Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3275

FEDERAL CIRCUIT COURT OF AUSTRALIA

Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3275  

File number(s):

PEG 468 of 2019

Judgment of:

JUDGE VASTA

Date of judgment:

29 October 2020

Catchwords:

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), sch 2, cl 500.212

Cases cited:

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1061

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2799

Number of paragraphs:

57

Date of last submission/s:

29 October 2020

Date of hearing:

29 October 2020

Place:

Brisbane

Applicant:

Applicant in person

First Respondent Counsel:

Ms S. Oliver

First Respondent Solicitor:

Sparke Helmore

ORDERS

PEG468 of 2019

BETWEEN:

HAMZA SALEEM

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	VASTA
DATE OF ORDER:	1 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.The Application filed 29 November 2019 is dismissed.

2.The Applicant pay the costs of the First Respondent fixed in the sum of $6.000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.  

REASONS FOR JUDGMENT

JUDGE VASTA

1. On 30 October 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Hamza Saleem, a student visa.  On 29 November 2019, Mr Saleem, the Applicant, asked this Court to review that decision. 

2. The background to the matter is this: the Applicant arrived in Australia on 26 May 2013 on a 573 student visa, that is, a student visa for the higher education studies.  He wanted to study a package of courses.  There was firstly a Certificate IV in English, a Diploma of Business, an Advanced Diploma of Business and a Bachelor of Business. 

3. It would seem that he completed the Certificate IV.  He completed the diploma and the advanced diploma, but he did not commence a bachelor's degree. 

4. The reason, it would seem, that he did not commence a bachelor's degree is that he decided to change his career pathway to hospitality.  The enrolment in the bachelor's degree was cancelled.  

5. The Applicant then commenced a Certificate III in Commercial Cookery.  He also enrolled in a Certificate IV in Commercial Cookery, a Diploma in Hospitality Management, and then, a Bachelor of Business.  He said that the only reason he enrolled in the Bachelor of Business was so that he could comply with his visa conditions. 

6. On 27 February 2017, the Applicant applied for the present visa, and that was so that he could complete those courses. On 3 May 2017, the Delegate refused to grant the Applicant the visa because the Delegate was not satisfied that the Applicant met the requirements for clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

7. Six days later, on 9 May 2017, the Applicant applied to the AAT for a review of that decision.  It was not until 24 January 2019, 19 months after the Applicant had actually made his application, that the Tribunal wrote to the Applicant and invited him to provide information about the course of study he was undertaking, and his stay in Australia.

8. The Applicant completed the online questionnaire to that invitation, and then on 7 February 2019, provided a great deal of supporting materials to the Tribunal.  On 1 March 2019, the Tribunal wrote to the Applicant and invited him to attend a hearing before it.  On 22 March 2019, the Applicant appeared before the Tribunal at a hearing.  On 23 April, 24 April, 18 June, 21 June and 27 June 2019, the Applicant provided further supporting materials to the Tribunal, and, as I have said, on 30 October 2019, the Tribunal affirmed the decision.

9. The Tribunal was very thorough in looking at the matter before it.  The Tribunal ensured that they looked at material, such as an affidavit by the father of the Applicant, which attached a contract between the father of the Applicant and another person regarding the construction of a hotel.  The Tribunal looked at the confirmation of enrolment for an Advanced Diploma of Hospitality Management at Perth College of Business and Technology, and a confirmation of enrolment for the Bachelor of Business at Murdoch University.

10. The Tribunal noted the circumstances of the Applicant.  The Applicant is a citizen of Pakistan.  He has seven siblings.  One sibling lives in Ireland.  Another sibling, a brother, lives in Perth.  The other five remain in Pakistan, and none of those siblings seem to be assisting their father in his business.  It would seem that one of his sisters is married, but the other four siblings are still in school.

11. The Applicant points to this circumstance to say that he feels an obligation that he must return to Pakistan, and he actually said that he was being urged to return to Pakistan by various members of his family.  The Applicant spoke of the circumstances of life in Pakistan; that his father had owned a number of furniture shops and a factory, but has had to divest himself of the shops.  He still has the factory, but his business is different to what it was when the Applicant had left Pakistan to come to Australia.

12. The Applicant said that he is engaged.  His fiancée is still in Pakistan.  His fiancée is a qualified pharmacist, but she does not currently work.  He said that she had no intention to come to Australia on any visa, and when it is that they eventually marry, she will not work but she will still be a help to the parents of the Applicant.

13. The Applicant said he visited Pakistan in the last seven years, and during that visit he saw how his father was stressed because of the changes in his business. He said that, because of this,  his father had bought some commercial land and intended to build a hotel with a restaurant.

14. The Applicant said that his family had impressed upon him that he should be the sibling who returned and assisted in running the hotel and restaurant, and because he would have to do that, he should attain some qualifications to assist.  The Applicant said he would be the chef at the hotel restaurant. 

15. The Tribunal noted that this was inconsistent with the information given to the Tribunal in the response that the Applicant had made in early 2019.  In that form, he had said to the Tribunal that he would be running the hotel and restaurant, whereas at the hearing, he said that his younger brother would be returning from Ireland to manage the hotel and restaurant.

16. The Applicant said that the hotel would be in a tourist area.  It would have 20 bedrooms and his father and younger brother would manage the establishment.  The Applicant also said that his father was building a house for him upon his return.  The Applicant said that his father had recently broken his arm and was still feeling the effects several months later, and this made it difficult for his father to work with furniture; and this was another reason that he needed to go back to Pakistan.

17. He also said that he was being pressured by his future parents-in-law; he has known his fiancée for over seven years and they have been engaged for the last four years, but they are not yet married.

18. The Applicant then told the Tribunal that there had been quite a delay in the completion of the building of the hotel.  At the time of the hearing, the Applicant had said that the hotel was supposed to be completed by February 2020, but there might be a delay of one or two months. 

19. Given that the hearing was in early 2019, the Tribunal pointed out that the course that the Applicant was wanting to study would take at least 18 months, and that meant that the Applicant would be still in Australia when the construction would be completed.

20. It was then that the Applicant said that the construction was currently on hold because of recent political unrest nearby, and he did not think that the building would be finished early.  He did say that if the building was delayed, and he had finished his studies before the building was finished, that he would go home and assist his father to organise the factory he owns and to get married.  He said that there was no date for his wedding at that point in time.

21. The Tribunal went through the history of the Applicant's education, noting that his progress in some of the courses was not satisfactory, and this delayed his completion of the courses that he had originally come here to study.

22. The Applicant said that it was, in effect, his family that forced him to change the course of his studies from business to hospitality.  He said that his family was also urging him to stay in Australia for the time being.  The affidavit that the father gave to the Tribunal states that it was the father who suggested to the Applicant he obtain a Bachelor in Hospitality and Tourism Management from an Australian university while the hotel was being built.

23. The Applicant also said to the Tribunal that his brother, who lives in Perth, had a baby that was due in July 2019, and that his parents would be travelling from Pakistan to Australia to celebrate, because this child would be the first grandchild.  The Applicant said that he was somewhat concerned, because he wanted to be in Australia when his parents arrived, and that if he could not stay after April 2019 when the course finished, and he was not allowed to have further study, he would have to leave, thereby missing that family visit and the birth of the child, which was going to be a very joyous event. 

24. He said that was also a reason why he was looking to enrol in another course after he completed the advanced diploma. The Tribunal asked the Applicant why it was that he wanted to enrol in a further course when, if he returned, he would be able to relieve the pressure of his future parents-in-law, and he would be able to assist his father, who has the broken arm. 

25. The first reason, which the Applicant gave to the Tribunal. was that he wanted to be here with his family for the birth of his now nephew, and he said that he did not want to waste his time in returning to Pakistan until he could start work.

26. The Applicant explained what he was doing in Perth at the moment for work, saying that he had worked for five years as a cook at a restaurant in Perth, the same restaurant at which his brother was working.  The Applicant said, because of the experience he has had in the kitchen, this is why he will be a chef in the new hotel in Pakistan.

27. At paragraph 40 of their reasons, the Tribunal said that they found the Applicant's “explanation of the father's attitude inconsistent and difficult to follow”.  The Tribunal said, on the one hand, the Applicant raised a number of reasons as to why he was being urged to return to Pakistan, that being the father needing physical assistance, the family business would be commencing in the near future, and that it was time he was married. 

28. But, on the other hand, the Applicant had said that the father was also telling him he should enrol at a university to continue his education, and that he wanted to still be in Perth when his family came to visit the grandchild.

29. He said that he had not thought as to what would happen if the next course he enrolled in took him over the time in which the hotel was to be completed.  The Tribunal considered it would not be a reasonable request to his father to somehow hold the construction, or the start of the business, when the Applicant had told the Tribunal that his father only has a factory left, as times were economically difficult for him, and that was part of the reason that they were building the hotel.

30. The Tribunal said that they found the inconsistencies and unreasonableness of the Applicant's responses suggestive of an intention to remain in Australia for as long as possible, thus using the student visa to maintain ongoing residency in Australia.

31. The Tribunal was also concerned that enrolling in courses simply to ensure he would not have to leave Australia before the birth of his now nephew was not the purpose that a student visa should be given.  The Tribunal said that it shows a willingness to circumvent the Australian visa system to suit his own purposes, and that the Applicant does not genuinely wish to study.  The Tribunal said that they placed weight on this factor as well.

32. The Tribunal noted that the confirmations of enrolment, that had been provided to it, showed that the Applicant was prepared to remain in Australia possibly until June 2022, and that this was inconsistent with the Applicant feeling subject to the familial obligations to return home.

33. The Tribunal was not satisfied that the Applicant had any real incentive to return to Pakistan.  The Tribunal said they could not place any weight in the Applicant's favour in regards to his evidence that his and the future parents-in-law were putting pressure on him to return, or that he felt compelled to return to assist his family.

34. The Applicant had said that his intention was to be the chef at the hotel, and he needed to complete a Bachelor of Business in Hospitality and Tourism Management so he could be taught by a university about safety, hygiene and other matters relevant to running a kitchen.  The Tribunal found this explanation unconvincing, because it was unlikely that a bachelor course in the management of hospitality and tourism would have much impact, if any, on the practical matters encountered in a kitchen, nor would a chef need to have qualifications in tourism management to be a good chef.

35. The Tribunal found that the course that the Applicant was now studying would have little value to his future as a chef in the hotel.  The Applicant was asked about changes in the courses he had undertaken, and he gave his explanation for this as being the pressure of the family wanting him to go from a business career to one of hospitality and managing the family hotel.

36. The Tribunal noted that the Applicant's brother is now a permanent resident of Australia and lives in Perth and has a family and that the Applicant and the brother both work at an Indian restaurant, and have done so for some years.  The Applicant's employment has been at that restaurant, but he has also been a taxi driver and even had a stint as a security guard.  He has remained, the Tribunal found, in constant and relatively consistent employment throughout his time in Australia. 

37. The Tribunal noted that the expenses that the Applicant has seem to be less than the money that the Applicant is actually making here, notwithstanding his reduced capacity to work under the student visa that he has.

38. The Tribunal, in the end, found that they were not satisfied that the Applicant intends genuinely to stay in Australia temporarily. Because of that, he did not meet the criteria in clause 500.212.

39. The Tribunal said they were satisfied that the Applicant was using the student visa to maintain ongoing residence, and circumvent the intentions of Australia's migration program.  Having come to those conclusions, the Tribunal affirmed the decision not to grant a student visa.

40. There were three grounds of application; the AAT, in making its decision, or purported decision of 30 October 2019, committed jurisdictional error in that it unreasonably: 

    1. Determined that while the Tribunal has attributed some weight to the fact that his parents and some siblings are in Pakistan, and apparently a business and home are being built for him to use, the inconstancy has led the Tribunal to have some doubt that the applicant is both a genuine student, and intends to remain in Australia temporarily [par 27]; 

    2. Failed to genuinely consider all material facts and circumstances of the applicant to assess the applicant genuinely intended to study a Bachelor in Hospitality and Tourism Management course within the meaning of the time of decision criterion clause 500.2121(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations);

    3. Took into account irrelevant considerations.

41. The Applicant appeared before me today unrepresented.  He did not talk of the grounds of his application.  Instead, he railed against the decision of the AAT.  He submitted that he had told the AAT all of his circumstances.  He had told them that he wanted to stay temporarily.  The AAT asked him about his studies, asked him about the change in direction of his studies, and he answered their questions.  He said that he told the AAT about the construction delay. 

42. He then started to explain what the current situation was, and that the COVID19 pandemic had stopped construction of the hotel, and that he, the Applicant, is still studying but he has too much stress and he has been given a study break.

43. He reiterated why it was that he changed his studies, and he reiterated to me that he did not like the decision, and that he found that it was unfair. 

44. As was explained to the Applicant, whatever has happened since the decision of the Tribunal is quite irrelevant.  This Court must look at the decision of the AAT itself and decide whether there was jurisdictional error in that decision.  What has happened since is of limited, if not no, use to the Court in looking at this aspect.

45. The grounds that the Applicant raised in his application are not particularised, and really do not illustrate any jurisdictional error.  Having gone through the AAT decision as I have, it seems to me that the determination of the Tribunal that they had doubt that the Applicant was a genuine student and intends to remain in Australia temporarily, was well and truly open to it.  If it was a finding that was open, it cannot be said to be unreasonable. 

46. As I pointed out in the recitation of the matters before the Tribunal, the Tribunal did consider all of the material facts and circumstances.  The Applicant's contention that there was a failure for genuine consideration is really a submission that the Tribunal did not have the opinion of all of that material that the Applicant believed that the Tribunal should have.  Therefore, in a strange act of logic, the Applicant was in effect submitting that, "There must have been a failure to genuinely consider that material because the conclusion was not a conclusion that I like."

47. The lack of logic in such a submission is self-evident.  One does not blame an unrepresented Applicant for making such a submission.  It is a difficult matter for an unrepresented Applicant to understand the subtleties of jurisdictional error.  However, that does not mean that the submission is given, somehow, any more merit simply because it has been made by an unrepresented Applicant.  That ground also fails.

48. The third ground about taking into account irrelevant considerations - none of the irrelevant considerations have been particularised at all, and realistically it must be said that for such a ground to be successful, it must be proved that the AAT considered matters that they were prohibited from considering.  Having carefully scrutinised the decision of the AAT, I can find no such considerations having been made in this matter.

49. It may be, as the Applicant has said, that he feels that the decision is unfair, but as I explained to him, it is not a matter of whether a decision is right or wrong, or fair or unfair.  It is whether it has been attenuated with jurisdictional error.  It is a matter of whether the conclusions made are open to the Tribunal. 

50. In this matter, having gone through the decision, the conclusions and the ultimate finding of the Tribunal were well and truly open to it, and I can see no jurisdictional error.

1. The matter had originally come before Judge Kendall on 26 August 2020.  His Honour was concerned as to whether the most recent decision of Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1061 (“Eros”) had any effect on the consideration of this matter, and he asked the Minister for further submissions.  Judge Kendall adjourned the matter to today's date, but circumstances have meant that he could not hear the matter, and I am hearing the matter instead.

2. The Minister did file further submissions on the matter.  The query that his Honour had can be answered fairly succinctly.  Eros was a matter where a mother sought to stay in Australia whilst her daughter was still studying.  So as to be able to do this, the mother enrolled in classes.  It would seem that she did so for the express purpose of studying longer than she would ever have been allowed to stay in Australia, and so therefore, stay until her daughter had finished.  Whilst the finding in that matter was that the mother was circumventing the student visa program, and there was a concern that she was attempting to maintain ongoing residence, the Tribunal did not actually make a finding in that respect. 

3. It would seem that the only finding that the Tribunal had actually made was that the mother was intending to stay for another two years so as to have her stay in Australia coincide with her daughter's stay in Australia.  Because that was the finding, it could not have been a finding that the mother was not intending to stay in Australia temporarily.

4. In many ways, Eros needs to be looked at upon its own peculiar facts and findings made by the Tribunal.  In this case, there was something quite different.  The Tribunal here has said that the Applicant was intending to remain in Australia for as long as possible, thus using the student visa to maintain ongoing residency.  When it came to the conclusion of the findings, the Tribunal unequivocally concluded that the Applicant was using the student visa to maintain ongoing residence, and circumvent the intentions of Australia's migration program.

5. This finding of maintaining ongoing residence, or an attempt to maintain ongoing residence, puts the matter in a different position to that of Eros.

6. His Honour, Judge Kendall, has subsequently published a decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2799, where his Honour goes through much the same reasoning process as I have just done. It seems to me, when one looks at the matters here, the factual scenario is quite different to that of Eros, and the findings that were made by this Tribunal were sufficient, according to the ratio in Eros, to come to a conclusion that cl.500.212 had not been met.

7. For those reasons, I conclude that there has been no jurisdictional error.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       8 December 2020