Sumaira v Minister for Home Affairs
[2019] FCCA 3483
•20 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUMAIRA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3483 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student – no jurisdictional error identified by the applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 424A Migration Regulations 1994 (Cth) |
| Cases cited: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 |
| Applicant: | SUMAIRA SUMAIRA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1815 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 20 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Hillyard |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this court on 29 June 2018 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 30 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1815 of 2018
| SUMAIRA SUMAIRA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a female citizen of Pakistan aged 33 years, having been born on 20 February 1986.
By Application filed in this Court on 29 June 2018 she seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 June 2018 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 30 November 2016 refusing to grant to her a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).
Background
The Applicant arrived in Australia as the holder of a Student (Class TU) (Subclass 572) visa on 25 December 2010, which had been granted offshore on 2 December 2010 and was valid until 27 March 2012. She has not left Australia since, but has continued her study courses. Further, she is single without children and her parents and all her brothers live in Australia, except for one brother who lives in Pakistan.
The Applicant applied for the Student visa on 15 September 2016 in order to study a Bachelor of Early Childhood Education and Care at TAFE Australia, expected to commence on 20 February 2017 and be completed on 30 December 2019. She also lodged a Statement of Purpose (Statement of Purpose) with her Student visa application at that time and, because it has some relevance to a submission made by the Applicant at the hearing, I note that there is no reference in that Statement of Purpose to her returning to Pakistan or how the benefits of any study course in a Bachelor of Early Childhood and Care would help her career in Pakistan.
Relevance to Statutory Requirements for the Grant of the Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which required, inter alia, that she be what is known as a “genuine applicant for entry and stay as a student”.
Clause 500.212 at the time of decision provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) 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 intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Decision of Delegate
In her Decision Record the Delegate set out cl.500.212 of the Regulations and summarised Ministerial Direction No.69 which was mandatory for her to take into account in assessing the genuine temporary entrant criterion. She then went on to summarise the Applicant’s study history.
In the result, the Delegate refused to grant the Student visa to the Applicant having regard to, in particular, the following:
I have given regard to your circumstances in your home country and your potential circumstances in Australia. You have not provided any substantial evidence of close ties to your home country. I give weight to the fact that you spent 2,091 days in Australia and have not departed since your first arrival and with your current enrolment; if the this visa was granted you would be staying in Australia close to 9 years with inconsistent immigration study and career pathway. I also note that you are unmarried with no dependant family members in your home country. You have also declared that 4 of your brothers live in Australia which decreases your incentive to return to Pakistan. You have been unable to demonstrate economic ties or personal assets in your home country. Furthermore, given the disparity in the economic circumstances between Pakistan and Australia, I cannot be satisfied that you have significant incentive to return to Pakistan. While you have personal ties in the form of your immediate family, I find that these ties do not, of themselves, constitute a strong incentive to return home when considered against failing to provide strong economic and personal circumstances in Pakistan. I am concerned that your intention to live in Australia is motivated by factors other than study.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 2 December 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
She also submitted an undated two-page critique of the Delegate’s decision to the Tribunal (Critique) in which she stated, in part, that “because [her] immediate family was present in Australia that’s why [she] did not feel any needs to go back and travel to my country”. Once again, there was no reference to returning to Pakistan or how her intended study in Australia would help her career prospects back in Pakistan.
The Applicant appeared before the Tribunal at a hearing on 15 February 2018 to give evidence and present arguments.
From [7] – [17] of its Decision Record the Tribunal recorded the relevant background facts and circumstances and its discussion at the Tribunal hearing with the Applicant. At [13] and [14] the Tribunal recorded that the Applicant had stated that there are no childcare centres in Pakistan. The Tribunal further recorded at the last bullet point of [24] that she acknowledged that she would not be able to get a job in Pakistan as an early childcare teacher.
At [15] and [17] of its Decision Record the Tribunal recorded as follows:
[15] When in Pakistan, she lived with her parents. Since arrival in Australia she has not gone back to Pakistan. She has her whole family here and has not had any need to return. In 2008 she travelled to Saudi on a Haj.
…
[17] The Tribunal asked her if there is any reason she cannot return to Pakistan if she stops studying. She said she has no one there, no life there and she has her parents and her brothers here. Also there may be a serious condition for her health. She cannot continue her life in Pakistan.
The Tribunal’s core findings were then expressed at [24] – [25] of its Decision Record, as follows:
[24] The Tribunal places greater weight on the following in assessing whether the applicant is a genuine student:
·The applicant travelled to Saudi Arabia on a haj in 2008. She has not returned to Pakistan since her arrival in Australia in 2011. The applicant has strong family connections in Australia. Two brothers have permanent residency in Australia, two are presently in Australia and her parents also reside in Australia.
·The applicant is not studying at the moment. She stated that due to her mental condition she was given six months off and she will return to her studies in July. When asked why she could not return to Pakistan as she has stopped studying she said that she has no life there, no one there, her parents and brothers are in Australia, she may have a serious health condition and she cannot continue her life in Pakistan. The applicant has stated she has no need to return to Pakistan.
·The applicant also stated that she is used to the lifestyle in Australia and in Australia there is better pay.
·She believes that if she completes a degree in Australia she will obtain permanent residency.
·The applicant claims she is studying early childcare because of her previous work experience and that is what motivated her. She has worked as a kindergarten teacher in Pakistan and opines that she wishes to become an early childhood teacher whilst at the same time acknowledging that there are no early childcare centres in Pakistan. She also acknowledged that she would not be able to get a job in Pakistan as an early childcare teacher.
[25] The applicant has strong ties in Australia. Her family are in Australia and this presents a strong incentive for her to remain in Australia. In light of the applicant’s family being in Australia, the applicant studying early childhood education and acknowledging that there are no early childcare centres in Pakistan to find employment and acknowledging that she believes that by completing a degree in Australia she will get permanent residency, the Tribunal is therefore satisfied, on balance, that the applicant has applied for a student visa with the intention primarily to maintain residence in Australia.
Accordingly, in these circumstances the Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The two Grounds contended for by the Applicant are verbatim as follows:
Ground 1 – The Tribunal made a legal error in that it did not put to the applicant the source of the information it said it put to the applicant / sufficient information relating to the inability to find a job in Pakistan relating to early childhood teaching.
1. At [14] the Tribunal states it was put to the applicant that she is studying in Australia a qualification that would not result in her obtaining a job in Pakistan.
2. The Tribunal did not provide the source of the information it relied upon to make the finding at [14].
3. The finding at [14] and [25] resulted in the Tribunal to conclude that the applicant applied for a student visa with the intention primarily to maintain residence in Australia.
Ground 2 – The Tribunal’s decision was so unreasonable.
1. Details will be provided later.
Consideration
Ground 1
This Ground appears to contend that the Tribunal breached s.359A of the Migration Act 1958 (Cth) (the Act) in failing to put to her information relating to her inability to find a job in early childhood teaching in Pakistan. However, the only evidence on this topic was the Applicant’s own oral acknowledgements given at the Tribunal hearing as recorded in the Decision Record of the Tribunal at [13], [14], the last bullet point of [24] and [25]. As such, this was information that was given to the Tribunal by the Applicant under s.359A(4)(b) of the Act which thereby rendered the obligation of the Tribunal under s.359A(1) inapplicable.
In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] – [43] Heerey J said of the analogue section to s.359A(4)(b), namely s.424A(3)(b) which applies to Protection visas:
[42] Even if the “information” here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the “information” is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
“While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.”
This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant “gave” the “information” for the purpose of the Tribunal review application (in contrast to SAAP, where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
[43] To conclude that an applicant “gave” information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.
This passage was cited with evident approval by the Full Court of the Federal Court of Australia in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 434 [57] per Gyles, Stone and Young JJ. To similar effect Kenny J stated in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] as follows:
[35]It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
[see above]
Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him.
Finally, Heerey J returned to consideration of s.424A(3)(b) in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at 493 [32] in the following terms:
[32]Turning to the Minister’s alternative argument based on s 424A(3)(b), I agree that the appellant “gave” the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal’s questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]-[43]; see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [61].
In my view, in reaching its decision the Tribunal relied upon:
a)written information provided by the Applicant to the Department of the Minister;
b)information contained in the Delegate’s Decision Record which had been provided by the Applicant to the Tribunal;
c)written information provided by the Applicant to the Tribunal; and
d)the Applicant’s oral evidence at the Tribunal hearing;
all of which fell within the exceptions expressed in s.359A(4)(b) and (ba) of the Act.
Accordingly, Ground 1 is not made out.
Ground 2
I take this Ground to be an assertion of legal unreasonableness affecting the Tribunal’s decision, but it is wholly unparticularised and generalised. The Applicant did not take up the opportunity afforded to her to file an Amended Application or to provide written submissions in support of this Ground.
In my view, it suffices to say that the decision adverse to the Applicant of the Tribunal on the genuine temporary entrant criterion was eminently legally open to it and there is no irrationality, illogicality or legal unreasonableness in either the Tribunal’s process of reasoning or its finding that the Applicant did not satisfy cl.500.212 of the Regulations.
Further, in my view the Tribunal decision does not lack an intelligible justification. At the hearing in this Court the Applicant tendered a copy of the transcript of the Tribunal hearing. A fair reading of that transcript establishes and supports the Tribunal’s summary at [24] of its Decision Record and confirms that the decision of the Tribunal does not lack an intelligible justification.
Accordingly, Ground 2 is not made out.
Applicant’s Contentions at the Hearing
At the hearing, as I understood the Applicant, she made two further contentions:
a)first, that she had asserted and claimed at the Tribunal hearing that she would return to Pakistan and follow a career there; and
b)second, that she was not meaningfully able to take part in the Tribunal hearing.
I will deal with the second contention first. There is no evidence at all in my view that the Applicant was not able to meaningfully appear and put her case to the Tribunal. She came to Australia at the end of 2010 and has been studying here ever since. In the Response to Hearing Invitation which she completed and returned to the Tribunal she elected not to require an interpreter. She attended the Tribunal hearing and at no point did she indicate to the Tribunal member that she wanted an interpreter.
The transcript tendered by the Applicant establishes, in my view, that she was able to meaningfully give evidence and make submissions at the Tribunal hearing. It shows that at the Tribunal hearing the Tribunal member invited her to tell the Tribunal member if she did not understand something that was said by the Tribunal member, and she responded that she would do so. She never suggested to the Tribunal member that she didn’t understand anything that had transpired at the Tribunal hearing and at the end of that hearing the Tribunal member asked whether she had any further questions or would like to say anything else, and she responded in the negative.
It is clear to me from the hearing today that whilst the Applicant had asked for the use of an interpreter and an interpreter was supplied, on many occasions during the course of the hearing she broke out into articulate English. It is apparent to me from the hearing in Court today that she is a lady of intelligence who is articulate and facile in the English language. The contention that she was not able to meaningfully participate at the Tribunal hearing has never previously been taken by her at any point of time in this Court and in my view there is no basis to it.
Second, the first contention appeared to be that, in truth and in fact, the Applicant had contended to the Tribunal that she would return to Pakistan but, in my view, once again that contention is not made out. In neither the original Statement of Purpose nor the Critique was there any assertion or claim that she intended to return to Pakistan to carry out any career there, let alone any career in the early childhood educational sphere. Further, the transcript of the Tribunal hearing also indicates that no such assertion or claim was ever there made and entirely justifies, in my view, the statement of the Tribunal in the last bullet point at [24] of its Decision Record that the Applicant had acknowledged before the Tribunal that she would not be able to get a job in Pakistan as an early childhood teacher.
As recorded in the transcript of the Tribunal hearing at TP6.5 – 40, the Applicant told the Tribunal member as follows:
Ms Sumaira: We have no scope of – like, no system of early childhood education in Pakistan. Simply, like, as a teacher – primary or secondary teacher. That’s it. That’s what we have in Pakistan. There are no child care centres in Pakistan. No such things in Pakistan. So - - -
Tribunal member: So are there any early childhood centres in Pakistan?
Ms Sumaira: No, there are not. There isn’t any scope of early – like, when a child is born, like, usually their mothers, like, you know, they would - - -
Tribunal member: Look after themselves.
Ms Sumaira: Yes, yes.
Tribunal member: So, hang on. There are no early childhood centres in Pakistan, but you’re studying a Bachelor of Early Childhood Education.
Ms Sumaria: Yes.
Tribunal member: Why?
Ms Sumaira: Could you please rephrase that, ma’am, because I don’t get it quite.
Tribunal member: Okay. You’ve told me that there are no early child care centres in Pakistan. So why are you studying early childhood education?
Ms Sumaira: Because of my, like, previous work experience. Like, as I, like – you know, I stated that I have been tutoring in my country after I completed my HSC. So that’s what motivated me. I thought it’s a good career for me. And when I started working here as a, like, unqualified child care worker that’s what, like, you know, made me more interested and motivated. I thought it – it is the right career for me because - - -
Tribunal member: but the idea of studying here in Australia - - -
Ms Sumaira: Yes.
Tribunal member: - - - is for you to go back to Pakistan with a qualification that – or to another country that you can work in so that you are able to obtain work.
Further, at TP8 and TP9 of the transcript she made clear that she had not returned to Pakistan because her whole family, but for one brother, was resident in Australia and there was no need for her to return to Pakistan. It was for the Tribunal to weigh the evidence that was before it and, in my view, the whole of the Applicant’s case as put to the Tribunal was meaningfully considered by it. The Tribunal did not fail to meaningfully consider any part of the Applicant’s claims and its decision has an intelligible justification.
Conclusion
Accordingly, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 2 December 2019
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