Samiullah v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 369
•21 April 2023
FEDERAL COURT OF AUSTRALIA
Samiullah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 369
File number(s): VID 232 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 21 April 2023 Catchwords: MIGRATION – appeal from Federal Circuit and Family Court of Australia – where appellant did not appear at hearing of appeal – where appellant was given proper notice of hearing of appeal – where first respondent applied for order under r 36.75 of the Federal Court Rules 2011 (Cth) – appeal dismissed Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) sch 2, cl 572.223
Federal Court Rules 2011 (Cth) r 36.75
Cases cited: Samiullah v Minister for Home Affairs [2022] FedCFamC2G 367 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of last submission/s: 22 March 2023 Date of hearing: 21 April 2023 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Mr M Daly Solicitor for the First Respondent: Mills Oakley ORDERS
VID 232 of 2022 BETWEEN: SAMIULLAH SAMIULLAH
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to: Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Ex tempore
(Revised from transcript)O’CALLAGHAN J:
By a notice filed on 29 April 2022, the appellant appeals from the orders and judgment of a judge of the Federal Circuit and Family Court of Australia dated 5 April 2022. See Samiullah v Minister for Home Affairs [2022] FedCFamC2G 367.
The primary judge dismissed with costs an application made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) that sought judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 January 2018, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) visa.
The appellant is a citizen of Pakistan. He arrived in Australia on 15 June 2013 as the holder of a Student (Subclass 572) visa. The visa was subject to condition 8202, which required him to adhere to certain course enrolment, attendance and academic progress requirements.
On 24 August 2015, the appellant applied for a further Student visa on the basis of his enrolment in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Management, and a Diploma of Automotive Management.
In order to be granted the visa, the appellant was required to satisfy, among other things, cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth).
(1)That the Minister must be satisfied that the applicant was 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
(b) the applicant meets the requirements of subclause (1A) or (2).
That regulation also provided:
(1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
…
(2) If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
The appellant submitted a genuine temporary entrant statement in which he advanced the following claims: undertaking studies in Australia would improve his employment prospects in Pakistan, his parents lived in Pakistan and owned property there, his enrolments in automotive courses at Austwide Institute were cancelled because the education provider was unable to offer the courses, and he subsequently enrolled at Education Access Australia but was “not comfortable with [the] teachers and [the] environment”.
On 16 February 2016, following a further request for information, the appellant provided letters from Austwide Institute and Education Access Australia which confirmed his enrolments in automotive courses at those educational institutions had been cancelled due to “Provider Default” and “unsatisfactory course progress”. He also provided a statement in which he claimed it was difficult to continue his studies at Education Access Australia “because of depression”.
On 9 March 2016, the delegate refused to grant the appellant a student visa. The delegate extracted the appellant’s Provider Registration and International Students Management System (PRISMS) records, which recorded ten enrolments as “cancelled” and two as “finished” and also showed that the appellant was “studying” a Certificate IV in Automotive Management and his enrolment in a Diploma of Automotive Management was “approved”. The delegate found the appellant had not provided a satisfactory explanation for a gap in study between 20 December 2013 and 23 February 2015 and had not complied with condition 8202 on his last Student visa, given he was reported for unsatisfactory course progress while on that visa. The delegate was not satisfied that the appellant intended to stay in Australia temporarily or was a genuine appellant for entry and stay as a student and, accordingly, found that cl 572.223(2) was not met.
On 22 March 2016, the appellant applied to the Tribunal for review of the delegate’s decision and gave the Tribunal copies of the delegate's notification letter and decision record. He did not appoint a representative.
On 15 September 2017, the Tribunal accessed the appellant’s PRISMS records, which indicated he had “finished” his Certificate IV in Automotive Management and that his enrolment in a Diploma of Automotive Management was “Cancelled”. The PRISMS records were otherwise consistent with the PRISMS records contained in the delegate’s decision record.
By a letter dated 23 October 2017 and sent to the appellant’s nominated email address, the appellant was invited to appear before the Tribunal at an in-person hearing scheduled for 10 November 2017 at 10:00am. The invitation requested the appellant provided documents that showed his past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion.
On 9 November 2017 (the day before the scheduled hearing), the appellant requested an adjournment of the hearing. In support of his request, he provided a medical certificate which stated he was experiencing “stress/low mood” and was unfit to attend a “shceduled [sic] hearing in a court” from 9 to 12 November 2017. The Tribunal refused the adjournment request but agreed to the appellant appearing before it by telephone, which he did on 10 November 2017.
On 29 January 2018, the Tribunal affirmed the delegate’s decision. The Tribunal was not satisfied that the appellant genuinely intended to stay in Australia temporarily and found cl 573.223(1) was not met.
The Tribunal gave several reasons for its conclusion that the relevant regulation was not met. A summary of those reasons, adopted from the helpful submissions filed on behalf of the first respondent, are as follows:
(1)The appellant had been in a de facto relationship with an Australian citizen for two years;
(2)Due to the appellant’s “many cancellations” of his courses of enrolment, he had not been enrolled in a course of study for more than 12 months;
(3)The appellant’s oral evidence in relation to his future plans was “unconvincing” and the Tribunal was “sceptical” that the appellant had not discussed his future plans with his de facto partner as he claimed at the hearing;
(4)The Tribunal was not satisfied that the Diploma of Automotive Management and Bachelor degree in the automotive sector would be of any value to the appellant’s future, given the “generality” of the appellant’s oral evidence and his lack of academic progression, which included “many cancellations of courses towards the Business diploma and Automotive Management diploma” and a study gap of over 12 months;
(5)Whilst accepting that the appellant had strong family ties to Pakistan and had returned to Pakistan to visit his parents when his father required surgery, “such ties would now compete” with the appellant’s de facto relationship, which was a disincentive for him to remain in Australia temporarily; and
(6)The appellant had been in breach of condition 8202, which relevantly required the appellant to maintain enrolment. A “pattern of failure and lack of course completion” suggested that an intention to comply with condition 8202 was not genuinely held and it was the appellant’s responsibility to “see through” his studies to completion.
On 12 February 2018, the appellant filed in the then-Federal Circuit Court of Australia an application seeking judicial review of the Tribunal’s decision.
In his application for judicial review, the appellant advanced the following grounds (errors in the original):
(1)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.
(2)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.
(3)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.
On 5 April 2022, the parties appeared before the primary judge at a final hearing. The appellant was self-represented.
At the conclusion of the hearing, the primary judge pronounced orders and delivered ex tempore reasons for judgment dismissing the application for judicial review with costs. Written reasons were subsequently provided to the parties on 16 May 2022.
In summary, the primary judge held:
(a)Ground one of the application for judicial review could not be made out because there was no evidence before the Court that would enable it to conclude that there had been a mistake with the certificate of enrolments.
(b)Ground two could not be made out because the hearing invitation sent by the Tribunal specifically asked the appellant to send in “certificates of enrolment et cetera” that would assist his case. The primary judge observed that the appellant had managed to file an application and ask for an adjournment, so it was clear that he knew how to contact the Tribunal and could have sent the relevant documents prior to the hearing.
(c)Ground three could not be made out as the Tribunal considered the question of the de facto relationship and formed a view about it that was reasonably open to it.
The primary judge confirmed that the Tribunal’s decision and the court book had been read and no jurisdictional error was capable of being discerned. Accordingly, the primary judge made orders dismissing the application with costs.
On 29 April 2022, the appellant filed a notice of appeal from the judgment and orders of the primary judge.
The notice of appeal pleaded the following three grounds (errors in original):
(1) Mistake in coe’s,
(2)I could not explain properly should have hired a lawyer The visa officer didn't follow the law my visa was refused of unfair grounds As opposed to migration Law of 1958.
(3)Visa officer’s decision should have been reversed and should have issued me visa for further studies.
At the hearing this morning, the appellant did not appear. By reason of that failure, the first respondent sought an order dismissing the appeal with costs, pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).
I am satisfied that the appellant had proper notice of today’s hearing.
Mr Matthew Daly, who appeared on behalf of the first respondent, tendered three pieces of correspondence which prove, in short, that the appellant was notified on three separate occasions of a listing of the hearing today at 9:30am before me and that he was warned in a letter dated 24 February 2023 that if he did not appear, an order would be sought dismissing the appeal with costs.
I am also satisfied that no arguable point of appeal arises.
Ground one of the notice of appeal essentially repeated the complaint advanced before the learned primary judge but without any particulars. No error was identified in the primary judge’s reasons and approach. As the primary judge held, the appellant was unable to elaborate on this ground, beyond stating that there was some “misunderstanding with the certificate of enrolment”. The primary judge’s conclusion that there was no evidence before it to enable the court to conclude that there was a mistake with the certificates of enrolment was open on the available evidence.
The Tribunal noted that the appellant had the opportunity to give evidence in respect of his “many cancellations” in enrolments. In particular, the Tribunal recorded that the appellant gave evidence addressing several cancelled enrolments and on the “study gap” identified by the delegate. The Tribunal said that the appellant did not dispute the “study gap” but sought to explain it with reference to his depression and dissatisfaction with his education provider. The Tribunal’s findings about the appellant’s “many cancellations” were supported by probative evidence, namely the record of the appellant’s study history as extracted in the delegate’s decision, which the appellant did not dispute. Accordingly, this ground cannot be made out.
Proposed grounds two and three, to the extent they are capable of being understood, were not advanced before the primary judge and the appellant requires leave to raise them for the first time on appeal. Given the appellant did not appear and did not file written submissions, no reason was asserted as to why leave should be granted. In any event, given the lack of any particularity in relation to the proposed grounds, I would not have allowed them. As the first respondent submitted, the complaints in the proposed grounds are no more than an expression of the appellant’s disagreement with the outcome of the proceedings before the Tribunal and the primary judge.
Proposed ground two asserted that the appellant “could not explain properly should have hired a lawyer”. It is unclear, at least to me, whether this complaint is directed to the Tribunal’s decision or the primary judge’s reasons, and the appellant does not identify what it was that he was unable to “explain properly” or how this established jurisdictional error on the part of the Tribunal or an error by the primary judge.
Proposed ground three was that the “visa officer did not follow the law” and the appellant’s visa was refused “of unfair grounds as opposed to migration law”. This proposed ground lacked particularity. The appellant further contended in ground three that the visa officer should have “issued me a visa for further studies”. At its highest, this ground invited the court to engage in merits review regarding the appellant’s claimed entitlement to the grant of the Student visa, which the court is not permitted to undertake.
Having read the materials, no meaningful case of appealable error has been identified or is apparent in the judgment or procedures adopted by the learned primary judge. No jurisdictional error on the part of the Tribunal has been demonstrated. The Tribunal’s conclusion that the appellant did not meet the relevant regulation was reasonably open on the evidence before it and for the reasons it gave.
In summary, none of the materials filed or otherwise provided to the court identified any arguable ground of jurisdictional error in the Tribunal’s reasons or raised an arguable ground of appeal from the decision of the Federal Circuit and Family Court of Australia.
I will therefore make the orders sought by the first respondent.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. Associate:
Dated: 21 April 2023
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