Rashid v Minister for Immigration
[2017] FCCA 363
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RASHID v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 363 |
| Catchwords: MIGRATION – Judicial review application – student visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 |
| Cases cited: Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 |
| Applicant: | AAMIR RASHID |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 120 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 1 March 2017 |
| Date of Last Submission: | 1 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 9 March 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 120 of 2016
| AAMIR RASHID |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Aamir Rashid (“Mr Rashid”) has made an application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse Mr Rashid a Student (Temporary) (Class TU) visa (“Student Visa”).
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)Mr Rashid arrived in Australia as the holder of a temporary student visa on 2 August 2011 (“Initial Student Visa”): Court Book (“CB”) 64;
b)on 12 February 2015, Mr Rashid lodged an application for a further temporary student visa (“Student Visa”): CB 1-7;
c)on 6 March 2015, the Delegate’s Decision was to refuse to grant the Student Visa on the basis that the Delegate was not satisfied Mr Rashid genuinely intended to stay in Australia temporarily, and therefore did not satisfy cl.572.223(1)(a) of Sch.2 of the Migration Regulations 1994 (Cth) (“MigrationRegulations”): CB 61-66;
d)on 13 March 2015, Mr Rashid applied to the Migration Review Tribunal, as it then was, for review of the Delegate’s Decision: CB 67-68. A copy of the Delegate’s Decision was submitted in support of that application: CB 68;
e)on 16 February 2016, Mr Rashid appeared before the AAT (together with his migration agent) to give evidence and present arguments: CB 145; and
f)on 24 February 2016, the AAT Decision affirmed the Delegate’s Decision not to grant Mr Rashid the Student Visa because he did not meet the criterion in cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 152.
AAT Decision
In the AAT Decision the AAT:
a)in reaching a decision with respect to cl.573.223(1)(a) of Sch.2 to the Migration Regulations, had regard to the relevant Ministerial Direction, being Ministerial Direction No 53 (“Direction No 53”), which sets out a number of “factors,” relevant to cl.573.223(1)(a)(i)-(iv) of Sch.2 to the Migration Regulations, which the AAT “must” have regard to, and which the AAT expressly stated that it was required to have regard to: CB 154 at [12];
b)considered each relevant factor in Direction No 53 in turn: CB 154-155 at [12]-[14] and CB 158 at [43]; and
c)considered all of the evidence before it, and was not satisfied that Mr Rashid intended to genuinely stay in Australia temporarily: CB 158 at [43].
In reaching the finding that it was not satisfied that Mr Rashid intended to genuinely stay in Australia temporarily the AAT found that:
a)the proposed courses to be undertaken by Mr Rashid would have marginal value to his future employment and career prospects: CB 157 at [33], and that he was more than academically prepared with the qualifications he had already obtained both in Pakistan and Australia to enter an existing car dealership business in Pakistan which his father had had for 30 years, which he claimed he wished to enter: CB 157 at [34].
b)the ownership of assets in Pakistan was not an active incentive for Mr Rashid to cease residence in Australia: CB 157 at [35];
c)the economic growth in Pakistan and peaceful and conducive living and business environment in Rawalpindi were not materially probative of Mr Rashid’s intentions: CB 157 at [36];
d)it should place no weight on the contentions that Mr Rashid’s prospect of finding a marriage partner was greatly improved in Pakistan or that his parents had such a partner in mind: CB 157 at [37]; and
e)Mr Rashid wished to remain in Australia for reasons other than to complete a further marketing qualification: CB 158 at [40].
Judicial Review Application
Grounds
The Judicial Review Application sets out what are purported to be grounds of application as follows:
1. I applied for Student(temporary)(Class TU) visa on 12 Feb 2015.
2. On 6th March 2015 the application for student visa was refused by Delegate of Minister of Immigration and Border Protection
3. Based on my enrolment I was assessed as per requirement of Subclass 572 of student visa.
4. The application was refused as delegate found that I don’t meet Cl 572.223( I )(a) of schedule 2 of regulation.
5. Subsequently applied for Review of decision with Migration & Refugee division of Administrative Appeals Tribunal.
6. On 16th Feb 2016 I appeared before tribunal to give my arguments in relation to review of my case.
7. On 24th Feb 2016 my review application was affirmed by Administrative Appeal tribunal.
8. The reason for decision was as I was found unable to meet Genuine Temporary Entrant criteria as prescribed under Direction 53
9. I belong to a business family and we have our 30 years old car dealership business which is currently run by my father.
10. I always Intended to work in my family business but when I came Australia I realised that family business can’t cater to all my siblings. So therefore I decided to take different approach towards my career.
11. I discussed it with my father and he advised me that its my own decision to change my course but he prefers me to do Marketing/business studies.
12. Therefore I changed my course to Diploma of Hospitality (commercial Cookery) which can cater well to my career needs.
13. I started my Certificate III in Hospitality in 2012 and finished in Nov 2012. Then applied for further student visa it was successfully granted to me and was valid till march 2015.
14. In 2013 my family situation changed and my brother who was supposed to take care of our family business decided to go in different career direction and I decided to complete my business Studies.
15. I decided to do Diploma of business instead of diploma of hospitality ads it was a more generic qualification and would enable me to have career options in different fields Instead of diploma of hospitality which might have opened doors to hospitality Industry only.
16. My student visa application was refused as I was changing courses and delegate found that I am not a genuine applicant for purpose of student visa. I would like to bring to attention of court that I am a genuine student and delegate has not considered my situation in accordance with policy correctly therefore I request Honourable court to review my decision.
(Transcribed from original without amendment).
Notwithstanding the orders made by a Registrar of the Court on 27 April 2016, Mr Rashid has not filed an amended application or any written submissions.
Affidavits in support of Judicial Review Application
Together with the Judicial Review Application Mr Rashid filed:
a)an affidavit sworn 16 March 2016 (“Mr Rashid’s First Affidavit”). to which he attached documents “to prove that I am a Genuine Student”: Mr Rashid’s First Affidavit at [5]; and
b)a further affidavit sworn 16 March 2016 (“Mr Rashid’s Second Affidavit”), the terms of which are the same as the grounds of the Judicial Review Application set out above: see [5] above.
The documents annexed to Mr Rashid’s First Affidavit were as follows:
a)the biographical details page of Mr Rashid’s Pakistani passport;
b)Mr Rashid’s Bachelor of Business Administration degree from the American International College dated 15 September 2008;
c)Mr Rashid’s Official Academic Transcript for the Bachelor of Business Administration course at the American International College dated 30 August 2008;
d)a Statement of Attainment from the College of Innovation and Industry Skills in relation to competencies which form part of the Certificate IV in Hospitality (Commercial Cookery) issued on 22 October 2013;
e)certification from Cambridge International College that Mr Rashid had fulfilled the requirements for Certificate III in Hospitality (Commercial Cookery) dated 15 November 2012;
f)a certificate dated 25 February 2015 from the Technical College of Western Australia indicating that Mr Rashid has completed the Diploma of Business;
g)a certificate dated 25 November 2011 from Cambridge International College indicating that Mr Rashid had attended classes and met the requirements of that college’s course in General English and attained an intermediate grade C;
h)a certificate issued on 6 October 2015 from the Technical College of Western Australia certifying that Mr Rashid had fulfilled all of the requirements for a Diploma of Marketing;
i)a transcript of results dated 6 October 2015 from the Technical College of Western Australia for the Diploma of Marketing;
j)a Statement of Academic Results dated 15 November 2015 for the Certificate III in Hospitality (Commercial Cookery) from the Cambridge International College;
k)the Delegate’s Decision (and associated correspondence);
l)the AAT Decision (and associated correspondence);
m)various documents from the Department of Education, Employment and Workplace Relations being overseas student confirmation of enrolment documents for:
i)Certificate IV in Marketing (2011/2012);
ii)Diploma of Marketing (2012);
iii)General English Certificate (2011);
iv)Certificate III in Hospitality (Commercial Cookery) (2012-2013);
v)Certificate IV in Hospitality (Commercial Cookery) (2013);
vi)Diploma of Hospitality (2013-2014);
vii)Diploma of Business (2014-2015);
viii)Certificate IV in Small Business Management (2014);
ix)Diploma of Marketing (2015);
x)Advanced Diploma of Marketing (2015-2016);
n)a letter of offer of enrolment from the Technical College of Western Australia dated 27 November 2015 for the Advanced Diploma of Marketing;
o)pages extracted from the Indian Australia Express of December 2015 concerning graduates from the Technical College of Western Australia; and
p)a receipt dated 21 January 2016 from the Perth Education Group Pty Ltd (whose address is the same as the Technical College of Western Australia).
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the AAT, will only constitute jurisdictional error if the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Criteria to be satisfied
Clause 572.223(1)(a) of Sch.2 to the Migration Regulations required that the following criteria be satisfied at the time of the AAT Decision:
(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.
The AAT identified that the major issue in the case was whether Mr Rashid met the time of decision criteria in cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 154 at [11].
The AAT was also obliged to have regard to Direction No 53, and in that regard set out the specified factors to which it was required to have regard at CB 154 at [12] as follows:
• the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
• the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The AAT also explained the relevant criteria to Mr Rashid at the AAT hearing, including informing Mr Rashid that a major issue was whether he was a genuine applicant for entry and stay as a student who intended to genuinely stay in Australia temporarily, and in that regard gave to and explained the considerations in Direction No 53 to Mr Rashid: CB 155 at [14].
It is plain from the AAT Decision that the AAT identified the correct issue, and was directing its consideration of that issue to the correct question or questions relevant to whether Mr Rashid met the criterion for the purposes of cl.572.223(1)(a) of Sch.2 to the Migration Regulations.
The nature of the material considered by the AAT is discussed in more detail at [4] above and [21] below.
The documents in Mr Rashid’s First Affidavit
The documents in Mr Rashid’s First Affidavit all go to the merits of his claim to be a genuine student. The various courses, and factual matters arising from them, were all considered by the AAT, and were referred to in the AAT Decision: see [4] above and [21] below and CB 155-157 at [16]-[34] and CB 158 at [38]-[40] and [42]. As such, the only purpose of the documents attached to Mr Rashid’s First Affidavit is to invite the Court to engage in impermissible merits review, a task which is impermissible in migration judicial review proceedings in accordance with a long line of established authority emanating from Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Grounds 1-8
Grounds 1-8 recount factual matters and the procedural history of the matter before the Delegate and the AAT. Grounds 1-8 do not therefore allege, and do not establish, any jurisdictional error in the AAT Decision.
Grounds 9-16
Grounds 9-16, not dissimilarly to grounds 1-8, set out various factual matters relating to Mr Rashid’s Student Visa application, and ends with an assertion, at ground 16, that he is a genuine student, and that the Delegate has not considered his case correctly in accordance with policy, and he therefore seeks that the Court review the AAT Decision. For present purposes, it can be assumed that the reference to “delegate” in ground 16 is intended to be a reference to the AAT.
Mr Rashid does not identify the policy concerned, and more particularly, how it was not considered correctly by the AAT. For reasons set out above: see [10]-[14] above, the Court is of the view that the AAT did identify the relevant issues and asked the right questions, and applied the relevant criteria, in making the AAT Decision.
When regard is had to the fact that each of grounds 9-16, save for ground 16, set out factual matters considered by the AAT (the factual consideration by the AAT is dealt with more extensively below: see [21] below), and having regard to the fact that Mr Rashid’s First Affidavit puts before the Court documents which were before the AAT and which are only relevant to a merits consideration (there being no suggestion that the AAT ignored relevant material), and does so without particularisation of any alleged jurisdictional error, grounds 9-16 amount to no more than an impermissible invitation to the Court to engage in merits review of the AAT Decision: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The fact that what is sought by Mr Rashid is impermissible merits review is confirmed by a more detailed examination of grounds 9-15 each of which deals with matters of fact expressly considered and taken into account by the AAT as follows:
a)in relation to grounds 9-11 and the content of Mr Rashid’s studies, his working in the family business, and his change of course consequent upon the needs of his siblings, the AAT referred to:
i)Mr Rashid coming to Australia initially to complete an English course and a Diploma of Marketing: CB 155 at [16], and his not commencing the marketing studies which he had proposed for his Initial Student Visa: CB 157 at [31], but completing a Diploma of Marketing in 2015: CB 156 at [20], and now proposing to do further “advanced” marketing in the vocational education and training (“VET”) sector: CB 156 at [20]-[25] and CB 157 at [33];
ii)Mr Rashid’s initial plan being to return to work in his father’s business and Mr Rashid’s reasons, related to the desires of his two brothers, for deciding to change his career focus to hospitality, and to study a VET course in commercial cookery: CB 155 at [16]-[18] and CB 157 at [31];
iii)Mr Rashid’s discussion of the change in courses with his father, who told Mr Rashid that it was Mr Rashid’s decision, but that he wanted Mr Rashid to stick with marketing and business studies: CB 155 at [18] and CB 157 at [31]; and
iv)the fact that Mr Rashid:
… was unable to convincingly explain why he would abandon a clear plan agreed with his father – a plan he says he has now returned to – in favour of a plan which did not support his father’s aspiration for him to take over the family business. His (sic) agreed with the proposition that by switching to hospitality he intended to pursue a career outside the family business.
CB 157 at [31]; and
b)in relation to grounds 12-15, and Mr Rashid’s studies in hospitality, and a further change of career direction and study direction, the AAT referred to:
i)Mr Rashid having completed a certificate III in Hospitality in 2012: CB 155 at [19];
ii)Mr Rashid having returned to studies in the business field in 2013 and completed a Diploma of Business in 2015: CB 155-156 at [19]-[20];
iii)Mr Rashid’s view that marketing and business courses were important to promote Mr Rashid’s father’s business: CB 156 at [24]-[25];
iv)it not accepting that VET sector business and marketing courses were equivalent in either prestige or learning to a bachelor’s degree in business from Pakistan or another country generally: CB 156 at [30] and CB 158 at [42] (Mr Rashid having early asserted that his bachelor’s degree in business from Pakistan was not equivalent to Australian VET sector qualifications: CB 156 at [23]), but that in any event the Advanced Diploma of Marketing that Mr Rashid proposed to study was of little incremental value in addition to his bachelor’s degree in business in Pakistan and his completed Australian diplomas in business and marketing, and that the prestige of those qualifications was of even less value when it was considered that the Mr Rashid’s plans were to enter his father’s established family business, rather than compete for jobs with employers who might place weight on the prestige of the qualifications: CB 156-157 at [30];
v)that Mr Rashid now considered his switch to hospitality studies as a mistake, with the AAT noting that that tended to contradict the undertone in his oral evidence that in Mr Rashid’s culture it was expected that a son would take over the family business from his father, and further noting that Mr Rashid abandoned continuing hospitality studies some months after a visa was granted on the basis of his continuing to undertake hospitality studies: CB 157 at [31]-[32]; and
vi)that the final proposed course for the Student Visa, being the Advanced Diploma of Marketing, was of marginal value to Mr Rashid’s future given that he had a guaranteed job in his father’s car dealership, and that Mr Rashid was otherwise more than academically prepared to enter the claimed car dealership with a bachelor of business administration and two Australian diplomas in business and marketing: CB 157 at [33]-[34] and CB 158 at [38]-[39].
In relation to ground 16:
a)Mr Rashid’s assertion that he is a genuine student constitutes no more than a plea for impermissible merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
b)to the extent that, contrary to the assumption in [18] above, Mr Rashid does seek in ground 16 to impugn the Delegate’s Decision:
i)it is well established that the AAT Decision operates to cure any defects in the Delegate’s Decision: Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; and
ii)the Court has no jurisdiction to conduct a review of the Delegate’s Decision: Migration Act, s.476(2)(a) and (4).
In the Court’s view the AAT’s finding that Mr Rashid did not meet the criteria in cl.572.223(1)(a) of Sch.2 to the Migration Regulations was reasonably open to it. It was not a finding which no rational or logical decision maker could reach on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ.
In all of the above circumstances, it is evident that the AAT:
a)correctly identified the relevant issue;
b)asked itself the correct question; and
c)had regard to all of the relevant material in dealing with the issues and questions before it, and did not have regard to any irrelevant material,
and in so doing arrived at factual conclusions which were open to it. The AAT therefore engaged in a legitimate and proper exercise of administrative decision-making which reveals no jurisdictional error, either in relation to the grounds set out in the Judicial Review Application, or otherwise.
Conclusion and orders
The Court has concluded that none of the grounds in the Judicial Review Application have been made out, and that no jurisdictional error in the AAT Decision is established by those grounds, or otherwise. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 9 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction