Oad v Minister for Immigration

[2020] FCCA 1129

FEDERAL CIRCUIT COURT OF AUSTRALIA

OAD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1129

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 decision was properly based upon the evidence considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359AA

Cases cited:

Jan v Minister for Home Affairs [2019] FCA 1837

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v SZMDS (2010) 240 CLR 611

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

SZDXZ v Minister for Immigration [2008] FCAFC 109

Tran v Minister for Immigration [2004] FCAFC 297

Applicant: AKASH CHANDER OAD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2585 of 2019

Judgment of: Judge Driver

Hearing date: 11 May 2020

Delivered at: Sydney

Delivered on: 11 May 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr X Goffinet of Sparke Helmore by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2585 of 2019

AKASH CHANDER OAD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Oad, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 17 September 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Oad a temporary student visa.

2. Background facts relating to Mr Oad’s visa application and the decision of the Tribunal on it are conveniently set out in the Minister’s submissions filed on 27 April 2020.  There is a typographical error at [12] of the Tribunal’s decision, which is repeated in the Minister’s submissions.  I see no legal significance in that typographical error. 

3. Mr Oad, a citizen of Pakistan, first arrived in Australia as the holder of a student (Class TU) (subclass 573) visa on 4 November 2012.[1] On 13 May 2016, he applied for the visa.[2]  On 21 July 2016, the delegate refused the grant of the visa on the basis that he was not satisfied that Mr Oad was a genuine temporary entrant, pursuant to Migration Regulations 1994 (Cth) (Regulations) Schedule 2, clause 573.233.[3]

   [1] Court Book (CB) 96

   [2] CB 1

   [3] CB 94

4. On 9 August 2018, Mr Oad sought review by the Tribunal of the delegate’s decision.[4]  After Mr Oad failed to attend the hearing to which he was invited, the Tribunal affirmed the decision of the delegate on 13 July 2017.[5] That decision was quashed by this Court on 24 April 2018 and remitted to the Tribunal for redetermination of the review according to law.[6]

   [4] CB 103

   [5] CB 131

   [6] CB 135

5. Mr Oad attended a hearing before the Tribunal (differently-constituted) on 11 September 2019.[7] On 17 September 2019, the Tribunal affirmed the decision under review.[8]

   [7] CB 153

   [8] CB 161

Tribunal decision

1. The Tribunal outlined the background of the application and Mr Oad’s study history.[9] The Tribunal listed (in bullet-point form) 22 courses in which Mr Oad had been enrolled in since his arrival in Australia where PRISMS[10] records had indicated that the enrolment had subsequently been cancelled. The Tribunal recorded that only three courses were listed as “finished” on the PRISMS records at the time of the delegate’s decision; a General English course in 2012-13, and two Diplomas of Business in 2014.[11]  Mr Oad gave evidence that the only course he had actually studied was the General English Course.[12]

   [9] CB 162-3, [1]-[13]

   [10] Provider Registration and International Student Management System

   [11] CB 163, [10]-[11]

   [12] CB 168, [39]

2. The Tribunal observed that at the time of the visa application in May 2016, Mr Oad was enrolled in a Diploma of Leadership and Management and a Bachelor of Business, which commenced on 16 May 2016 and were due for completion on 5 June 2020.[13] The Tribunal provided Mr Oad with the results of a recent PRISMS search which indicated that he was currently enrolled in an Advanced Diploma of Leadership and Management Course, which was to run from April 2019 to April 2020.[14]

   [13] CB 162, [8]

   [14] CB 163, [13]

3. The Tribunal put certain information to Mr Oad pursuant to s.359AA of the Migration Act 1958 (Cth) (Migration Act):

   a)first, that PRISMS records indicated that his enrolment in the Diploma of Leadership and Management was cancelled later in 2016;

   b)secondly, that PRISMS records indicated that his enrolment in the Bachelor of Business were cancelled later in 2016;

   c)thirdly, that the Diploma of Information Technology Networking he had subsequently enrolled in was cancelled in 2017 due to unsatisfactory attendance; and

   d)fourthly, that there was no indication on the PRISMS records that he was enrolled in any course of study until April 2019 (the beginning of the Advanced Diploma of Leadership and Management Course), which was a gap of some 23 months.

4. Mr Oad did not wish to respond to the information put to him pursuant to s.359AA of the Migration Act and did not request any further time.[15]

   [15] CB 164-5, [18]

5. The Tribunal identified that the issue before it was Mr Oad’s satisfaction of clause 573.223 of the Regulations. This required the Tribunal to be satisfied that Mr Oad was a genuine applicant for entry and stay as a student.[16] The Tribunal correctly identified that it was required to have regard to the factors specified by Direction No 53.[17]

   [16] CB 165, [20]

   [17] CB 165, [21]

6. Mr Oad told the Tribunal that the only reason he had enrolled in his current course was because other people had told him he needed to be enrolled in a course to maintain his eligibility for the visa. The Tribunal concluded from this comment that Mr Oad was not genuinely motivated to improve his skills and knowledge but instead had enrolled to maintain residency.[18] Mr Oad gave evidence that he had done no research as to whether he could undertake the course in his home country. The Tribunal was therefore not persuaded he had provided convincing reasons for not investigating study options in his home country.[19]

   [18] CB 165-6, [23]-[24]

   [19] CB 166, [26]

7. The Tribunal afforded limited weight to Mr Oad’s stated reasons for wanting to study in Australia, in circumstances where he had chosen not to complete the courses in which he had enrolled at the time the application as lodged, despite being able to do so.[20] The Tribunal accepted that Mr Oad’s family ties provided an incentive for him to return to his home country at some time in the future, but was less convinced by his claim that an employment opportunity and a property in Pakistan owned by Mr Oad’s grandfather operated as a significant economic factor incentivising his return home.[21]

   [20] CB 166, [27]

   [21] CB 166-7, [29], [30]

8. The Tribunal concluded that Mr Oad’s income in Australia, when compared to his income in Pakistan, presented an incentive for him not to return to Pakistan.[22]

   [22] CB 167, [31]

9. The Tribunal formed the view that Mr Oad was using the student visa programme to circumvent the purpose of that programme by maintaining ongoing residence, given that he had completed no courses other than a brief introductory English course despite living in the country for seven years.[23] The Tribunal considered Mr Oad’s evidence that he chose to not enrol in a course because his bridging visa did not require him to and concluded that he had sought to maintain his residency for reasons other than progressing academically.[24]

   [23] CB 168, [36]

   [24] CB 168, [38], CB 169, [44]

10. The Tribunal considered medical evidence provided by Mr Oad in an attempt to explain components of the overall period in which he had not been enrolled in a course.[25] As to the period between 2013 and 2015, the content of the medical evidence led to it not being accorded significant weight.[26]  However, the Tribunal accepted he may have been impacted by depression between 2015 and early 2016.[27] The Tribunal did not accept Mr Oad’s reasons for seeking medical treatment in Pakistan rather than Australia but nonetheless accepted that this travel was disruptive of his studies.[28] The Tribunal did not accept that Mr Oad’s mental health conditions contributed to his failure to complete the courses in which he was enrolled when he applied for the visa in May 2016.[29]

    [25] CB 168-9, [40]-[42]

    [26] CB 169, [41]

    [27] CB 169, [41]

    [28] CB 169, [42], [44]

    [29] CB 169, [43]

11. The Tribunal was not convinced that any of the courses in which Mr Oad was currently enrolled or had enrolled in the past had a clear value to his future.[30]  In this regard the Tribunal noted that Mr Oad had made no claim that his studies were relevant to his employment in Australia and did not accept his claim that his study would assist him with employment upon return to Pakistan.[31]

    [30] CB 169, [45]

    [31] CB 170, [46]

12. The Tribunal was not persuaded that Mr Oad’s potential remuneration from his current courses of study was a relevant factor in circumstances where it was not satisfied the evidence supported his claim that he will progress academically in the courses in which he had enrolled or proposed to enrol in the future.[32] The Tribunal held major concerns in relation to the amount of time Mr Oad had spent in Australia, the extent to which he had enrolled and then not undertaken study in a series of short, inexpensive courses, and the amount of time he had been onshore without successfully completing a qualification.[33]

    [32] CB 170, [47]

    [33] CB 170, [49]

13. After weighing up the above findings the Tribunal was ultimately not satisfied that Mr Oad intended genuinely to stay in Australia temporarily.[34] The Tribunal concluded that Mr Oad did not meet clause 573.223(1)(a).[35]

    [34] CB 171, [51]-[52]

    [35] CB 171, [52]

The present proceedings

1. These proceedings began with a show cause application filed on 8 October 2019.  Mr Oad continues to rely upon that application.  There are four grounds in it:

   1.The Tribunal Member failed to grant me the student visa and failed to act upon the evidence provided.

   2.The Tribunal had no basis to make a decision that I do not have strong incentive to return to Pakistan.

   3.The Tribunal failed to consider compelling circumstances based on the evidence provided by doctors.

   4.The Tribunal’s decision does not sound reasonable based on the evidence presented as I continue to believe that I satisfy the criteria that I am a genuine student.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 28 November 2019.  An affidavit by the Minister’s solicitor made on 8 May 2020 was not read.

3. In today’s hearing, I invited Mr Oad to tell me what was wrong with the Tribunal’s decision.  He told me that he had looked at the decision of the Tribunal carefully, but could not identify any legal error.  He agreed with the proposition by me that his academic record presented a serious problem before the Tribunal.  Mr Oad sought to explain his poor academic performance by reference to his family difficulties in Pakistan.

4. At [40] of its decision,[36] the Tribunal acknowledged that Mr Oad’s capacity to study was compromised between 2013 and late 2015.  However, as I pointed out to Mr Oad, the Tribunal was dealing with a significantly longer period of time.  Mr Oad agreed with that.  I gave Mr Oad the opportunity to make submissions in reply after hearing from the Minister’s solicitor.  He had nothing further to say.

   [36] CB 168

5. In my view, there is no argument available to Mr Oad of any jurisdictional error by the Tribunal.  The Minister’s submissions deal adequately with the grounds advanced by Mr Oad. 

6. Ground 1 is meaningless in the absence of further particulars. Mr Oad has not specified what evidence the Tribunal is alleged to have failed to “act” upon. The Tribunal plainly had regard to the documentary evidence provided by Mr Oad, as well as his evidence given at the hearing.[37] In any event, the mere fact that a Tribunal did not refer to a piece of evidence does not necessarily mean it was not considered. It is for Mr Oad to demonstrate otherwise.[38] Ground 1 does not disclose an arguable case for the relief claimed.

   [37] CB 162, [9]; 170-171, [50]

   [38]SZDXZ v Minister for Immigration [2008] FCAFC 109 at [25]

7. In relation to Ground 2, and contrary to Mr Oad’s assertion, the Tribunal gave sound reasons for its conclusions as Mr Oad’s incentive to return to Pakistan which were open to it.[39] Further, the Tribunal did in fact find that there were some factors which provided Mr Oad with an incentive to return to Pakistan.[40]  Insofar as Ground 2 may be read as an attack on the Tribunal’s findings in relation to Mr Oad’s participation in a family business in Pakistan, and his interest in a family property in Pakistan, those findings are clearly expressed by reference to the evidence provided by him.[41]  It is therefore inaccurate to say that there was “no basis” for those findings. It is for the Tribunal to decide the weight to be attributed to evidence, and the weight to be attributed to the mandatory considerations under a Direction.[42] Ground 2 does not disclose an arguable case for the relief claimed.

   [39] CB 166-167, [28]-[33]

   [40] CB 167, [28]

   [41] CB 166-7, [29]-[30]

   [42] Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7]; Jan v Minister for Home Affairs [2019] FCA 1837 at [27].

8. Ground 3 is similarly contradicted by the Tribunal’s decision record. The Tribunal engaged in a detailed consideration of the medical evidence provided by Mr Oad.[43] There was no requirement within the Regulations for the Tribunal to consider whether “compelling circumstances” existed. In that context, the contention that the Tribunal failed to consider that factor is incapable of revealing a jurisdictional error.[44] The Tribunal properly considered the medical evidence in the context of whether it provided a reasonable explanation for Mr Oad’s failure to complete anything other than a short introductory English course since arriving in Australia seven years ago.[45] Ground 3 is in substance an impermissible attempt to reagitate the merits of the Tribunal’s decision and does not disclose an arguable case for the relief sought.[46]

   [43] CB 162-3, [9]; 167, [35]; 169, [41]-[43]

   [44] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40

   [45] CB 168-9, [40]-[43]

   [46]Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 281-2

9. The contention in Ground 4 that the Tribunal’s decision is unreasonable is made by reference to Mr Oad’s belief that he is a genuine student. Such a contention is not capable of establishing that the Tribunal’s exercise of its discretion was legally unreasonable. The Tribunal’s decision engages in a detailed consideration of Mr Oad’s circumstances. Its decision is one which a rational or logical decision maker could arrive at on the same evidence.[47] The allegation of unreasonableness in Ground 4 is simply an emphatic expression of disagreement with the Tribunal’s findings,[48] and does not disclose an arguable case for the relief sought.

   [47]Minister for Immigration v SZMDS (2010) 240 CLR 611, 648 at [130]-[131]

   [48]Minister for Immigration v Eshetu (1999) 197 CLR 611, 626 at [40]

10. I find that there is no argument available of any jurisdictional error by the Tribunal. I will, therefore, dismiss the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  Mr Oad did not oppose a costs order, but indicated that he may require time to pay.  I will not require payment by any particular time.

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date:  12 May 2020