Shah v Minister for Immigration

[2016] FCCA 498

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 498

Catchwords:
MIGRATION – Visa – student visa – whether genuine applicant for entry and stay as a student.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.572.223

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: SYED MUHAMMAD MOAZZAM SHAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 219 of 2015

Judgment of: Judge Heffernan

Hearing date: 2 March 2016

Date of Last Submission: 2 March 2016

Delivered at: Adelaide

Delivered on: 18 March 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr O Young for Sparke Helmore Lawyers

ORDERS

1. The Application filed 18 June 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 219 of 2015

SYED MUHAMMAD MOAZZAM SHAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) in relation to a decision of the Tribunal dated 2 June 2015 which affirmed the decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’).

2. There is one ground to this application, namely, “judicial error”.  This ground is not further particularised.

3. The applicant appeared before this Court unrepresented.  At the time of the Tribunal hearing, he had been represented by a migration agent. 

4. The applicant was assessed against the requirements for a subclass 572 visa because he was enrolled in an Advanced Diploma of Management as his principal course.  The decision of the Tribunal turned on the question of whether the applicant was a “genuine applicant for entry and stay as a student” (‘genuine student’) and accordingly it was necessary that he satisfied cl.572.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The conclusion of the Tribunal was that the applicant was not a genuine student because it made a positive finding that he was conducting himself in a way designed to prolong his stay in Australia for reasons unconnected to his studies.[1]  Satisfaction that he was a genuine student was a mandatory primary criterion.[2]

   [1]     Court Book (‘CB’) p 191.

   [2] cl.572.223.

5. The history of the applicant’s studies and his personal circumstances were relevant to the consideration of whether he was a genuine student, and were relied on for this purpose by the Tribunal.  I set out the background and Tribunal findings on these matters below.

Background

1. The applicant completed a Bachelor of Electronic Engineering at the Sir Syed University of Engineering and Technology in about 2009.[3]  He was enrolled in the University of South Australia in a Masters of Engineering (Electrical Power Engineering) between 2010 and 2013.[4]  He failed a number of his subjects during that time.  He passed eight subjects. 

   [3]     CB p 186.

   [4]     CB p 39.

2. The applicant told the Tribunal that there were two main reasons for not having completed the Masters of Engineering program.  The first was that his mother had been unwell and had required an operation on her lungs in September 2010.  The second was that there had been severe flooding in Pakistan, and this had caused him significant stress which interfered with his ability to continue studies.  He claimed that transferring to a Diploma course would be easier for him in these circumstances.[5]

   [5]     CB p 187.

3. The applicant studied a Diploma of Business between October 2013 and July 2014.

4. The applicant told the Tribunal that the relevance of his proposed new courses, namely a Diploma of Management and an Advanced Diploma of Management, was that he wanted to help his father in a mechanical shop.  These courses were scheduled to run between October 2014 to October 2015 and November 2015 to November 2016 respectively.  He acknowledged that he already held a Diploma of Business.  He claimed that a Diploma of Management would give him extra skills to manage his father’s business and was his father’s desire that he should undertake it.[6]

   [6]     CB p 187.

5. The applicant claimed that the University had assured him that he would be able to complete the remaining units in his Masters of Engineering Course.[7]  In support of his submissions to the Tribunal, the applicant relied on a report from a Mental Health Social Worker and Psychotherapist, Robyn Lingard, dated 5 October 2014, which stated that he was experiencing elevated levels of anxiety, stress and depression, as a result of financial, educational and family problems.  The combination of these issues was said to make a resumption of his studies of the Masters of Engineering a problematic matter.[8]  The applicant explained to the Tribunal that he had experienced a breakdown in his relationship with his brother, who resides in Australia.

   [7]     CB p 187.

   [8]     CB p 187.

6. The applicant stated that he found the Diploma courses much easier to complete than the Masters Degree.

7. The Tribunal specifically put to the applicant that the history of his studies suggested an attempt to prolong his stay in Australia, rather than having a benefit to his future career.[9]  It also queried whether he would be able to complete his courses within a reasonable period of time given the illness he claims to have experienced.  The response of the applicant was in effect that he wanted to complete his Diploma and Advanced Diploma and that he would complete the remaining four units of his Masters Degree when he felt able to do so.[10]

   [9]     CB p 188.

   [10]    CB p 188.

8. After the Tribunal hearing, the applicant’s representative provided a further written submission to the Tribunal dated 28 October 2014, in which it claimed that he had a post-traumatic stress disorder.  The Tribunal noted that this did not appear to be supported by any other documentation, including that from the psychotherapist.  The Tribunal also considered a further statement from Robyn Lingard submitted post hearing by the applicant’s representative.  That statement asserted that the applicant had a positive attitude towards his further studies and speculated that he would be successful in completing both his Diploma, Advanced Diploma and ultimately his Masters of Engineering. 

Tribunal finding

1. The Tribunal was not satisfied that there was any connection between the applicant’s ill health, which resulted in his failure to complete the Masters Degree, and the floods which had occurred in Pakistan.[11]  The Tribunal placed weight on the fact that neither the stress caused by his mother’s apparent illness, or the anxiety and depression he experienced as a result of the Pakistan flood, were mentioned in his Statement of Purpose document in which he sought to explain his reasons for having changed his course.  Whilst it accepted that the illness of his mother was something that might have caused him to be distracted by an examination which took place on the day of her operation, it was not satisfied that there was any evidence that mental health issues had had an impact on his results in the Masters Degree course.[12]  In reaching this conclusion, the Tribunal placed weight on the letter of his general practitioner, Dr Ghuman, dated 7 October 2014, which stated the applicant had been receiving treatment since February 2014 for anxiety and depression.  This was of course after the applicant had ceased to study for his Masters Degree.[13]

   [11]    CB p 190.

   [12]    CB p 191.

   [13]    CB p 190.

2. The Tribunal was not convinced by the evidence given by the applicant as to the benefit that the management courses would provide him in the context of his previous studies, particularly given the amount of time it would take to complete those courses.  It found that the answers given by the applicant were lacking in substance.[14]  He was, for example, not able to identify what skill that he lacked which might be improved by undertaking the management courses.  It was not convinced that the proposed further study would assist the applicant in starting a business with his father, and nor was it convinced that the applicant believed that it would.[15]  The Tribunal placed weight on the fact that in 2013, the applicant claimed that he merely wished to complete a Diploma of Business but that his present intentions were to stay in Australia for a considerable further period of time, if permitted.  The Tribunal found that this supported a conclusion that he was seeking to prolong his stay in Australia for reasons that were unconnected with vocational and academic success.[16]

   [14]    CB p 191.

   [15]    CB p 191.

   [16]    CB p 191.

3. The Tribunal concluded that Mr Shah was undertaking courses that were not consistent with and were below his existing level of education.  In combination with the fact that it had doubts about whether his father’s business was actually in operation, it was not satisfied taking his whole history into account, that the management courses would assist him to obtain employment or improve his remuneration prospects.  Given that he had already qualified with a Diploma of Business, the Tribunal was not satisfied that the management courses would provide any further valuable skills which he would apply in running a business with his father.[17]  In reaching this conclusion, the Tribunal placed some weight on some inconsistencies in the evidence of the applicant.  It noted that there was inconsistency between the claim, firstly that the applicant wanted to establish a business in the future with his father on his return to Pakistan, and an earlier claim that the business in question was already operating, and that for this reason, he needed further skills so that he could assume a position as a salaried manager in that business.[18]

   [17]    CB p 194.

   [18]    CB p 194.

4. The Tribunal regarded this aspect as a significant indicator that he was not a genuine student and that the course of studies proposed by him were simply being used to prolong his stay in Australia.[19]

   [19]    CB p 194.

5. The Tribunal also placed weight on the fact that the applicant had not been enrolled in a course for a period of time and that on one view it looked as though he had enrolled in a further course in response to being invited to a hearing before the Tribunal.  It took this into account in forming the view that the applicant had no intention to complete his proposed courses of study in an expeditious manner.  For these reasons, the Tribunal was not convinced that the applicant intended to actually complete his Masters Degree.

6. The Tribunal found that the applicant’s family ties in Australia might be an incentive for him to remain here, as well as his present employment. 

Submissions

1. The applicant made brief submissions before this Court which repeated his claims to have experienced stress as a result of the floods in Pakistan, that his relationship with his brother living in Australia had broken down, and the fact that he had been advised by a student counsellor to change to an easier course as a way of relieving his stress.

2. The applicant also advised this Court of a matter not before the Tribunal in evidence, namely that he had a wife in Pakistan and he had been threatened by his father-in-law that if he returned to Pakistan, he would be killed.  This was not in evidence before the Tribunal and I am not able to have regard to it.

3. The applicant was also critical of the conduct of his lawyer and the advice that he had been given both before and at the time of the Tribunal hearing.  This is not a matter which gives rise to a jurisdictional error on the part of the Tribunal.  He was critical of the fact that he had given his evidence to the Tribunal over the telephone, but he acknowledged that he was able to speak to the Tribunal and give her version of events.  I am not satisfied that the mere fact that his evidence was taken over the phone, as opposed to in person, gave rise to a procedural unfairness in the circumstances of his case which requires this Court to intervene.

4. The applicant repeated his claims that the reason he changed to the Diploma courses from the Masters of Engineering Degree was because of the stress related to his mother and that the Diploma courses were easier for him to manage.  At the time, the applicant stated that he could not understand why, given that he had changed his courses apparently at the suggestion of his student counsellor for reasons of his health, he was seen to have done anything “wrong”.

First respondent’s submissions

1. The first respondent submits that the applicant has not identified any jurisdictional error in his grounds of application and that he has not done so in his oral submissions.  The first respondent submits that the claims made by the applicant were all properly and thoroughly considered.  There was, it submits, no procedural unfairness in the procedure adopted by the Tribunal because the applicant had been invited to attend at the hearing and it put him on notice of its concerns during the course of the applicant’s evidence.  In particular, the first respondent says the Tribunal raised with the applicant its concerns that he may not have been a genuine student.

2. With respect to the oral submissions made by the applicant the first respondent submits, in my view correctly, that they amount to nothing more than an expression of dissatisfaction with the findings of fact made by the Tribunal, in other words, an application for a review on the merits.

Conclusion

1. I am not satisfied that the applicant has demonstrated any jurisdictional error on the part of the Tribunal.  The Tribunal considered all of the claims made by the applicant and dealt with them comprehensively in its reasons.  There was nothing unreasonable in the legal sense, illogical or irrational in the conclusions it reached.  It may be the case that reasonable minds could differ as to the conclusions ultimately reached by the Tribunal.  That of itself does not indicate jurisdictional error.[20]  There was nothing in the manner in which the hearing was conducted that gave rise to any procedural unfairness.  The applicant was invited to attend, did attend by telephone and was represented.  He was given an opportunity to present his case to the Tribunal and took up the opportunity, through his representative, to provide the Tribunal with further materials after the date of the hearing.  The applicant was dissatisfied with the outcome of the Tribunal hearing and the factual and credit findings it made.  However, it is not within the ambit of judicial review of that decision for this Court to substitute its opinion or findings of fact before those of the Tribunal.[21] 

   [20]    Attorney-General (NSW) v Quin (1990) 170 CLR 1 at p 37.

   [21]    Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259.

2. It was implicit in the applicant’s submissions that he believed that the Tribunal had not given sufficient weight to the material he presented to it from both his doctor and his counsellor/psychotherapist.  To the extent that he complains about the failure to accord evidence he produced sufficient weight, it was entirely a matter for the Tribunal to determine the weight accorded to the evidence.  It is not the role of this Court to determine that an item of evidence or body of evidence is relevant, or that it should have been accorded greater or lesser weight.  They are discretionary matters for the Tribunal.  In making the assessment of the evidence that it did, the Tribunal was acting within jurisdiction.[22]

   [22]    Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

3. Accordingly, I dismiss this application and I make the orders found at the beginning of these reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 March 2016