Sarker v Minister for Immigration

[2020] FCCA 1774

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARKER & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1774

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – principal applicant found not to be a genuine temporary entrant for study – whether the Tribunal made illogical findings or failed to consider material facts considered – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealthof Australia (1999) 197 CLR 510

Minister for Immigration v Li (2013) 297 ALR 225

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

First Applicant: TAJBER ALAM SARKER

Second Applicant: SABNAM FATEMA

Third Applicant: ARIBA SARKER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 432 of 2019

Judgment of: Judge Driver

Hearing date: 25 June 2020

Delivered at: Sydney

Delivered on: 25 June 2020

REPRESENTATION

The First Applicant appeared in person by telephone

Solicitors for the Respondents: Ms J Tran of Australian Government Solicitor by telephone

ORDERS

1. The application is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum, fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 432 of 2019

TAJBER ALAM SARKER

First Applicant

SABNAM FATEMA

Second Applicant

ARIBA SARKER

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Sarker, his wife (Ms Fatema) and their child (Miss Sarker) seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 October 2019.  The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas.

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 5 June 2020.   

3. Mr Sarker and his wife are citizens of Bangladesh.[1]  Mr Sarker arrived in Australia on 30 September 2010 on a student (Subclass 572) vocational sector visa.[2]

   [1] Court Book (CB) 2, 56.

   [2] CB 248.

4. Ms Fatema is Mr Sarker’s wife, and Miss Sarker, the third applicant, is their daughter.[3]  Mr Sarker has been granted four student visas since his arrival in Australia.[4]

   [3] CB 54.

   [4] CB 160.

5. On 14 March 2016, Mr Sarker lodged an application for a student (subclass 573) higher education sector visa to study an Advanced Diploma of Marketing, General English and an Associate Degree of Business.[5]

   [5] CB 1, 4.

6. On 17 October 2016, the delegate refused to grant the student visa on grounds that Mr Sarker did not satisfy clause 572.223(2)(a) and (c) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as Mr Sarker had not provided evidence in accordance with the requirements in Schedule 5A for Subclass 573 and assessment level 3; and that he did not have access to sufficient funds.[6]

   [6] CB 110.

7. The applicants sought review of the delegate’s decision by the Tribunal. On 1 May 2018, the Tribunal decided in the applicants’ favour and remitted the matter before the delegate to be re-determined with the direction that Mr Sarker met the criteria for the grant of the visa as required in clause 572.223(2)(a) and (c) of Schedule 2 to the Regulations.[7]

   [7] CB 114.

8. On 20 June 2018, the delegate refused to grant the applicants the student visa.[8] The delegate was not satisfied that the applicants intended to genuinely stay in Australia as temporary entrants, due to the lack of consistent progression of the courses studied by Mr Sarker and the non-utility of a cookery course towards his career goal of starting his own business.

   [8] The visa application was assessed as an application for a subclass 572 student visa (instead of subclass 573), due to his change in course from an Associate Degree of Business to Certificates in commercial cookery.

9. On 5 July 2018, the applicants sought review of the delegate’s decision by the Tribunal.[9] On 17 September 2019 the applicants were invited to attend a hearing before the Tribunal.[10] On 30 September 2019, Mr Sarker provided further documents to the Tribunal.[11] Mr Sarker appeared at the hearing via telephone to give evidence and present arguments on 7 October 2019.[12]

   [9] CB 212.

   [10] CB 227.

   [11] CB 235. These documents included a letter from the first applicant providing reasons for interruptions in his study: CB 236.

   [12] CB 240.

10. On 9 October 2019, the Tribunal affirmed the delegate’s decision.[13]

    [13] CB 246.

Tribunal decision

1. The Tribunal set out at [1]-[5] the procedural history of the matter, and that at the Tribunal hearing Mr Sarker was informed that a s.375 certificate on the Minister’s Department file was not valid as it did not describe a public interest reason and was not relevant to the current review.

2. The Tribunal identified at [8]-[9] that the issue before it was whether Mr Sarker was a “genuine applicant for entry and stay as a student” as required in clause 572.223(1)(a) to Schedule 2 of the Regulations, and with regards to the factors in Ministerial Direction No. 53 (Direction 53).

3. First, the Tribunal considered at [11]-[12] Mr Sarker’s immigration history including the cancellation of enrolment at Curtin University (being the degree for which he was granted his original visa) within months of commencing as he had changed provider, and his parents’ frequent visits to Australia and the applicants’ travel.  The Tribunal found at [12] that the applicants’ travel movements were neutral. The Tribunal, at [13], did not make any adverse findings against Mr Sarker in relation to clause 14(a), (b)(i)-(iv) of Direction 53. However the Tribunal found at [14] that in relation to clause 14(b)(iii), Mr Sarker was using the student visa primarily to maintain ongoing residence in Australia.

4. Secondly, the Tribunal considered at [17] Mr Sarker’s circumstances in Bangladesh and found that he did not have a reasonable explanation why he did not to take the course in Bangladesh, and that the applicants’ financial support in Australia (including living at a relative’s house without paying rent and receiving sums of money from his mother) was a significant incentive for Mr Sarker to not return to his home country. The Tribunal also considered Mr Sarker’s family ties to his home country, finding at [16] that they did not serve as a significant incentive for him to return.

5. Thirdly, the Tribunal considered at [20]-[21] Mr Sarker’s potential circumstances in Australia, including that his wife, daughter and sister lived in Australia, he was involved with the local Bangladesh community, his course history showed limited academic progression, and the timing of his enrolment in a Diploma of Leadership and Management was after he received the hearing invitation from the Tribunal. The Tribunal gave regard at [22] to Mr Sarker’s letter provided to the Tribunal on 30 September 2019, outlining the reasons for interruptions in his study. The reasons included that he was caring for his father (who had cancer), running his father’s business, supporting his mother when his father passed away and that his wife had recently given birth. The Tribunal placed little weight on this letter due to the lack of medical evidence provided. The Tribunal concluded at [22] that Mr Sarker was using the student visa to maintain ongoing residence in Australia.

6. Fourthly, the Tribunal considered at [23] the value of the course to Mr Sarker’s future, and found that he had already gained sufficient qualifications to pursue his career plan to run his father’s business, which he was already running. 

7. Fifthly, with regards to any other relevant matters, the Tribunal acknowledged at [25] that Ms Fatema had recently given birth.

8. In the circumstances, the Tribunal was not satisfied that Mr Sarker met clause 575.223 of the Regulations and affirmed the delegate’s decision at [28]. As a result of Mr Sarker not meeting the criteria for the grant of the visa, the Tribunal was required, at [29]-[30] to also affirm the decision to refuse the grant of the visa to Ms Fatema and Miss Sarker.[14]

   [14] clause 572.312 of Schedule 2 to the Regulations.

The current proceedings

1. These proceedings began with a show cause application filed on 4 November 2019.  Mr Sarker continues to rely on that application.  The grounds in it are:

   The Second Respondent, in making its decision (or purported decision) of 9 October 2019 to affirm the decision of the delegate of the First Respondent to not to grant the Applicant a Student (Temporary) (Class TU) visa committed jurisdictional error in that it illogically and unreasonably:

   1.Determined that “the Tribunal does not accept that the Diploma of Leadership and Management is the next level the applicant should be enrolled in and is not satisfied the applicant will actually complete the course given his previous enrolment history” [par 23]

   2.Failed to genuinely consider all material facts and circumstances of the applicant to assess that the applicant genuinely intended to study a Diploma of Leadership and Management course within the meaning of the time of decision criterion clause 572.223(1)(a) of Schedule 2 to the Migration Regulation 1994 (the Regulations).

   3.Took into account irrelevant considerations.

2. The application is supported by a short affidavit filed with it.  I also have before me as evidence the court book filed on 15 January 2020.  Both the Minister and Mr Sarker filed prehearing written submissions and made oral submissions at the trial today.  The matter had earlier been listed before me for hearing last week but Mr Sarker sought an adjournment on health grounds, which I granted.

3. Mr Sarker’s oral submissions, consistently with his written submissions, drew attention to his personal and family problems.  He has suffered grief from the death of his father.  He also told me that his brother had been killed in a motor accident, although that does not appear to have been raised with the Tribunal.

4. Mr Sarker also told me that he was frustrated in his attempts to complete his tertiary studies, having been trying for, in excess of three years, to secure the visa for that purpose and in his words, “bouncing between the courts and the Tribunal.” 

5. I understand that frustration.  As I explained to him, however, the issue before me is the validity of the Tribunal decision.  The Tribunal took into account in reviewing the delegate’s decision, Mr Sarker’s personal circumstances.  It does not appear to me that anything was overlooked. 

6. The process followed by the Tribunal was consistent with its obligations under the Migration Act 1958 (Cth). The conclusions reached by the Tribunal were open to it on the material before it. In my view, the grounds advanced by Mr Sarker do not establish jurisdictional error.

7. In that regard, I agree with the Minister’s submissions in relation to the grounds of review advanced. 

Ground 1

1. Ground 1 asserts that the finding that the Tribunal did not accept that the “Diploma of Leadership and Management is the next level the applicant should be enrolled in and is not satisfied the applicant will actually complete the course” was illogical or unreasonable.

2. A claim of illogicality or irrationality can only be made out if it is demonstrated that the Tribunal formed a view that no rational or logical decision maker could have arrived at having regard to the same evidence.[15] The Tribunal gave adequate consideration to each of the factors in Direction 53[16] and its reasons disclose an evident and intelligible justification for its decision, such that no real concerns about legal unreasonableness are disclosed.[17]

   [15]   Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130].

   [16]   See [11]-[28] of the Tribunal’s decision.

   [17]   Minister for Immigration v Li (2013) 297 ALR 225 at [76].

3. This conclusion was open to the Tribunal based upon the evidence before it. The Tribunal at [21] and [23] referred specifically to Mr Sarker’s academic progression and career prospects, noting that:

   a)Mr Sarker had spent approximately 10 years in Australia and in that time, he had completed a range of courses at the 572 VET sector level. Mr Sarker had not progressed academically to the 573 Higher Education sector level;

   b)Mr Sarker had not completed a course of study since 4 August 2014;

   c)he had not progressed academically since his arrival in Australia; and

   d)Mr Sarker’s future plan for when he returns to Bangladesh is to run his late father’s business. However, Mr Sarker was already operating the business remotely and the Tribunal found that there was insufficient information regarding the applicant’s potential future remuneration should he complete this course of study in Australia.

4. This ground is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to consider all “material facts and circumstances” in its consideration of whether the applicants met clause 572.233(1)(a) of Schedule 2 to the Regulations, being the genuine temporary entrant criterion.

2. The Tribunal has not failed to consider any relevant material or considerations in its decision. In its decision, the Tribunal correctly identified at [8]-[9] the relevant legislative provisions it was required to consider; and the factors in Direction 53 it was required to have regard to. The Tribunal also summarised at [17], [21]-[23] and had regard to all the evidence before it, including evidence provided by Mr Sarker at the Tribunal hearing, and his letter to the Tribunal on 30 September 2019 at [22]-[25].

3. In consideration of whether Mr Sarker met the genuine temporary entrant criterion, the Tribunal had reference to:

   a)his immigration history;

   b)his circumstances in his home country (including his ties to Australia and his home country);

   c)strong financial support received whilst remaining in Australia;

   d)potential circumstances in Australia (including his connection with the local community);

   e)enrolment history in a number of courses, without progressing academically to the 573 Higher Education sector level,

   f)his reasons for interruption to his study (including that his father had become ill); and

   g)the value of the course to his future (including that the applicant proposes to run his father’s business when he returns to his home country).[18]

   [18] See [11]-[28] of the Tribunal’s decision.

4. Based on this evidence before the Tribunal (which also form part of the factors to be considered in Direction 53), the finding that Mr Sarker did not genuinely intend to stay in Australia was manifestly open to it. 

5. To the extent that the applicants are asking the Court to review the merits of the Tribunal’s decision and find that Mr Sarker satisfies the “genuine temporary entrant criterion” by reason that he will complete his course, disagreement about whether the Tribunal reached the right decision does not amount to jurisdictional error. The Court cannot undertake merits review.[19]

   [19] Abebe v Commonwealthof Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

6. I conclude that Mr Sarker is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,500.  Mr Sarker claims, at least, temporary impecuniosity but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

8. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum, fixed in the sum of $5,500.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 1 July 2020