Shahzad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 290
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahzad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 290
File number(s): MLG 2280 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 26 April 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether Tribunal failed to consider a fact – whether applicant denied natural justice – whether Tribunal misapplied Ministerial Direction – whether Regulations applied capriciously – whether there was jurisdictional error – no jurisdictional error made out – application dismissed Legislation: Migration Act 1958 (Cth) ss 359AA, 360, 360A, 476
Migration Regulations 1994 (Cth)
Cases cited: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration and citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 13 April 2022 Date of hearing: 13 April 2022 Place: Parramatta Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Ms Richardson ORDERS
MLG 2280 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARSHAD SHAHZAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
26 APRIL 2022
THE COURT ORDERS THAT:
1.The matter proceed pursuant r 13.06 (1)(e) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in the absence of the Applicant.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5000.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a citizen of Pakistan. The applicant first arrived in Australia on 6 May 2012 as the holder of a Student (Class TU) (subclass 573) visa (“Student visa”) to study at a tertiary/degree level.
Since arriving in Australia, the applicant has completed a Certificate IV in Spoken and Written English, as well as a Diploma in Management in 2014 and a Certificate III in Commercial Cookery in 2017.
On 9 September 2015, the applicant applied for a further Student visa. On 23 June 2016, a delegate of the Minister for Immigration (“the delegate”) refused the applicant his visa on the basis that the applicant did not satisfy the requirements of cl 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) in that the delegate determined that the applicant was not a genuine temporary entrant.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 July 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant his Student visa.
The applicant now seeks judicial review of the Tribunal’s decision
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. At paragraph 3 of the decision record, the Tribunal noted that the delegate refused to grant the applicant his student visa because the delegate was not satisfied that the applicant met the requirements of cl 573.223 of Schedule 2 to the Regulations, in that the delegate was not satisfied the applicant was a genuine temporary entrant for the purpose of study.
At paragraphs 6 through to 8 of the decision record, the Tribunal set out the relevant Regulation and also noted that it was required to have regard to Ministerial Direction No. 53, “Assessing the genuine temporary entrant criterion for student visa applications’ made under s 499 of the Migration Act 1958 (Cth) (“the Act”). This included the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future. It included the applicant’s immigration history including previous applications for an Australian visa or visas. It included, if the applicant was a minor, the intentions of their parents and as well as any other relevant information provided by the applicant or information available to the decision-maker.
At paragraph 10 of the decision record, the Tribunal noted that the applicant had arrived in Australia in 2012, having been granted an initial three-year subclass Student visa primarily to study at the tertiary/degree level. After completing a course in spoken and written English, the applicant went on to complete further vocational studies, including a Diploma in Management 2014 and a Certificate III in Commercial Cookery in 2017.
At paragraph 13 of the decision record, the Tribunal noted that the applicant married on 4 March 2017 and told the Tribunal that his wife provides him with emotional support. The applicant’s wife resides with his family in Pakistan and is financially supported by his father. The applicant told the Tribunal that he has a cousin who lives in Australia, but the remainder of his family are in Pakistan.
At paragraph 17 of the decision record, the Tribunal noted the applicant, since being in Australia, has enrolled in a Bachelor of Business degree several times, but on each occasion his enrolment had been cancelled.
At paragraph 19 of the decision record, the Tribunal noted that the applicant claimed his future plan was to establish and operate his own restaurant business in Pakistan. However, when questioned by the Tribunal, the applicant was unable to specify the type of cuisine he was intending to offer and could only say he would offer a variety of things. When asked if his wife would be able to confirm his future plan, the applicant replied that he had not discussed it with her. The Tribunal considered that the applicant’s proposed future plan seemed vague and lacking any meaningful previous consideration.
At paragraph 21 of the decision record, the Tribunal accepted that the future study proposed by the applicant may improve his employment and remuneration prospects upon return to Pakistan and that the study proposed was consistent with his current level of education.
The Tribunal noted that the applicant has been able to manage personal relations overseas whilst living in Australia and the Tribunal did not consider the applicant’s personal connections overseas to be a distinct incentive for him to cease residence in Australia.
At paragraph 24 of the decision record, the Tribunal noted the applicant’s enrolment history including the fact that he had enrolled in commercial cookery courses on multiple occasions and previously also enrolled in both accounting and management courses at a Bachelor degree level. The Tribunal also noted that there was nothing to indicate the applicant had any visa issues with any other country or that there was any other issue that might impact on his ability to return to Pakistan.
At paragraph 26 of the decision record, the Tribunal noted the applicant’s claims, but was of the view that his continued proposals for extended and expensive study indicated that he did not have an incentive to return to Pakistan. For these reasons, the Tribunal was not satisfied the applicant intended to generally stay in Australia temporarily and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon by the applicant are set out in an Amended Initiating Application filed with Court on 30 September 2020. They are as follows verbatim:
Ground One
The applicant completed Diploma of Management in October 2014 from the Australian Institute of Technical Training which is not mentioned by the delegate of the Minister as well as overlooked (stress added to completing instead of completed) by the Administrative Appeals Tribunal which is an unreasonable exercise of the statutory power inherited to them. This fact amounts to a misfeasance and nonfeasance on the part of the Delegate of the Minister and the Tribunal. This practical injustice/gross negligence in the performance of the duty overlooking of the mandatory documents amount to jurisdictional errors.
Ground Two
The applicant was condemned unheard before the visa refusal by the relevant Delegate of the Minister which is against the Natural Justice and primarily amount to jurisdictional error. The fact of denying the opportunity to comments about the specific visa refusal void ab initio and which was also ignored by the Tribunal in their entire process and decides the case without the true spirit of the law.
Ground Three
My family situation that had affected me emotionally and psychologically and ultimately resulted in the practical impediment in my studies temporarily. My stay in Australia is temporary as per my peculiar circumstances and there are no plausible reasons that I will not returned to my home country. The personal ties with my home country Pakistan overlooked by the delegate of the Minister at all while the Tribunal has not properly taken into account as provided by Ministerial Direction No. 53. I have Spouse, Parents, Siblings and my other entire family members residing in Pakistan. So how I can even think about not going back to Pakistan. In the presence of the above mentioned established facts partly recognized by the Tribunal (in Paragraph 21 and 25 of the AAT decision) by itself a Jurisdictional error.
Ground Four
The decisions of the Tribunal and the Delegate are affected by jurisdictional error because the criterion cl.573.223 (1) (a) applied in a capricious manner by limiting the definition of a genuine student to a limited scope and application. As the applicant visa was refused primarily due to the above-mentioned clause without substantive proof or any reliable evidence and ultimately, the applicant was presumed guilty. Hence, the natural justice rule of “presumed innocent until proven guilty” is also violated in my case which is in the ambit of Jurisdictional Error. The applicant did not violate any visa condition in the entire period of stay. Furthermore, the academic performance such as attendance record, relevance of the study (course consistency) and the value of the course for applicant future were not properly applied in order to assess the true nature of the genuine student.
Ground Five
The contextual interpretational rule is also violated in the proper manner application of the Ministerial Direction No. 53 because some of its parts admitted and others overlooked while construction not put on all parts of the Direction as a whole. The multiple times Confirmation of Enrolment (COE) cancellation or the change of course especially with bona fide intention is not a valid reason for the visa refusal, but unfortunately, the relevant facts taken into consideration negatively by the Delegate of the Minister. The decision is illogical and without conclusive evidence and resultantly affected me a lot mentally and financially. I am largely dependent financially on my parents lost a substantial amount and the legal proceedings by paying to solicitors and application fees etc. The discretion exercised by the Delegate and Tribunal is biased because of the peculiar circumstances of the applicant is not properly evaluated.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant’s previous legal representatives had withdrawn. The applicant did not request an Interpreter. The Court was satisfied that the applicant was able to follow and participate effectively in the hearing. At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the Court books and that a copy of the first respondent’s two written submissions had been supplied to him. The Court also ensured the applicant had access to a pen and paper so that he could take notes during the course of the hearing if he so wished.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the hearing would take place.
Notwithstanding orders of the Court, the applicant did not provide any written submissions. The applicant did supply four authorities but did not refer to them in his oral submissions. The applicant confirmed that the only grounds of judicial review relied upon were those in the Amended Application filed with the Court in September 2020
The applicant told the Court he had been in Australia since 2012 but had been back to Pakistan on four occasions. When the applicant first came to Australia he was only 19 years of age and found it difficult to adjust to the Australian way of life. The following year, deaths occurred in his extended family which also impacted on him. In addition to the courses listed in the Tribunal decision, the applicant told the Court that he had completed a number of courses including a Certificate IV in Hospitality. The applicant had not undertaken further study while awaiting the decision of the Court.
If allowed to stay further in Australia, the applicant would like to complete an Advanced Diploma in Hospitality and /or Leadership. The applicant disputed the finding of the Tribunal that he was staying in Australia for money purposes. The applicant stated that he only worked 20 hours a week at an IGA supermarket and had no money left at the end of each pay period.
Following the respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant’s answer was ‘No’.
THE FIRST RESPONDENT’S SUBMISSIONS
After outlining the background and relevant history of the matter, it was noted that in so far as the applicant’s grounds take issue with the delegates decision, the Court has no jurisdiction to review that decision because it is a primary decision: (see; s 476(2)(a) of the Act).
Ground one contends that the Tribunal erred in overlooking the applicant’s completion of a Diploma of Management in October 2014. This ground fails on the facts in that the completion of further vocational studies, including a Diploma of Management 2014, was expressly referred to in paragraph 11 of the Tribunal’s decision.
Ground two is a general complaint that the applicant was denied natural justice in that he did not have an opportunity to be heard. The respondent noted that the applicant was properly invited to attend the hearing before the Tribunal in accordance with s 360 and s 360A of the Act. The applicant received a reasonable notice period prior to the hearing, including the fact that the hearing needed to be rescheduled. The applicant attended the hearing with the assistance of an interpreter. The applicant was on notice of the determinative issue on review from the delegate’s decision and was invited to provide information in the hearing invitation and during the questioning at hearing. No breach of s 360 of the Act has occurred.
The Tribunal put the applicant’s Provider Registration and International Student Management System (“PRISMS”) records to him pursuant to s 359AA of the Act and he was asked to comment on it. No breach of the relevant legislation occurred. The respondent further notes that the hearing took one hour and 15 minutes, which supports the inference that the applicant was given a real and meaningful opportunity to provide evidence and make submissions in support of his claim to meet the relevant criteria for the Student visa.
Ground three alleges that the Tribunal failed to take into account the applicant’s personal ties to Pakistan pursuant to Ministerial Direction No. 53. It is submitted this contention is misconceived. The Tribunal correctly identified the factors under Ministerial Direction No. 53 and it did so throughout its decision. The Tribunal recorded the applicant’s evidence that he had a wife in Pakistan and all his family live there, except for one cousin. The Tribunal found that the applicant had managed to maintain personal relationships overseas but did not consider the applicant’s personal connections overseas to be a distinct incentive for him to cease residence in Australia. This was a finding was open to the Tribunal for the reasons given. Overall, this complaint merely suggest the Tribunal should have come to a different conclusion of the material before it and goes to the merits of the decision.
Ground four appears to be an ambit claim of jurisdictional error. It alleges that the Tribunal came to is decision without substantive proof or reliable evidence. It suggest that the Tribunal failed to take into account that he has not violated any visa condition in his period of stay in Australia and failed to take properly into account the value of the proposed future courses to him in order to assess the true nature of his request to stay to keep on studying
On behalf of the first respondent, it was submitted that the Tribunal correctly had regard to the relevant considerations referred to in Ministerial Direction No. 53 and correctly applied
cl 572.223(1). The Tribunal considered the applicant’s general study history, the value of the proposed course, his future plans, his reasons for undertaking study in Australia and his economic circumstances. The Tribunal also considered the applicant’s ties in Pakistan and Australia and his immigration history. The contention that the Tribunal applied the law in a capricious matter has no factual basis and seeks impermissible merits review of the Tribunal’s decision.
Ground five makes again, broad allegations of a failure to properly apply Ministerial Direction No. 53. It also suggests that the decision is illogical and without conclusive evidence or is biased. On behalf of the first respondent, it was submitted that there was no error in the Tribunal’s application of Ministerial Direction No. 53. The Tribunal was entitled to consider records contained in PRISMS showing that the applicant had enrolled in commercial cookery courses on multiple occasions and other courses at a Bachelor level which he did not complete. The decision record shows that the Tribunal engaged in an orthodox, merits based assessment of the applicant’s claims and evidence as against the relevant factors in Ministerial Direction No. 53. The Tribunal was clearly troubled by the applicant’s vague plans which lacked any meaningful consideration. The Tribunal was entitled to consider the applicant’s ability to earn Australian dollars working in Australia that could be a significant incentive for him to stay in Australia for as long as he could. The Tribunal was entitled to find that his personal circumstances did not appear to be a distinct incentive for him to cease residence in Australia. It was these findings which, on balance, led the Tribunal to conclude the applicant was not a genuine temporary entrant. It could not be said that that no other rational or logical decision-maker could not have drawn same conclusion.
In relation to the allegation of bias, there was no evidence put before the Court to indicate that the Tribunal was biased in that it was not open to approaching its task with a mind other than to persuasion. Reliance was placed on the decision of Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [7] per Logan J, where the following was said:
[the Tribunal’s decision was] a routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reacted to the way in which the applicant had put his claim for the visa over the course of administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rational explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the [applicant] was a genuine student. They were sufficient unto the day.
CONSIDERATION
The applicant first came to Australia in 2012, with the intention of studying at a tertiary level. Whilst the applicant has enrolled in a number of tertiary level courses, on each occasion his enrolment has been cancelled. Having said that, there is little doubt that the applicant has pursued study at a vocational level and has completed the number of courses as outlined in the Tribunal’s decision.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). In matters such as these, the onus of proof lies upon the applicant that they meet the conditions for the grant of the visa sought: (see; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [195]).
Legal unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (Minister for Immigration and citizenship v Li (2013) 297 ALR 225 at [28] (“Li”)), or where a decision has been made that lacks an “evident and intelligible justification”: (see; Li at [76]). A decision will not be legally unreasonable if different minds might reach different conclusions of jurisdictional fact based upon the evidence upon which the decision is made. A decision will not be unreasonable simply because one reasonably open conclusion has been preferred by the decision-maker to another possible conclusion: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611).
As pointed out by the first respondent, the Tribunal conducted what was an entirely orthodox decision-making process by reference to the material that was before it, including the relevant considerations under Ministerial Direction No. 53. It was by reference to those considerations, that the Tribunal ultimately determined that the applicant was not a genuine temporary entrant, but was using study as a means of prolonging his stay in Australia.
Ground one is misconceived. It alleges that the Tribunal erred in overlooking the applicant’s completion of at the time of management in 2014. This was specifically referred to in paragraph 11 of the decision record. Ground one has no merit.
Ground two is a broad allegation of a denial of natural justice. There is nothing in the Tribunal’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished to and participate in the hearing in a way from which it can be concluded the hearing was thus fair and thus that administrative justice was done: (see; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [24]). All procedural requirements were complied with. The applicant was properly invited to attend the hearing and he was assisted by an interpreter. The Tribunal complied with s 359AA of the Act by putting to the applicant information contained in the applicant’s PRISMS or study history. There is nothing to suggest that the applicant did not have every opportunity to put all matters that he wished to be considered by the Tribunal to it for consideration. The Court is satisfied the applicant had a real and meaningful opportunity to make submissions in support of his claim. Ground two has no merit.
Ground three is a broad assertion that the Tribunal failed to take into account the applicant’s personal ties to Pakistan when it found that there was no incentive for him to return. The Court is satisfied that the Tribunal correctly recorded that all the applicant’s family, including that his wife resided in Pakistan. The Tribunal noted the applicant had one cousin in Australia. The Court is satisfied that the conclusion that the applicant had been in Australia for 10 years, yet was asking for further time to stay in Australia to undertake further vocational courses, indicated that the applicant did not have a strong incentive to return to Pakistan. The Court is satisfied this was a conclusion open to the Tribunal on the evidence that was before it, including the applicant’s somewhat vague future plans in relation to running a restaurant upon his return to Pakistan. No jurisdictional error exists in relation to this conclusion and ground three has no merit.
Ground four is a generalised claim that the decision is affected by jurisdictional error because the criterion in cl 573.223(1) were applied in a ‘capricious manner’ and that the applicant was ‘presumed guilty’. This ground is difficult to clearly understand but appears to be a complaint as to the overall outcome reached by the Tribunal and invites the Court to undertake impermissible merits review. The Court is satisfied that the Tribunal properly considered all the relevant matters under Ministerial Direction No. 53, and properly weighed them in coming to a conclusion as to whether not the applicant was a genuine temporary entrant. There was nothing unorthodox in the reasoning of the Tribunal. There is nothing in the Tribunal’s decision which could be described as illogical, irrational or legally unreasonable. Ground four has no merit.
Ground five his similarly difficult to follow. It alleges the decision is illogical and without conclusive evidence. It alleges that Ministerial Direction No. 53 was not followed in that some of its parts were omitted and others overlooked. Firstly, the Ministerial Direction is not a checklist to be followed slavishly, rather it contains a list of matters that should be considered as are relevant to them particular matter in question. This is precisely what occurred with the Tribunal giving appropriate weight to each of the relevant considerations as outlined in the decision record.
No material has been put forward which would support a claim of bias. The fact that the Tribunal made adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with the mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). Further, it is a rare and exceptional case bias can be demonstrated solely from the published reasons of a decision. A fair reading of the Tribunal’s decision does not disclose any pre-judgement. The Tribunal listed the various considerations and gave appropriate weight to them, including appropriate positive weight to matters that favoured the applicant, including that he had completed a number of courses, and had not violated any conditions of his visa. Ground five has no merit.
As the applicant appeared before the Court unrepresented, the Court has perused the Court file to identify any unarticulated jurisdictional error. No jurisdictional error has been found.
CONCLUSION
As none of the grounds of judicial review relied upon by the applicant have any merit, the application must be dismissed with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 26 April 2022
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