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) |
| 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…
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- Case
- [2018] FCCA 720
- Decision Date
CaseChat Overview and Summary
The core legal issues before the Federal Circuit Court were whether the AAT had breached section 360 of the Migration Act 1958 (Cth) by failing to afford the applicant an opportunity to present evidence and arguments regarding the truthfulness of his stated intention to undertake a marketing course for employment prospects in Egypt. Additionally, the court considered whether the AAT had erred by failing to take into account the applicant's immigration history and his engagement to be married to a woman in Egypt, both of which were argued to be relevant considerations under Clause 572.223(1)(a) of Schedule 2 of the Migration Act 1958 (Cth).
Judge Dowdy found that the AAT had not committed jurisdictional error. The court reasoned that the AAT had adequately considered the applicant's evidence regarding his intentions and employment prospects in Egypt, as evidenced by its detailed findings in paragraphs [48] to [50] of its decision. The AAT had expressed difficulty in accepting the applicant's claims, concluding that he was likely using the student visa program to maintain residence in Australia rather than for genuine study purposes. The court held that the AAT was not obliged to accept the applicant's evidence at face value and that its findings were open to it on the evidence presented. The court also found that the AAT had considered the applicant's circumstances, including his engagement, and that the grounds of review were not made out.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 ConsiderationThe 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 ConsiderationThe 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). 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.