Talha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 257
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Talha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 257
File number(s): MLG 974 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 12 November 2021 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that Tribunal misapplied relevant tests and arrived at findings that were incorrect.
Legislation: Migration Act 1958 (Cth), ss 359A, 360, 474, 476(2)(a), 476(4), 499
Migration Regulations 1994 (Cth), cl 500.212
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 8 November 2021 Place: Hobart by videolink to Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr D. Wilson, Australian Government Solicitor ORDERS
MLG 974 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAFIZ MUHAMMAD TAHIR BIN TALHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
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 CAMERON
The applicant is a citizen of Pakistan who arrived in Australia on 12 April 2011 as the holder of a TU-573 Higher Education Sector Student visa. On 15 June 2018 the applicant applied to the Department of Home Affairs (“Department”) for a Student (Temporary) (Subclass 500) visa.
On 4 July 2018 the applicant’s application was refused by a delegate (“Delegate”) of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.500.212 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
LEGISLATION
Part 500 of sch.2 of the Regulations sets out the criteria for the grant of a subclass 500 (student) visa. At the time of the decision, cl.500.212 provided:
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.
In considering cl.500.212, the Tribunal must have regard to Ministerial Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”, made under s.499 of the Act (“Direction”). Part 2 of the Direction relevantly provides:
…
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
…
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.Evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.Whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
…
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, which is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant’s immigration history
13.An applicant’s immigration history refers to both their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
…
b.Previous travels to Australia or other countries, including:
…
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
…
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
BACKGROUND FACTS
The applicant was first granted a student visa on 11 March 2011. He was subsequently granted additional student visas on 6 June 2012 and 17 October 2014. Pursuant to these visas, he earned the following qualifications in Australia:
a)Certificate IV in Business on 24 May 2012;
b)Diploma of Business on 24 May 2012;
c)Certificate IV in Video and Audio Systems on 7 July 2014;
d)Diploma of Management on 29 July 2014; and
e)Master of Commerce (Professional Accounting) on 3 October 2016.
The applicant was then granted a VC-485 Post Study Work visa on 16 December 2016 to allow him to utilise his Master of Commerce (Professional Accounting) and gain work experience in Australia.
The applicant’s most recent visa application, the subject of this proceeding, was made on 15 June 2018 on the basis of his enrolment in a Diploma of Leadership and Management at the Mercury Institute of Victoria. On 24 October 2019 the Tribunal invited him to provide all information relevant to his course of study and to his entry and stay in Australia as a student. In response, the applicant provided the Tribunal with various supporting documents, including:
a)a completed Request for Student Visa Information form;
b)seven Overseas Student Confirmation-of-Enrolment certificates;
c)various certificates and letters in relation to his previous studies; and
d)screenshots of his call logs.
The Tribunal invited the applicant to a hearing on 21 February 2020 to give oral evidence and present arguments. He attended by telephone.
Tribunal’s decision and reasons
On 25 February 2020 the Tribunal affirmed the decision of the Delegate not to grant the applicant a Student (Temporary) visa. The Tribunal found that, considering all the circumstances and all the evidence before it, it did not accept the applicant’s claims to be those of a genuine temporary entrant. On this basis, the Tribunal found that the applicant did not meet cl.500.212.
The Tribunal relevantly reasoned as follows:
19.Although the Tribunal acknowledges that the applicant’s family are in Pakistan, the Tribunal finds that they do not provide a strong incentive to return there, demonstrated by the fact that the applicant has only returned home twice since being onshore in 2011, to visit his family. Moreover, there is no evidence before the Tribunal to suggest that the applicant has any financial ties to his home country that would incentivise him to return there upon conclusion of his studies. These aforementioned matters suggest that the applicant intends to remain in Australia on a more permanent basis.
20.The Tribunal further finds that the length of time the applicant has been onshore without leaving (noting that he has left the country only twice) is indicative of an intention to remain in Australia on a more permanent basis.
21.The Tribunal finds that the applicant has strong economic incentive to remain in Australia, demonstrated by the fact that he is presently working 30 hours a week in a job that is wholly unrelated to his previous fields of study. The applicant’s ongoing work history provides an incentive to remain in Australia on a more permanent basis.
22.The Tribunal places significant weight on the fact that the applicant has been in Australia since 2011 and has undertaken a significant number of courses which are not consistent with one another, and his current course is a substantial regression from his Bachelor level and Masters level studies. The Tribunal explained to the applicant that his inconsistent study history could be the reason or part of the reason for affirming the delegate’s decision and invited him to respond.
23.The applicant contended in his evidence that he wanted to study leadership and management because of the practical skills he would acquire and that acquiring practical skills will assist him excel in his chosen field.
24.While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the fact that his studies are a regression from his previous studies and in view of the qualifications he already holds. …
…
26.The Tribunal is unable to conclude that the applicant has undertaken any significant research into his education provider, proposed course, course contents or educational objectives. This is not consistent with the behaviour of a genuine student.
27.…the Tribunal is of the view that the applicant is enrolling in a series of unrelated courses… with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
28.The Tribunal gives weight to the fact that the applicant has reasonable ties to the Australian community, in the form of a small group of friends and paid employment for which he receives $600.00 to $700.00 per week (in a job which is wholly unrelated to his field of study), as factors which may serve as incentives to remain in Australia on a more permanent basis.
…
32.… given the extent of the applicant’s study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve his remuneration prospects in his home country to an extent that is outweighed by the current cost of completing the course. …
33.The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusal or cancellations. However, the Tribunal is concerned by the fact that the applicant has an extensive history of visa applications and has applied for his latest student visa, a day before the expiry of his VC-485 working visa.
…
37.Although the applicant provided information to the Tribunal demonstrating that he has successfully completed studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant. (emphasis added).
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant made the following allegations:
1.I am not satisfied with the decision of the Administrative Appeal Tribunal so therefor I would like to appeal to Federal Circuit Court to reconsider the decision which was made by AAT.
2.The Department of home Affairs and Administrative Appeal Tribunal erred in applying Ministerial Direction No.69, Assessing the genuine temporary entrant, criterion for student and Student Guardian visa applications towards the assessment of GTE (Genuine Temporary Entrant) requirements for my application.
3.The Dept of Home affairs and AAT made an error in applying the Clause 500.212 in Schedule 2 of the Migration Regulations towards assessing whether the applicant is Genuine Applicant for the entry and stay as a student.
The Dept of Home affairs and AAT failed in applying procedural fairness and natural justice. The value of the proposed coursed was misinterpreted by the delegate and applicant’s education, migration history and career goals were not fully considered towards my ‘Genuine Student Criteria’ Assessment. Furthermore, I was not given a fair chance for trial.
CONSIDERATION
Ground 1
The first ground of the application does not make any allegation of jurisdictional error and so identifies no basis on which the Tribunal’s decision might be set aside.
Ground 2
To the extent that the second ground of the application alleges error by the Delegate in applying the Direction, it seeks relief which the Court does not have power to provide because, in this case, its jurisdiction is limited to reviewing the Tribunal’s decision: sub-ss.476(2)(a) and (4) of the Act. To the extent that it alleges error by the Tribunal in applying the Direction, it fails to particularise the purported error and, because the applicant advanced no argument in support of the allegation, he has failed to demonstrate error on the Tribunal’s part. In any event, no error by the Tribunal is apparent. It demonstrated its familiarity with the Direction by attaching its terms to its decision and by including a reasonable summary of it in its reasons, where the Tribunal tested the applicant’s circumstances and claims against relevant elements of the Direction in a manner that was both reasonable and logical.
Ground 3
The allegation in the first element of the third ground of the application, that the Tribunal “made an error in applying” cl.500.212, is also unparticularised and unsupported by submissions and, in the circumstances, appears to be an invitation to review whether the applicant ought to have been granted the visa for which he applied. The Court cannot reconsider the merits of the applicant’s request for a visa, being limited to reviewing the Tribunal’s decision for jurisdictional error, and so that allegation does not identify a basis on which that decision might be set aside.
The next allegation was that the applicant had been denied procedural fairness by the Tribunal. No evidence of such a denial was identified in the application or at the hearing of this application and it appears to be unsupported by the evidence. In that connection, I observe that the Tribunal wrote to the applicant before its hearing asking him to provide it with information relevant to his visa application. He was then invited to a hearing which he attended by telephone. It has not been suggested, and does not appear, that the applicant was unable to place before the Tribunal all the information and arguments which he wished the Tribunal to have for the purposes of its review. There is also no reason to think that the Tribunal breached its obligations under ss.359A or 360 of the Act.
In the third ground of the application the applicant also made further allegations of error against the Delegate. Those allegations take the matter nowhere for the reasons given in relation to the second ground of the application.
For those reasons, the third ground of the application does not identify a basis on which the Tribunal’s decision might be set aside.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.
Associate:
Dated: 12 November 2021
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