Safdar v Minister for Immigration and Border Protection
[2016] FCA 1467
•22 November 2016
FEDERAL COURT OF AUSTRALIA
Safdar v Minister for Immigration and Border Protection [2016] FCA 1467
Appeal from: Safdar v Minister for Immigration and Border Protection [2016] FCCA 1723 File number: VID 898 of 2016 Judge: BROMBERG J Date of judgment: 22 November 2016 Catchwords: MIGRATION – appeal of primary judgment dismissing judicial review on the ground of the Tribunal’s failure to take account of relevant considerations – Migration Regulations 1994 (Cth), cl 572.223(1)(a) – whether the Tribunal took account of the appellant’s circumstances in Pakistan, his potential circumstances in Australia and the value of the appellant’s chosen course to his future – the Tribunal did consider those matters – the primary judge did not err in so finding – appeal dismissed Legislation: Migration Regulations 1994 (Cth) cl 572.223(1)(a) Cases cited: Safdar v Minister for Immigration and Border Protection [2016] FCCA 1723 Date of hearing: 22 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr D Brown of Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 898 of 2016 BETWEEN: ARSLAN SAFDAR
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
22 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
By a Notice of Appeal lodged on 4 August 2016, the appellant appeals from a decision of the Federal Circuit Court published as Safdar v Minister for Immigration and Border Protection [2016] FCCA 1723. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 9 December 2014, in which the Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Student (Temporary) (Class TU) Visa (“the Visa”).
The background facts are conveniently set out at [6]– [8] of the reasons of the primary judge. They are as follows:
[6]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.
[7]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.
[8]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 convened a hearing at which the appellant appeared. At [7] of the Tribunal’s reasons, the Tribunal identified the issue in the case as the Tribunal saw it. That issue was whether the appellant met the time of decision criterion in cl 572.223 of the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 572.223(1)(a) relevantly 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; and
(iv) any other relevant matter; and
At [8] of its reasons the Tribunal also identified that it ought to have regard to Direction 53 “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications”. That Direction, as the Tribunal identified, required that regard be had to a number of specified factors including “the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course [in which the applicant is enrolled] to the applicant’s future”. There was consideration given by the Tribunal to the appellant’s home circumstances, his circumstances in Australia and the value of the courses undertaken by the appellant to his future, as [12]–[17] of the Tribunal’s reasons record.
At [22] of its reasons, the Tribunal identified one of its main concerns as being that the appellant had not studied from the time when his Confirmation of Enrolment was cancelled in January 2014 until the date of the hearing before the Tribunal—a gap of more than nine months during which the appellant was not enrolled or studying. That consideration indicated to the Tribunal that the appellant had little interest in study and had remained in Australia over those nine months for reasons other than study. The Tribunal considered that the appellant had not studied because he did not wish to. It regarded various responses made by the appellant seeking to explain his lack of study as disingenuous and indicative of the fact that the appellant did not have a genuine interest in pursuing studies or in being a student.
At [23] of its reasons, the Tribunal said this:
I have considered whether the applicant intends genuinely to stay in Australia temporarily, having regard to the factors specified in Direction 53. When I weigh his potential circumstances in Australia, the value of the course to the applicant’s future, his immigration history and other relevant information provided by the applicant I am not satisfied that he does. I find that the applicant has not provided a credible explanation for why he was not enrolled or studying from approximately January 2014 until the day before the hearing, more than nine months. I find that his answers about attempting to seek a CoE [Confirmation of Enrolment] in this time or contact the Department to find out whether he could study indicate an indifference to his studies and that he remained in Australia in this time for reasons other than study. I find that the applicant has not explained adequately how his proposed diploma of business will assist his claimed future plans. I have weighed these against the explanations offered by the applicant and his representative, and other factors identified by the applicant in the course of the hearing. I find that he has failed to be enrolled and continue studies without an acceptable explanation, and my concerns expressed above lead me to find that there is little or no value to the applicant’s future in his proposed Australian study, that his future plans are vague and do not indicate that these are his genuine intentions, the late gaining of his current CoE and his considerable period of not being enrolled or studying all lead me to find that he is seeking to undertake courses in Australia as a means of maintaining ongoing residence in Australia and that the student visa program is being used to circumvent the intentions of the migration program in his case.
The Tribunal concluded that it was not satisfied that the appellant intends genuinely to stay in Australia temporarily and that accordingly the appellant did not satisfy the criterion in cl 572.223(1)(a) of the Regulations.
On judicial review before the Federal Circuit Court, the appellant advanced three grounds of review. They were that:
(1)the Tribunal took account of irrelevant considerations;
(2)the Tribunal failed to take into account relevant considerations, and
(3)the Tribunal erred at law.
Each of those grounds was rejected by the primary judge.
The primary judge at [23] and [24] of his reasons concluded that the Tribunal’s reasons did not, on their face, suggest any failure to take into account relevant consideration, or alternatively, the taking into account of irrelevant considerations and that consequently there was no merit in the appellant’s application for judicial review. The primary judge dismissed that application with an order for cost.
The appellant’s Notice of Appeal in this Court raises only one ground beyond the general contention made that the primary judge erred in failing to identify jurisdictional error in the Tribunal’s decision. That ground is as follows:
The learned judge has erred at law in failing to determine that the decision of the then MRT was affected by jurisdictional error because the MRT failed to explore the applicant’s circumstances in Pakistan, his potential circumstances in Australia and the value of the applicant’s chosen course to his future.
It might be thought that that ground advances a new ground not advanced before the primary judge. I consider however that the ground seeks to agitate a failure to take into account particular considerations said to be relevant. That was essentially a ground before the primary judge who, with the assistance of the representative of the Minister, generally considered the Tribunal’s reasons including as to whether the Tribunal had taken into account relevant considerations. At [21] of the primary judge’s reasons, his Honour said this:
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)).
There is no error that I can discern in the approach taken by the primary judge. Presuming in favour of the appellant that the applicant’s circumstances in Pakistan, his potential circumstances in Australia and the value of the appellant’s chosen course to his future are relevant circumstances which the Tribunal was obliged to take into account, the reasons of the Tribunal show that those matters were taken into account. The primary judge correctly concluded that that was so.
For those reasons, the appeal must be dismissed. Having heard from the parties on the question of costs and being satisfied that costs should follow the event, I will also make an order that the appellant pay the Minister’s costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 6 December 2016
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