Rehman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 526
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rehman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 526
File number(s): LNG 39 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 1 July 2022 Catchwords: MIGRATION – student visa – application for judicial review – decision of the Administrative Appeals Tribunal –– whether jurisdictional error – whether the Tribunal failed to consider the evidence before it – whether the applicant was denied procedural fairness – whether the Tribunal failed to make reasonable allowances for changing career and study pathways – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 359(2), 476
Ministerial Direction 69 para 9, 10, 12
Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 2 June 2022 Place: Hobart For the Applicant: In person Counsel for the First Respondent: Mr D Wilson Solicitor for the First Respondent: Australian Government Solicitor ORDERS
LNG 39 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATTIQ UR REHMAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.The application filed 6 August 2021 is dismissed.
2.In the event that the first respondent pursues an order for costs against the applicant, leave is given to seek an appointment before the Court for determination of that issue.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On the 9 August 2021, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 7 July 2021.
The application for review was properly made to enliven this Court’s jurisdiction pursuant to section 476 of the Migration Act 1958 (Cth).
On 2 June 2022, the Court conducted a hearing in respect of the application for review and the Applicant appeared in person representing himself. The First Respondent was represented by counsel.
The Tribunal decision under review related to affirmation of the First Respondent’s delegate’s decision to refuse a temporary student visa to the Applicant. A brief prior history of events before the proceedings before the Court is as follows.
On 17 October 2019, the Applicant lodged his temporary student visa application.[1] On 11 December 2019, a delegate of the First Respondent refused the application.[2]
[1] Court Book, commencing at page 14.
[2] Court Book at page 67.
On 13 December 2019, the Applicant applied to the Tribunal. Following a hearing conducted on the papers with the Applicant’s consent,[3] the Tribunal affirmed the decision refusing his visa application.
[3] Tribunal’s reasons for decision at [5].
PRELIMINARY MATTERS ARISING AT THE HEARING
It was common ground that at the time of the Tribunal making its decision, it had before it all the documents identified in the Court Book from pages 14 to 112. After some initial discussions to clarify what documents the Applicant relied upon, it was established that the Applicant agreed that the Court should receive the entire Court Book in evidence. It was received and marked as Exhibit R-1.
The Applicant also sought to rely on some additional documents although he had not complied with the order I had made on 13 December 2021, which availed him of the opportunity to file an affidavit with additional evidence and submissions. The additional documents sought to be relied on were identified as:
(a)A letter of offer to study the Advanced Diploma of Leadership and Management (“the Advanced Diploma”); and
(b)The diploma certificate confirming completion of the Advanced Diploma.
The First Respondent objected to the receipt of the additional documents on the basis that they were said to be irrelevant. It was submitted that they merely evidence facts that were already in evidence and before the Tribunal. I was referred to pages 111 and 112 of the Court Book, which identified the following facts, not challenged by the First Respondent:
(a)The projected completion date for the Advanced Diploma was 26 September 2021;
(b)The Applicant had already completed a Diploma of Leadership and Management on 27 September 2020 at the time of the Tribunal hearing; and
(c)The Applicant commenced the Advanced Diploma on 28 September 2020 and was studying that course at the time of the Tribunal hearing.
Noting that the additional documents simply confirm facts not in dispute and which were before the Tribunal, I declined to receive the additional documents in evidence.
The Court did receive as Exhibit A-1 and Exhibit A-2, respectively, the application for review[4] and the Applicant’s affidavit attaching the decision of the Tribunal below.[5] As the Applicant had not filed any additional submissions pursuant to the order made on 13 December 2021, I clarified with him if he sought that the Court treat the content of his application also as submissions upon which he relied. He confirmed that to be the case. I asked about any oral submissions the Applicant wished to make and he indicated that he preferred to hear the First Respondent’s submissions and then make an oral reply.
[4] Court Book at pages 1 to 10.
[5] Court Book, commencing at page 11.
JURISDICTIONAL ERROR – RELEVANT PRINCIPLES
For the Applicant to succeed, he needs to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
BASIS OF THE TRIBUNAL DECISION
The Tribunal’s reasons for decision reveal that it affirmed the decision to refuse the Applicant a temporary student visa because it was not satisfied that the Applicant is a genuine applicant for entry and stay as a student as required by Cl.500.212 of the Migration Regulations 1994.[6]
[6] Tribunal’s reasons for decision at [51].
At [7] to [10] of its written reasons, the Tribunal identifies and refers to the applicable statutory provisions which govern the requirements for being granted a temporary student visa. Further, at [11] to [16] of the written reasons, the Tribunal identifies applicable legal principles relevant to determining if the statutory requirements are satisfied. It is not suggested by the Applicant that the principles are incorrect and these reasons show that the member directed himself to the relevant law and principles.
A collective and fair reading of the Tribunal’s reasons discloses that it was a combination of findings about relevant considerations under the Ministerial Direction, which meant it was not persuaded the Applicant had incentive to return to Pakistan and only remain in Australia temporarily. They were in summary that :
a.the Applicant’s ties to Pakistan and his family or life there were minimal;[7]
b.The Applicant had made a good and well-funded lifestyle in Australia relative to life in Pakistan;[8] and
c.The Applicant had failed to show the relevance of the course of study in which he was enrolled to future employment and remuneration given his qualification in engineering.[9]
[7] Tribunal’s reasons for decision at [31].
[8] Tribunal’s reasons for decision at [29] to [32], [39] and [40].
[9] Tribunal’s reasons for decision at [33] and [41].
It is clear from the grounds for review that the applicant disagrees with the Tribunal’s findings and conclusion as referred to at [15] above. My assessment of the grounds of review and if they demonstrate jurisdictional error are set out in turn below.
GROUNDS OF APPLICATION FOR REVIEW
Ground 1
Ground 1 asserts that the Tribunal failed to have regard to Paragraph 16 of Part 2 of Ministerial Direction No 69, which states decision-makers should also have regard to any other relevant information provided by the Applicant (or information otherwise available to the decision maker) when assessing the Applicant’s intention to temporarily stay in Australia. This includes information which may be either beneficial or unfavourable to the Applicant.
Various submissions are set out under this ground but the asserted error refers to the Tribunal’s decision at [26], which is a quotation of part of the delegate’s reasons for finding that the Applicant had not demonstrated a significant incentive to return to his home country following study in Australia.
Any imputed jurisdictional error based on the quotation alone is illogical and does not make sense. To the extent that the submissions collectively under Ground 1 assert jurisdictional error by the Tribunal in failing to consider certain information and evidence supportive of the Applicant’s case, that contention is rejected for the following reasons. For ease of reference I adopt the same headings used by the Applicant in his application.
Ground 1.1
The contention at Subparagraph 1.1 is as follows:
1.1The Tribunal failed to consider the applicant’s evidence on the whole. The Applicant came to Australia on 17 April 2018. He got his skills assessment done by Engineers Australia on 4 June 2018.
It is incorrect, as the Tribunal’s written decision clearly states at [21] that it was aware that there had been an Engineers Australia skill assessment on 4 June 2018.
Grounds 1.2 and 1.3
Subparagraphs 1.2 to 1.3 relate to a complaint that the Tribunal did not seek information about the progress various studies, when it then relied on the absence of the information to arrive at its decision. There was evidence that the Applicant had studied a Certificate IV in Business and undertook various other job readiness programs prior to enrolment in the Diploma of Leadership and Management in September 2018. But, it is self-evident from the Tribunal’s reasons at [27] to [36] that its comment about the absence of information between April 2019 when the Applicant completed the Certificate IV in Business and October 2019 when he applied for the student visa, had no bearing on how the Tribunal arrived at its decision. This is clearly evident from the Tribunal’s reasons for decision at [31] to [36].[10]
[10] Consideration of Ministerial Decision 69 at Paragraphs 9a-e and 10.
It was the Tribunal’s consideration of other evidence and findings which influenced the Tribunal to be unsatisfied that the Applicant was indeed a temporary student and a genuine temporary entrant to Australia. The other evidence and findings on which the Tribunal based its conclusion as noted at [15] of these reasons were:
·the nature and lack of the Applicant’s personal ties with his family and home country;
·his income and lifestyle in Australia comparative to Pakistan; and
·lack of evidence about why he was not studying in his home country rather than in Australia and how his course of study promoted his employment prospects.
Subparagraph 1.3 asserts that the Tribunal ignored evidence that:
(a)The Applicant will start applying for jobs in Pakistan after completing the Advanced Diploma; and
(b)In his statement of purpose of 7 March 2021 the Applicant said he had been upgrading his skills since arrival in Australia, and career changes and skill upgrades were not contraindicating of a genuine temporary entrant because the career aspirations change over time due to rigorous demands and needs of working in a highly competitive market.
However, there is no evidence before the Court that the Applicant made any compelling and persuasive statement to the Tribunal about what jobs he would seek in Pakistan upon completion of the Advanced Diploma and how that study would further his prospects of such employment. The statement appearing in the last paragraph of the statement of purpose, is a generalised assertion without any context or substance.
It is self-evident that the Tribunal considered the claim noted at [24(a)] of these reasons but concluded the Advanced Diploma would not assist the Applicant to obtain employment in Pakistan.[11]
[11] Tribunal reasons at [23]-[24] and at [46]-[48].
As to the Applicant’s submission referred to at [24(b)] of these reasons, there is simply no reference in the Court Book or elsewhere that the Applicant needed to change career paths or was aspiring to a different career for valid reasons, or that there was a rigorous and/or highly competitive market in the field in which he had qualifications and sought to work. Further, the Tribunal was aware of the statement of purpose dated 7 March 2021 as it directly referred to it in a number of places in its written reasons, such as at [23], [24] and [46]. Having referred to the statement, in the way it did, the Tribunal plainly did not ignore the evidence.
The Tribunal noted the absence of evidence supportive of the submissions now sought to be made, in its reasons for decision at [33]. There cannot be jurisdictional error in failing to consider evidence which was not given or before the Tribunal.
Ground 1.4
At Paragraph 1.4, the submission of the Applicant appears to be that the Tribunal did not consider provisional results from ALTEC College concerning the Diploma of Leadership and Management dated 12 December 2019. It is clear that the Tribunal received and gave some attention to the ALTEC College provisional results as they are expressly noted at [21] and [25] of the Tribunal’s reasons. There is no merit in this submission.
Grounds 1.5 and 1.6
At paragraph 1.5 the Applicant contends that the Tribunal failed to consider the Applicant’s ties to Pakistan in assessing whether there was a significant incentive for him to return. The alleged failure to consider is not borne out as the statements which are cited at Paragraphs 1.5 and 1.6 of the application were part of the statement dated 7 March 2021, which was clearly considered by the Tribunal for the reasons referred to at [27] above and also its mention in the Tribunal reasons when identifying the material before it.[12]
[12] Tribunal’s reasons for decision at [27].
The reality is that the Tribunal considered the statements by the Applicant about his ties to Pakistan, but was of the view that they lacked persuasion or did not carry significant weight. This is clear from the Tribunal’s reasons at [34], which states:
The applicant’s ties to his home country appear to be minimal and the Tribunal is of the view that those circumstances do not serve as a significant incentive to return to the home country.
I agree with the First Respondent’s submission that the Applicant’s contention really is a complaint about what weight the Tribunal gave the Applicant’s evidence about his ties to Pakistan and it does not amount to jurisdictional error.[13]
[13] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Further, to the extent that the Applicant asserts actual or apprehended bias towards the Applicant, no legal basis for the submission is given. Bias is not established merely because the Tribunal does not accept an Applicant’s evidence to be persuasive or carry the weight which the Applicant asserts it should have.[14]
[14] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Ground 1.6
Regarding Paragraph 1.6, the submission is that jurisdictional error of some kind occurred because of inaccuracies in findings about the date when the Applicant travelled to Pakistan. However, as was submitted by the First Respondent’s counsel during the hearing, the Applicant himself has given conflicting dates as to when he travelled.[15]
[15] The conflicting dates provided by the Applicant are December 2019 and December 2020, evidenced in the Court Book at pages 109 and 102 respectively.
However, there is no dispute on the evidence that the Applicant returned to his home country on one occasion for one month in the time between arriving in Australia and the hearing in the Tribunal. On the basis of the Applicant’s submission before the Court and the evidence in the Court Book that was before the Tribunal, it was in December 2019 returning in January 2020.[16]
[16] Court Book at page 109.
It is apparent from the Tribunal’s reasons for decision that no finding or conclusion of significance turns on the date the Applicant travelled to and returned from Pakistan. Rather, the Tribunal relied upon a finding that visits to his home country in recent years have been “minimal”.[17] Such a finding is entirely logical and correct as the evidence established one visit.
[17] Tribunal’s reasons for decision at [29].
No jurisdictional error arises due to the incorrect date referred to by the Tribunal. In any event, it is clear from the Tribunal’s reasons at [29] to [36], that a number of facts found apart from the finding about the date of the visit that led to the Tribunal’s conclusion that the Applicant’s ties to his home country appeared to be minimal and did not serve as a significant incentive to return to the home country.[18]
[18] Tribunal’s reasons for decision at [34].
Ground 1.7
In this submission the Applicant notes evidence before the Tribunal about his earnings and expenses in Australia. He then alleges, in effect, that it was improper for the Tribunal to conclude, as it did at [31] of its decision, that the Applicant’s economic incentives of regular work and good income suggest a well-funded lifestyle in Australia and infer that such economic circumstances presented as an incentive not to return to Pakistan. It is said error arose because the Tribunal did not take into account that the Applicant was an engineer by profession and simply using the opportunities granted through the 476 Visa to upgrade his skills through courses and internships, and that he was also undertaking casual labour to support himself during the pandemic.
Contrary to that asserted by the Applicant, the comparative economic, employment and living circumstances of the Applicant in Australia and Pakistan are relevant to the assessment the Tribunal was required to undertake. Ministerial Direction 69 expressly requires this at paragraphs 9c and 12c.
As the explanation for the Applicant undertaking casual labour and earning an income in Australia to support himself during the Covid-19 pandemic was before the Tribunal within the March 2021 statement, it cannot be said that it was not taken into account. But the
Tribunal did not particularly rely on the fact of the Applicant’s earnings in Australia alone in arriving at its decision.
It was the absence of evidence about earnings and prospects of employment in Pakistan, which did not permit a comparative assessment with circumstances in Australia which caused the Tribunal to conclude that there was no significant incentive for the Applicant to return to Pakistan.
It was for the applicant to advance whatever evidence or arguments about earnings and life circumstances in Pakistan to enable assessment required under Ministerial Direction 69 and favourable decision for grant of the visa. He did not provide the necessary evidence and no jurisdictional error is made out under this ground.
Ground 1.8
There is no merit in the suggestion that the Tribunal failed to consider the three documents set out at Paragraph 1.8, being:
(a)The response to a request under section 359(2) of the Migration Act 1958 (Cth);
(b)A statement or purpose submitted on 7 March 2021; and
(c)A statement of purpose submitted on 13 December 2019.
The documents at [43(a)] and [43(b)] are explicitly mentioned in the Tribunal reasons and therefore must have been considered.[19]
[19] Tribunal’s reasons for decision at [20] in respect of [43(a)] and at [24] and [46] in respect of [43(b)].
The statement of purpose of 13 December 2019 is not mentioned in the Tribunal’s reasons, but it does not contain any information about why the Applicant did not pursue his studies in leadership and management in Pakistan. There is no valid criticism of the finding of the Tribunal that there was no evidence to support the assertion by the Applicant that universities in Pakistan did not teach leadership and management.
The Applicant does not point to detailed and persuasive evidence he says he provided to the Tribunal about the non-availability of such courses or alternatively evidence of searches he had undertaken about such courses in Pakistan. At page 105 of the Court Book there is some general information about searches at universities and institutes in Pakistan, but that amounts to assertion, rather than independent persuasive evidence of unavailability of courses or that the courses were not satisfactory for a particular career or employment goal in Pakistan. No jurisdictional error arises because of the contentions at Paragraph 1.8.
Ground 2
Ground 2 is a reformulation of the same complaints referred to in Ground 1 and the submissions at Subparagraphs 1.1 to 1.8. It is asserted that the failure to consider the information led to the Tribunal making “wrong inferences” and this somehow amounts to a failure to afford procedural fairness.
To the extent the information was before the Tribunal, it was considered. To the extent information was not considered, it was not before the Tribunal. There is no merit in the suggestion that wrong inferences were made by the Tribunal; to the extent inferences were made and conclusions drawn by the Tribunal, they were available on the evidence it had before it. Ground 2 does not raise anything capable of amounting to jurisdictional error.
Ground 3
This ground alleges a failure on the part of the Tribunal to make reasonable allowances for changing career paths and study pathways, as required by Ministerial Direction 69.[20] It is largely a reformulation of the same complaint referred to in 1.3 of the Application.
[20] Ministerial Direction 69 at Paragraph 12a.
I agree with the First Respondent’s written submissions at paragraphs 37 to 39, the effect of which are:
·It is for the Applicant to put materials relied upon before the Tribunal to decide the review on merits; and
·There is no general duty on the Tribunal to inform itself as to every possible potentially relevant matter upon which the Applicant might want to rely.[21]
[21] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43]; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] and [49].
During the hearing, I observed that the Applicant had not provided evidence relevant to the assertion made. He seemed to concede this was so and commented he did not know what he could or should provide. He enquired of me about this and I informed him that it was not for me to give him legal advice.
The Applicant sought to rely on the assertion that he had completed the Diploma and completed the Advanced Diploma after the Tribunal hearing, indicative of him being a genuine student. The Tribunal was aware the Diploma had been completed and that the Advanced Diploma would be completed in September 2021.[22] However, there was no relevant issue as to the Applicant being a genuine student. The Tribunal relied on the absence of evidence concerning the considerations at Paragraphs 12a and 12b of Ministerial Direction 69. In any event, the comment about absence of information concerning progress of the study did not materially influence the Tribunal’s conclusion.
[22] See [11] of these reasons.
Ground 4
Ground 4 is a reformulation of the same complaint raised in Ground 3 of the application. For the same reasons, the ground does not have merit.
Ground 5
The Applicant asserts that the Tribunal’s failure to exercise its power to adjourn the hearing was legally unreasonable. There is no basis articulated for why it may have been legally unreasonable and no evidence that an application to adjourn was made before the Tribunal.
Further, as the First Respondent asserts, the Applicant consented to the hearing proceeding on the papers.[23] Ground 5 of the application for review does not demonstrate jurisdictional error.
[23] Court Book at page 101.
Ground 6
An application for review may only succeed on the basis of jurisdictional error, which is a specific concept in law. Whether the Applicant invested significantly financially for him to study in Australia is irrelevant to the question of whether he is entitled to a temporary student visa. Furthermore, I accept the First Respondent’s submission that whether or not the Applicant is granted as student visa does not detract from the benefit he retains from having studied and completed studies in Australia since making his application for a visa. Ground 6 of the application for review has no merit and does not disclose jurisdictional error.
Ground 7
On its face, the Applicant relies on a contention that the Tribunal did not consider whether there were exceptional circumstances in the Applicant’s case. The existence of exceptional circumstances or reasons are not a criterion that the Tribunal is to consider for the purposes of assessing whether a student visa should be granted to the Applicant. The criteria for a student visa are explicit and contained in the Schedule as guided by the Ministerial Direction. The issue of exceptional circumstances or reasons simply does not arise. Ground 7 does not disclose its jurisdictional error.
DISPOSITION
As is evident from the reasoning above, none of the grounds for review set out in the application establish jurisdictional error as required for the applicant to succeed. The application for review is dismissed, meaning that the decision of the Tribunal is left undisturbed.
The First Respondent’s submissions seek an order for costs, but no specific oral submissions were made in respect of this. The Applicant did not therefore have an opportunity to be heard concerning an order for costs. Accordingly, leave will be given to the First respondent in respect of this issue.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 1 July 2022
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