Samiullah v Minister for Home Affairs

[2022] FedCFamC2G 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Samiullah v Minister for Home Affairs [2022] FedCFamC2G 367

File number(s):	MLG 336 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	5 April 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – student visa – whether applicant a genuine temporary entrant – no jurisdictional error established.
Division:	Division 2 General Federal Law
Legislation:	Migration Regulations 1994, Sch.2, cl.572.223
Number of paragraphs:	30
Date of hearing:	5 April 2022
Place:	Melbourne
Counsel for the Applicant:	In person
Solicitor for the Applicant:	None
Advocate for the First Respondent:	Michelle Stone
Solicitor for the First Respondent:	Mills Oakley Lawyers
Counsel for the Second Respondent:	No appearance
Solicitor for the Second Respondent:	Mills Oakley Lawyers

ORDERS

MLG 336 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SAMIULLAH SAMIULLAH
Applicant

AND:

MINISTER FOR HOME AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	5 APRIL 2022

THE COURT ORDERS THAT:

1.The application filed on 12 February 2018 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,454.

Note:   The form of the order is subject to the entry in the Court’s records.

Note:The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RILEY:

1. This is an application to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing the applicant a further study visa on the grounds that the applicant was not a genuine temporary entrant.

2. The applicant first arrived in Australia on 15 June 2013. He had a student

   
   

   Subclass 572 visa. He is a male citizen of Pakistan. The applicant applied for a further visa on 24 August 2015. He sought a student Subclass 572 visa. He said that he was enrolled in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Management and a Diploma of Automotive Management.

3. The delegate wrote to the applicant on 24 December 2015 asking him to address the genuine temporary entrant criterion, in view of the fact that the material before the delegate seemed to indicate a study gap between December 2013 and February 2015. During that period of time, the applicant appeared to have been the holder of a student visa but appeared to have not been enrolled in a course of study.

4. The applicant, on 21 January 2016, said that the course that he was enrolled in at the Australia-Wide Institute had been cancelled. He said he subsequently enrolled with another education provider but was not comfortable with the teachers and the environment. 

5. Later, on 16 February 2016, the applicant provided evidence that the first cancellation had been the result of provider default. However, he had also had unsatisfactory course progress in the second course that is mentioned. He explained that on the grounds of depression.

6. On 9 March 2016, the delegate refused to grant the student visa. The delegate noted the PRISMS records applying to the applicant, which recorded 10 enrolments that had been cancelled and two courses that he had finished. The PRISMS records also showed that the applicant was studying a Certificate IV in Automotive Management and his enrolment in a Diploma of Automotive Management had been approved.

7. The delegate considered that the applicant had not satisfactorily explained the study gap for basically the whole of 2014, and had not complied with condition 8202 on his last student visa. Additionally, the delegate was not satisfied that the applicant intended to stay in Australia temporarily or that he was a genuine applicant for entry and stay as a student. The delegate found that clause 572.223(2) was not met.

8. The applicant then applied to the Tribunal for review of the delegate’s decision. The Tribunal evidently accessed the applicant’s PRISM record. By 15 September 2017, it showed that the applicant had finished his Certificate IV in Automotive Management but that his enrolment in the Diploma of Automotive Management had been cancelled.

9. The Tribunal sent the applicant an invitation to attend a hearing on 10 November 2017. The letter was dated 23 October 2017. It specifically invited the applicant to provide all the documents that he intended to rely upon to establish that he met the criteria for the visa. It also asked the applicant to provide:

   1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   3.Documents that show your past studies in Australia, including copies of your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related past or intended studies in Australia.

   4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

10. The letter also advised that the Tribunal would assess whether the applicant intended to stay in Australia temporarily. The letter said that, relevant to that issue, there was a copy of Direction No. 53 attached to the invitation. Direction No. 53 sets out various matters which the Tribunal is required to consider in assessing whether a person is a genuine temporary entrant for a student visa.

11. The applicant, on the day before the hearing, requested an adjournment on the basis of “stress/ low mood”. He provided a medical certificate which said that he was unfit to attend a hearing in court from 9 November 2017 to 12 November 2017. The Tribunal refused the adjournment request but allowed the applicant to attend by telephone, which he did on 10 November 2021.

12. The Tribunal said in its reasons for decision that, at the hearing, the Tribunal summarised the impact of Direction No. 53 for the applicant’s benefit and asked him to address the matters specified in it.

13. The Tribunal noted the applicant’s personal circumstances, including that:

    (a)he had been in a de facto relationship with an Australian citizen for the previous two years

    (b)he lived in Melbourne with his de facto partner who was also a student;

    (c)he had no close family members in Australia; and

    (d)his parents and younger brother all live in Pakistan.

14. The Tribunal also noted that the applicant did not provide evidence in the form of diplomas or certificates of his study history. However, the Tribunal accepted the delegate’s finding on these issues, including that the applicant had completed a Certificate II in Business in December 2013 and a Certificate III Light Vehicle Mechanical Technology between February 2015 and February 2016.

15. The Tribunal noted the study history as set out by the delegate, which showed that two courses had been completed and 10 had been cancelled. The Tribunal noted that the applicant did not produce a valid certificate of enrolment. However, the Tribunal considered that the matter would proceed on the basis of the genuine temporary entrant criterion so did not concern itself with the absence of the certificate of enrolment.

16. The Tribunal said in its reasons for decision that it encouraged the applicant to highlight anything under Ministerial Direction No. 53 that he wished the Tribunal to consider. The Tribunal particularly asked the applicant if he had discussed future plans with his de facto partner but he said they had not.

17. The Tribunal considered the value of the course to the applicant’s future. The applicant said that he wanted to do a Bachelor’s degree. Because of the applicant’s lack of academic progress and the vagueness of his oral evidence, the Tribunal was not convinced of the value of any further study to the applicant’s future.

18. In relation to the applicant’s ties to Pakistan, he submitted that he had strong ties and that his family were in comfortable circumstances. The Tribunal considered that the applicant’s current de facto relationship weighed against family ties drawing the applicant back to Pakistan. 

19. The Tribunal found that the applicant’s claim that he had not discussed his future plans with his de facto partner to be difficult to accept. The Tribunal noted the delegate’s finding that the applicant was in breach of condition 8202 when he had a study gap of more than 12 months. The Tribunal considered that a genuine applicant for interim stay as a student is someone who intends to study in Australia. The Tribunal considered that the applicant’s pattern of course cancellation indicated that he did not have a genuine intention to comply with condition 8202.

20. The Tribunal considered that the applicant’s de facto relationship with an Australian citizen, his immigration history and his study history, particularly his lack of academic progress, indicated that he did not intend genuinely to stay in Australia temporarily. Consequently, the Tribunal found that the applicant did not meet clause 572.223(1A) of Schedule 2 of the Migration Regulations 1994. The Tribunal therefore affirmed the delegate’s decision. 

21. The applicant, who does not appear to have been legally assisted, filed an application for review by this court on 12 February 2018. The applicant did not file any written submissions in support of his application. 

22. The first ground in the application is as follows:

    The AAT made mistake in presenting the total number of cancelled COE’s in the study history. As a result, I was unable to explain the valid reasons for the ‘study gap’ clearly.

23. When asked to elaborate on this ground in the hearing before the court today, the applicant said that he had forgotten about this ground and all he could remember was that there was some misunderstanding with the certificate of enrolment.

24. I am unable to discern what the error might be. There is no evidence before the court that would enable me to conclude that there had been some sort of mistake with the certificates of enrolment. The Tribunal looked at the PRISMS record. It set out the findings of the delegate in relation to the courses that had been cancelled and which the applicant had finished. I simply cannot see anything that would amount to a misunderstanding of the relevant evidence.  Ground 1 is not made out.

25. The second ground in the application was expressed as follows:

    I was not asked to provide a diploma or certificates, as evidence of my study history to the Tribunal, even when I asked on the phone if I could send it to them through email or other methods. After the ‘study gap’ which occurred through circumstances out of my control, I was fully focused in acquiring my certificates and diploma. Therefore, I was able to reproduce it to the Tribunal as evidence that I am taking my study seriously.

26. The applicant addressed this point in oral submissions. He said that he told the Tribunal that he could provide documents to substantiate that he was still studying. However, he said the Tribunal did not tell him how to send that material to it.

27. The fact is that the hearing invitation sent by the Tribunal specifically asked the applicant to send in certificates of enrolment et cetera that would assist his case to the Tribunal. The invitation had the Tribunal’s address on it. The applicant managed to file an application, and ask for an adjournment, so it is clear that he knew how to contact the Tribunal. He could certainly have sent the relevant documents to the Tribunal prior to the hearing. All in all, it seems to me that there is no jurisdictional error raised by ground 2.

28. Ground 3 in the application is as follows:

    Tribunal pointed out that it finds it ‘difficult to accept “that I have” not discussed future plans with [my] de factor”, which I have been in a relationship for the past 2 years. However, I have in fact informed to the Tribunal that I have discussed future plans with my defacto partner. I have stated that we are both students at this stage, and not financially equipped to start a family just yet. We decided that once we complete our education and become financially stable, then we will go further and discuss whether Australia is a viable option for us. Moreover, my partner is studying international relations as her degree and most of her job prospects require her to take a job in another country. Pakistan is a major possibility as culturally after marriage the bride resides with the husband’s family. However, number one priority is finishing our education. Therefore, important for me to stay in Australia to complete my studies and aim for a degree, which is beneficial for me to secure a better job in Pakistan.

29. Again, in oral submissions, the applicant said he was not sure what to say about this. It seems to me that the Tribunal considered the question of his de facto relationship and formed a view about it that was reasonably open to it. The court is only permitted to see if the Tribunal made a jurisdictional error. I am unable to find that ground 3 raises a jurisdictional error.

30. I have read the Tribunal’s decision and looked at the court book. However, I have been unable to discern any jurisdictional error. In the circumstances, the application will be dismissed. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       16 May 2022