Rao v Minister for Immigration

[2018] FCCA 2258

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAO & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2258

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Class TU) (Subclass 573) visas to the applicants – Administrative Appeals Tribunal was not satisfied that the main primary applicant was a genuine applicant for entry and stay temporarily as a student but rather used the Student visa program as a means of maintaining residence in Australia – no jurisdictional error identified by the applicants – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.478, 479, 486C
Migration Regulations 1994 (Cth)

First Applicant: NAVEED QAYYUM RAO

Second Applicant: FAIZA NAVEED RAO

Third Applicant: KHADLIJAH NAVEED RAO

Fourth Applicant: KHANSA NAVEED RAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1482 of 2016

Judgment of: Judge Dowdy

Hearing date: 19 September 2017

Delivered at: Sydney

Delivered on: 20 August 2018

REPRESENTATION

The First Applicant appeared at the hearing on behalf of himself and the Second to Fourth Applicants.

Counsel for the First Respondent: Ms G. Doyle

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 10 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1482 of 2016

NAVEED QAYYUM RAO

First Applicant

FAIZA NAVEED RAO

Second Applicant

KHADLIJAH NAVEED RAO

Third Applicant

KHANSA NAVEED RAO

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The First Applicant is a male citizen of Pakistan aged 39 years, having been born on 20 November 1978, and has been appointed the Litigation Guardian of the Third and Fourth Applicants.

2. The Second Applicant is a female citizen of Pakistan aged 34 years, having been born on 28 November 1983, and is the wife of the First Applicant.

3. The Third Applicant and Fourth Applicant are citizens of Pakistan aged respectively 6 years and 4 years, having been born respectively on 12 April 2012 and 28 August 2013, and are the children of the First Applicant and Second Applicant.

4. By Application filed in this Court on 10 June 2016 the Applicants seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 18 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 3 August 2015 refusing to grant to them Student (Temporary) (Class TU) (Subclass 573) visas (Student visa(s)).

5. I note that an order was made by consent on 8 July 2016 that the child of the First and Second Applicants born on 25 October 2016, namely Miss Zainob Naveed Rao, be joined to this proceeding as Fifth Applicant. However at the hearing Ms Doyle who appeared for the Minister, pointed out that Miss Rao had necessarily not been a party to the Tribunal decision and so should not have been joined to the present proceeding. I agree that by the combined effect of ss.478(a), 479 and 486C of the Migration Act 1958 (Cth) Miss Rao should not have been joined to the present proceeding and hence she does not appear as a named party to these Reasons for Judgment.

6. The First Applicant was granted an initial Student (Temporary) (Class TU) (Subclass 572) visa offshore on 4 April 2009 which was valid until 30 August 2010 and subsequently arrived in Australia on 3 July 2009. Since that time he has held either a Student visa or an associated Bridging visa and has been enrolled in courses in the fields of English language, Business Management, Business Administration and Marketing and Accounting.

7. The First Applicant applied for the Student visa on 23 April 2015 with the Second Applicant, Third Applicant and Fourth Applicant joined as members of his family unit. The success of the Second to Fourth Applicants was dependent upon the First Applicant being granted the Student visa.    

Statutory Requirements for the Grant of a Student Visa

1. Relevant to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.573.223 of the Migration Regulations 1994 (Cth) (Regulations) which required, inter alia, that he be what is known as a “genuine applicant for entry and stay as a student”. Subclause 573.223 at the time of decision provided as follows:

   573.223

   (1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:  

   (a)   the Minister is satisfied that the applicant intends 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;…

Decision of Delegate

1. By his Decision Record of 3 August 2015 the Delegate refused to grant to the First Applicant a Student visa because he was not satisfied that the First Applicant was a genuine applicant for entry and stay as a student. The Delegate noted that the First Applicant was currently enrolled in a package of courses which would extend his stay in Australia on a Student based visa to more than eight years and that he had only completed eight courses of the 18 courses in which he had been enrolled in the last six years.

2. For these and other reasons stated in his Decision Record the Delegate found that the First Applicant was using the Student visa program to circumvent permanent migration programs and he refused to grant a Student visa to the First Applicant. This necessarily meant that the Second to Fourth Applicants, as dependant applicants, could not satisfy cl.573.322(b) and so they also were refused Student visas by the Delegate.

Tribunal Decision

1. The Applicants applied for merits review of the decision of the Delegate on 10 August 2015 and appeared before the Tribunal on 19 April 2016 to give evidence and present arguments, together with their registered migration agent.  

2. In the result the Tribunal affirmed the decision of the Delegate not to grant a Student visa to the First Applicant because it was not satisfied that he intended genuinely to stay in Australia temporarily and accordingly he did not meet cl.572.223(1)(a).

3. At [13] of its Decision Record the Tribunal summarised the contents of the pre-hearing submission dated 12 April 2016 received by the Tribunal from the Applicant’s solicitor and registered migration agent.

4. At [15] – [26] of its Decision Record the Tribunal recorded the evidence and discussion concerning that evidence at the Tribunal hearing, including the fact that on 4 April 2013 the First Applicant had applied for a Subclass 457 visa as a customer service manager.

5. At [27] – [28] the Tribunal considered the post hearing submission dated 2 May 2016 received by the Tribunal from the Applicants’ solicitor and registered migration agent.

6. At [29] – [37] the Tribunal set out its findings and reasons for those findings.

7. At [30] the Tribunal accepted that the First Applicant came from a large family in Pakistan and that he had substantial financial resources in Pakistan consisting of property, a petrol station business and cash. It therefore accepted that these circumstances would act as incentives for him to return to Pakistan on completion of his studies in Australia, even though his wife and children were in Australia with him, and these financial assets in Pakistan were potentially convertible if he should wish to remain in Australia after completing his studies. However, against this the Tribunal at [31] was not satisfied that the First Applicant had made satisfactory or reasonable academic progress in Australia and that the courses he had successfully completed were all at the Vocational level and generally of brief duration, with the longest being for 11 months.

8. At [32] the Tribunal accepted that there may have been factors which played some part in the First Applicants failure to make reasonable progress in his academic career because his wife had two pregnancies and both children were born prematurely and one of his children had health problems which had necessitated a number of visits to medical centres and hospitals. Nevertheless at [33] the Tribunal, whilst accepting that these medical issues were unwelcome and distracting, found that it was not satisfied that they were particularly unusual circumstances in the normal course of daily life or that they plausibly accounted for his lack of academic achievement over a period of nearly seven years. The Tribunal further recorded that it was not satisfied that the First Applicant had achieved reasonable academic progress since 2009 and that his academic record did not support a conclusion that he intended genuinely to remain in Australia temporarily as a student but that his poor academic history supported the view that he had used the Student visa program as a means of maintaining residence in Australia.

9. The failure of the review application of the First Applicant necessarily meant that the review applications of the Second to Fourth Applicants also failed.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Application filed in this Court were as follows:

   1. The Tribunal had sufficient evidence concerning compelling circumstances yet failed to accord fairness knowing that our circumstances were beyond control as it appears in point 32 of the decision.

   2. The decision not to grant student visa is contrary to natural justice and the Member failed to accept that I intend genuinely to stay in Australia temporarily.

   3. I reserve my right to obtain copy of the file and provide transcript to demonstrate that the decision of the Tribunal is contrary to the evidence before it.

Consideration of Grounds

Ground 1

1. This Ground appears to invoke a merits review of the decision of the Tribunal which is not available in this Court.

2. Further, [32] of the Decision Record of the Tribunal summarised the difficulties and factors which had been submitted to it to explain the First Applicant’s relative academic failure. Nevertheless, the simple fact of the matter is that the Tribunal at [33] recorded that it did not find that these alleged difficulties and factors causally accounted for his lack of academic achievement over a period of seven years. The reasoning of the Tribunal in this regard was legally open to it and this Ground fails to establish that the decision of the Tribunal was affected by jurisdictional error.

Ground 2

1. Ground 2 fails to particularise or identify any breach of the rules of natural justice and merely argues with the Tribunal’s finding that the First Applicant did not intend to genuinely to stay in Australia temporarily, without alleging any identifiable jurisdictional error in coming to that conclusion.

2. Accordingly, Ground 2 fails to establish that the Tribunal is affected by jurisdictional error.

Ground 3

1. This Ground does not allege any form of jurisdictional error. In fact, at the hearing in this Court the Applicant did tender a transcript of the Tribunal hearing but never referred me thereafter to any portion of it. This Ground also fails to establish that the decision of the Tribunal is affected by jurisdictional error.

A Further Note - At the Hearing in this Court

1. At the hearing the First Applicant was anxious to tender three documents, all of which post-dated the decision of the Tribunal and which I indicated to him were irrelevant in a legal sense to the present proceeding. Nevertheless, in the result I allowed him to tender the documents and I simply record that two of them confirmed that he had completed a degree of Bachelor of Business (Business Management) at Elite Education Institute on 25 July 2017.

A Final Note

1. By email dated 6 February 2018 the First Applicant forwarded documents to the Registry of this Court. By email of 13 February 2018 the First Applicant was advised that the final hearing of the matter had concluded and that this Court would not receive into evidence or examine any other documents apart from those already in evidence and that the documents attached to the email 6 February 2018 had been placed in a sealed envelope.

Conclusion

1. The Applicants have not established that the decision of the Tribunal is affected by any kind of jurisdictional error. The Tribunal’s finding that it was not satisfied that the First Applicant genuinely intended to stay in Australia temporarily was legally open to it and does not appear to have been “capricious” or “arbitrary” or “without an intelligible justification”. Accordingly, the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 20 August 2018