SAFDAR v Minister for Immigration

[2016] FCCA 1723

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFDAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1723

Catchwords:
MIGRATION – Application for judicial review – whether the tribunal failed to take into account relevant considerations or took into account irrelevant considerations- application dismissed.

Legislation:

Migration Act 1958 (Cth)

AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC73

Applicant: ARSLAN SAFDAR

1^st Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

2^nd Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2569 of 2014

Judgment of: Judge McGuire

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Melbourne

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: No appearance

Counsel for the 1^st & 2^nd Respondents: Mr Brown

Solicitors for the 1^st & 2^nd Respondents: Australian Government Solicitor

ORDERS

1. The name of the second respondent be amended to read Administrative Appeals Tribunal.

2. That the application for judicial review be dismissed.

3. That the applicant pay the first respondent’s costs set in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2569 of 2015

ARSLAN SAFDAR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

1^st Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (“the tribunal”) made 9 December 2014 affirming a decision of the Minister’s delegate not to grant the applicant a subclass 572 student visa. 

2. It is apparent that the delegate refused the application not being satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student. 

3. The applicant appeared before the tribunal hearing and had provided a written statement and supporting materials. 

4. The applicant appears before this Court in person.  His application sets out three unparticularised complaints, being: 

   (1)     the MRT took account of irrelevant considerations;

   (2)     the MRT failed to take account of relevant considerations;

   (3)     the MRT erred at law.

5. The applicant had not complied with the registrar’s directions for the filing of written submissions.  Nevertheless, the applicant was invited to make oral submissions before this court in support of his application.  Those submissions were brief and essentially repeated the factual platform related to the tribunal and in this sense could be interpreted as a quest for an impermissible merits hearing before this Court.

Background

1. The applicant is a citizen of Pakistan.  He first arrived in Australia on 22 February 2009, when 16 years of age, and holding a subclass 572 visa valid until 15 March 2011.  He subsequently held further student visas and bridging visas relating to student visa applications.

2. The applicant commenced studies towards a Diploma of Community Welfare.  His education provider ceased operation in July 2010 and prior to the completion of the applicant’s course.  He then discontinued a subsequent enrolment in a Diploma of Community Service.  He then commenced a Diploma of Production Horticulture in January 2012 and completed the course in February 2013.  He then completed a five-month certificate IV in Small Business Management in September 2013.

3. The applicant applied for the current visa on 24 October 2013 and in respect of a six-month certificate IV in Business Administration that he had, in fact, commenced on 7 October 2013.  That course was to complete on 11 April 2014, whereupon the applicant proposed to undertake a Diploma of Business and Advanced Diploma of Business at the Australian National Institute of Business and Technology.  It is this visa application that was refused by the delegate and then the tribunal.

The tribunal hearing

1. The tribunal at [7] of its reasons identified the issue, being whether the applicant meets the time of decision criterion in cl.572.223 of schedule 2 to the Migration Regulations 1994. That clause states:

   (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; 

   (iv)    any other relevant matter;  and...

2. At [8] of its reasons, the tribunal properly noted that it must have regard to Direction No.53, Assessing the genuine temporary entrant criteria for Student visa applications.  The tribunal was to have regard to specifics factors, being:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australia visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.

3. It is well established that these factors are guidelines only rather than a proscriptive checklist.

4. At [12]-[13] the applicant explained to the tribunal his changes in courses and explained his latest choice of business diploma in that he is from an agricultural family and that such a qualification would assist horticultural business opportunities.  However, at [15] the tribunal found the applicant’s responses to be vague and undetailed.  At [16] he explained the nature of the family agricultural business.  The applicant volunteered that the family were to buy more land and looking to expand the business and broaden crop production.

5. At [18] the tribunal considered the fact of the applicant’s Certificate of Enrolment (CoE) having been cancelled in January 2014. The applicant said he had travelled overseas and that his college did not allow him to return to his studies as the CoE had been cancelled. This issue occupied the totality of the applicant’s short oral submissions to this Court.

6. The applicant had obtained a CoE but only the day prior to the tribunal hearing.

7. At [20] the tribunal discussed the applicant’s general circumstances, including that he had no family in Australia and that his father lived in Pakistan.  The applicant offered that there was no reason that he could not return to his home country.

8. It was submitted that the applicant had been compliant with the obligations of prior visas. 

9. The tribunal affirmed the delegate’s determination that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily, being a criteria for the student visa. The tribunal noted that the applicant had not studied or been enrolled in a course for the nine months since January 2014. He had not asked the authorities whether he could study on a bridging visa. The tribunal did not accept the applicant’s explanations of not being able to obtain a CoE since January 2014 but was able to obtain one on the day prior to the tribunal hearing. The tribunal did not accept the applicant’s claim that he was awaiting the result of the tribunal hearing before continuing his studies. Further, the tribunal was not satisfied that the applicant was able to adequately explain how the proposed course of study would assist him or his family business [22].

10. At [23] the tribunal considered the Direction 53 factors and found that the applicant had not provided a credible explanation for not being enrolled in a course of study for nine months.  The tribunal that the applicant had not adequately explained how his proposed diploma would assist his future employment plans.

Application to this Court

1. The applicant appeared without legal assistance. His grounds of complaint are not particularised.  He had not complied with the orders made by the registrar to file written submissions.  His short oral submissions did not address the broad grounds of complaint in his application.

2. Nevertheless, the first respondent, as a model litigant, has assisted with a general consideration of the tribunal’s reasons as to whether the tribunal took into account irrelevant considerations or failed to take into account any relevant considerations.

3. Counsel’s submissions correctly identify that the tribunal explored the applicant’s circumstances in Pakistan and his potential circumstances in Australia. The tribunal considered the value of the applicant’s chosen course to his future. The tribunal considered the applicant’s visa history, with the issue being whether the applicant had a genuine intention to stay in Australia for study only for a temporary period

   
   

   (cl. 572.223(1)(a)).

4. The tribunal concluded that the applicant had remained in Australia for reasons other than study.  In support of this finding, the tribunal had the fact of the applicant’s failure to enrol in a course or undertake studies following the cancellation of his CoE in January 2014.  There was no corroborative evidence before the tribunal of the applicant’s claim that his attempts to enrol had been refused by colleges on the basis that he did not have a current student visa, and noting that, in any event, the applicant was able to obtain a CoE in the eve of the tribunal hearing. 

   
   

   It follows that the tribunal’s finding was one open to it.

5. The tribunal’s reasons do not on their face suggest any failure to take into account a relevant consideration or, alternatively, the taking into account of irrelevant considerations.

6. Consequently, I find no merit in the applicant’s application for judicial review and the application will be dismissed with an order for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 22 July 2016