Rashid v Minister for Immigration and Border Protection

[2017] FCA 920

FEDERAL COURT OF AUSTRALIA

Rashid v Minister for Immigration and Border Protection [2017] FCA 920

Appeal from:

Rashid v Minister for Immigration [2017] FCCA 363

File number(s):

WAD 157 of 2017

Judge(s):

FARRELL J

Date of judgment:

9 August 2017

Catchwords:

MIGRATION – appeal of decision of Federal Circuit Court to refuse judicial review of decision to refuse student visa – whether jurisdictional error is established – whether grounds of appeal invite impermissible merits review – appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 474

Cases cited:

Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524; FCAFC 39

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; HCA 2

SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129

Date of hearing:

9 August 2017

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Appellant:

The Appellant appeared in person

Solicitor for the First Respondent:

Ms E Tattersall of Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent submitted save as to costs

ORDERS

WAD 157 of 2017

BETWEEN:

AAMIR RASHID

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	9 AUGUST 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

1. This is an appeal from orders made and the judgment of a Judge of the Federal Circuit Court of Australia dated 9 March 2017: see Rashid v Minister for Immigration [2017] FCCA 363. The primary judge dismissed Mr Rashid’s application for judicial review of a decision of the Administrative Appeals Tribunal made on 24 February 2016 to affirm a decision of a delegate for the first respondent (Minister) to refuse Mr Rashid a Student (Temporary) (Class TU) visa.

2. Mr Rashid’s grounds of appeal are (as written):

   Grounds of appeal

   I Aamir Rashid say on oath

   1.I am the applicant for student visa review decision and I am authorised to make this affidavit as primary applicant requesting review of decision

   2.I applied for Student(temporary)(Class TU visa on 12 Feb 2015)

   3.On 6 march 2015 my application for Student visa was refused be delegate of Minister of Immigration and Border Protection.

   4.Subsequently I applied for review of decision with MR division of Administrative Appels Tribunal

   5.My application was refused by Administrative Appeals Tribunal.

   6.The case officer believed that I am not a genuine Student

   Information to demonstrate that I am a genuine student

   7.In original decision case officer stated that I have changed my enrolments from one course to another on several occasions

   8.I would like to bring to your attention that I never took any course to get time to stay in Australia.

   9.I have always abided by my visa conditions and hence never breached any law.

   10.I choose different courses in Australia because at that time I was having different career plans and as I was not 100% sure on any of those and considering employment opportunities available at that time I changed my enrolments and I did complete my units when I was enrolled in those courses.

3. The Minister filed written submissions.  Mr Rashid did not.  Mr Rashid appeared at the hearing and made submissions which contested the Tribunal’s findings.  He queried why a visa had been granted in the first place (to study marketing) if the Tribunal was later concerned that he wanted to take a further marketing course, having changed to a hospitality course when he came to Australia.  He contested the Tribunal’s reasons as they related to the marketing course that he had undertaken in Pakistan.

4. The Minister submits, correctly, that the task of the Federal Circuit Court was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; HCA 2. The task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. Although an appeal to this Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment from which Mr Rashid appeals; it is not an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a Court on appeal by way of rehearing is to correct error on the part of the primary judge: Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524; FCAFC 39 at [27]-[28].

5. Mr Rashid raised 16 grounds for review by the Federal Circuit Court.  As pointed out by the primary judge, the first eight grounds of review recounted factual matters and procedural history.  The first six grounds of appeal do the same thing.  Grounds 7-10 of the grounds of appeal also raise factual matters, including as to Mr Rashid’s intentions with respect to his visa application.  None of these grounds reveal jurisdictional error by the Tribunal or appealable error by the primary judge. 

6. Grounds 9-16 of the application to the Federal Circuit Court also raised factual matters concerning Mr Rashid’s student visa applications and ended with the assertion that he is a genuine student and that the delegate of the Minister did not consider his application in accordance with policy.  The primary judge accepted that it should be assumed that the reference to the “delegate” was intended to be a reference to the Tribunal.  His Honour pointed out that Mr Rashid did not identify the policy concerned or how it was not correctly considered.  The primary judge found that the Tribunal “did identify the relevant issues and asked the right questions, and applied the relevant criteria, in making [its decision]”, that the grounds (save for ground 16) otherwise set out factual matters, and all grounds fail to allege jurisdictional error which amounts to an invitation to impermissible merits review. 

7. Nothing that Mr Rashid put to the Court in his grounds of appeal or in his oral submissions today raises an appealable error by the primary judge.  Having read the Tribunal’s decision record, in my view the Tribunal considered Mr Rashid’s submissions and the primary judge did not err in his finding that the Tribunal’s findings and decision were open to it to make on the material before it. 

8. While Mr Rashid may well be sincere in relation to his intentions, I conclude that he has identified neither jurisdictional error by the Tribunal nor appealable error by the primary judge.  I therefore order that the appeal be dismissed and that Mr Rashid pay the Minister’s costs as agreed or taxed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        9 August 2017