Shoukat v Minister for Home Affairs

[2019] FCCA 1595

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHOUKAT v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1595

Catchwords:
MIGRATION – Student visa – show cause – whether applicant meets the prescribed criteria for the subclass – whether the applicant genuinely intended to stay in Australia temporarily – jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 474, 476, 499
Migration Regulations 1994 (Cth), cl.572.223

Cases cited:

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Ghimire v Minister for Immigration and Border Protection [2014] FCA 899
Htun v Minister for Immigration for Multicultural Affairs [2001] 194 ALR 244
Kaur v Minister for Home Affairs [2019] FCCA 1372
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] 151 FCR 214
Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: MUHAMMAD AHMAD SHOUKAT

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1928 of 2016

Judgment of: Judge A Kelly

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Melbourne

Delivered on: 3 June 2019

REPRESENTATION

The Applicant: In Person

Solicitor Advocate for the Respondents: Ms Zinn

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The title of the first respondent be amended to Minister for Home Affairs.

2. The application filed on 8 September 2016 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1928 of 2016

MUHAMMAD AHMAD SHOUKAT

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore revised from transcript)

Introduction

1. By application dated 8 September 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 September 2016 affirming a decision of a delegate of the first respondent Minister refusing to grant him a Student (Temporary) (class TU) visa (visa) pursuant to section 65 of the Migration Act 1958 (Cth) (Act).

Background 

1. The applicant, a Pakistan citizen aged 33 years, first came to Australia on 10 May 2013 as the holder of a Student (Subclass 573) visa.

2. On 23 February 2015, the applicant applied for a Student (Subclass 572) visa on the basis of his enrolment in a Diploma of Automotive Management.

3. On 17 April 2015, a delegate of the Minister refused the visa application, not being satisfied that the applicant genuinely intended to stay in Australia temporarily.  The delegate gave consideration to the factors in Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for student visa applications.  The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

4. On 5 May 2015, the applicant’s registered migration agent lodged an application with the Tribunal for review of the delegate’s decision.  On 1 July 2016, the applicant and his migration agent were invited to attend a hearing to present evidence and arguments relating to the issues arising on the application.  Attached to that invitation was a copy of Ministerial Direction No 53.

5. On 26 July 2016, the applicant’s migration agent provided detailed written submissions.  In those submissions the migration agent recognised that the issue on the application was whether the applicant satisfied the criteria prescribed by regulation 572.223(1)(a) of the Migration Regulations 1994 (Cth). The migration agent’s submissions addressed the factors under Ministerial Direction No 53 in some detail.

6. The migration agent submitted that the applicant had completed the following courses as a student in Pakistan: (a) 2003: secondary school certificate; (b) 2007: intermediate (year 12); (c) 2009: Bachelor of Arts; (d) 2011: Masters in Sociology.

7. The migration agent’s submissions also recognised that the applicant had undertaken the following courses of study in Australia: (a) English for Academic Purposes; (b) Certificate III in Light Vehicle Mechanical Technology; (c) Certificate IV in Automotive Mechanical Diagnosis; (d) Diploma for Automotive Management; (e) Advanced Diploma of Leadership and Management.  The applicant’s course of study commenced on 19 August 2016.

8. The migration agent’s submissions also identified that the applicant had failed the required score for English for Academic Purposes but had achieved results in IELTS Academy within the bands of 5.0 to 6.0 across a range of disciplines.

9. On 2 August 2016, the applicant and his migration agent attended a hearing before the Tribunal.

10. On 1 September 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a student visa.  The Tribunal provided a statement of reasons for its decision (Reasons). 

11. In reaching its decision, the Tribunal set out the relevant background and summarised the delegate’s decision and outlined the requirements of clause 572.223 and Direction No 53: [12]-[14].

12. The Tribunal recognised that a major issue in the case was whether the Minister was satisfied that the applicant intended, genuinely, to stay in Australia temporarily:  [12], [15(a)-(c)].

13. The Tribunal provided the applicant with an overview of the considerations in Ministerial Direction No 53 and confirmed that the applicant had been provided with a copy of that direction when invited to the Tribunal hearing.  The Tribunal discussed the application with particular focus on the considerations in Ministerial Direction No 53:  [15(d)-(f), [16].

14. The Tribunal noted the applicant’s visa history and courses of study. It also noted that the applicant had already obtained two tertiary qualifications in Pakistan; a Bachelor of Sociology in 2009, and a Masters of Sociology in 2011. It noted that the applicant had worked in the social welfare sector in Pakistan in 2012 and his evidence that he wanted to attain a Masters of Social Science in Australia so that he could return to Pakistan and work in the social services and development sector: [17]-[19].

15. The Tribunal was satisfied that the applicant was sufficiently well qualified to pursue work in social services and development in Pakistan before ever coming to Australia: [20]-[21]. However, the Tribunal did accept that a second Masters degree in social science might have allowed the applicant to achieve a slightly higher salary or slightly greater responsibilities in a role in Pakistan. Nonetheless, the Tribunal considered that the incremental benefits did not appear to warrant the significant investment of time and money or would offset the significant costs of obtaining a further Masters degree in Australia: [22]-[23].

16. The Tribunal further noted the submission of the applicant’s migration agent that he had not achieved the necessary English test results to gain admission to the Masters program in Australia: [24].

17. In those circumstances, the Tribunal found it difficult to accept that the change in tack represented by enrolment in a Certificate III in Light Vehicle Mechanical Technology was consistent with his earlier study. The Tribunal also noted that the applicant had not explored the alternative courses that he might have studied in Australia, whether in social science or international development. The Tribunal expressed significant concern in relation to the applicant’s change in field of study: [25]-[27].

18. The Tribunal accepted that the applicant’s father and family had always worked in the automotive industry but noted the applicant had given no meaningful response to the suggestion that his existing fields of study indicated an ambition not to follow in the footsteps of his father or family. The Tribunal noted that three of the applicant’s siblings already worked in the family’s mechanic and transport business. The Tribunal also noted that one of the applicant’s siblings had not travelled overseas and yet played a successful role in a mechanical aspect of the family business: [29].

19. The Tribunal also noted that the applicant had completed three VET sector courses, including a Diploma in Automotive Management: [30].

20. The Tribunal discussed with the applicant his enrolment in an Advanced Diploma of Leadership and Management for which he had obtained a certificate of enrolment a week before the Tribunal hearing. The applicant agreed that this course had not been proposed by him at the time of completing his visa application. The Tribunal expressed concern in relation to the most recent course of study, noting that as the applicant was already possessed of three VET sector qualifications in the automotive field, the applicant might have felt ready and able to return to the automotive family business. Instead, the applicant now proposed to undertake a general course of management which was more general than his existing Diploma in Automotive Management. The Tribunal considered the proposed course in leadership and management to be of limited value to the applicant’s future: [31]-[34]. Those factors suggested to the Tribunal that the applicant’s enrolment in a course of leadership and management a week before the Tribunal hearing may have indicated an alternative reason, other than its value to the applicant’s stated career aspirations, for enrolment: [35].

21. The Tribunal recorded that the applicant gave evidence that he had married his wife in August 2015.  Before me, the applicant confirmed that the visa application recorded he had never been married and that what he had, in fact, told the Tribunal was that the person of whom he spoke was his fiancé.  The applicant also told me that he had been married to his fiancé in December 2017.  The Tribunal recorded that the applicant’s wife remained in Pakistan, had a Masters degree in psychology, did not work and stayed at home.  The Tribunal noted that the applicant resisted the proposition he did not intend to bring her to Australia as his dependant, and noted the applicant had given no meaningful response to the proposition that she may not have come to Australia yet as he did not hold a substantive visa.

22. It also noted that the applicant said he had a brother in Australia who had obtained permanent residence, and that the applicant denied he had the intention of obtaining permanent residence, as his brother had done: [36]-[37]. The applicant submitted that he had overwhelming incentive to return to Pakistan and end his residence in Australia. The Tribunal observed that the applicant’s substantive submission was that he had reverted to studying automotive subjects in the VET sector after failing to gain entry to the further Master’s program, and that he had done so, so as to be able to integrate himself into the family’s existing automotive business in Pakistan: [38]-[40].

23. The Tribunal found that, upon completion of three VET sector courses in the automotive field, the applicant was abundantly well qualified to return to the family’s workshop and automotive business, possessing, as he did, skills in technical, mechanical and management areas: [42].

24. The Tribunal considered that if the applicant’s claim to have existing incentives to return to Pakistan was accurate, the applicant would have departed Australia instead of producing a certificate of enrolment for a course in leadership and management which was of very limited value to his stated future goals: [43]-[45].

25. The Tribunal found that the applicant did not cease his residence in Australia because he wished to live in Australia into the future as his brother already did: as a permanent resident. The Tribunal inferred that the applicant’s wife would await a time until the applicant held a substantive visa so that she could join him in Australia: [46]-[47].

26. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and for that reason did not satisfy the criteria in cl 572.223(1)(a), Sch 2 of the Regulations. For those reasons, the Tribunal affirmed the delegate’s decision not to grant a Student visa: [48]-[50].

Procedural History

1. On 8 September 2016, the applicant filed an application for judicial review of the Tribunal’s decision, together with an affidavit affirmed on that date, to which he annexed a copy of the reasons, but adduced no further evidence.  By his affidavit, he described his occupation as mechanic. 

2. By a Response filed on 23 September 2016, the Minister opposed the application on the stated basis that it failed to establish any jurisdictional error in the Tribunal’s decision. 

3. On 1 March 2017, orders were made by consent, listing the matter for hearing on 6 June 2018.  Having regard to the volume of business in the court, it was necessary for the hearing to be adjourned to 3 June 2019.  Orders were made affording the applicant opportunities to file any amended application, supplementary court book and written submissions; however, those opportunities were not taken. 

4. The Minister filed submissions which were accordingly responsive to the grounds appearing in the application.

Applicable Principles

1. If the Tribunal’s decision was a privative clause decision it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error. Absent jurisdictional error, the Court has no jurisdiction to grant relief: Act, s 474, s 476: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 [76]. Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied.

2. By section 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa are satisfied: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] 151 FCR 214, 72.

3. Relevantly, a criteria for the grant of the visa prescribed by cl 572.223(1)(a) required the decision-maker to be satisfied that the applicant intended genuinely to stay in Australia temporarily, having regard to the matters enumerated in pars (i)-(iv) of that regulation.

4. In Sch 2 of the regulations, cl 572.223(1) relevantly states:

   (a)The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     the applicant’s circumstances; and

   (ii)    The applicant’s immigration history; and

   (iii)If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)Any other relevant matter; and

   (b)the applicant meets the requirements of subclause (lA) or (2).

5. By s 499(2A) of the Act, where the Minister issues a direction to a person having functions or powers under the Act, respecting the performance of those functions or the exercise of those powers, the person shall comply with such a direction. Relevantly, Ministerial Direction No 53 was a direction to which s 499(2A) applied.

Consideration. 

1. As the applicant was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and his application for judicial review.  The applicant’s grounds of review took the form of a submission.  I have considered those grounds in detail.

2. Insofar as the applicant seeks review by this court of the delegate’s decision, this court has no jurisdiction to do so: s 476(2)(a).

3. The complaints made of the Tribunal’s decision do not disclose proper grounds of review.  While the applicant contends that he provided all related evidence and supporting documents, but that not all of his evidence was considered and that his genuine reasons were ignored, I am satisfied that the Tribunal actively engaged with those submissions and evidence.  

4. Otherwise, the grounds of review as set out in the application fail to identify the evidence or documents which he complains were overlooked.  I do not accept that the Tribunal made its decision without considering all of the applicant’s claims and their component integers:  see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1, [57]; Htun v Minister for Immigration for Multicultural Affairs [2001] 194 ALR 244, 42.

5. In particular, I am satisfied that the Tribunal considered the applicant’s submissions concerning his circumstances, his past and future courses of study.  In the absence of meaningful particulars, the applicant’s grounds of review seek a merits review by this court, which it has no jurisdiction to undertake:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

6. I also consider it clear that the Tribunal considered the factors identified in Ministerial Direction No 53, which are not to be used as a checklist, but are intended to guide decision-makers in assisting them to evaluate the circumstances of an applicant as a whole:  Ghimire v Minister for Immigration and Border Protection [2014] FCA 899, [3]. I consider that the factors in Ministerial Direction No 53 are to be employed as guidelines that are to be addressed insofar as they are relevant upon the particular facts of an application. By extension, those guidelines may not be relevant where matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

7. I am satisfied upon the Minister’s submissions that the Tribunal’s Reasons disclose that the Tribunal expressly considered the matters raised by Ministerial Direction No 53 either expressly or by proper inference.  I am further satisfied that the Tribunal did not consider other, particular factors identified by Ministerial Direction No 53 because no material was before the Tribunal to engage them or they were not otherwise relevant on the face of that material:  see Bala v Minister for Immigration and Border Protection [2019] FCA 600, [17]; Kaur v Minister for Home Affairs [2019] FCCA 1372, [51], [55].

8. A fair reading of the reasons involves acceptance and an understanding of the case that was being addressed by the Tribunal:  Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 222 CLR 1, [14] (Gleeson CJ, Hayne and Heydon JJ). To the extent that any of those factors were erroneously overlooked by the Tribunal (which I consider it did not do), I would not have considered such an error as being jurisdictional in the circumstances of this case: Hossain v Minister for Immigration and Border Protection [2018] 82 ALJR 780, [30].

Conclusion. 

1. For the reasons above, I have concluded that the application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Kelly.

Date: 3 June 2019