Shoukat v Minister for Immigration
[2016] FCCA 3056
•25 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHOUKAT v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3056 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 Minister for Immigration v Khadgi [2010] FCAFC 145 Minister for Immigration v Khadgi [2010] FCAFC 145 Sharma v Minister for Immigration & Anor [2015] FCCA 575 |
| Applicant: | SINWAN SHOUKAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1380 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1380 of 2016
| SINWAN SHOUKAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Shoukat, came from Pakistan to study in Australia. He encountered difficulties and, when his initial visa expired, a delegate of the Minister (delegate) declined to grant a new visa. Mr Shoukat sought review of that decision before the Administrative Appeals Tribunal (Tribunal). On 12 May 2016 the Tribunal affirmed the delegate’s decision. Mr Shoukat now seeks judicial review of that decision.
Background facts relating to Mr Shoukat’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 8 November 2016.
Mr Shoukat is a male citizen of Pakistan born on 19 July 1990.[1] He arrived in Australia on 17 March 2013 on a student (Class TU) (subclass 573) visa.[2]
[1] Court Book (CB) 1
[2] CB 71
Mr Shoukat applied for a further student (Class TU) (subclass 573) visa (the present visa) on 11 March 2015.
At the time of application, Mr Shoukat was enrolled to undertake a Bachelor of Business (Professional Accounting), however PRISMS records cited in the subsequent delegate's decision indicated that the applicant had previously been enrolled in, but did not complete, three other courses:
a)English for Academic Purposes at Castle College;
b)Master of Commerce at Raffles College of Design and Commerce; and
c)Bachelor of Business (Accounting) at King's Own Institute.[3]
[3] CB 71
Pursuant to clause 573.223(1) of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), it was a criterion for the grant of the visa that the Minister be satisfied that the applicant intended genuinely to stay in Australia temporarily. Clause 573.223(1)(a) stated the criterion the Minister was required to have regard to in so finding, as follows:
(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) 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
…
On 9 April 2015, Mr Shoukat’s representative provided a submission addressing the above criterion, as well as statements from Mr Shoukat and his mother, and other supporting documents.[4] A further document was also provided on 10 April 2015.[5]
[4] CB 18-58
[5] CB 59-61
The application was refused by a delegate of the Minister on 28 October 2015:[6]
a)the delegate was not satisfied Mr Shoukat was a genuine applicant for entry and stay as a student in Australia and that Mr Shoukat intended to stay in Australia temporarily;
b)this was because the delegate found that Mr Shoukat had not provided any evidence to show that he had completed any course undertaken in the two and a half years in which Mr Shoukat had been in Australia, and had not provided any substantial reason for not doing so. The delegate did not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.
[6] CB 66-74
Mr Shoukat applied to the Tribunal for review of the delegate's decision on 3 November 2015. Mr Shoukat provided a copy of the delegate's decision with his application.[7]
[7] CB 75-84
By email dated 15 March 2016, the Tribunal sent Mr Shoukat a letter inviting him to attend a hearing before it. The letter also requested that Mr Shoukat provide information to the Tribunal prior to the hearing, including: a current Certificate of Enrolment (CoE); documents to show he was currently enrolled in a course, or has an offer of enrolment in a registered course; documents that evidenced past studies in Australia; and, an explanation of any gaps in his enrolment and any documentary evidence relevant to that explanation. The Tribunal informed Mr Shoukat that it would assess whether he intended genuinely to stay in Australia temporarily as required by referring to Direction 53 and clause 573.223(1)(a) of the Regulations. A copy of Direction 53 was also attached.[8]
[8] CB 89-93; Affidavit of Joel Eitan Palte affirmed 8 November 2016
On 12 April 2016, Mr Shoukat's representative provided a statement explaining Mr Shoukat’s enrolment history and personal circumstances, and also enclosed several further documents, including a statement of Mr Shoukat.[9]
[9] CB 100-160
Among other things, Mr Shoukat sought to explain why he had switched study providers on several occasions. He claimed he had left Raffles College because there was an education gap between his degree from Pakistan and the Masters Course, and as a result Raffles College gave him failed grades. Having then studied at Kings Own Institute, Mr Shoukat transferred to Elite College, claiming not to have been comfortable at Kings Own Institute.
Mr Shoukat also sought to explain that his attendance and grades were impacted by both his and his mother's depression resulting from Mr Shoukat being homeless for three to four days after he was kicked out of his accommodation.[10]
[10] CB 104-107
Mr Shoukat gave oral evidence before the Tribunal on 19 April 2016.[11] The Tribunal handed down its decisions on 12 May 2016, affirming the decision under review.[12]
[11] CB 165-167
[12] CB 171-179
The decision of the Tribunal
The Tribunal noted that the issue in question was whether Mr Shoukat satisfied the time of decision criterion in clause 573.223 of Schedule 2 of the Regulations, and in particular, whether the Tribunal was satisfied that Mr Shoukat was a genuine applicant for entry and stay as a student.[13]
[13] at [7]
In so finding, the Tribunal acknowledged at [8] that it was under an obligation to have regard to Direction 53, entitled “Assessing the genuine temporary entrant criterion for Student visa applications”, and which required the Tribunal to have regard to a number of specified factors, which relevantly included:
a)the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
b)the applicant's immigration history; and
c)any other information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.[14]
[14] at [8]
The Tribunal also noted and summarised the submission received from Mr Shoukat’s representative on 12 April 2016,[15] and recounted its discussion with Mr Shoukat regarding his circumstances, submissions and statement, and PRISM records.[16]
[15] at [11]-[12]
[16] at [13]-[23]
In considering Mr Shoukat’s personal circumstances, the Tribunal accepted that the fact that all his family and relatives were living in Pakistan would act as an incentive for him to return to Pakistan on completion of his studies in Australia.[17]
[17] at [25]
The Tribunal also accepted that there was nothing in Mr Shoukat’s immigration history to indicate the purpose of his visa application was other than to allow him to remain in Australia temporarily as a student.[18]
[18] at [26]
The Tribunal further accepted that at some point shortly after Mr Shoukat’s arrival in Australia he was ejected from a share house.[19]
[19] at [28]
Despite these factors, the Tribunal nevertheless considered that Mr Shoukat’s academic performance in Australia could in no sense be described as satisfactory, and that there was no evidence before the Tribunal to indicate Mr Shoukat was achieving any more academic success in the Advanced Diploma of Business he was currently enrolled in.[20]
[20] at [27]
The Tribunal was also not satisfied that Mr Shoukat’s enrolments were informed by any plan for his future, given Mr Shoukat’s oral evidence and his diverse enrolments in Australia.[21]
[21] at [29]
The Tribunal was consequently not satisfied that Mr Shoukat’s academic record supported a conclusion that he intended to genuinely remain in Australia temporarily as a student, and found that Mr Shoukat’s academic history was indicative of him having used the student visa program as a means of maintaining residence in Australia.[22]
[22] at [28], [30]
The present proceedings
These proceedings began with a show cause application filed on 31 May 2016. Mr Shoukat continues to rely upon that application which contains the following grounds:
1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s.359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars
a. The applicant applied for a review of his decision. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.
b. The Second Respondent did not consider the Applicant's problems that he was unable to obtain enrolment in a higher degree course due to the changes in the student visa system whereby higher education providers were not giving admission in higher degree courses and the client had no option but to resort to taking admission in a diploma level course.
2. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider the Applicant's problems and the fact that no Higher Institute was ready to give him admission at that point in time and hence did not take all his circumstances in consideration before deciding to refuse the case based on lack of jurisdiction.
The application is supported by a short affidavit, which I received subject to [3], which I treated as a submission.
I also have before me as evidence the court book filed on 15 August 2016 and an affidavit of additional documents filed on 8 November 2016.
Only the Minister prepared written submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from Mr Shoukat this afternoon. He told me of his problems in undertaking studies in commerce in Australia, and I noted that he had provided the same commentary to the Tribunal. He appears to be a genuine man and gave the impression that he sincerely wishes to complete his studies in Australia. He is currently pursuing those studies and plans to complete them next year if he is permitted to do so. While I have sympathy for his position, the problems he refers to were all considered by the Tribunal. Unfortunately for Mr Shoukat, he is unable to establish an arguable case of jurisdictional error by the Tribunal. That is fatal to his application.
The grounds in the application are dealt with comprehensively in the Minister’s submissions, with which I agree.
Ground 1
Ground 1 appears to raise several distinct allegations, which are considered below.
Section 359 of the Migration Act 1958 (Cth) (Migration Act)
Mr Shoukat first appears to assert a breach of procedural fairness for a failure to comply with s.359 of the Migration Act. Section 359 gives the Tribunal power to seek information. Where such information is sought, the Tribunal is required to have regard to it in making the decision under review.
Mr Shoukat’s argument could be read in two ways, however, on either reading, no arguable case of jurisdictional error arises.
Mr Shoukat may be asserting that the Tribunal failed to have regard to the information it sought out. The Tribunal did in fact seek further information from Mr Shoukat in correspondence dated 15 March 2016, however, as indicated above at [17], the Tribunal explicitly referred to and summarised Mr Shoukat’s representative's response of 12 April 2016 such that it is evident that the Tribunal had regard to it. The substance of this response, and Mr Shoukat’s oral evidence, was also plainly considered throughout the Tribunal’s decision.[23]
[23] see eg [25], [28]
Mr Shoukat may be asserting that there was some additional information the Tribunal should have sought. However, he has not identified any further information the Tribunal should have sought. In any event, the provision to seek information in s.359 of the Migration Act is discretionary in nature, and the Tribunal is under no obligation to seek information.
Failure to consider relevant considerations
Ground 1 also contends that the Tribunal failed to take into account relevant considerations. Mr Shoukat has not identified any relevant consideration that the Tribunal failed to consider, but should have, and for this reason alone, this ground would fail.
In any event, it is plain from a fair reading of the decision record that the Tribunal had regard to the factors specified in Direction 53, noting that they should not be used as a checklist, but rather as a guide to weighing up the applicant’s circumstances as a whole when determining whether the applicant satisfies the genuine temporary entrant criterion.[24] In the circumstances, the Tribunal gave “genuine consideration” to the factors under Direction 53, and it complied with its mandatory obligation in s.499(2A) of the Migration Act.[25]
[24] at [9]
[25] Minister for Immigration v Khadgi [2010] FCAFC 145 at [68]-[69]
The Tribunal proceeded to assess Mr Shoukat’s application by reference to those of the factors contained in Direction 53 that were relevant to its decision.[26]
[26] Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 at [17]; Minister for Immigration v Khadgi [2010] FCAFC 145 at [60]-[62]; Sharma v Minister for Immigration & Anor [2015] FCCA 575 at [18]
In this regard, the Tribunal made express findings in respect of Mr Shoukat’s personal circumstances,[27] immigration history,[28] as well as in respect of Mr Shoukat’s academic record,[29] which the Tribunal considered relevant, and was entitled to rely on in coming to its decision.
Timeframe for review and notice of hearing
[27] at [25], [28]-[29]
[28] at [26]
[29] at [28]
Particular (a) appears to take issue with the processing time of the review application, and further appears to imply that the Tribunal should have given Mr Shoukat more notice of the likely timeframe for review. Those assertions do not justify a conclusion that Mr Shoukat was denied procedural fairness.
The Tribunal’s procedural fairness obligations are set out in Part 5 Division 5 of the Migration Act. Relevantly, Mr Shoukat was invited to, and attended, a hearing in which to given evidence and present arguments in support of his claims. The notice afforded Mr Shoukat of approximately one month, which was well in excess of the 14 days prescribed by regulation 4.21(4) of the Regulations.
Further, Mr Shoukat was invited to provide a written statement to the Tribunal addressing the issue of whether he was a genuine temporary entrant, by reference to Direction 53. Mr Shoukat was accordingly on notice of the dispositive issues for consideration, that is, whether he satisfied the requirements of clause 572.223(1)(a) of Schedule 2 to the Regulations.
Failure to consider Mr Shoukat’s circumstances
Particular (b) offers a factual explanation of Mr Shoukat’s circumstances, which Mr Shoukat asserts were not considered. In seeking to explain the reasons he had to enrol in a diploma level course, Mr Shoukat misconceives both the basis for the Tribunal’s decision, and the role of this Court.
Relevantly, Mr Shoukat’s visa was not refused because of the type of higher education course he was enrolled in, but rather because the Tribunal was not satisfied that Mr Shoukat was a genuine applicant for entry and temporary stay as a student.
The Tribunal also plainly considered Mr Shoukat’s evidence regarding his academic history.[30]
[30] see [11], [13]-[18], [27]-[28]
Properly understood, Mr Shoukat’s assertions in Ground 1 appear simply to reflect disagreement with the Tribunal’s findings, inviting impermissible merits review, and they raise no arguable case of jurisdictional error on the part of the Tribunal.
Ground 2
Ground 2 again asserts that the Tribunal denied Mr Shoukat procedural fairness, and that the Tribunal did not consider certain personal circumstances of Mr Shoukat in coming to its decision “to refuse the case based on lack of jurisdiction”. Once more, Mr Shoukat’s ground misconceives the Tribunal's decision. The Tribunal did not find that it lacked jurisdiction, but rather affirmed the decision under review. Furthermore, the basis for its decision was that the Tribunal was not satisfied that Mr Shoukat was a genuine applicant for entry and temporary stay as a student, rather than because of the type of higher education course he was enrolled in.
In any event, the Tribunal plainly considered Mr Shoukat’s personal circumstances, and in fact accepted substantial aspects of his evidence.[31]
[31] see [15]-[17] above
This ground too goes no higher than to seek impermissible merits review.
I conclude that Mr Shoukat is unable to establish any arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed. Mr Shoukat indicated that he may need time to pay but did not oppose an order for cost in principle.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 November 2016
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