Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187

File number(s):

LNG 62 of 2020

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

31 May 2021

Catchwords:

MIGRATION – judicial review – Administrative Appeals Tribunal decision – student visa – genuine applicant for entry and stay as a student – no matters of principle – dismissed

Legislation:

Australian Citizenship Act 2007 (Cth), s. 12

Migration Act 1958 (Cth), ss. 359A, 499

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

Number of paragraphs:

45

Date of last submissions:

19 February 2021

Date of hearing:

18 and 19 February 2021

Place:

Hobart (via Microsoft Teams)

Solicitor for the Applicants:

In person

Solicitor for the Respondents:

Australian Government Solicitor

Counsel for the Respondents:

Mr Sypott

ORDERS

LNG 62 of 2020

BETWEEN:

KHURRAM RATHOR

First Applicant

MOOMAL RATHOR

Second Applicant

SANA ANJUM

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	31 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,464.00.

REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa (‘student visa’). The second and third applicant are family members and dependents of the first applicant, and consequently, their entitlements to a visa rise or fall with those of the first applicant.

2. The applicant appeared at the hearing before me in person (via Microsoft Teams). The Minister was represented by Counsel, instructed by the Australian Government solicitor. 

   BACKGROUND

3. The applicant came to Australia in 2006 on a student visa. He was initially enrolled in a Master of Business Administration (International Management), and thereafter it appears he enrolled in a number of different courses, in which his enrolments were subsequently cancelled. The applicant disputes the precise history of his academic studies, as well as the number of times that there may have been cancellations of enrolment. Further, the applicant disputes which periods he was not enrolled in courses, submitting that such were caused by reviews of visa applications. However I note that:

   (1)In 2013/14 the applicant undertook and completed a Master of Information Systems. 

   (2)In 2016/17 the applicant undertook an Advanced Diploma of Leadership and Management. 

   (3)In 2018/19 the applicant was undertaking an Advanced Diploma of Network Security. 

   These matters are set out in the computer record of the applicant’s studies generated for the Department: see Court Book (‘CB’) page 90.

4. The applicant applied for the visa that is the subject of these proceedings in July 2016. The visa was refused by a delegate of the Minister on 26 September 2016, on the basis that the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, as required by cl. 500.212, Schedule 2, to the Migration Regulations 1994 (Cth).

5. On 4 April 2018, the Tribunal affirmed the delegate’s decision. The 2018 decision of the Tribunal was set aside on 26 February 2019 and the matter remitted for the Tribunal to hear and determine again, as a result of the Tribunal’s failure to comply with section 359A of the Migration Act 1958 (‘Cth’) (‘the Act’), having failed to offer the applicant a proper opportunity to comment upon the electronic records of his studies.

6. The current Tribunal decision followed a hearing on 10 July 2020, at the conclusion of which the Member delivered oral reasons, affirming the delegate’s decision.  The written reasons were subsequently provided on 28 July 2020. On 5 August 2020, the applicant lodged the application for judicial review that has come before this court. 

7. Prior to appearing before the Tribunal on the most recent occasion, the applicant had enrolled in a graduate Diploma of Management of Applied Learning on 30 June 2020. Thus, the applicant was enrolled in a course at the time of the decision and the critical issue was whether or not he was a genuine applicant for entry and stay in Australia, as a student who intended to stay in Australia temporarily.

   Tribunal findings

8. It is apparent from the Tribunal Member’s decision that there was no question that the applicant genuinely intended to study and that he was enrolled in a course (see paragraph [12] of the decision) and that the Tribunal member was satisfied that the applicant would comply with any conditions that might attach to the respective visa: see paragraphs [16] and [17] of the decision. 

9. The Tribunal Member considered the difficulty of identifying a person’s intentions and the need to look at all of the surrounding circumstances: see paragraph [18] and following, of the decisions). 

10. The Tribunal Member specifically noted that the applicant had completed a Masters level qualification and concluded that the cancellation entries on his PRISM records were unfortunate but not relevant. The applicant had specifically addressed these issues in a letter which the Tribunal Member set out in full at paragraph [30] of the decision. In that letter, the applicant explained that there were cancellations and gaps in his study history because of difficulties with education providers not allowing him to start a course, without a valid visa. The applicant alleged that the education providers had accepted their mistakes in the past. He also said there were some errors, such as a cancellation for a course of a Diploma of Printing and Graphic Arts, which the applicant said he had in fact completed.

11. The Tribunal Member went on to consider a number of matters that were significant to the outcome in the case: 

    (1)That the applicant had been in Australia as a student for 14 years: see paragraph [34] of the decision.

    (2)The fact that the applicant had lived away from his family in Pakistan since 2006, which cast some doubts on the strength of his links to his family in his home country: see paragraph [33] of the decision.

    (3)That the economic conditions in the applicant’s home country of Pakistan were much worse than those in Australia, having regard to the United Nations Development Index ranks: see paragraphs [35] and [36] of the decision.

    (4)That the applicant appeared to the Tribunal Member to be having a satisfying life in Australia and that his child who was born here and is now six years of age would require citizenship automatically if she were to continue to reside in Australia until she was 10 years of age: paragraph [38] of the decision (the effect of section 12 of the Australian Citizenship Act 2007 (Cth)).

    (5)That the applicant only enrolled in this course shortly before the Tribunal hearing, which led the Tribunal to have some doubts about the importance of the course to the applicant’s general education in comparison to its importance to the visa application.

    (6)That the applicant had a gap in his studies for some time leading up to the most recent enrolment.

12. The Tribunal noted that the applicant had successfully completed a number of courses including a Masters level course, but also noted that simply completing more courses does not make a person a genuine student. 

13. The Tribunal had regard, specifically, to the length of time that the applicant has been in Australia on a student visa, being 14 years, which weighed against him being a genuine temporary entrant. 

14. Ultimately the Tribunal Member found:

    53. And so, the evidence here is really overwhelming and that is really the 14 years of the applicant staying in Australia. I do find that the first applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program and by necessary implication his own evidence has led me to find that the he is attempting to obtain a student visa to maintain ongoing residence in Australia.

    GROUNDS FOR REVIEW

15. In the application for judicial review the applicant set out six grounds for review. In submissions before me the applicant largely focused on a merits-based review of the decision, rather than articulating any specific legal argument. However, it is appropriate to deal with each of the grounds he has articulated.

    Ground One

16. The first ground is in the following form:

    1. Member didn't give me chance to explain the purpose, reason and value of current course I enrolled for my future. Member has already made their mind up, member interrupt and stops me while I was explaining and giving answers.

17. The applicant filed no written argument expanding upon this claim. In his submissions, he pointed to what he said were mistakes in the record of his studies used by the Department and his claims that he had a good educational record. However, it is apparent that these matters were discussed with the Tribunal Member and that the Tribunal Member engaged with those issues, setting out the letter from the applicant and noting that ultimately, the cancellations of studies did not bear adversely against him. 

18. Whilst the applicant said in his ground that the Tribunal Member interrupted him and stopped him while he was explaining or giving answers, he did not provide any specific examples, nor did he provide a transcript or an audio recording of the hearing to show any inappropriate behaviour by the Tribunal Member. 

19. In the circumstances I am not persuaded that the applicant has made out this ground.

    Ground Two

20. The second ground alleges:

    2. The member wrongly failed to consider my ties with my family and country and did not put weight on my explanation. Member also wrongly assume that I wanted to extend my stay in Australia by applying student visa extensions without allowing me to explain.

21. In this case, the Tribunal Member does set out the nature of the applicant’s family ties and notes his letter where he says that he has strong family ties with his relatives in Pakistan. However, the Tribunal Member also weighed these ties against the length of time the applicant had been in Australia and his overall circumstances. It appears that the matter was the subject of submissions before the Tribunal. The Tribunal Member engaged with these issues before making a finding upon the evidence and submissions before the Tribunal. 

22. As with ground 1 herein, there is no evidence before me of inappropriate conduct by the Tribunal Member during the course of the hearing, and no specific examples of inappropriate conduct were set out by the applicant in oral submissions.

23. I am not persuaded that the applicant can succeed under this ground.

    Ground Three

24. The third ground alleges:

    3. The member wrongly failed to consider the academic performance and the completion of courses I enrolled while deciding my genuine intentions as student.

25. This ground simply cannot be sustained, given that the Tribunal Member accepted that the applicant had completed studies and was quite capable of completing his courses.  The Tribunal Member concluded that the cancellations were not relevant on the Member’s view, as discussed at paragraphs [28] and [29] of the decision. The Tribunal Member was also satisfied that the applicant was likely to successfully complete his current course, although noted that the course was of limited value to him. 

26. The applicant has not made out this ground.

    Grounds Four and Five

27. Grounds 4 and 5 are conveniently dealt with together. These grounds provide:

    4. Member did not put weight on the explanation on how I lost my time while I was waiting for the tribunal hearings and was not allowed to study by education providers while I was waiting for a decision from Migration Review tribunal at that time also mentioned in PRISMS record that education provider cancel my COE for that reason.

    5. The member did not consider information I gave him at the hearing. I gave the reason that education providers don't issue the COE without valid visa, I got this COE only by presenting the AAT invitation for hearing to the college after that they issue me COE.

28. These grounds focus upon them to the extent to which cancellations (of which there are many on the applicant’s computerised record) bear upon the decision being made, importantly by way of explaining part of the 14 years during which the applicant has been in Australia. 

29. The Tribunal Member noted the concerning pattern of conduct that the cancellation entries showed, but went on to say (at paragraph [29] of the decision):

    29. The up to date PRISMS report shows his entire academic history, including cancellations of enrolments. Those cancellations - if you just look at the cancellation entries in themselves – suggest a concerning pattern of conduct involving many enrolments in courses which have not been completed. I should say that the tribunal is not concerned with that apparent pattern gleaned from the report; it’s not a material issue in this particular case at all. The tribunal is of this view because the applicant has completed a Masters level qualification and two advanced diplomas, which shows that he is quite capable of completing courses. Those ‘cancellations’ are unfortunate and the applicant has sought to explain those cancellation entries.

30. When considering the length of time that the applicant has been in Australia, the Tribunal noted:

    13. … the applicant needs to demonstrate that he is a genuine applicant because he intends genuinely to stay in Australia temporarily. He must demonstrate an intention to stay in Australia for a limited time only - not permanently. It must be an unqualified intention which requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing new, to obtain specific skills and formal qualifications that will place him in a better position with better employment opportunities. Once they have had a reasonable amount of time to complete their studies it is expected that the visa holder will immediately depart Australia.

    14. Now, the tribunal does acknowledge that this expectation is not without qualification. The student visa holder’s circumstances may change whilst studying in Australia. They may genuinely wish to extend their stay so they can undertake further studies, such that there is need for a further student visa application to be made. Alternatively, they may enter into some personal relationship with a permanent resident or Australian citizen, with the partner visa or employer sponsorship or for some other reason that they may seek to extend their stay in Australia by other legitimate means.

31. The Tribunal went on to consider the academic history of the applicant, saying:

    28. Now, I come back to the applicant’s case. I refer to information which I put to the applicant in the course of the hearing pursuant to section 359A and s 359AA of the Act and that is an up to date educational report which was obtained in relation to the applicant from the Department’s the International Student PRISMS database. And the applicant already has a copy of that, apart from the two additions in the entries to the report. In the letter that the tribunal sent him, inviting him to this hearing, the tribunal attached a copy of the PRISMS database search that was on the original tribunal file which had not been communicated to him at the original tribunal hearing. The only difference with the up to date PRISMS record now is that the top entry, which related to his current enrolment back when he was before the original tribunal, which was an Advanced Diploma in Network Security, now states that he has finished the course (in 2018 the report stated that he was studying). That is consistent with the evidence the applicant provided at the hearing before the tribunal. He said he successfully completed that course. He provided relevant documentation from college indicating that he successfully completed the Advanced Diploma on 5 January 2019.

    29. The up to date PRISMS report shows his entire academic history, including cancellations of enrolments. Those cancellations - if you just look at the cancellation entries in themselves – suggest a concerning pattern of conduct involving many enrolments in courses which have not been completed. I should say that the tribunal is not concerned with that apparent pattern gleaned from the report; it’s not a material issue in this particular case at all. The tribunal is of this view because the applicant has completed a Masters level qualification and two advanced diplomas, which shows that he is quite capable of completing courses. Those ‘cancellations’ are unfortunate and the applicant has sought to explain those cancellation entries.

32. These combined grounds question whether the Tribunal Member took account of the delays to the applicant, whilst he was unable to enrol in study, due to delays in decision making by the Department and the Tribunal. The Tribunal noted the applicant’s submissions in a letter, setting it out in full at paragraph [30] of the decision. That letter included the submission that:

    …

    In previous hearing respected member present a PRISMS report and most of the time member talk on issues already resolved in my first MRT appeal and tribunal at that time gave the decision in my favour. Although I tried to explain him again on the issues like previous COEs cancellations and the study gap at that time because of not allowing by the education provider to start the course without valid visa. Education providers accepted their mistake in written, I already have provided the letter from them as evidences to the respected tribunal at my first MRT appeal and on that grounds, tribunal gave decision in my favour.

    PRISMS record also have some errors, made by the education providers and I would like your consideration on them. Diploma of Printing and Graphic arts is mentioned as cancelled but I had completed the course successfully provide the results to the tribunal in last hearing. Repetition of same course is also shown in PRISMS, Advance diploma of marketing and communication is mentioned twice as cancelled but truth is cancelled only once. I also explain the tribunal that course COE was issued by the education provider by mistake. Once I receive the COE, I request education provider to cancel the wrong COE as that course was not related to my studies neither helps me to improve my skills. Even that course COE was issued mistakenly but member didn’t understand that.

    Master of Technology COE was cancelled by the education provider for not holding the valid student visa; At that time again I tried to convince the education provider that they must not cancel the COE as I have right to study until final decision is made on my application and also present the MRT decision in which respected tribunal mentioned that COE can’t be cancel until final decision Is made on the application. Unfortunately, due to lack of knowledge they didn’t recognise and cancelled my COE. After finishing my recent course, I tried to enroll in the final course but again I was refused to get admission and same reason was given that I don’t have valid student visa, every time I have to wait for the AAT hearing letter to get COE. Even for the Graduate Diploma COE which I have submitted to the respected tribunal, education provider only issues the COE when I explain him that AAT asked me for the COE and send him the invitation letter as proof. Respected member education providers don’t have any knowledge about AAT or they don’t bother to issue the COE without formal letter from AAT. They even don’t give in writing as well.

    …

1. At paragraph [31] of the decision, the Tribunal Member notes that the statement ‘contains the essential points that certainly lie in his favour and I certainly have placed appropriate weight on those in considering the outcome of this review application.’ Thereafter the Tribunal Member goes on to consider the matters identified in Direction 69 (pursuant to s. 499 of the Act).

2. The Tribunal Member noted the applicant’s answer to the proposition that he had been in Australia for a lengthy period in order to study, saying:

   34. I come back to the point made pursuant to section 359A. The tribunal expressed a concern it had that what this record shows is an education history in Australia studying, purportedly as a temporary full time student for 14 years in a row, which in turn shows a pattern of conduct which suggests he is just applying for one student visa after the other because he wants to maintain ongoing residence. And so the tribunal invited him to comment on that information and also advised him that he had the right to seek additional time and if he wants additional time he could seek it. He did not seek additional time. He insisted that although there is that lengthy history which he appropriately acknowledged is suggestive of a rather lengthy stay, that this is his last course and he insisted that it was.

3. Importantly, the Tribunal Member notes that he has considered the applicant’s migration history again: see paragraph [46] of the decision.

4. The delays caused by waiting for decisions from the department, Tribunal or the courts are not listed.  Importantly, two of the three courses that the applicant has completed were undertaken after the delegate refused his visa application in 2016. There is no evidence that these issues explained a significant part of the time that the applicant has been in Australia, nor did he make submissions as to a particular length of time (or times) to which this submission related.

5. The Tribunal ultimately concluded that:

   52. The tribunal has ultimately come to the view that the sheer time that he has been here is very suggestive that he is attempting to use the student visa program to maintain ongoing residence. I do note that the principal purpose of the Australian Government student visa program to enable non-citizens who are not permanent residents to study in Australia temporarily. The program contemplates visas being granted to non-citizens who genuine temporary entrants for that specific limited purpose that student visas are granted - they are not granted for the purposes contemplated by other types of visas, many of which are designed to offer non-citizens a path to permanent residence.

   53. And so, the evidence here is really overwhelming and that is really the 14 years of the applicant staying in Australia. I do find that the first applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program and by necessary implication his own evidence has led me to find that the he is attempting to obtain a student visa to maintain ongoing residence in Australia.

   54. So, the overall assessment is that I find the applicant would prefer to remain in Australia on an ongoing basis. I do not accept his claim that he does not wish to remain here permanently.

6. The Tribunal Member has identified that there were delays caused by the applicant, awaiting visa reviews. On the material there was no submission as to which periods these delays related to, not even an estimate of what part of the fourteen years could be explained on this basis. 

7. The fact that the applicant completed courses after the delegate refused his visa application shows that the delay cannot simply be calculated as the period from the visa refusal to the time of decision. In the absence of specific evidence or submissions, there was little else that the Tribunal Member could do, but consider this as one of the various factors. Given the particularly long period that the applicant has been in Australia, an explanation of part of the period on this basis goes little distance to reducing the impact of being a student for so long. 

8. I am not persuaded that the applicant has established that the Tribunal Member failed to take these matters into account.

   Ground Six

9. In ground 6 the applicant says:

   6. Member has several contradictions and irrelevant considerations in decision about my matter including incorrectly consideration on my daughter's age and development index ranking which I believe are irrelevant.

10. The applicant only referred to the two particulars set out in the ground. The Tribunal noted the applicant’s daughter’s age as being 6 years old.  The applicant listed his daughter’s date of birth as 2014 in his visa application (see CB19) which was the correct age of the daughter. His reference to the Development Index also appears to be to the correct number.

11. The substantive point in this ground is an argument that the Tribunal should not have taken these matters into account.  However, they are plainly relevant for the reasons set out by Counsel for the Minister in the written Submissions filed on 11 February 2021:

    41. The period of time the first applicant’s daughter had resided in Australia, and the remaining period of time that existed until she would acquire Australian citizenship, were probative of the first applicant’s family’s connection to Australia and cannot be said to be irrelevant considerations. Given the age of the applicant’s daughter was probative of both her period of residence in Australia and the date on which she would acquire Australian citizenship, it too cannot be considered an irrelevant consideration.

    42. The Tribunal found that the economic circumstances in Australia were such that the first applicant and his family would be far better off remaining in Australia than returning to Pakistan. In reaching that conclusion, it compared the HDI’s of both Australia and Pakistan.

    …

    44. As noted by the Tribunal, the HDI is an objective measurement of a country’s economic and social development. The Tribunal’s reference to the HDI was unremarkable in the context of comparing the economic circumstances in Australia and Pakistan.

12. I am not persuaded that the applicant has made out this ground for review.

    CONCLUSION

13. As the applicant has not established a ground for judicial review I must dismiss the application. Costs ought ordinarily follow the event in cases such as this. The scale fee is appropriate in the circumstances of this case. I therefore make orders accordingly.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       31 May 2021