Shah v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1071
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1071
File number: MLG 1538 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 23 November 2023 Catchwords: MIGRATION LAW – review of Administrative Appeals Tribunal decision – Student (Temporary) (Class TU) visa – request for adjournment refused – ex tempore decision given in relation to adjournment application – grounds of review that Tribunal did not have regard to factors in Ministerial Direction 53, procedural unfairness – no jurisdictional error identified – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 476(2)(a) and 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3
Migration Regulations 1994 (Cth) cl 572.223
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
BSY16 v Minister for Home Affairs [2019] FCA 140
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 14 November 2023 Date of hearing: 14 November 2023 Place: Melbourne The Applicant: Appeared in person Solicitor for the First Respondent: Mills Oakley Lawyers The Second Respondent: Submitted an appearance, save as to costs ORDERS
MLG 1538 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED NOORALAM SHAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 1 June 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed 1 June 2018 (Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 7 May 2018 (Tribunal’s Decision). The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (Visa).
This matter was heard on 14 November 2023 and proceeded in person at the Melbourne Registry of the Court (Hearing). At the conclusion of the Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Hearing.
ISSUES IN DISPUTE
The issue in dispute in this matter is whether the Tribunal’s Decision is affected by jurisdictional error.
SYNOPSIS
The Court has determined that the Tribunal’s Decision is not affected by jurisdictional error and therefore the Application must be dismissed with costs.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 24 September 2019, numbering 138 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail.
The Applicant is a citizen of Pakistan and arrived in Australia on 16 May 2013.[1]
[1] Court Book (CB) 15.
On 28 June 2016, the Applicant applied for the Visa (Visa Application).[2]
[2] CB 1-8.
On 14 July 2016, the Department of Immigration and Border Protection (Department) wrote to the Applicant, requesting further information to be provided to support the Visa Application, including evidence of his English language ability, financial capacity and regarding the genuine temporary entrant criterion.[3]
[3] CB 11-20.
It is apparent from the Court Book that the Applicant submitted further information to the Department, being: a Genuine Temporary Entrant Statement, school certificates, a policy certificate, letter from a bank, and a Statement of Attainment.[4] The date of filing of these documents by the Applicant with the Department is unknown.
[4] CB 21-27.
On 28 November 2016, the Department notified the Applicant that the Visa Application had been refused (Delegate’s Decision).[5] The Delegate’s Decision was made on the basis that the Applicant did not satisfy the criteria for the grant of the Visa in cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). That is, the Delegate was not satisfied that the Applicant held a genuine intention to stay in Australia temporarily.
[5] CB 28-35.
On 13 December 2016, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[6] As he had been before the Delegate, the Applicant was initially self-represented before the Tribunal, until 13 November 2017, when a migration agent came on record as his authorised representative (Representative).[7]
[6] CB 36-37.
[7] CB 64-68.
The Representative filed written submissions with the Tribunal, dated 20 November 2017 (Applicant’s Submissions to the Tribunal), together with various documents such as a transcript, employer letter, medical letter, study certificates, academic results,[8] many of which had not been provided to the Delegate or post-dated the Delegate’s Decision.
[8] CB 72-100.
On 23 November 2017, the Applicant, the Representative and the Applicant’s brother-in-law, as a witness, attended a hearing before the Tribunal (Tribunal Hearing).[9]
[9] CB 104-107.
On 11 May 2018, the Tribunal notified the Applicant, via the Representative, of its decision, made on 7 May 2018, to affirm the Delegate’s Decision.[10]
[10] CB 117-123.
TRIBUNAL’S DECISION
The Tribunal’s Decision is located in the Court Book at pages 120 to 123.
The Tribunal briefly set out background to the matter and the relevant legal context, including Ministerial Direction No 53: Assessing the genuine temporary entrant criteria for Student visa applications (Direction).[11]
[11] CB 121, [1]-[9].
The Tribunal had regard to the Applicant’s Submissions to the Tribunal, noting the following in this respect:
(a)That relationship distraction and hypertension impacted upon the Applicant’s ability to study;[12]
(b)That the Applicant had completed an Advanced Diploma in Hospitality Management and commenced a Bachelor of Tourism and Hospitality Management degree program;[13]
(c)That the Applicant is engaged to be married and an heir to property in Pakistan;[14]
(d)The availability and standing of tourism and hospitality courses in Pakistan;[15] and
(e)That the Applicant has had ‘repeated and extensive periods’ in Australia where he was not studying despite being resident on a student visa.[16]
[12] CB 122, [10].
[13] CB 122, [12].
[14] CB 122, [14].
[15] CB 123, [18].
[16] CB 123, [18].
The Tribunal also had regard to the material submitted to it by the Representative, both before and after the Tribunal Hearing, including a medical letter,[17] completed course certificates,[18] academic transcript,[19] and employer letter.[20]
[17] CB 122, [10].
[18] CB 122, [11].
[19] CB 122, [13].
[20] CB 122, [15].
It is also apparent that oral evidence of the Applicant was given at the Tribunal Hearing and the Tribunal questioned the Applicant about a number of matters, of which the Tribunal had significant regard in its decision. In particular, the Court notes the following evidence of the Applicant:
(a)That he does not have family in Australia and that all his family reside in Pakistan, although he has only returned on one (1) occasion in March 2015;[21]
(b)That he has been offered a position of ‘new branch manager’ at his family-owned restaurant in Pakistan, operated principally by his brother-in-law;[22]
(c)That he considers that he needs a bachelor’s degree in order to work in his family restaurant business, and will receive ‘family and cultural related shame’ if he returns to Pakistan without a bachelor-level degree;[23] and
(d)That he was at that time working part-time as a taxi driver.[24]
[21] CB 122, [14].
[22] CB 122, [15].
[23] CB 123, [16] and [18].
[24] CB 123, [19].
The Tribunal considered, inter alia, that if the Applicant’s plan of returning to Pakistan to work in the family restaurant was true, that he would have returned some time ago, particularly as he was already well-qualified to perform such a role.[25]
[25] CB 123, [16]-[17].
On the basis of the evidence before it, the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily in accordance with cl 572.223(1)(a) of the Regulations.
PROCEEDINGS BEFORE THE COURT
On 1 June 2018, the Applicant filed the Application, together with an Affidavit of the Applicant, affirmed 1 June 2018, annexing the Tribunal’s Decision. The Applicant was not legally represented at the time the Application was filed and this remained so throughout these proceedings.
The Applicant was given leave to file an amended application on two (2) occasions, pursuant to Orders made by Registrars Ryan and Cummings on 21 August 2019 and 31 August 2023 respectively. The Applicant did not avail himself of these opportunities and therefore these Reasons for Judgment refer to the grounds as set out in the Application.
The Application contained the following hand-written grounds of review (Grounds of Review):
Tribunal does not consider case on merit, considering direction No. 53, Tribunal does not considered all factors mention in direction no. 53 under section 499 of the Migration Act. (Assessing the genuine temporary entrant criteria for student visa). (Ground 1)
Delegate doesn’t consider all factors in the time of decision criteria in cl 572.223. Clause 572.223. (Ground 2)
So this case is not decided on merit as there is error in law, considering all this is procedural unfairness. (Ground 3)
(Words in bold added, otherwise as written)
The Hearing took place on 14 November 2023 in the Melbourne Registry of the Court. The Applicant appeared in person with the assistance of an interpreter in the Urdu and English languages.
The Court has considered the Court Book, the Submissions filed by the Minister on 27 October 2023 (Minister’s Submissions), and the transcript of the Hearing, where the Minister’s representative made oral submissions.
Refusal of adjournment request
At the commencement of the Hearing, the Applicant requested an adjournment of the matter on the basis that he was not prepared, was struggling financially and was still in the process of obtaining legal representation.[26]
[26] Transcript P3:L14-15; L23-26; P5:L19-23.
The Minister’s representative made oral submissions opposing the Applicant’s adjournment request, noting that the Applicant had only informally raised his intention to seek an adjournment one (1) day prior to the Hearing by email.[27] Further, the Minister’s representative handed up two (2) authorities to the Court, being those of BSY16 v Minister for Home Affairs [2019] FCA 140 and ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099, which the Court considered in determining the adjournment request.
[27] Transcript P3:L31-38.
I made the following ex tempore decision refusing the Applicant’s adjournment request:
[…] The application for an adjournment is refused.
The Applicant has had over five years since this application was filed to save the funds or obtain the funds to obtain the lawyer. The Applicant today advises that he has no money to obtain a lawyer, that he has been looking for a number of months for a lawyer and has been unable to find someone to act on his behalf. There is no indication to the court as to when the Applicant may obtain legal representation. There has been no explanation for the delay in making this application for an adjournment other than the Applicant’s impecuniosity.
Relying upon the decision of ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099, at paragraph 25, Flick J notes that:
…there is no common law “entitlement” or absolute right to legal representation –
The court also relies upon the observations of Thawley J in BSY16 v Minister for Home Affairs [2019] FCA 140 at paragraphs 4 to 6. In those circumstances, as I said, the application for an adjournment is refused […][28]
[28] Transcript P5:L25-41.
The Court will now consider the Grounds of Review.
CONSIDERATION
Ground 1
Ground 1 is taken by the Court to be an assertion by the Applicant that the Tribunal failed to consider all factors mentioned in the Direction.
As correctly identified by the Tribunal, it was required to have regard to the Direction and the factors contained therein.[29] However, also identified by the Tribunal, those factors in the Direction were not to be used as a checklist but rather as a guide for decision-makers to weigh up the Applicant’s circumstances as a whole.[30]
[29] CB 121, [8].
[30] CB 122, [9].
The Minister submitted that the Tribunal had regard to those factors in the Direction that were relevant.[31] The Minister’s Submissions sets out the factors in the Direction and their comparative consideration within the Tribunal’s Decision as follows:[32]
[31] Transcript P7:L17-18.
[32] Submissions of the Minister, filed 27 October 2023 (Minister’s Submissions), [24].
(a)The Applicant’s circumstances in his home country, including the extent of his personal ties and economic circumstances (Direction, factor 9):
(i)The Tribunal noted the oral evidence of the Applicant that his family continue to reside in Pakistan, and that he is engaged to be married in Pakistan;[33]
[33] CB 137, [14].
(ii)The Tribunal considered the Applicant’s evidence that he would experience cultural and familial related shame returning to Pakistan without a ‘bachelor-level degree’;[34] and
[34] CB 138, [18].
(iii)The Tribunal acknowledged the economic disparity between Australia and Pakistan.[35]
[35] CB 138, [19].
(b)The Applicant’s potential circumstances in Australia, including incentives to remain in Australia and his knowledge of his course of study, education provider and previous study and qualifications (Direction, factor 11):
(i)The Tribunal considered that the Applicant’s employment as a taxi driver in Australia provides a ‘real economic incentive’ to continue residence in Australia.[36]
[36] CB 138, [19].
(c)The value of the course to the Applicant’s future, including the consistency of the course with his level of education, relevance to past or future proposed employment and expected remuneration (Direction, factor 12):
(i)The Tribunal considered the Applicant to be already well qualified to perform the duties that would be required of him to work in his family’s restaurant business;[37] and
(ii)The Tribunal considered that if the Applicant’s plan was in fact to return to Pakistan to work in his family’s restaurant business, that he could have done so ‘some time ago’.[38]
(d)The Applicant’s immigration history, including previous visa applications and travel to Australia or other countries (Direction, factor 14):
(i)The Tribunal had regard to the Applicant’s oral evidence wherein he stated that since arriving in Australia in May 2013, he had only once returned to Pakistan, in March 2015;[39] and
(ii)The Tribunal noted, and it was acknowledged by the Representative, that the Applicant has ‘repeated and extended periods’ in Australia where he was not studying despite being resident on a student visa.[40]
[37] CB 138, [16].
[38] CB 138, [17].
[39] CB 137, [14].
[40] CB 138, [18].
I agree with the Minister’s Submissions that the Tribunal was not under an obligation to laboriously set out each matter referred to in the Direction, nor refer to immaterial matters: Minister’s Submissions, [25] citing Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 at [32].
The Tribunal plainly considered the factors in the Direction that it was required to and that were relevant to its task on review. No jurisdictional error can be found in Ground 1. Ground 1 is therefore dismissed.
Ground 2
In Ground 2, the Applicant seems to contend that the Delegate failed to consider all factors contained within cl 572.223 of the Regulations.
As submitted by the Minister, with whom I agree, this Court does not have jurisdiction to review the Delegate’s Decision pursuant to s 476(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[41]
[41] Minister’s Submissions, [26].
The Minister’s Submissions also addressed Ground 2 to note that insofar as the Applicant directed this complaint to the Tribunal, it would also fail.[42] This was so as the Applicant was found not to satisfy the requirement in cl 572.223(1)(a), meaning that the Tribunal was no longer required to assess his satisfaction of the further cls 572.223(1)(b) or (c).
[42] Minister’s Submissions, [27].
No jurisdictional error can be found in Ground 2. Ground 2 is therefore dismissed.
Ground 3
Ground 3 is an assertion by the Applicant of ‘procedural unfairness’. No particulars as to this Ground were provided.
As submitted by the Minister, it is plainly clear that the Tribunal complied with its procedural obligations under Part 5 of the Migration Act, including s 360 by inviting the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicant appeared before the Tribunal and the oral evidence given by him was clearly given due regard in the Tribunal’s Decision, as referred to at paragraph [19] above.
No jurisdictional error can be found in Ground 3. Ground 3 is therefore dismissed.
CONCLUSION
The Application did not identify any jurisdictional error within the Tribunal’s Decision and is therefore to be dismissed.
At the Hearing, the Minister sought costs in the amount of $5,000,[43] which is below the scale amount in item 3, Part 2, Division 1 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, I will make an Order that the Applicant pay the Minister’s costs fixed in the sum of $5,000.
[43] Transcript P8:L22.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 23 November 2023
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