Shoukat v Minister for Home Affairs
[2020] FCA 194
•27 February 2020
FEDERAL COURT OF AUSTRALIA
Shoukat v Minister for Home Affairs [2020] FCA 194
Appeal from: Shoukat v Minister for Home Affairs [2019] FCCA 1595 File number(s): VID 658 of 2019 Judge(s): O'CALLAGHAN J Date of judgment: 27 February 2020 Legislation: Migration Regulations1994 (Cth) Sch 2, cl 572.223(1)(a) Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Date of hearing: 6 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 29 Counsel for the Appellant: The appellant appeared in person (with the aid of an interpreter) Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 658 of 2019 BETWEEN: MUHAMMAD AHMAD SHOUKAT
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
27 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
The appellant appeals from a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), which had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant to him a Student (Temporary) (Class TU, subclass 572) visa.
The appellant is a citizen of Pakistan born in January 1986. He arrived in Australia in May 2013 on a student visa. On 23 February 2015, he applied for the visa the subject of this proceeding.
In order to be granted the visa, the appellant was required to satisfy, inter alia, cl 572.223(1)(a) of Sch 2 to the Migration Regulations1994 (Cth) (the relevant regulation), which at the time of his application provided:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(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) … and
(iv) any other relevant matter …
On 17 April 2015, a delegate of the Minister refused to grant the appellant the visa. The delegate was not satisfied that the appellant intended genuinely to stay in Australia temporarily, and found therefore that he did not satisfy the relevant regulation.
The appellant next sought review of the delegate’s decision before what was then the Migration Review Tribunal.
On 7 July 2016, the Tribunal invited the appellant to appear before it at a hearing to be held on 2 August 2016. That hearing took place on the date scheduled.
The appellant provided a written submission and documents in support of his case.
On 1 September 2016, the Tribunal affirmed the delegate’s decision.
In its reasons, the Tribunal correctly identified the core issue on review as being whether the appellant satisfied the terms of the relevant regulation.
The Tribunal found that, at the time the appellant arrived in Australia in 2013, he held a Bachelor of Sociology and a Master of Sociology from Pakistan, and proposed to study a Master of Social Science in Australia. The Tribunal did not accept the appellant’s claim that he wanted to undertake the Master of Social Science in Australia so that he could return to Pakistan to work in the social services sector, because the Tribunal considered that he was already sufficiently qualified to obtain such employment.
The Tribunal noted the fact that the appellant was, in any event, unable to enrol in the Master of Social Science course because he did not achieve the necessary English marks. The Tribunal held concerns about the appellant’s next steps, because he then enrolled in a Certificate III in Light Vehicle Mechanical Technology, rather than undertaking some other course relevant to social services. The appellant ultimately completed three vocational education and training (VET) courses in the automotive field, including a Diploma of Automotive Management.
The week before the Tribunal’s hearing, the appellant obtained a Certificate of Enrolment for an Advanced Diploma of Leadership and Management. The Tribunal held concerns as to the reason for undertaking that proposed course, especially given the appellant had already completed a Diploma of Automotive Management, which was more relevant to his claimed ambition to join his family’s automotive business.
The Tribunal concluded that upon completion of his three VET courses, the appellant was well qualified to work in the family automotive business, as he claimed he intended to be. The Tribunal considered that, if the appellant did intend to return to Pakistan, he had every reason to do so at the time he completed his Diploma of Automotive Management. Instead, he enrolled in a further course of very limited value to his stated goals. After observing that the appellant’s wife lived in Pakistan, the Tribunal found that the appellant “does not intend to cease residence in Australia in the foreseeable future and … proposes the study, and seeks the visa, for the purposes of prolonging his residence in Australia so that his wife may join him here”.
Accordingly, the Tribunal was not satisfied that the appellant intended to stay in Australia temporarily, and thus found that he did not meet the relevant regulation.
In his application for judicial review of the Tribunal’s decision below, the appellant relied upon the following grounds:
(1)The Department of Immigration and Border Protection and Administrative Appeal Tribunal erred in concluding that I do not meet the clause 572.223 of the Migration Regulations 1998.
(2)The Department of Immigration and Border Protection and Administrative Appeal Tribunal erred in concluding that I do not meet the guidelines and the criteria provided within the Direction 53 - Assessing the genuine temporary entrant criterion for Student visa applications under section 499(1) of the Migration Act 1958.
(3)I have provided all related evidence and supporting documents to the Department of Immigration and Border Protection and Administrative Appeal Tribunal, and all provided evidence has not been considered towards my visa application. Some of documents/evidence has not been considered and jurisdictional errors were made by both DIBP and AAT and therefore they considered me not meeting clause 572.223 and my visa application as well as application for review was refused on 01st September 2016.
(4)I have provided all the documents that prove my genuineness and Administrative Appeal Tribunal just ignored the facts and did not consider a lot of genuine reasons in determining Direction 53 under section 499(1) of the Migration Act 1958 and erred in concluding the requirements.
The primary judge found, contrary to the appellant’s contention, that the Tribunal did not ignore the “evidence” and “genuine reasons” the appellant had advanced in support of his case but, instead, had “actively engaged” with it and them.
The primary judge also did not accept that the Tribunal had made its decision without considering all of the appellant’s claims.
His Honour further found that the Tribunal did consider the factors identified in Ministerial Direction No 53 which were relevant to its review, and that to the extent any such factors were not considered, they were not material.
The appellant’s Notice of Appeal in this court contains four grounds of appeal. The appellant did not file any written submissions in support of his case.
At the hearing, I asked the appellant whether there was anything he wished to say in support of his appeal. In response, the appellant sought to tender medical reports and related documents which indicated his brother had suffered a serious illness. The documents also indicated that the appellant had been among the people assisting his brother during his recovery, but that this recovery was now substantially complete. When asked how this information was relevant to his appeal, the appellant submitted that he had supported his brother financially during his illness. He submitted further that he had been unable to afford legal representation, and that he was suffering a lot of stress because of his brother’s condition. These submissions were not relevant to the appellant’s grounds of appeal, and I declined to accept the tender of the documents.
The first ground of appeal is that the Department and the Tribunal “erred in concluding that [the appellant did] not meet [the relevant regulation]”.
As the Minister submitted, however, such a contention is no more than an expression of the appellant’s disagreement with the decision under review, and does not attempt to identify, let alone establish, any jurisdictional error.
The second ground of appeal is that the appellant “provided all related evidence and supporting documents”, but this material “has not been considered” by the Tribunal.
But, as the Minister submitted, the appellant does not identify what “evidence” and “supporting documentation” he had in mind, and no such failure is apparent on the face of the Tribunal’s reasons. As has been said repeatedly, the Tribunal is not required to refer to every piece of evidence before it, and the fact that something is not referred to does not mean it was not considered: see, by way of example only, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Kiefel J).
There is no basis in this case to conclude that the Tribunal failed to consider the appellant’s evidence or contentions. Moreover, even if such a failure had occurred, the appellant must establish that the failure was material, in the sense that if the material had been considered the Tribunal’s decision “could realistically” have been different: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ). In the absence of any particulars, obviously the appellant cannot show that any failure to consider his “evidence” generally was material.
The third ground of appeal is that the appellant’s “documents … prove [his] genuineness”, and the primary judge “just ignored the facts and did not consider a lot of genuine reasons …” But that, as the Minister submitted, seeks to disagree with the Tribunal’s assessment that the appellant did not “intend genuinely” to stay in Australia temporarily. It invites this court, on appeal, impermissibly to engage in merits review.
The fourth ground of appeal is that the primary judge “failed to give sufficient weight or any weight” to the fact that the appellant could not gain entry to any course of study after his student visa was refused. But that also invites impermissible merits review, and must be rejected.
At the conclusion of the appellant’s reply submissions, the appellant applied, although he did not frame the application in precisely these terms, for an adjournment of the hearing of the appeal. The appellant submitted that an adjournment was necessary because he had not had sufficient time to prepare his case. In support of this application, the appellant referred to his brother’s medical condition, the subject of the documents the appellant sought to tender at the beginning of the hearing. In my view, it was too late in the day for the appellant to apply for an adjournment. In any event, such an adjournment would have served no useful purpose, because the appeal is bound to fail. For these reasons, I refused the application.
It follows that the primary judge did not err, and that there was no jurisdictional error by the Tribunal. The appeal must therefore be dismissed, with costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 27 February 2020
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