Risha v Minister for Immigration
[2018] FCCA 720
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RISHA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 720 |
| Catchwords: MIGRATION – Application seeking judicial review of decision of Migration Review Tribunal affirming decision not to grant applicant a Student Class TU (Subclass 572) visa – Tribunal was not satisfied that applicant was a genuine applicant for entry and stay temporarily as a student – Tribunal engaged in an active intellectual process in considering the claims made by the Applicant – no error in the decision of Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 425 Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | MOHAMED ADEL AHMED RISHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 611 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 31 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Lawrence of Counsel |
| Solicitor for the Applicant: | Australian Business Underwriter |
| Counsel for the Respondents: | Mr H.P.T. Bevan of Counsel |
| Solicitors for the Respondents: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Applicant is to pay the First Respondent’s costs thrown away by the adjournment of the final hearing originally set down for 8 February 2017.
The Amended Application filed in Court on 8 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 611 of 2016
| MOHAMED ADEL AHMED RISHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Egypt aged 30 years, having been born on 13 March 1988.
By Amended Application filed in Court on 8 February 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal). dated 2 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 22 January 2015 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) visa (Student visa).
Background
The Applicant arrived in Australia on 6 April 2007 on a student visa which was valid until 23 March 2009. Three further student visas were granted to the Applicant with the last valid to 23 March 2015.
The Applicant applied for the Student visa the subject of this proceeding on 16 December 2014 so that he could study for a Certificate III in Financial Services and a Certificate IV in Accounting up to 14 August 2016.
Upon receipt of his Student visa application the Department of the Minister (Department) wrote to the Applicant by letter dated 17 December 2014 and requested that:
a)he provide evidence of his English language ability; and
b)he provide further information in order to determine whether he met the Genuine Temporary Entry Criteria in a context where it appeared from information available to the Department that;
i)his application for the Student visa was his fourth consecutive application for a student visa to study courses within the Vocational Education Sector;
ii)in the seven years of his stay in Australia he appeared to have only completed six courses;
iii)his last day of study had been 13 June 2014;
iv)he had deferred courses several times and his current deferral was until 11 January 2015;
v)the records of the Department showed that he had been reported for unsatisfactory attendance by his education provider on 16 November 2010;
vi)he had only been outside of Australia for a total of 199 days since his first arrival in Australia; and
vii)the proposed enrolments underpinning his Student visa application would lengthen his stay in Australia until at least 12 April 2017.
Relevant Criteria Applicable to the Student Visa Application
Relevantly for present purposes the Applicant had to satisfy cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) at time of decision and in particular cl.572.223(1) and cl.572.223(2) which provided as follows:
572.223
(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; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) ………………………………………………………………
(2) If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
(emphasis supplied)
I note that Sch.5A407 in Part 4 of Sch.5A sets out requirements for proof of English language proficiency for the purposes of Subclass 572 student visas.
Decision of Delegate
The Delegate in her Decision Record recorded that during his period of study in Australia the Applicant had:
a)obtained a Diploma of Business Administration in February 2010;
b)completed five accredited units towards an Advanced Diploma of Management in August 2011;
c)obtained a Certificate II in Business in August 2013; and
d)completed 11 accredited units towards a Certificate III in Business Administration in April 2014.
In the result the Delegate found that the Applicant was unable to satisfy the English language criterion under Sch.5A407 to the Regulations. Accordingly, the Delegate was not satisfied that the Applicant met cl.572.223(2)(a) and therefore refused his application for a Student visa.
First Tribunal Decision Set Aside
The Applicant applied to the Tribunal on 28 January 2015 for a merits review of the Delegate’s decision. In its Decision Record of 27 May 2015 the Tribunal affirmed the Delegate’s decision not to grant the Student visa to the Applicant. However, this Tribunal decision was set aside by consent in this Court on 19 August 2015 and the Applicant’s review application was remitted to the Tribunal for reconsideration.
Second Tribunal Decision Under Review in this Court
The Applicant attended a hearing before the Tribunal on 1 February 2016 to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages.
In the result the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student but rather that he was using the student program only to maintain ongoing residence in Australia: see [50] and [52] – [53] of its Decision Record.
At [4] of its Decision Record the Tribunal noted that the Applicant had originally applied for the Student visa to study for a Certificate III in Financial Services and a Certificate IV in Accounting which would entail him studying until 14 August 2016.
However, at [12] of its Decision Record the Tribunal recorded that prior to the hearing the Applicant had submitted a Certificate of Enrolment to study for a Diploma in Marketing with a course end date of 7 January 2018.
At [13] the Tribunal recorded a discussion with the Applicant concerning the requirements of Sch.5A, specifically in terms of his meeting the English language proficiency requirement, and that it had raised with him its concern that the evidence might indicate that he did not meet Sch.5A407 in that regard.
At [15] the Tribunal recorded that it raised with the Applicant whether he was a genuine applicant for entry and stay temporarily as a student as required by cl.572.223(1)(a). The Tribunal here also recorded that it raised with the Applicant its concerns that he was using the student visa program to maintain residence in Australia.
From [17] – [36] of its Decision Record the Tribunal recounted in some detail the evidence given by the Applicant at the hearing.
At [20] the Tribunal noted that the Applicant had stated that he would finish the Diploma of Marketing in 2018 and then return home to Egypt.
At [21] the Tribunal recorded that it raised its concern with the Applicant as to the length of time he had spent in Australia, being approximately nine years, and that in effect he wanted to stay 11 years until 2018. The Tribunal raised with the Applicant that this length of time might indicate that he was using the student visa to maintain residence permanently in Australia and not temporarily.
From [38] – [54] the Tribunal recorded its consideration of the Applicant’s claims and the evidence before it. The Tribunal focused on whether or not it was satisfied that the Applicant was a genuine applicant for entry and stay temporarily for the purposes of cl.572.223(1)(a).
At [40] – [41] the Tribunal recorded that it must have regard to Direction No.53 entitled “Assessing the genuine temporary entrant criterion for Student Visa application made under s.499 of the Migration Act” as a guide.
At [43] the Tribunal noted in the Applicant’s favour that there was no significant incentive for the Applicant not to return to Egypt for either economic or family reasons. The Tribunal stated:
[43]As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Egypt. It accepts that the courses he has undertaken in Australia are regarded as better. There is no convincing evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that he has closer family ties to Egypt which is indicative of a person who is only a temporary entrant and wishes to return to their country.
(emphasis added)
At [45] to [47] the Tribunal expressed its concerns about the nine year period in which the Applicant had already been studying in Australia and the prospective 11 year period he would have studied in Australia if the Student visa was granted to him, and that during the nine year period he had only briefly returned to Egypt and had only completed a limited number of courses, all of which were at the vocational level.
In the result the Tribunal affirmed the decision of the Delegate not to grant to the Applicant the Student visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in his Amended Application are as follows:
Ground 1: Jurisdictional Error - Breach of section 360 of the Migration Act 1958 (Cth)
The Second Respondent erred as to jurisdiction in not giving the Applicant an opportunity to to give evidence and present arguments relating to the issue of the falsity or truthfulness of the applicant's evidence as to why he intended to undertake the course of study the subject of his visa application, being that he had been offered the prospect of paid employment by a company in Egypt if he undertook a marketing course, as required by section 360 of the Migration Act 1958 (Cth).
Ground 2: Jurisdictional Error - Failure to Take into Account a Relevant Consideration
The Second Respondent erred as to jurisdiction by failing to take into account the Applicant's 'immigration history' as required by Clause 572.223(1)(a) of Schedule 2 of the Migration Act 1958 (Cth) and accordingly failing to give reasons as to how it was taken into account.
Ground 3: Jurisdictional Error - Failure to Take into Account a Relevant Consideration
The Second Respondent erred as to jurisdiction by failing to take into account that the Applicant was engaged to be married to a woman living in Egypt, that being a matter central to the consideration of the 'applicant's circumstances' and required to be taken into account by Clause 572.223(1)(a) of Schedule 2 of the Migration Act 1958 (Cth).
Consideration
Ground 1
The context of this Ground is that at the hearing before the Tribunal the Applicant gave evidence that he had returned to Egypt in mid-2015 and that he had spoken to a company about job opportunities and the advice from the company was that he would need a Diploma of Marketing.
This claim by the Applicant was considered by the Tribunal at [48] – [50] of its Decision Record:
[48]In making its finding the Tribunal has considered his evidence at the hearing that he is a genuine student and a genuine temporary entrant, who wishes to return home after the completion of the Diploma of Marketing in 2018. It has considered his evidence that he returned to Egypt in mid-2015 and was advised to complete a Diploma of Marketing as this would give him the best chance to obtain a job. It has considered his evidence that the situation in Egypt has improved economically, a Diploma of Marketing is needed and that he no longer fears civil and political unrest in Egypt. He claims he has spoken to a company about job opportunities and a Diploma of Marketing is needed.
[49]However, the Tribunal has difficulty accepting this to be true and that after nine years of study in Australia, where he only achieved success in a limited number of courses that he is now keen to return and pursue his career in Egypt and needs a Diploma of Marketing to do so.
[50]The concerns raised above lead the Tribunal to not be satisfied that he has undertaken the courses he has, all at the vocational level, over a nine year period and wishes to undertake the Diploma of Marketing for his stated career aim. Rather it is of the view he is using the student visa program to maintain residence in Australia.
At the hearing Mr Lawrence of Counsel, who appeared for the Applicant, submitted in support of this Ground that the issue of why the Applicant wanted to study for the Diploma of Marketing was such a critically important issue that in all the circumstances, to afford procedural fairness in terms of s.360 of the Migration Act 1958 (Cth) (the Act), the Applicant had to be properly put on notice that the truthfulness of that account was not necessarily accepted.
In his Written Submissions on behalf of the Applicant Mr Lawrence conceded at [20] that the potential job in Egypt was the subject of extensive evidence from the Applicant at the Tribunal hearing, including the provision by him of information about when he spoke to the company in Egypt, the name of the company, why a formal contract of employment was not provided at the time and various other matters. Nevertheless, Mr Lawrence at [21] of his Written Submissions contended:
[21] The Tribunal at no stage put the applicant on notice that the truthfulness of this evidence was in issue, indeed at one stage an implicit suggestion was made that the evidence was accepted.
The transcript of the Tribunal hearing was in evidence and establishes relevantly to this Ground that shortly after the commencement of the hearing the Tribunal member indicated to the Applicant that he was concerned with the issue of whether the Applicant was a genuine applicant for entry and stay temporarily as a student and that in assessing that requirement the Tribunal would take into account his immigration history, how long he had stayed in Australia, his personal and family ties to Egypt, his economic circumstances in Egypt and whether his studies would assist him in obtaining proposed future employment: see TP 3.50 – 4.28. Specific discussion about the possibility of the Applicant obtaining a job with a company in Egypt is recorded at TP 10.28 – 11.27.
Then the following discussion occurred as recorded at TP 15.33 – 16.11:
Q. All right. So is there anything more you want to say?
A. APPLICANT: No, that's all, but I hope I get my visa back to finish this diploma. To get another change, to find good job in my country. And one thing this diploma was like one year, but that's why .. (not transcribable) .. was one year .. (not transcribable) .. transfer, make it two years for some reason from the college. That's all, just I hope I get my visa back to find another opportunity in my life.
Q. And this job you're going to, have you got a contract?
A. APPLICANT: No, in - it doesn't give you contract until you start the job.
Q. And so it's pretty much you went and saw them and they said if you had a Diploma of Marketing we might give you a job?
A. APPLICANT: And they - they help me a lot, they - it's gonna be big opportunity .. (not transcribable).
Q. And have you looked previously when you've gone back to Egypt?
A. APPLICANT: Yes, I do, but because it's like all - before was like in – in Egypt, the economy, you know, it doesn't - it doesn't know anything about the country was like .. (not transcribable).
Q. I just have real issues, because I think if you were a committed student, you were previously enrolled in marketing, you would have studied more, successfully completed more courses, especially with your - you obviously did very well at school and were enrolled in a bachelor degree in--
A. APPLICANT: In law.
Q. --in Egypt. So I mean it's sort of difficult to understand why you'd be pursuing these vocational level courses.
(emphasis added)
I interpolate at this point that I reject the submission made in [21] of the Written Submissions of Mr Lawrence (see [28] above) that in the passage emphasised above the Tribunal member implicitly accepted the truthfulness of the Applicant’s evidence concerning the job the Applicant claimed to be available to him in Egypt. In my view there is nothing in the exchange between the Tribunal member and the Applicant which indicates in its terms an acceptance by the Tribunal of what the Applicant was saying. Further, the Tribunal member indicated at the conclusion of the Tribunal hearing that he had still to consider the totality of the Applicant’s claims and come to a view about them, when he said to the Applicant at TP 17.1 – 17.4:
Q. Okay. Well, thank you very much for coming today Mr Risha. What will happen is I will go away and look at all the information you provided, and a decision will be made on your application, and it will be sent to you.
A. APPLICANT: Sent to me.
In my view this Ground fails to establish that the Tribunal decision is affected by jurisdictional error. The Tribunal was under no obligation to advise the Applicant either in writing or orally that the truthfulness of his account about the claimed job in Egypt was not necessarily accepted. That was not part of the Tribunal’s role. The role of the Tribunal was as relevantly stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268]:
[265]………….The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
To similar effect in SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 – 166 [47] – [48] the Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
[47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…
[48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry :
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Tribunal was not obliged to give the Applicant notice of the matters that it was considering in relation to the evidence or material which the Applicant relied upon in support of his Student visa application, or to point out its inadequacies. The Tribunal had no legal duty to ask the Applicant to supplement or clarify any deficiencies that it may have perceived in such material: see Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [30] per Rares, Rangiah and Charlesworth JJ.
Accordingly, Ground 1 fails to establish jurisdictional error.
Ground 2
Subclass 572.223(1)(a) required consideration by the Tribunal of the Applicant’s immigration history and Direction No.53 required the Tribunal in considering that immigration history to have regard to previous applications for an Australia visa or for visas to other countries, and previous travel to Australia or other countries: see [40] of the Decision Record.
I take the substance of this Ground to be an assertion that the Tribunal did not engage in an active intellectual process directed at the mandatory criterion that it have regard to the Applicant’s immigration history: Carrascalao v Minister for Immigration (2017) 347 ALR 173 at 183 [45] per Griffiths, White and Bromwich JJ.
However, in my view this Ground also fails.
The Tribunal member indicated at the commencement of the Tribunal hearing that the Applicant’s immigration history and the length of his stay in Australia were relevant matters.
At [3] of its Decision Record the Tribunal stated as follows:
[3]Movement records indicate that the applicant initially arrived in Australia on 6 April 2007 on a student visa valid to 23 March 2009. Further student visas were granted to 15 March 2015. He departed Australia from 15 July 2010 to 16 September 2010, 13 January 2013 to 17 March 2013, 1 August 2014 to 16 October 2014 and from 10 July 2015 to 10 September 2015.
At [21] the Tribunal recorded discussion with the Applicant at the hearing about his return visits to Egypt as follows:
[21]The Tribunal raised its concern as to the length of time he had spent in Australia, being approximately 9 years and that he wants to stay until 2018, being 11 years. It raised that his length of time in Australia may indicate he is using the student visa to maintain residence and not as a temporary entrant, even taking account the times he had returned home. The Tribunal raised that it may indicate he wanted to stay in Australia permanently rather than temporarily. He referred to returning to Egypt in 2015 for one and a half months, 2014 for two months, and 2013 and 2010 for two months.
Then at [40] of its Decision Record the Tribunal referred to a requirement of Direction No.53, that it have regard to the Applicant’s immigration history, and then at [41], after noting that Direction No.53 should not be used simply as a checklist, the Tribunal recorded that:
[41]… In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.
Then at [42] and [45] the Tribunal stated as follows:
[42] Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
[45]As the above information indicates the applicant has been in Australia since April 2007, a period of almost 9 years and wishes to study for a further two years, resulting in his time studying in Australia being almost 11 years. While the applicant has returned to Egypt on a number of occasions, including for two months in 2010, two months in 2013, two months in 2014 and two months in 20[1]5, the Tribunal views this extended period of time spent in Australia to be indicative of a person who is not a temporary entrant.
Finally, it closed off its findings in relation to the Applicant’s immigration history by having regard to the requirement of Direction No.53 summarised at [35] above, in recording at [51] of its Decision Record as follows:
[51] As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2008, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.
In my view, based on the matters referred to in [35] – [43] above, the Tribunal properly considered the Applicant’s immigration history and brought an active intellectual process to that consideration, clearly enough finding, in the result, that it counted against him.
Accordingly, this Ground fails to establish jurisdictional error.
Ground 3
The context to this Ground is that in the last paragraph of an undated document entitled “Genuine temporary entrant”, which I infer formed part of his Student visa application, and the text of which in any event was repeated in an email sent to the Department by him on 22 December 2014, the Applicant claimed as follows:
Currently I am engaged to my girlfriend who is in Egypt and planning to get married and settled in Egypt once I finish my studies here in Australia.
The gravamen of this Ground is the assertion that the Tribunal erred by failing to take into account one of the Applicant’s circumstances, contrary to cl.572.223(1)(a)(i), namely that he was engaged to be married to a woman living in Egypt.
It is of course a well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
However, an inference that the Tribunal has failed to consider an issue is not always to be drawn from its failure to expressly deal with that issue in its Decision Record. As was said in Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 (WAEE) at 604 – 605 [47] per French, Sackville and Hely JJ:
[47]The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(emphasis added)
It is true that the Decision Record of the Tribunal in this case does not expressly refer to the Applicant’s claim to be engaged to a girlfriend in Egypt. However, the transcript of the Tribunal hearing indicates that the Applicant never expressly repeated this claim to the Tribunal. Nevertheless, in my view he was given a clear opportunity to do so because at TP 8.10 – 8.25 the following exchange at the hearing before the Tribunal occurred:
Q. MEMBER: Two months. Okay, so I'm concerned that the length of stay in Australia is indicating you're here - what family do you have in Egypt?
A. APPLICANT: Brother, father, mother, and - I have at the moment two brother, one small sister, but there's a three brother, but one - he pass away.
Q. MEMBER: So you've got a brother, a father and a mother in-
Q.APPLICANT: Two brother.
Q. MEMBER: Two brother and a sister.
A. APPLICANT: And small sister, yeah.
Q. MEMBER: Yes. And do you have any family in Australia?
A. APPLICANT : No.
Q. MEMBER: Are you in a relationship in Australia?
A. APPLICANT : Not at all.
The claim to be engaged to a girlfriend in Egypt had been made some 16 months before the Tribunal hearing. It was for the Applicant to make his claims at time of decision as he saw fit. In this connection [22] and [23] of the judgment of Griffiths J in BAZ15 v Minister for Immigration [2018] FCA 230 are apposite:
[22]As Ms Laing (who appeared for Minister) submitted, other case law establishes the following relevant principles:
(a) s 425 does not impose an obligation on the review tribunal “to ensure that an applicant makes the best of the invitation to attend the hearing” (SZTXE v Minister for Immigration and Border Protection [2015] FCA 493; 232 FCR 433 at [18] per Flick J);
(b) the provision does not oblige the review tribunal to “actively assist the applicant in putting his or her case” (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [36] per Gray, Cooper and Selway JJ);
(c) the review tribunal is not obliged by s 425 to carry out an inquiry to identify what the review applicant’s case might be (SZNTO v Minister for Immigration and Citizenship[2010] FCA 183; 114 ALD 129 at [34] per Yates J). It is the review applicant’s responsibility to present whatever evidence or argument in support of his or her case, and the review tribunal must then determine whether that case has been made out (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ); and
(d) the review tribunal is not obliged “to prompt and stimulate an elaboration which the applicant chooses not to embark on” (Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [58] per Gummow and Heydon JJ).
[23] Having regard to these relevant legal principles and the particular facts and circumstances here, I do not accept the appellant’s submission that the primary judge erred in not finding that the Tribunal had breached s 425 by failing to give the appellant a reasonable opportunity to give evidence and present arguments regarding the alleged recent murder of his cousin. On the contrary, in my respectful view, the primary judge was correct to conclude that the appellant had been given a reasonable opportunity to give evidence and present arguments on that issue. There was no obligation on the Tribunal to ask the appellant directed questions in relation to the issue, or to seek more detail about it from the appellant.
Section 425 of the Act is in the same terms as its analogue, s.360.
The questioning by the Tribunal member extracted at [50] above prompted and effectively begged the Applicant to give evidence concerning his engagement in Egypt if he wished to do so. He failed to do so. In my view it would be reasonable to expect that in the circumstances of the Tribunal’s questioning about his family in Egypt the Applicant would have referred to his engagement in Egypt if he continued to maintain that such was a particular circumstance which confirmed or evidenced that he was in truth a genuine temporary student. It was not the role of the Tribunal to pry or prompt further answers from the Applicant that might be helpful to his claims when he failed to volunteer them.
However, in any event the Tribunal actually accepted that his family ties in Egypt were indicative of a person who was a temporary entrant to Australia and who wished to return to Egypt. It made this finding at [43] of its Decision Record:
[43]As to the Applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Egypt. It accepts that the courses he has undertaken in Australia are regarded as better. There is no convincing evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that he has closer family ties to Egypt which is indicative of a person who is only a temporary entrant and wishes to return to their country.
In other words, the Tribunal made a finding of greater generality in the Applicant’s favour which rendered it unnecessary for it to make a finding on a particular matter, namely whether or not the Applicant was engaged to a girlfriend in Egypt. The Tribunal, having made the finding that his family ties in Egypt were indicative that the Applicant was only a temporary entrant who wished to return to Egypt, meant that this factual strand of the Applicant’s claims made some 16 months before was not regarded by the Tribunal “as sufficiently material” to be included in its recitation of his family circumstances in Egypt: Minister for Immigration v Eden (2016) 240 FCR 158 at 174 [74] per Allsop CJ, Griffiths and Wigney JJ.
Finally, it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons: WAEE at 604 [46]. An error of fact based on a misunderstanding of evidence, or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered the applicant’s claims: Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28] per North and Lander JJ.
Accordingly, this Ground also fails to establish jurisdictional error.
Conclusion
In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application to this Court is to be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 28 March 2018
0
12
3