SAFDAR v Minister for Immigration

[2018] FCCA 348

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFDAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 348

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – where Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Schedule 2, cl.573.223

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Applicant: USMAN SAFDAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 349 of 2016

Judgment of: Judge Hartnett

Hearing date: 7 February 2018

Delivered at: Melbourne

Delivered on: 7 February 2018

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Grant

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 349 of 2016

USMAN SAFDAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) wherein the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the delegate’) to refuse the grant of a student temporary (Class TU) visa (‘the visa’) to the Applicant.  The Applicant filed his application on 25 February 2016.  He has remained on a bridging visa in the intervening two years.

2. The Applicant is a citizen of Pakistan. He applied for the visa on 23 September 2014. On 11 November 2014 the delegate refused to grant the visa on the basis that the Applicant failed to satisfy cl.573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). On 19 November 2014 the Applicant applied to the Tribunal for review of the delegate’s decision. On 9 February 2016, after a hearing on 3 December 2015, the Tribunal affirmed the decision under review. The Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) of 9 February 2016 is a well-structured, well-reasoned statement of decision and reasons which is evidence of careful consideration of the various claims of the Applicant, a balancing of matters which favoured his application against those which did not; and the Tribunal, on balance, expressing its view that it was ultimately not satisfied that the Applicant intended genuinely to stay in Australia temporarily. That finding was clearly open to the Tribunal on the evidence before it and there was no illogicality or unreasonableness attending that decision.

Background

1. The Applicant was born in 1988 in Pakistan.  He is a citizen of Pakistan.  His parents currently reside in Pakistan.  His father was a banker who retired approximately two years prior to the Tribunal hearing.  His father was continuing to do some buying and selling of real estate.  His mother had not worked and undertook home duties.  The Applicant has three siblings. One sister resides in Pakistan and lives with the Applicant’s parents. The other sister resides with her husband in Australia and at the time of the Tribunal hearing, was on a student visa to study accounting. The Applicant’s brother is an Australian citizen who had been living in Australia at the time of the Tribunal hearing for more than ten years.  He is married and has two children.

2. The Applicant is a single man. He undertook his primary and secondary schooling in Pakistan and he completed his intermediate year, equivalent to year 12 of the Victorian school curriculum, in 2007.  Between August 2007 and 31 January 2009 he undertook and completed a Diploma in Auto Engineering in Pakistan and a Diploma in Automotive Technology in Pakistan. He lived with his parents and he did not hold any employment during that time.

3. In 2009 the Applicant prepared for his English Language Intensive Course for Overseas Students (‘ELICOS’) and applied for a student visa to travel to Australia.  In 2009 he did not work and had no income, and was continuing to live with his parents. He travelled to Saudi Arabia in that year with his mother and sister for a period of approximately 20 days to attend Mecca.

The Applicant’s history in Australia and the Tribunal

1. On 28 April 2010 the Applicant was granted a student subclass 572 visa until 13 June 2012 and travelled to Australia to study.  The Applicant stated that his purpose in travelling to Australia was to complete the ELICOS course and then undertake a Certificate III course in Automotive Mechanical Technology in Light Vehicles.  The Applicant stated that he considered that a Certificate III in Australia would assist him to learn about cars, and this would assist him if he was to start his own business in Pakistan as he planned to run his own workshop with a garage and car showroom. The Applicant stated that in Pakistan people drive different cars and they do not have the same new technology as garages in Australia. In Australia, the Applicant claimed, there were more sophisticated workshops with advanced technology. The Applicant further claimed that a Pakistani qualification was not enough to establish a business in Pakistan and an overseas qualification would be better. He told the Tribunal further he had wished to travel to Australia to learn a different culture, a different way of thinking, and to meet different people and experience a different way of life.

2. Between 5 July 2010 and 10 September 2010 the Applicant undertook and successfully completed a Certificate IV in Spoken and Written English. 

3. Between 13 September 2010 and 2 September 2011 the Applicant undertook a Certificate III in Automotive Mechanical Technology at Cambridge International College.  Between 21 November 2011 and 26 June 2012 the Applicant undertook a Certificate IV in Business at the Australian Education Academy Proprietary Limited.  When asked by the Tribunal why he undertook a Certificate IV in Business, the Applicant stated to the Tribunal that he wished to run his own business on his return to Pakistan and wanted information regarding business to assist him.

4. On 9 June 2012 the Applicant was granted a second student (subclass 572) visa until 5 October 2014.  In this period there was a period of non-study from 1 July 2012 until 14 October 2013. The Tribunal considered the Applicant’s reasons for such gap in his study accepting that the Applicant was charged on 27 October 2012 with a criminal offence and was thereafter detained until December 2012.  He was then released from custody on bail, but with strict conditions. The Applicant was very stressed after his period of incarceration. Ultimately the charges against the Applicant were withdrawn.

5. The Tribunal noted in paragraph 52 of the Decision Record in respect of this period that:-

   “The Tribunal does accept…that the applicant may well have ceased studying given the nature of the charges he was facing, the level of publicity that had been generated as a result of those charges and that the Applicant did not wish to attend college in those circumstances.  The Tribunal considers this as a reasonable reason for not attending college in 2013.”

   and in paragraph 32 of the Decision Record:-

   “…the Tribunal accepts there was a reasonable explanation for the gap in studies between October 2012 and October 2013.”

6. Between 14 October 2013 and 7 February 2014 the Applicant successfully undertook and completed a Certificate IV in Automotive Technology at Education Access (Australia) Proprietary Limited.  The Tribunal queried with the Applicant why he had undertaken five automotive courses by the end of 2014 noting three had been undertaken in Australia and two had been undertaken in Pakistan.  The Applicant told the Tribunal that he undertook the three courses in Australia because there were different courses in Australia to those available in Pakistan. 

7. On 23 September 2014, the Applicant applied for his third student visa.  It was that visa application under consideration by the Tribunal.  The visa application was made on the basis that the Applicant would undertake a diploma of management; an advanced diploma of management; a diploma of marketing; and an advanced diploma of marketing between 27 October 2014 and 29 January 2017.

8. The Tribunal asked the Applicant why he was still pursuing studies and had not returned to Pakistan, as set out in paragraph 36 of the Decision Record.  The Applicant, in response, stated that:-

   “…the charges were still pending and he was unable to return to Pakistan.  He wanted to continue his studies to assist him.  The Tribunal asked why he wished to pursue a Diploma of Management and he stated that he was getting used to the courses and that he had been at his brother’s business and become interested in management and wished to have this course to assist him in operating the applicant’s business later on.”

9. The Tribunal found that the Applicant successfully completed the Diploma of Management between 27 October 2014 and 26 April 2015.  The Tribunal found, further, the Applicant successfully completed the Advanced Diploma of Management between 11 May 2015 and 8 November 2015 at the Australian Learning Training and Education Centre.  The Tribunal noted that for the latter part of the Advanced Diploma of Management course, the Applicant was overseas between September 2015 and 8 November 2015. 

10. The Tribunal also noted in its Decision Record, that since the Applicant arrived in Australia in 2010 he had returned to Pakistan on a number of occasions, being in 2010 and 2011; between 29 March 2015 and 26 April 2015; and from September 2015 to November 2015. 

11. The Tribunal noted that the Applicant was now seeking a student visa to be granted on the basis that he was enrolled in a Bachelor of Business from 11 January 2016 until 15 October 2017.  The Tribunal noted the cost of the course was $31,000 and that the Applicant has prepaid a deposit of $1000.  The Tribunal canvassed with the Applicant why it was he was now seeking to study a Bachelor of Business in addition to his previous studies. In the course of that discussion, the Tribunal raised with the Applicant its concerns, given the Applicant’s study history and work history, finding that the Applicant had never held employment in Pakistan and had held limited employment in Australia, as to whether the Applicant intended genuinely to stay temporarily in Australia. 

12. As set out in paragraph 44 of the Decision Record, the Tribunal considered all of the matters put before it by the Applicant, including the Applicant’s circumstances, immigration history and other relevant matters in assessing whether it was satisfied that the Applicant intended genuinely to stay in Australia temporarily. In that consideration, the Tribunal identified that the relevant subclass was subclass 573 of the student temporary (Class TU) visa and noted that among the primary criteria to be satisfied at the time of decision for the grant of the visa was cl.573.223(1)(a) of Schedule 2 to the Regulations.

13. In paragraph 9, the Tribunal set out cl.573.223(1)(a), which required that:-

    “573.223 

    (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)…”

14. In considering whether the Applicant satisfied this criterion, the Tribunal noted in paragraph 10 of the Decision Record that it was required to have regard to Direction No.53, ‘Assessing the genuine temporary entrant criterion for student visa applications’, made under s.499 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal did so.

15. In considering the Applicant’s submissions, the Tribunal concluded that “on balance” it was not satisfied that the Applicant intended to genuinely stay in Australia temporarily. 

16. In so finding, the Tribunal considered the Applicant’s student history and noted that the Applicant had completed “a number of low level short courses” on previous student visas; that the Applicant had undertaken automotive courses in Pakistan and Australia and had further undertaken business management diplomas in 2011 and 2015;  that the Applicant had enrolled in a Bachelor of Business course only a few days before the scheduled Tribunal hearing;  and that the Tribunal had “significant reservations” that the Applicant’s proposed course of study would assist him to obtain employment in a management position.

17. The Tribunal said in paragraph 49 of the Decision Record:-

    “The Tribunal considered that the applicant has had the opportunity of two student visas and undertaking multiple courses in Australia between 2010 and 2015 and had significant reservations that the further proposed course in a Bachelor of Business would assist the applicant in his endeavours to establish a garage with an associated showroom or to obtain a business position. Further, the Tribunal had little confidence that the applicant intended to return to Pakistan to establish his own business or to obtain a management position given he had no work experience in Australia and there is no evidence of any job offers or that the applicant has made any plans to establish a business in Pakistan.  Further, the Tribunal was troubled that the Applicant only enrolled in the course days before the Tribunal hearing scheduled in November 2015.  The Tribunal considers the study history and proposed future study is indicative of the applicant seeking to use the student visa program to remain resident in Australia.”

18. The Tribunal, having concluded that it was not satisfied the Applicant intended genuinely to stay in Australia temporarily, found the Applicant did not meet cl.573.223(1)(a) of Schedule 2 to the Regulations.

Conclusion

1. There is no jurisdictional error attending the decision of the Tribunal.  The Tribunal’s findings that the Applicant did not intend genuinely to stay in Australia temporarily was based on its consideration of the security situation in Pakistan as an incentive for the Applicant to stay; the value of the proposed course of study to the Applicant’s future; the Applicant’s history of study; and the Applicant’s strong family and economic ties in Australia compared to Pakistan.  Each of these findings were open, on the available evidence, for the Tribunal to so find.

2. In essence, the Applicant’s grounds of judicial review indicate the Applicant’s disagreement with the Tribunal’s decision.  What the Applicant seeks is merits review, which is not possible in the circumstances of this case.[1]  

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

3. The Tribunal did all that it was required to do pursuant to the legislation and Ministerial Direction No.53 and afforded to the Applicant procedural fairness. 

4. The application shall be dismissed and costs follow that event.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  16 February 2018