Ul Haque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 299
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ul Haque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 299
File number(s): SYG 88 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 10 March 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – principal applicant found not to be a genuine temporary entrant for study – whether the Tribunal review was procedurally fair and whether the Tribunal engaged with the material considered – no jurisdictional error. Legislation: Migration Regulations 1994 (Cth) Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321
Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Raibevu v Minister for Home Affairs [2020] FCAFC 35
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116Number of paragraphs: 29 Date of hearing: 19 February 2021 Place: Sydney Counsel for the Applicants: Mr K Tang Solicitor for the Applicants: Peerzada & Associates Solicitor for the Respondent: Ms S Lloyd of HWL Ebsworth ORDERS
SYG 88 of 2020 BETWEEN: EHTESHAM UL HAQUE
First Applicant
RABIA EHTESHAM
Second Applicant
MUSA EHTESHAM
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
10 MARCH 2021
THE COURT ORDERS THAT:
1.The application as amended by leave granted on 19 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 December 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas.
The following statement of background facts is derived from the submissions of the parties.
On 12 February 2012, the first applicant (Mr Ul Haque) first arrived in Australia.[1]
[1] Court Book (CB) 69
On 24 October 2017, Mr Ul Haque applied for his latest student (Temporary) (Class TU) visa (student visa).[2] The second and third applicants applied as dependant applicants.
[2] CB 1-25
In support of his student visa application, Mr Ul Haque provided a number of supporting documents.[3] This included a statement of purpose dated 24 October 2017.[4]
[3] CB 26-54
[4] CB 49-50
On 18 January 2018, the delegate refused to grant Mr Ul Haque a student visa on the basis that he did not satisfy the genuine temporary entrant criterion under clause 500.512 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Proceedings before the Tribunal
On 4 February 2018, the applicants lodged a review application to the Tribunal.[5]
[5] CB 73-75
On 6 February 2018, the Tribunal acknowledged the application lodged and requested that Mr Ul Haque provide material or written arguments he sought the Tribunal to consider.[6]
[6] CB 79
On 3 October 2019, the Tribunal invited Mr Ul Haque to provide information and asked him to fill out a Request for Student Visa Information form.[7]
[7] CB 84-85
On 17 October 2019, Mr Ul Haque requested a two working day extension to provide the requested information.[8]
[8] CB 91
On 18 October 2019, Mr Ul Haque emailed the Tribunal with numerous documents in support of his matter.[9] These supporting documents included a filled out Request for Student Visa Information form.[10]
[9] CB 93-132
[10] CB 121-132
On 21 October 2019, the Tribunal emailed Mr Ul Haque and granted the extension request. The Tribunal indicated the applicants had until 22 October 2019 to provide any information upon which they sought to rely.[11]
[11] CB 136
On 28 November 2019, the Tribunal invited Mr Ul Haque to appear before it to give evidence and present arguments on 16 December 2019.[12]
[12] CB 140-142
On 16 December 2019, Mr Ul Haque attended the Tribunal hearing.[13]
[13] CB 148-151
On 17 December 2019, the Tribunal affirmed the decision under review on the same basis as the delegate.[14]
[14] CB 157-163
Tribunal decision
The Tribunal found that:
(a)Mr Ul Haque’s circumstances in Pakistan were not a significant incentive for him to return home;[15]
(b)Mr Ul Haque’s potential circumstances in Australia served as a significant incentive to remain in Australia on a permanent basis;[16]
(c)Mr Ul Haque had not demonstrated the value of the proposed course to his future;[17] and
(d)Mr Ul Haque’s immigration history as a whole was not consistent with that of a genuine student who intends to remain in Australia temporarily.[18]
[15] CB 160-161 at [20]-[24]
[16] CB 161-162 at [26]-[28]
[17] CB 162 at [30]-[32]
[18] CB 162 at [34]
Accordingly, the Tribunal found that Mr Ul Haque was not a genuine temporary entrant and therefore did not satisfy clause 500.212.[19]
[19] CB 163 at [38]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 13 January 2020. The applicants were at that time unrepresented but obtained legal representation in July 2020. Very shortly before the trial of the matter on 19 February 2021 counsel was instructed and, on the day before the trial, the applicants filed an amended application containing the following grounds:
1.Ground 1.
The Tribunal erred in stating that the Applicant failed to submit a Genuine Temporary Entrant (GTE) statement, resulting in a denial of procedural fairness.
Particulars:
1. In paragraph 18 of the Reasons, the Tribunal found that the Applicant did not submit a GTE statement despite a GTE statement having been filed in conjunction with a “Statement of Purpose” dated 24 October 2017[20].
[20] CB 49
2. The delegate of the Minister did not observe Ministerial Direction 69 part 2, a requirement of which is an assessment of a GTE statement. Without proper genuine regard to the GTE statement and the Statement of Purpose, this requirement under the Ministerial Direction cannot have been properly and lawfully discharged[21].
[21] Observations made by Gummow and Hayne JJ in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
3. The Tribunal’s failure to have regard to the Applicant’s GTE statement[22] resulted in a failure to conduct a proper review and engage with the critical documents[23].
[22] See CB 160 at [18]
[23] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]: “The role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at”
4. The absence of this importance document, or otherwise, may amount to a constructive failure to carry our review required of the Tribunal and would therefore constitute a jurisdictional error[24].
[24] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] (per Gummow and Callinan JJ, Hayne agreeing)
Ground 2
The Applicant expressed a view that he has a genuine intention to study in Australia and intends to return to Pakistan after completion of his studies. The Tribunal erred by failing to engage and consider the factual material before it thereby committing a jurisdictional error.
Particulars
1. The GTE statement and the Applicant’s Statement of Purpose contain facts which would have conditioned the Tribunal’s formulation of the Applicant’s genuine intentions to study in Australia and then return to Pakistan.
2. The Applicant indicated, in his Statement of Purpose, his intention to return to Pakistan at the conclusion of his studies[25]. This is readily characterisable as the Representations squarely raised to the Tribunal[26].
3. The Applicant indicated, by positive statements, that the level of education in Australia was better than in Pakistan. And further, included information regarding employability in Pakistan with accounting qualifications[27].
4. Where a tribunal exercising powers of merits review fails to make a finding on a “substantial, clearly articulated argument relying on established facts”, such error may amount to constructive failure to carry out the review required of the Tribunal, and thus constitute jurisdictional error[28].
5. If the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the Applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the Applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances[29].
6. It is not essential that the information be characterised as critical in the sense that its acceptance by the Tribunal would necessarily have resulted in a different result[30]. It is enough that there was the possibility of a different result.
7. Alternatively, this error by the Tribunal may be characterised as a failure to consider information provided in support of a reason for granting the visas[31]. Without these facts, the Tribunal lacked the jurisdiction to determine the question of whether to grant a visa to the Applicant, thereby jurisdictional error arose.
(errors in original)
[25] CB 49
[26] Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J at [21]
[27] CB 49
[28] Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [87] – [88]
[29] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 per Black CJ, French and Selway JJ at [63]. Also see generally [55], [58]-[61] and [68]
[30] Viane v Minister for Immigration and Border Protection (2018) FCAFC 116 at [31] to [32] per Rangiah J
[31] Ibid
Counsel also provided his written submissions to my chambers on 19 February 2021.
At the trial, notwithstanding the extreme lateness of the amended application, I granted the applicants leave to file and rely upon it, subject to an order for costs thrown away against Mr Ul Haque and his wife. In granting leave I took into account that there was some overlap in the grounds as between the original and amended applications and that the applicants had suffered a family tragedy in 2020 with the death of a child.
In addition to the court book filed on 14 April 2020, I received Mr Ul Haque’s affidavit made on 17 February 2021 for the limited purpose of addressing any issue of futility, in the event that jurisdictional error was established. The documents annexed to that affidavit disclose that following the Tribunal’s decision, Mr Ul Haque had completed a bachelor degree and had enrolled in a higher degree.
CONSIDERATION
The applicants’ submissions essentially put a specific and a general proposition. The specific proposition is that the Tribunal, at [18][32] of its reasons, incorrectly stated that Mr Ul Haque did not submit a GTE[33] statement despite such a statement having been filed in conjunction with a “statement of purpose” dated 24 October 2017.[34] The more general proposition is that that asserted factual error and the Tribunal’s consideration of the review failed to engage with the material before it and misconstrued or misunderstood Mr Ul Haque’s claims.
[32] CB 160
[33] Genuine Temporary Entrant
[34] CB 49
The Minister’s short answer to these propositions is that the Tribunal at [18] was simply noting that no GTE statement was provided with the review application. The Tribunal can be taken to have been aware that a GTE statement had been provided to the delegate, although it was evidently not sufficient to support the granting of a visa. The Tribunal had, after the filing of the review application, sought additional documentation from the applicants and granted an extension of time for the provision of that information.[35] Further information was provided and the Tribunal’s decision record discloses that it engaged with that information.
[35] CB 91 and 13
I accept the Minister’s submission that the Tribunal did adequately consider all of the claims made in Mr Ul Haque’s statement to the delegate when it made its decision. I also find that it considered all of the additional material provided to it. The claims made by Mr Ul Haque were summarised by the Tribunal when it made its findings at [19], [25] and [29].[36] Further, the weight to be given to evidence is a matter for the Tribunal and it was open to the Tribunal to rely on the considerations it did at [28]-[31][37] as opposed to the statement of purpose for the purposes of the Tribunal’s findings.
[36] CB 160-162
[37] CB 162
I also accept that the Tribunal’s findings at [32][38] were open to the Tribunal. It was entitled to place weight on the fact that a graduate accountant in Pakistan would earn approximately the same wage as that which Mr Ul Haque was earning part time in Australia. The Tribunal was not compelled to place weight on the cost of living in either country. It was open to the Tribunal to find that Mr Ul Haque would want to remain in Australia on a more permanent basis because he had two young children to support and no offer of employment in Pakistan.[39]
[38] CB 162
[39] CB 162 at [32]
While Mr Ul Haque told the Tribunal that his intention was to return to Pakistan after he had completed his studies, before the delegate, Mr Ul Haque had indicated an intention to continue working in Australia for some time after he completed his studies. It was plainly open to the Tribunal to take into account any equivocation by Mr Ul Haque on that issue.
While I am unpersuaded that the Tribunal’s decision is affected by any jurisdictional error, I do note from Mr Ul Haque’s affidavit that he has proved to be a diligent student in very difficult family circumstances. He apparently wishes only to complete his current higher degree before returning to Pakistan. It would be open to the Minister to consider Mr Ul Haque’s circumstances if he was so minded. That is beyond the scope of this proceeding.
CONCLUSION
I concluded that the applicants have failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 10 March 2021
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