Noor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 63

FEDERAL CIRCUIT COURT OF AUSTRALIA

Noor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 63

File number(s):

BRG 1108 of 2019

Judgment of:

JUDGE EGAN

Date of judgment:

21 January 2021

Catchwords:

MIGRATION – Application for Student visa – third application made by applicant after the earlier grant of two Student visas – academic history unremarkable – change in focus of study over a seven year period found not to be consistent with a genuine intention to remain only temporarily in Australia – no jurisdictional error established – application for review dismissed.

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl. 500.212

Ministerial Direction No. 69.

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Number of paragraphs:

26

Date of last submission/s:

18 January 2021

Date of hearing:

18 January 2021

Place:

Brisbane

Applicant:

The Applicant appeared in person

Solicitor for the First Respondent:

Mr Freeburn of Clayton Utz

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 1108 of 2019

BETWEEN:

SAQIB NOOR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	21 JANUARY 2021

IT IS ORDERED THAT:

1.The Amended Application filed on 26 August 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental application for review fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

Introduction

1. The applicant is a citizen of Pakistan who arrived in Australia on 4 November 2012.

2. Having already undertaken some study subsequent to his arrival, the applicant made application for a Class TU Subclass 500 Student visa on 29 September 2018. The applicant’s history of study where courses had not been completed by him was as follows:

   “a. a Bachelor of Business,

   b. an Advanced Diploma of Management,

   c. a Diploma of Management,

   d. a Certificate IV in Frontline Management,

   e. a Diploma of Accounting,

   f. a Bachelor of Professional Accounting,

   g. a second Bachelor of Professional Accounting, and

   h. Bachelor of Business.”

3. On 11 January 2019, a delegate to the Minister refused the applicant’s visa application.

4. On 29 November 2019, the applicant appeared at a hearing before the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the delegate on that day.

5. On 24 December 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 28 July 2020, this Court ordered that the applicant file and serve an Amended Application for Review which contained detailed particulars of the ground or grounds of review.

6. On 26 August 2020, the applicant filed an Amended Application for Review, the grounds for which were as follows:

   “Amended Grounds of application

   1.The Second Respondent made an incorrect assessment on the guideline of Direction 69;

   2.The Second Respondent utilise Direction 69 as a checklist in assessing the Applicant’s Genuineness as a Student instead of using it as a guide;

   3.The Second Respondent made incorrect assumption that due to the Applicant having a Sister in Australia, the Applicant will not be a Genuine Temporary Student and will not return to home country which is an error in law as the guideline or regulation does not specify that a person will not be deemed none Genuine Temporary Entrant as they have family members in Australia;

   4.The Second Respondent made incorrect assumption that due to the Applicant’s lack of travel back home, the Applicant will not be a Genuine Temporary Student and will not return to home country which is an error in law as the guideline or regulation does not specify any need to travel to home country for any specific number of days to be deemed a Genuine Temporary Entrant;

   5.The Second Respondent made incorrect assumption that due to the Applicant’s involvement in his University’s Student Council, he has strong ties in Australia and not a Genuine Temporary Student and will not return to home country which is an error in law as the guideline or regulation does not prohibit any student to join any student council or group to be deemed a Genuine Temporary Entrant; and

   6.The Second Respondent failed to consider the request of the Applicant to impose No Further Stay Consider that will prohibit any further visa application which shows the Genuine Intention to complete the studies and return home.”

7. On 4 November 2020, the applicant filed written submissions in support of the grounds of review as set out in the Amended Application for Review. At the hearing of the application before the Court, the applicant indicated that he relied upon his written submissions.

8. The applicant submitted that the Tribunal had been unfair to him, and had misapplied Ministerial Direction No. 69. In particular, the applicant submitted that the Tribunal ought not to have put any weight on the fact that the applicant had a sister living in Australia, or that the applicant was a member of the student council at Torrens University, when weighing up whether or not he had a genuine intention to stay only temporarily in Australia. Part 2 of Ministerial Direction No. 69 provided as follows in relation to the relevant factors which ought to be taken into account by the Tribunal when assessing the genuine temporary entrant criterion:

   “Part 2 of Direction No. 69 – Directions

   Assessing the genuine temporary entrant criterion

   1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

   2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

   3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

   4.Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

   5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

   The applicant’s circumstances

   6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

   7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

   8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

   The applicant’s circumstances in their home country

   9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

   10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

   The applicant’s potential circumstances in Australia

   11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

   Value of the course to the applicant’s future

   12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   The applicant's immigration history

   13.An applicant’s immigration history refers both to their visa and travel history.

   14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

   If the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant

   15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

   Any other relevant matters

   16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.”

   Consideration of the Applicant’s Claims by the Tribunal

9. At [7] of its reasons, the Tribunal correctly identified that the issue before the Tribunal was whether the applicant met the genuine temporary entrant criteria or not.

10. At [8] of its reasons, the Tribunal set out cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which provided as follows:

    “500.212

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)The applicant intends to 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.”

11. At [9] – [10] of its reasons, the Tribunal correctly identified the manner in which the Ministerial Direction No. 69 criteria were to be applied to any given application.

12. At [12] – [13] of its reasons, the Tribunal recorded that it had questioned the applicant about the fact that he had a sister living in Melbourne who was a permanent resident. It was open for the Tribunal to find that the applicant had family and community ties in Australia. The applicant declared that he was a member of the Pakistani community in Australia and that he was a member of the student council at Torrens University.

13. At [14] – [21] inclusive of its reasons, the Tribunal closely analysed the applicant’s academic history. The Tribunal noted that the applicant had initially been granted a student visa, but that though he had been enrolled in a series of courses which would have led to the completion of a Bachelor of Business degree, he had failed to complete such courses, saying that they were too hard. Notwithstanding that lack of achievement, the applicant was granted a second student visa that could have resulted in him completing a Bachelor of Professional Accounting degree. The applicant only partly completed such course, achieving a Certificate IV in the process. At [18] – [19] of its reasons, the Tribunal noted that the applicant had been enrolled with different education providers, and that the applicant had not received credit for earlier study conducted through a different provider. It also noted that the applicant was, contrary to his visa conditions, not enrolled in any course of study between May 2017 and November 2017. The applicant had applied for, but was refused, a deferral of his studies, and his confirmation of enrolment certificate was cancelled. The applicant stated that he was stressed because his mother had been diagnosed with breast cancer, but he conceded that he did not visit a doctor, or otherwise seek medical assistance for such condition. The Tribunal was entitled to find that in the absence of any evidence from a doctor or treating psychologist, the Tribunal was unprepared to find that the fact of the applicant’s mother being ill was a reason for his non-enrolment in any course of study for the substantial period of time between May 2017 and November 2017.

14. At [23] of its reasons, the Tribunal noted that the applicant’s explanation lacked detail. The Tribunal further noted that the applicant had been working for part of the period of his non-enrolment in a course of study.

15. At [24] – [31] inclusive of its reasons, the Tribunal carefully recorded that it had questioned the applicant concerning all aspects of his study, including about the applicant having failed some subjects – he had failed one subject twice – as well as the fact that the applicant had switched his course of study between a Bachelor of Business and a Bachelor of Professional Accounting twice.

16. At [32] – [36] inclusive of its reasons, the Tribunal noted that though the applicant had initially stated that he wished that his course of study would open doors in the corporate and banking sectors, the applicant had changed his plan to that of expanding his parents’ fast food business in Pakistan. When asked why he required a Bachelor of Business to work in his father’s food business, the applicant gave an answer to the effect that it would assist him in acquiring knowledge which would help him to understand different aspects of the business. The Tribunal had noted that the applicant had no written business plan in relation to the expansion of his parents’ business, and that such business had only been running for a three year period.

17. At [37] of its reasons, the Tribunal was entitled to find that because of the number and the nature of the changes to course study and proposed career plans, the applicant had gone beyond the changes contemplated as being acceptable under Ministerial Direction No 69. At [39] of its reasons, the Tribunal noted that the applicant had been in Australia for over a seven year period up until the time of the Tribunal hearing. The Tribunal was entitled to find that had the applicant been committed to completing his studies in Australia he would have done so by the time of the hearing. It was further entitled to find that the applicant’s progress was not that of a genuine student, and that the further application for another student visa was made with the primary objective of maintaining ongoing residency in Australia.

1. At [41] – [45] inclusive, the Tribunal noted that it had questioned the applicant about his ties to Pakistan, and that the applicant had said that not only did his parents have property in Pakistan which he said he would in due course inherent, but also that he had plans to marry his fiancé in Pakistan in July 2020 as arranged by his family. At [46] of its reasons, the Tribunal found that the applicant did not have a strong incentive to return to Pakistan given his community ties in Australia, finding first that the applicant had only twice returned to Pakistan over a seven year period, and secondly that his alleged fiancé had never travelled to Australia to visit him.

2. At [47] – [53] inclusive of its reasons, the Tribunal noted that the applicant claimed that he would earn substantially more money when he returned to Pakistan. The Tribunal further noted that the applicant had claimed that he had never had a visa cancelled or considered for cancellation prior to the hearing.

3. At [55] – [56] inclusive of its reasons, the Tribunal, when stating its dissatisfaction with the applicant’s academic history during his time in Australia, said as follows:

   “[55] … 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. The tribunal has found that the presence of the applicant’s family and property in Pakistan, do not constitute an incentive for the applicant to return to Pakistan. The tribunal has also found that the applicant’s family ties with Australia constitute an incentive to remain in Australia. Taking into account the amount of time the applicant has now spent in Australia on a student and associated bridging visas, and the fact that the applicant has changed the focus of his study and his associated career plans a number of times as well as the fact that the applicant has failed to explain, in any meaningful detail, why he requires a Bachelor of Business in order to work in his father’s fast food restaurant in Pakistan, on balance, the tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

   [56] On the basis of the above, the Tribunal is not satisfied that the applicant intends to genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 500.212(a).”

   Analysis

4. The Court does not find the applicant’s written submissions to be persuasive. As found by the Tribunal, the applicant had spent at least seven years in Australia up until the time of the Tribunal hearing without having significantly advanced his academic course of study. The applicant has remained in Australia since the Tribunal hearing. The Tribunal carefully considered the genuine temporary entrant criteria in the context of the evidence before it, and found against the applicant. It did so in a considered and careful manner.

5. It cannot be said that no other rational or logical decision maker could not have made the decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

6. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

8. The Amended Application for Review is without merit and is dismissed.

9. The Court will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       21 January 2021