Shah v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1104
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1104
File number: MLG 2514 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 30 November 2023 Catchwords: MIGRATION– Student (Subclass 500) visa – Whether the Applicant satisfied the Genuine Temporary Entrant criteria under cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – No error of law – No failure to accord the Applicant procedural fairness – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 359, 360, 499
Migration Regulations 1994 (Cth) cl. 500.212
Cases cited: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 [2020] FCAFC 16
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission: 21 November 2023 Date of hearing: 21 November 2023 Place: Melbourne Applicant: Appearing in person Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2514 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMID SHAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs in the sum of $5,400.
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).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The Tribunal decided that Mr Hamid Shah was not a genuine applicant for entry and stay as a student because he did not genuinely intend to stay in Australia temporarily within the meaning of cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the GTE Criterion).
By his application to this Court, Mr Shah submits that the Tribunal’s decision was affected by an error of law as to its assessment of whether he satisfied the GTE Criterion and that the Tribunal denied him procedural fairness.
Mr Shah’s challenge to the Tribunal’s conclusion that he did not satisfy the GTE Criterion was that the Tribunal based its findings on what he termed “assumptions”. In its reasons, the Tribunal referred to relevant factors found in Ministerial Direction No. 69 (Direction 69) titled “Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications” as to each of the following: the value of courses Mr Shah completed, his circumstances in Australia, his circumstances in Pakistan and his immigration history. I have identified no error in the Tribunal’s reasoning process. There was a rational and intelligible foundation for the Tribunal’s conclusion that Mr Shah did not meet the GTE Criterion. It cannot be said that no sensible Tribunal acting with due appreciation of its responsibilities could have taken the course this Tribunal took.
As to procedural fairness issues, Mr Shah consented in writing to the Tribunal deciding the review without a hearing. Mr Shah’s consent engaged the operation of s. 360(2)(b) of the Migration Act 1958 (Cth) to relieve the Tribunal from procedural fairness obligations which would otherwise apply under s. 360(1) to invite Mr Shah to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Mr Shah has not pointed to any other failure of the Tribunal to accord him procedural fairness.
As a result, Mr Shah has not persuaded me as to either of his claims. I will dismiss the application. My reasons follow.
BACKGROUND AND PROCEDURAL HISTORY
Mr Shah is a citizen of Pakistan. On 19 August 2007, he arrived in Australia holding a Student (Subclass 572) visa (CB66).
On 8 September 2016, Mr Shah applied for the Student (Subclass 500) visa which application has culminated in this judicial review application (CB1–22).
On 14 October 2016, the Department of Immigration and Border Protection contacted Mr Shah and invited him to provide information as to the GTE Criterion and his student visa application (CB26–33).
On 14 November 2016, Mr Shah responded to the Department by way of a written statement. He addressed the GTE Criterion and provided various documents (CB34–58).
On 14 February 2017, a delegate of the Minister refused to grant Mr Shah’s student visa because the delegate was not satisfied that he met the GTE Criterion (CB60–70).
Tribunal Proceedings
On 6 March 2017, Mr Shah applied to the Tribunal for review of the delegate’s decision (CB71).
On 12 April 2018, pursuant to s. 359(2) of the Act which contains a power of the Tribunal to seek information, the Tribunal invited Mr Shah to provide information about his “proposed course(s) of study” and his “entry and stay [in Australia] as a student” (CB77).
On 9 May 2018 (following an agreed extension of time), Mr Shah (via his legal representative) provided information to the Tribunal. Mr Shah informed the Tribunal that he had completed a Bachelor of Business in November 2017 and that he was the subject of an offer to enrol in a Masters of Professional Accounting (CB93–100; 146–149). He told the Tribunal that he was currently employed as an accountant with Toll Group (CB101–109).
Further, Mr Shah informed the Tribunal that he consented to the Tribunal deciding the review without a hearing (CB101).
On 7 June 2018, the Tribunal wrote to Mr Shah inviting him to provide additional information including a copy of his employment agreement with Toll Group and a current Confirmation of Enrolment as a student (COE) (CB146–149).
On 21 June 2018, Mr Shah responded to the Tribunal and attached copies of his job offer with Toll Group, payslips outlining salary and superannuation information, a copy of his current COE from Federation University and provided an additional written submission (CB152–166).
Tribunal Decision
On 25 July 2018, the Tribunal affirmed the decision of the delegate to refuse the student visa (CB173–180).
In its consideration of the GTE Criterion, the Tribunal observed that Mr Shah had in the period from August 2007 until March 2013 completed his studies “in a set of low-cost, short duration courses in unrelated fields in the VET sector”. From March 2013 until July 2016, he was enrolled in a Bachelor of Commerce (Accounting) “without success”. From July 2016 until November 2017, he completed and graduated with a Bachelor of Business. From November 2017 until July 2018, the Applicant was not studying and did not hold a COE and, from April 2018, he was an employee of the Toll Group: (CB178, TD [26]).
In the ensuing paragraphs the Tribunal made findings including as to:
(a)the value of the courses as to the Applicant’s future: the Tribunal noted that after 10 years of study in Australia, Mr Shah had graduated with a degree that was “in essence similar to the degree conferred in Pakistan”. It found that his continuing enrolment in courses “reflect[ed] a desire to maintain residence in Australia” (CB180, [28]).
(b)the Applicant’s circumstances in Pakistan: namely that, “his personal ties to Pakistan through his family and fiancé do not serve as a significant incentive to return to Pakistan”: (CB179, [29]).
(c)the Applicant’s circumstances in Australia: the Tribunal found that Mr Shah had recently obtained a well-paid job in Australia and his circumstances in this country outweighed any other incentive to return to Pakistan. The Tribunal found that Mr Shah was a “well-qualified individual” who had not taken the opportunity to return to Pakistan to pursue his chosen field. (CB179-180, [30]–[31]); and
(d)the Applicant’s immigration history: the Tribunal found that the Applicant had undertaken “a series of short, inexpensive courses in a range of unrelated fields”: (CB180, [32]).
Each of these factors was a relevant factor under Direction 69 (CB193, [9]) to which the Tribunal had to have regard under s. 499(2A) of the Act: see, YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [39]. I accept the First Respondent’s submission that there was no obligation on the Tribunal to “formulaically address” or “laboriously set out” each and every matter in Direction 69: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646, [2020] FCAFC 16, [106].
Following this evaluation of Mr Shah’s circumstances and immigration history in Australia, the Tribunal concluded that Mr Shah did not satisfy the GTE Criterion (CB180, [33], [38]).
JUDICIAL REVIEW APPLICATION
On 22 August 2018, Mr Shah commenced this application for judicial review. He stated his grounds in broad terms as follows:
1.The decision of the Tribunal:
a.Is affected by an error of law;
b.Denied the Mr Shah procedural fairness.
2.I have made an application for assistance through Legal Concerns Lawyers and Consultants and I am waiting for a decision.
Notwithstanding Court orders for Mr Shah to file and serve any amended application and written submissions 28 days before the hearing, Mr Shah did not file any further written material before the hearing.
Did the Tribunal make a jurisdictional error?
Ground 1(a): Was the Tribunal’s decision affected by an error of law?
Mr Shah’s first ground alleges that the Tribunal’s decision was affected by an error of law.
Mr Shah has the onus to prove any jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, [46].
He has not provided any details or particulars as to this claim. A failure to particularise a ground of review may be a sufficient basis not to accept Mr Shah’s allegation of error: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J).
I have detailed above that the Tribunal had regard to (as it had to) relevant factors under Direction 69. Mr Shah, in his oral submissions before me, submitted that the Tribunal had made its decision based on “assumptions.” He submitted that there was a qualitative difference in how a degree completed in Australia rather than Pakistan was regarded. He submitted that his lack of progress in one course of study was a result of a problem with one particular teacher. Although a different decision-maker may have formed a different view as to the significance of various factors, including how degrees completed in Pakistan and Australia are regarded, and why his progress in completing a course of study was slow, the Court is not engaged in merits review. Each of the factors to which the Tribunal referred as to whether Mr Shah met the GTE Criterion (outlined above) was a relevant consideration and the findings it made were open to it. Mr Shah has not proved a serious or grave error as to any factual finding the Tribunal made. Even if Mr Shah emphatically disagrees with the Tribunal’s assessment, he has not persuaded me that the Tribunal made any jurisdictional error.
For completeness, I note that the Tribunal exposed the path of its reasoning. Further, there was an evident, transparent, and intelligible justification for the Tribunal’s decision: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [2016] FCAFC 11, [92]. The conclusion the Tribunal reached was reasonably open to it.
In the absence of particulars or any other identifiable error, Mr Shah has not discharged his onus to prove any error as to Ground 1(a).
Ground 1(b): Did the Tribunal deny the applicant procedural fairness?
The Tribunal complied with its statutory obligations of procedural fairness.
Mr Shah has not particularised or identified how he says that the Tribunal denied him procedural fairness. Mr Shah consented in writing to the Tribunal deciding the review without a hearing (CB101). As a result of Mr Shah’s consent, by operation of s. 360(2)(b) of the Act, the Tribunal was relieved from its obligations under s. 360(1) to invite Mr Shah to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In fact, in circumstances in which Mr Shah consented to the Tribunal deciding the review without a hearing, s. 360(3) provided that “the applicant is not entitled to appear before the tribunal”. By further statutory provision under s. 363A, the Tribunal then did not have power to allow him to appear and thereby permit him to do something he or she was not entitled to do under the Act.
The Tribunal’s obligation to invite the Applicant to respond to any adverse information was not engaged as all the information the Tribunal relied upon the Applicant himself gave for the purposes of the review application and, as a result, that information came within the exception under s. 359A(4)(b) of the Act.
The Applicant has not made out Ground 1(b).
Ground 2: Legal assistance
By Ground 2, Mr Shah identified his intention to seek legal assistance and that he was awaiting a response. He does not identify any error in the Tribunal’s decision.
In the absence of an identified error, Ground 2 has not been made out.
CONCLUSION
I will dismiss the application. I will order that the Mr Shah pay the First Respondent’s costs fixed in the sum sought of $5,400.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 30 November 2023
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