Safdar v Minister for Immigration and Border Protection
[2018] FCA 1358
•24 August 2018
FEDERAL COURT OF AUSTRALIA
Safdar v Minister for Immigration and Border Protection [2018] FCA 1358
Appeal from: Safdar v Minister for Immigration and Border Protection & Anor [2018] FCCA 348 File number(s): VID 128 of 2018 Judge(s): MIDDLETON J Date of judgment: 24 August 2018 Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Safdar v Minister for Immigration & Anor [2018] FCCA 348
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing: 24 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 42 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr J Grant Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 128 of 2018 BETWEEN: USMAN SAFDAR
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
24 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay to the Minister the costs of and in connection with the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION
The appellant, Usman Safdar (the ‘Appellant’) appeals from the orders of the Federal Circuit Court delivered 7 February 2018 and published as Safdar v Minister for Immigration & Anor [2018] FCCA 348. It was ordered that the Appellant’s judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) dated 9 February 2016, be dismissed with costs. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the ‘Minister’) dated 11 November 2014 not to grant the Appellant a Student (Temporary) (Class TU) visa (the ‘Visa’).
On 12 February 2018, the Appellant filed a notice of appeal with the three grounds to which I will return. I do not consider any of the grounds to have any merit, and will deal with them on that basis, although they appear to be grounds not raised before the Federal Circuit Court.
RELEVANT BACKGROUND
The Appellant, a citizen of Pakistan, applied for the Visa on 23 September 2014 in order to study a Diploma of Management commencing 27 October 2014, Advanced Diploma of Management commencing 11 May 2015, a Diploma of Marketing commencing 11 January 2016 and an Advanced Diploma of Marketing commencing 1 August 2016.
On 23 October 2014, in response to a request from the department for further information dated 26 September 2014, the Appellant provided documentation including an indictment against the Appellant on a charge of rape, orders of the Honourable Justice Coghlan dated 18 December 2012 granting the Appellant bail, together with bail undertakings executed by the Appellant the same date, and submissions from the Appellant in support of his Visa application.
On 11 November 2014, the Minister refused to grant the Visa on the basis that the Appellant did not meet the genuine temporary entrant criterion at cl 573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’).
The Tribunal Proceedings
On 19 November 2014, the Appellant applied to the Tribunal for review of the Minister’s decision.
On 11 September 2015, the Appellant was invited to attend a hearing before the Tribunal on 12 October 2015. On 9 October 2015 the hearing was rescheduled to 25 November 2015. The hearing invitation advised the Appellant that the Tribunal would assess whether the Appellant intended genuinely to stay in Australia temporarily for the purposes of cl 572.223(1)(a) of the Regulations and provided the Application with Ministerial Direction No 53 (the ‘Direction’).
On 24 November 2015, the Appellant’s registered migration agent lodged submissions and supporting documents with the Tribunal including a record of orders made in the County Court of Victoria on 9 February 2015 discontinuing the charge of rape against the Appellant, a psychological assessment in relation to the Appellant completed by Edwin Kleynhans on 31 August 2015, and a confirmation of enrolment in a Bachelor of Business commencing 11 January 2016.
At the hearing on 25 November 2015, the Tribunal had concerns about the identity of the person who presented as the Appellant as departmental records indicated that the Appellant was offshore, and the hearing was adjourned. On 27 November 2015, the Appellant was invited to attend a hearing before the Tribunal on 3 December 2015 and did so with the assistance of his registered migration agent.
On 10 February 2016, the Tribunal affirmed the Minister’s decision.
Having regard to the Appellant’s proposed course of study of Bachelor of Business, the Tribunal identified that the relevant subclass of the Visa was subclass 573. It noted that the issue on review was whether the Appellant met the genuine temporary entrant criterion for the grant of the Visa at cl 573.223(1)(a) of Schedule 2 to the Regulations, which was as follows:
(1) The Minister is satisfied that the appellant is a genuine appellant for entry and stay as a student because:
(a) the Minister is satisfied that the appellant intends genuinely to stay in Australia temporarily, having regard to:
(i) the appellant’s circumstances; and
(ii) the appellant’s immigration history; and
(iii) if the appellant is a minor – the intentions of a parent, legal guardian or spouse of the appellant; and
(iv) any other relevant matter…
In deciding whether the Appellant met the requirements of cl 573.223(1)(a), the Tribunal had regard to the Direction made under s 499 of the Migration Act 1958 (Cth) (the ‘Act’).
The Tribunal had regard to the Appellant’s submissions, supporting documents and evidence at hearing. The Tribunal considered that a number of factors indicated that the Appellant was a genuine student who intended to stay temporarily in Australia including that:
(i)his parents and one sister resided in Pakistan;
(ii)the Appellant regularly returned to Pakistan in 2010 and 2011 and twice in 2015; and
(iii)the Appellant had undertaken a number of automotive courses pertaining to his stated intention to open a motor garage and showroom in Pakistan.
However, having regard to a range of other factors, the Tribunal was not “on balance” satisfied that the Appellant intended genuinely to stay in Australia temporarily.
The Tribunal considered the Appellant’s study history and noted that the Appellant had completed “a number of low-level short courses” on previous student visas, that the Appellant had undertaken automotive courses in both Pakistan and Australia, and that he had undertaken Business and Management diplomas in 2011 and 2015. The Tribunal also noted that the Appellant had enrolled in a Bachelor of Business course only a few days before the scheduled hearing with the Tribunal and found it had “significant reservations” that the Appellant’s proposed course of study would assist him to obtain employment in a management position.
With regard to the “gap” in the Appellant’s studies from July 2012 to October 2013, the Tribunal considered the Appellant’s explanations. Whilst the Tribunal found that the Appellant had given “varying accounts” regarding his attendance, the Tribunal ultimately accepted that he had a reasonable explanation for not attending college for one year from October 2012 to October 2013, due to the nature of the criminal charges he was facing at the time and the level of publicity generated by those charges. Although the Tribunal had some reservations as to whether the Appellant was studying between July 2012 and October 2012 as claimed, it accepted that he had been studying previously.
Ultimately, the Tribunal found that the Appellant’s study history and proposed future study was indicative of the Appellant seeking to use the student visa program to remain in Australia. In so finding, the Tribunal considered:
(i)the security situation in Pakistan was an incentive for the Appellant to stay in Australia;
(ii)the value of the proposed course of study to the Appellant’s future;
(iii)the Appellant’s study history; and
(iv)the Appellant’s strong family and economic ties in Australia compared to Pakistan.
Hence, as I said, taking into account the Appellant’s immigration history, circumstances and other relevant matters, the Tribunal was not satisfied that the Appellant intended genuinely to stay in Australia temporarily, and found the Appellant did not meet the criterion for the grant of the Visa at cl 573.223(1)(a) of Schedule 2 to the Regulations.
The Federal Circuit Court Proceedings
As to proceedings in the Federal Circuit Court, the following is a description of the salient matters.
On 25 February 2016, the Appellant applied to the Federal Circuit Court for judicial review of the Minister’s decision. The application contained ten grounds of review, which set out the Appellant’s study history and the gap in his studies, alleged that the Tribunal had no regard for the stress he had been under, and implored the Federal Circuit Court to “take a close look at the case”.
On 7 February 2018, the matter came before the Federal Circuit Court for hearing, and the Appellant appeared in person. The application was dismissed.
The Federal Circuit Court found the Tribunal’s decision to be a:
“…well-structured, well-reasoned statement of decision and reasons which is evidence of careful consideration of the various claims of the appellant, a balance 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 appellant intended genuinely to stay in Australia temporarily.”
The Federal Circuit Court found that the Tribunal’s ultimate finding was clearly open to it on the evidence before it and there was no illogicality or unreasonableness attending the decision. The Federal Circuit Court found that the Appellant’s grounds indicated disagreement with the Tribunal’s decision, and that the Appellant sought impermissible merits review of the Tribunal’s decision. The Federal Circuit Court found that the Tribunal did all it was required to do pursuant to the legislation and the Direction, and that the Tribunal afforded the Appellant procedural fairness.
The Federal Circuit Court subsequently dismissed the application with costs.
The Federal Court Appeal
On 12 February 2018, the Appellant appealed from the orders of the Federal Circuit Court on three grounds not seemingly raised before the Federal Circuit Court.
The Minister submitted that it would not be expedient and in the interests of justice to allow the Appellant to raise the new grounds on appeal, for the following reasons:
(a)First, the Appellant did not advance any reason for the failure to raise these grounds;
(b)Second, the new grounds did not have reasonable prospects of success;
(c)Third, it was articulated that the place for the determination of jurisdictional error in the terms raised by the Appellant is, all but in the most exceptional cases, in the original jurisdiction of the Federal Circuit Court.
Further, the Minister highlighted that it should be borne in mind that given the sheer volume of cases arising under the Act, the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources.
Each of these submissions has substance. However, as indicated, it is convenient to deal with each ground on its merits, as ultimately the various complaints of the Appellant cannot be sustained.
CONSIDERATION
Ground one
Ground one alleged that the Tribunal erred in applying the Direction in assessing the genuine temporary entrant criterion at cl 573.223(1)(a) of Schedule 2 to the Regulations, in that:
“A holistic approach as not used and several aspects of the appellant’s personal information was disregarded. More specifically, the appellant’s course choice and the value of that course towards the appellant’s career goals was misinterpreted.”
The Tribunal identified that it was required to apply the Direction, and set out the high level considerations identified in that Direction. The Tribunal noted that the Direction should not be used as a checklist, and that it was intended to guide decision makers to weigh up the Appellant’s circumstances as a whole. The Tribunal did take a “holistic approach”, canvassing the Appellant’s evidence at length, before weighing the Appellant’s circumstances in the balance, noting those matters that weighed in the Appellant’s favour and finding that it was not satisfied that the Appellant was a genuine student who genuinely intended to stay in Australia temporarily.
The Tribunal’s consideration of the Appellant’s evidence was extensive and was not apparent “which several aspects of the [appellant’s] personal information [were] disregarded”. The Tribunal had regard to the Appellant’s course choice and his evidence regarding his motivations for selecting that course at hearing, but ultimately did not accept the Appellant’s motivations as to why he had (at that time recently) commenced a Bachelor of Business.
The Appellant’s ground one raised no higher than a request for impermissible merits review, and it has no merit on review: see Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
Ground two
Ground two advanced allegations which are materially similar to those raised under ground one.
To the extent that ground two contained the additional allegation that the Tribunal was biased, the Appellant failed to comply with the requirement that such an allegation be firmly and distinctly made and clearly proven: see e.g. Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. The Appellant has failed to make out that the Tribunal was actually biased, or might reasonably be apprehended to have been biased.
Additionally, there was no basis to infer that the Tribunal did not comply with the Direction, or to suggest the Tribunal did not engage in an “active intellectual process” or give “genuine” consideration of the requisite considerations: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248. It was sufficient for the Tribunal to deal directly with the matters relevant to whether the Appellant was a genuine temporary entrant in the fashion that it did.
Ground two has no merit.
Ground three
The Appellant’s ground three alleged that the Tribunal failed to afford the Appellant procedural fairness or natural justice. There is no basis to conclude that the Tribunal failed to comply with its procedural fairness obligations under Part 5, Division 4 of the Act.
The Appellant was invited to attend a hearing before the Tribunal in accordance with s 360 and 360A of the Act. He was on notice from both the delegate’s decision, and the Tribunal’s hearing invitation, that his ability to satisfy the genuine temporary entrant criterion at cl 573.223(1)(a) of Schedule 2 to the Regulations would be the dispositive issue on review: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Furthermore, there was no “information” required to be put to the Appellant in accordance with s 359A of the Act. The Tribunal’s decision was based on the Appellant’s written claims to the department, material contained in the delegate’s decision which the Appellant provided to the Tribunal with his application for review, together with his written claims to the Tribunal, evidence at hearing and the Tribunal’s subjective appraisal. The first four matters fell within the exceptions to s 359A at ss 359A(4)(ba) (the first) and 359A(4)(b) (the latter three) respectively. The last matter did not comprise “information” for the purposes of s 359A: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]-[18].
Ground three has no merit.
The appeal discloses no appealable error in the Federal Circuit Court decision or jurisdictional error in the Tribunal’s decision.
CONCLUSION
Each of the grounds of appeal raised by the Appellant is without merit. The Court makes the following order:
(1)The appeal is dismissed.
(2)The Appellant pay to the Minister the costs of and in connection with the appeal.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 3 September 2018
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