Saber v Minister for Immigration

[2019] FCCA 2651

FEDERAL CIRCUIT COURT OF AUSTRALIA

SABER v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2651

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal had evidence that the applicant had honoured his visa at all times – whether the Tribunal’s consideration of certain evidence should have led to the refusal of the applicant’s student visa application – whether the Tribunal made an error by finding that the applicant did not meet an essential requirement for the visa – grounds seek impermissible merits review – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 499

Migration Regulations 1994 (Cth), Sch. 2 cl.572.223

Applicant: ABDELRAZEK ATEF ABDELHAMID ABDELRAHMAN SABER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1552 of 2017

Judgment of: Judge Nicholls

Hearing date: 12 September 2019

Date of Last Submission: 12 September 2019

Delivered at: Sydney

Delivered on: 19 September 2019

REPRESENTATION

Applicant: Abdelrazek Atef Abdelhamid Abdelrahman Saber

Counsel for the Respondents: Mr G. Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”

2. The application made on 19 May 2017 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1552 of 2017

ABDELRAZEK ATEF ABDELHAMID ABDELRAHMAN SABER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 5 May 2017 affirmed the decision of the Minister’s delegate to refuse the grant of a student visa to Mr Saber (“the applicant”).

2. In evidence before the Court is a bundle of relevant documents (the Court Book – “CB” – “RE 1”).

Background

1. The applicant applied for the visa on 3 March 2016 (CB 1 – CB 28 with annexures).  The relevant subclass of student visa available to the applicant’s circumstances was the subclass 572 visa.

2. The applicant was required to satisfy the requirements of cl.572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) before the visa could be granted:

   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;

   (b) the applicant meets the requirements of subclause (2).

The Delegate

1. The delegate refused the grant of the visa on 23 May 2016 (CB 47 – CB 60). The delegate’s central finding was that the applicant’s study history demonstrated that he did not intend to genuinely stay in Australia for study.

2. The delegate found (at CB 58.5):

   “While I take into account your response,

   ● I note that although you have been studying consistently and have completed a number of courses in Australia, although you have not completed any courses above the Advanced Diploma level and you have maintained enrolment in short/inexpensive courses at the vocational level. This indicates you are using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

   …”

The Tribunal

1. The applicant applied for review to the Tribunal on 6 June 2016 (CB 61 – CB 65).  A copy of the delegate’s decision record was provided with the application (CB 62).  The Tribunal wrote to the applicant by letter dated 13 March 2017 inviting him to a hearing scheduled for 7 April 2017 (CB 66 – CB 69).

2. The letter also asked the applicant to provide the following (CB 68.2 – CB 68.4):

   “Additionally, please provide this information so that a decision can be made as quickly as possible:

1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.”

1. The letter specifically drew the applicant’s attention to the need to read the delegate’s decision, which explained why he did not meet the criteria for the grant of the visa.

2. Having asked the applicant to provide the documents, as set out at [8] above, the Tribunal told the applicant (at CB 68.5):

   “We will assess whether you intend genuinely to stay in Australia temporarily”.

1. In this light, the Tribunal drew the applicant’s attention to Ministerial Direction No. 53 (“MD No. 53”), made pursuant to s.499 of the Act. The letter asked the applicant to provide a written statement addressing: “…whether you are a genuine temporary entrant by referring to this Direction.” (See at CB 68.6).

2. The applicant attended the hearing on 7 April 2017 (CB 82 – CB 84). It does not appear that he provided any written statement as requested by the Tribunal. He did provide a Confirmation of Enrolment for an Advanced Diploma of Leadership and Management course at the Australian Academy of Commerce Pty Ltd. This course was said to end on 6 January 2019 (CB 88).

3. The Tribunal found that the applicant did not meet an essential requirement of cl.572.223. Namely, cl.572.223(1)(a) ([22] at CB 95). In making this finding the Tribunal had regard to MD No. 53 ([16] at CB 94). The Tribunal also had regard to the applicant’s evidence and submissions made at the hearing.

4. The Tribunal accepted he was studying at the time of the hearing and at the time of the making of its decision. However it also found that he had not satisfactorily explained how he satisfied the criterion that he intended a genuine temporary stay in Australia ([18] at CB 94).

5. In particular, that he had not provided sufficient details of his career path if he were to return to Egypt, or his prospects of employment. The applicant had told the Tribunal that he wished to complete this course to further his career prospects on return to Egypt.

6. The applicant had provided details of his study in Australia to the delegate (CB 55 – CB 58). This revealed he had first commence study in Australia in January 2007. He enrolled in a further 10 courses since that time.

7. The Tribunal found that the applicant’s migration history in Australia demonstrated an intention of staying in Australia, which was inconsistent with an intention to genuinely stay temporarily ([19] at CB 94):

   “19. The applicant explained during the hearing that his plans in coming to Australia were to obtain good qualifications and consider staying in the country but if that if that was not possible he would return to his own country and use his qualifications to find work. The applicant said his plans now are to complete the course he is enrolled in and then go back to Egypt. The Tribunal finds from his statements at the hearing that the applicant has demonstrated an interest in the past in staying in Australia, which is inconsistent with being a genuine temporary entrant as a student. Although the applicant claims he now intends to return to Egypt after studying, for the following reasons, the Tribunal is not satisfied this is the case.”

[Error in the Original.]

1. The Tribunal further reasoned (at [20] – [21], CB 94 to CB 95):

   “20. By 2011 the applicant stated he had completed a Diploma of Accounting in 2011 and he also had accounting qualifications from his own country before coming to Australia. The Tribunal is not satisfied the broad range of courses he has and is continuing to undertake will enhance his career prospects further when he leaves Australia and is also not satisfied he intends to leave when he finishes his current course.

   21. The applicant has siblings overseas in other countries and only his parents in Egypt. He has had no difficulty in travelling back to Egypt to visit his parents which is the reason he declares his studies have taken longer than expected. On the evidence, he is able to see them on occasions while living in Australia for a long period of time. There does not appear to be a clear incentive to return to Egypt and seek employment there, or to apply for jobs in other Arab countries as was claimed.”

The Grounds of the Application

1. The grounds of the application are in the following terms:

   “1. The Tribunal had evidence that I have honoured my visa conditions at all times and even though I was enrolled in short, inexpensive courses that should not lead to a refusal of my student visa.

2.    I am currently enrolled in an Advanced Diploma of Leadership and Management which commenced in January 2017 and finishes in 2019.

3.    The Tribunal fell into an error by denying me a student visa based on my evidence and whatever courses I have done will give me a good opportunity to work overseas in various fields because I have completed various courses in Australia.

4.    The Tribunal made an error by concluding that I do not meet an essential requirement for maintaining my student visa.”

Before The Court

1. A Registrar of the Court made various orders for the conduct of this case on 15 June 2017, 19 October 2017 and 10 May 2018. Relevantly, the applicant was given the opportunity to file any amended application, evidence by way of affidavit, and written submissions.  At the hearing of this matter nothing further had been filed by the applicant.

2. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Arabic language.

3. The applicant confirmed that he had not filed anything further in relation to his application.  When asked if he had any submissions to make, the applicant replied that he had nothing to say. The applicant explained that the grounds had been drafted by his “lawyer”, whose name he could not now remember. I directed the applicant to each of the grounds of the application to the Court and had them translated by the interpreter for him. The applicant said he had nothing to say in respect of each of the grounds and relied on what was written there.

Consideration

1. Ground 1 asserts that the Tribunal had evidence that he had honoured his visa conditions at all times, and further, that even though he had been enrolled in short, inexpensive courses, this should not have led to the refusal of his student visa.

2. The Tribunal was not required to make any specific finding that the applicant had honoured all conditions attached to previous visas held by him. 

3. This is because any such compliance was not a mandatory consideration in what was the central issue in this review.

4. As was clear from the delegate’s decision, and as the Tribunal made clear in its letter of invitation to hearing, the central issue in the review was whether the applicant met cl.572.223(1)(a).

5. Further, the Tribunal made no finding that the applicant had undertaken short and inexpensive courses. This was in fact a finding made by the delegate (CB 58.6).

6. The Tribunal did have regard to “the broad range of courses” the applicant had undertaken ([20] at CB 94). This was in the context of the applicant’s claim that the courses he had undertaken in Australia were to enhance his career prospects on return to Egypt.

7. The Tribunal’s consideration here was relevant to the consideration of the applicant’s evidence. Its finding that this range of courses would not achieve the applicant’s stated aim, was, in the circumstances, reasonably open to it on what was before it. Ground 1 is not made out.

8. Ground 2 asserts that the applicant is “currently” (as at the time of the application to the Court) enrolled in a course commencing in 2017 and ending in 2019. This does not assert any jurisdictional error on the part of the Tribunal. Ground 2, therefore, is not made out.

9. I pause to note that because of the delay caused by the number of cases before this Court, the applicant has achieved the further period of stay in Australia that he told the Tribunal he wanted so as to complete his studies.  Albeit that he told the Court at the hearing that he had not completed this course.

10. Ground 3 asserts that the Tribunal erred by denying the applicant a visa based on his evidence. Further, that whatever courses he had undertaken would assist in his work opportunities overseas.

11. No jurisdictional error is asserted here. The complaint that the Tribunal based its decision on his evidence, can at best be seen as a complaint that the Tribunal should have accepted his evidence.

12. This seeks impermissible merits review in circumstances where the Tribunal did not make any general adverse credibility finding, but rather found that on the applicant’s own evidence, and in the circumstances presented, it could not be satisfied the applicant intended a genuine temporary stay.

13. The Tribunal considered the applicant’s submission that the study would advance his future career prospects. The Tribunal found this to be inconsistent with statements made by the applicant at the hearing that he had an intention in the past of staying in Australia.

14. This also was reasonably open to the Tribunal on what was before it.  The applicant has not provided a transcript of the Tribunal hearing, despite opportunity to provide such evidence. Therefore, the Tribunal’s account is the only evidence of what occurred at the hearing. On what is before the Court, the ground really seeks impermissible merits review, and is not made out for that reason.

15. Ground 4 asserts that the Tribunal made an error by finding that he did not meet an essential requirement for the visa.

16. On the evidence the Tribunal was entitled, if not obliged, to consider the question of the genuineness of the applicant’s intention as to his stay in Australia. The Tribunal’s finding, as set out above, was reasonably open to it on what was before it. This again seeks impermissible merits review.  Ground 4 is not made out.

Conclusion

1. None of the grounds of the application are made out. Nothing that the applicant told the Court at the hearing indicated any reasonable argument that the Tribunal’s decision was infected with jurisdictional error. It is appropriate to dismiss the application to the Court. I will make the appropriate order.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 19 September 2019