bias.
Particulars
a. The Tribunal acted unreasonably and failed to put significant weight on the Applicants ties to their home country.
b. The Tribunal failed to take into the academic progress of the applicant which is entirely relevant to Clause 500.212.
2.The Tribunal made jurisdictional error by creating subjective views about whether further study in Australia was necessary or advantageous to the Applicants future when returning to her home country as a relevant consideration to whether the Applicant intended to stay in Australia temporarily.
3.The Tribunal erred by misapplying Direction Number 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa application.’
Particulars
a. The Tribunal failed to put significant weight on the factors the Direction indicates, specifically failing to take into consideration all other relevant information provided by the Applicant which was beneficial to the Applicant.
Following a period of inactivity, in July 2024 procedural orders were made to prepare the matter for hearing, and on 12 September 2024 the matter was listed for hearing on 1 October 2024. At the request of the applicants, the hearing was adjourned to 14 November 2024.
Applicants’ submissions
At the hearing on 14 November 2024, the Applicant and her husband appeared before the Court unrepresented. Each spoke competent English. An interpreter in the Urdu language was present in case the Applicant or her husband wanted to use an interpreter.
At the commencement of the hearing, the Court ensured that the Applicant and her husband had a copy of relevant documents. The Court explained the limited role of the Court in a judicial review application, and the need for the applicants, if they wanted to win, to persuade the Court that there is a jurisdictional error in the Tribunal’s decision. The Court briefly explained the main established categories of jurisdictional error. The Court then adjourned the hearing for about 10 minutes to allow the Applicant and her husband to consider what submissions they wanted to make.
After the short adjournment, the Applicant and her husband made oral submissions. With reference to paragraphs 15 to 18 of the Tribunal’s decision, they contended that the Tribunal placed insufficient weight on the applicants’ ties to Pakistan and it was not appropriate for the Tribunal, in paragraph 18, to place greater weight on the applicants’ potential circumstances in Australia which the Tribunal considered presented as an incentive for the applicants to remain in Australia. With reference to paragraphs 19 to 24 of the Tribunal’s decision, they contended that their living conditions in Australia were poor in comparison to their potential living conditions in Pakistan, which created an incentive for them to return to Pakistan. With reference to paragraph 28 of the Tribunal’s decision, in which the Tribunal noted that the Applicant was unable to answer where she would look for jobs teaching English, they contended that it was obvious that the Applicant would look for a job in Karachi. With reference to paragraphs 28 and 29 of the Tribunal’s decision, they contended that there was an inconsistency between evidence provided by the Applicant recorded by the Tribunal in paragraph 28 of its decision and a finding by the Tribunal in the last sentence of paragraph 29 of its decision. With reference to paragraphs 30 and 31 of the Tribunal’s decision, they challenged the Tribunal’s finding in the first sentence of paragraph 31 that the Applicant did not provide a satisfactory answer to the question of why it was necessary to study the TESOL course in Australia. With reference to paragraph 36 of the Tribunal’s decision, they stated that the Applicant would have returned to Pakistan more often if she was not pregnant and the Applicant’s husband had returned to Pakistan a few times. These matters indicated the applicants had strong ties to Pakistan.
During the hearing, the Court directed the Applicant and her husband to each ground in the Application. The Applicant and her husband had nothing additional to say about these grounds.
First respondent’s submissions
On 22 September 2020, the first respondent filed a written submission. At the hearing on 14 November 2024, Max Gao from HWL Ebsworth appeared for the first respondent and made oral submissions.
CONSIDERATION
There are differences and similarities between the grounds in the Application and the matters raised by the Applicant and her husband at the hearing on 14 November 2024. The Applicant and her husband impressed the Court as intelligent people who spoke competent English. It appears appropriate to initially address the matters raised by the Applicant and her husband at the hearing on 14 November 2024.
Paragraphs 15 to 18 of Tribunal’s decision: The Tribunal, in paragraphs 15 to 18 of its decision, found, in favour of the applicants, that “the applicant has family and business ties to Pakistan that may present as an incentive to return”. However, the Tribunal continued that it did not “consider them to be a significant incentive when considering them balanced against their potential circumstances in Australia”. In relation to the applicants’ potential circumstances in Australia, the Tribunal found in paragraph 24 of its decision that “the applicant and her family have a settled and stable life in Australia that presents as an incentive to remain” and the Tribunal “gives the applicant’s potential circumstances in Australia considerable weight in considering that the applicant is not a temporary entrant to Australia”. The applicants, in effect, complained that the Tribunal placed greater weight on a factor adverse to the applicants, being the Applicant’s potential circumstances in Australia, than on a factor favourable to the applicants, being the Applicant’s circumstances in her home country. This complaint is reflected in grounds 1(a) and 3 of the Application. However, the weight the Tribunal places on evidence before it, and factors in Direction 69, is a matter for the Tribunal. That the Tribunal chose to place greater weight on one factor in Direction 69 over another factor is not an error by the Tribunal, let alone a jurisdictional error. The Court is not persuaded there is a jurisdictional error in paragraphs 15 to 18 of the Tribunal’s decision.
Paragraphs 20 to 24 of Tribunal’s decision: The Tribunal found in paragraph 22 of its decision that “the family live in a granny flat”. The Applicant and her husband contended at the hearing before the Court that their living conditions in Australia were poor in comparison to their potential living conditions in Pakistan, and this created an incentive for them to return to Pakistan. The argument appeared to be that the Tribunal did not have regard to this matter. However, first, the applicants did not take the Court to any document in the Court Book which indicates that they made this submission to the Tribunal. There can be no obligation on the Tribunal to have regard to a submission never made to the Tribunal. Second, even if the applicants made this submission to the Tribunal, that the Tribunal did not expressly refer to the submission in its statement of reasons does not mean the Tribunal overlooked the matter: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47]. The Court is not persuaded there is a jurisdictional error in paragraphs 20 to 24 of the Tribunal’s decision.
Paragraphs 28 and 29 of Tribunal’s decision: The Tribunal stated in paragraph 28 of its decision:
The applicant told the Tribunal that she would like to open a centre for English teaching however understands that she does not have the experience to do so and so would initially look for jobs teaching English. The Tribunal questioned her as to where she would do this specifically and the applicant was unable to answer in specific terms.
The Tribunal found in paragraph 29 that “whilst there are likely to be numerous opportunities to teach English in Pakistan, the applicant has not in fact genuinely considered and researched what they are and where she might find employment”. The Applicant and her husband contended that there is an inconsistency between this finding and the Applicant’s response recorded in the first sentence of paragraph 28. The Court is not persuaded there is an inconsistency. As recorded by the Tribunal in paragraph 28 of its decision, the Applicant was unable to answer the Tribunal’s question as to where, specifically, she would teach English. As recorded by the Tribunal in paragraph 29, the Tribunal considered as unsatisfactory the Applicant’s explanation “that she was unable to really look for specific jobs as Pakistan is not digitally advanced enough to search online”. In the circumstances, it was open to the Tribunal to find in paragraph 29 that the Applicant “has not in fact genuinely considered and researched what [opportunities to teach English in Pakistan] are and where she might find employment”. The Applicant and her husband also contended that it was obvious that the Applicant would look for a job in Karachi. However, first, it does not appear to the Court that it should have been obvious to the Tribunal, based on the information before the Tribunal, that the Applicant would look for a job in Karachi. Second, it appears from paragraphs 28 and 29 of the Tribunal’s decision that the Tribunal’s question as to where the Applicant would look for a job teaching English was not limited to the city in which she would look for a job. The Court is not persuaded there is a jurisdictional error in paragraphs 28 and 29 of the Tribunal’s decision.
Paragraphs 30 and 31 of Tribunal’s decision: The Tribunal stated in paragraphs 30 and 31 of its decision:
The applicant was asked why it was necessary to study the course in Australia in order to teach English in Pakistan when it was the case that she already had a Bachelor of Education from Pakistan and in addition to this speaks very good English.
The applicant did not provide a satisfactory answer to this question, indicating that the course she is doing is a great course and teaches how to teach English to people in different circumstances. Her answer however, did not adequately explain why it was necessary to have any further qualification beyond those that she already possesses.
The Applicant and her husband challenged the Tribunal’s finding in the first sentence of paragraph 31 that the Applicant did not provide a satisfactory answer to the question of why it was necessary to study the TESOL course in Australia. They told the Court that the Applicant needed to study the TESOL course in Australia to learn the structure of the English language. The Court cannot see any error in the Tribunal’s findings and reasoning process in paragraphs 30 and 31. The Court considers that it was open to the Tribunal to find that the Applicant did not provide a satisfactory answer.
Paragraph 36 of Tribunal’s decision: The Tribunal recorded in paragraph 36 of its decision that the Applicant “has returned twice to Pakistan since her arrival in Australia in 2014”. The Applicant and her husband told the Court, in support of the point that the Applicant has strong ties to Pakistan, that the Applicant would have returned to Pakistan more often if she was not pregnant and the Applicant’s husband had returned to Pakistan a few times. The argument appeared to be that the Tribunal did not have regard to these matters. However, first, the applicants did not take the Court to any document in the Court Book which indicates that they communicated these matters to the Tribunal. There can be no obligation on the Tribunal to have regard to a matter not put before to the Tribunal. Second, even if the applicants put these matters to the Tribunal, that the Tribunal did not expressly refer to the matters in its statement of reasons does not mean the Tribunal overlooked the matters. Among other reasons, the Tribunal did not make any finding adverse to the Applicant based on the number of times the Applicant or her husband returned to Pakistan. The Court is not persuaded there is a jurisdictional error in relation to this matter.
Additional matters in grounds 1 to 3 of Application: The Court has considered each of grounds 1, 2 and 3 in the Application, including the allegation of “actual and/or apprehended bias” in ground 1 about which the applicants made no submissions. The Court is not persuaded that any of the matters in grounds 1, 2 or 3 establish a jurisdictional error, whether based on matters expressly raised, or not raised, by the Applicant and her husband at the hearing on 14 November 2024.
As stated above, the Applicant and her husband impressed the Court as intelligent people who spoke competent English. However, they cannot succeed in a judicial review application in respect of the Tribunal’s decision unless there is a jurisdictional error in the decision. For the above reasons, the Court is not persuaded there is a jurisdictional error.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties agreed that costs should follow the event. The first respondent sought costs in the amount of $5,600. The applicants did not oppose this amount. Since the third applicant is a minor, the costs order should only be against the first and second applicants. The Court will make an order accordingly.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 29 November 2024
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