Ullah v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 935
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ullah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 935
File number(s): SYG 3503 of 2018 Judgment of: JUDGE LAING Date of judgment: 18 October 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming refusal of a student visa – whether the Tribunal breached s 359A of the Migration Act 1958 (Cth) – whether delay in the Tribunal’s decision resulted in relevant unfairness – application dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 359AA, 499
Migration Regulations 1994 (Cth) Schedule 2 cl 500.212
Cases cited: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 4 September 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the Respondents: Ms H. Kim of Australian Government Solicitor ORDERS
SYG 3503 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZAKA ULLAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
18 OCTOBER 2023
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 LAING:
Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of the Islamic Republic of Pakistan (Pakistan). He applied for the student visa that is the subject of these proceedings on 30 September 2016.
The Delegate refused the application on 15 February 2017, on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied for review by the Tribunal on 6 March 2017.
On 20 November 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which 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 whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the evidence before it, the criterion in issue and the effect of Direction No. 69 at [1]-[14] of its decision. The Tribunal then reasoned as follows at [15]-[19]:
15. The applicant submitted evidence regarding his circumstances in his home country and in Australia. His father has passed away and his mother and siblings, apart from one brother in Australia, live in Pakistan. The applicant declared he is married and his wife resides in his home country. Since his arrival in 2010, as of the time of the hearing the applicant had returned to Pakistan three times, in 2012/13, for six weeks, in 2015 for two and a half months and in 2017 for six weeks. The applicant did not submit evidence of his marriage but gave his status in the application for a Student Visa which is the subject of this review as “married” and provided his wife’s identifying information. The Tribunal places some weight on the applicant having demonstrated ongoing ties to his home country.
16. The applicant submitted evidence of previously studying a Bachelor of Commerce degree In Pakistan. His representative’s submission dated 14 April 2018 sets out the course of the applicant’s vocational studies in Australia which includes an explanation for multiple enrolments, said to be an error by an education consultant, and an account of a college closing without awarding a Diploma. The Tribunal accepts the applicant may have encountered some difficulties in administration matters in regards to his enrolment in courses of study.
17. The applicant provided evidence in relation to his gaps in study and his failure to complete some courses. It was submitted that after his father’s death in 2011, the applicant’s mother suffered depression and anxiety for some time and had also suffered a stroke. The applicant declared that as a result, he was unable to concentrate on his studies after returning from a visit to Pakistan in 2012/2013 These claims were covered in a Psychologist’s Report dated 7 April 2018 that were self-reported by the applicant during a consultation. Some medical certification from Pakistan regarding the applicant’s mother was also submitted in evidence. The Tribunal accepts the applicant may have suffered some difficulties as a result of his father’s death in 2011, however, this does not account for his lack of progress academically in later years. As stated, a psychologist’s report from April 2018 is a self-reported account of the applicant’s claims of having experienced emotional difficulties that affected his mental health. The Tribunal considers it was open to the applicant to return to Pakistan and care for his mother if he was unable to study because he was concerned and distracted due to her health.
18. The Tribunal has considered the value of the courses studied to the applicant’s future. No evidence was submitted of employment in Pakistan or in Australia, although the applicant stated he has worked part-time. According to the applicant’s evidence to the Tribunal, his brother has an agricultural enterprise and the applicant intends to develop the business on his return to his home country. The applicant had claimed to the Department that he intended to pursue a career in the hospitality industry; however at the time of application he was enrolled to study a Bachelor of Accounting. The applicant did not explain why he had enrolled in Accounting at the same level as the degree he already held in Commerce, or how it would assist his future career. In written submissions the applicant declared his study of Commercial Cookery would assist his endeavours in his family’s agricultural business and the submission from the representative stated he intended to “invest in cold storage and processing industry to add value to the products for export…” The Tribunal is not satisfied commercial cookery is relevant in this regard and does not accept the applicant has followed a logical course of study during his temporary residency in Australia since 29 May 2010. Rather it appears the applicant is retrospectively attempting to explain his various courses of study as fitting into a broad, overall business plan. The Tribunal is not satisfied the applicant has continued to study for reasons of genuine interest or usefulness and is not satisfied he is a genuine student.
19. The Tribunal considers the applicant has had ample opportunity to study towards a career goals since his arrival in Australia in 2010. The applicant has not demonstrated how the addition of a further Advanced Diploma in Leadership and Management will be of benefit, over and above the Bachelor degree he already held and the courses he has completed in Australia to date. The Tribunal places weight on the applicant’s circumstances that indicate the student visa is intended primarily for maintaining residence in Australia.
Having regard to the above, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily. The Tribunal therefore found that the applicant was unable to meet cl 500.212 of Schedule 2 to the Regulations and affirmed the Delegate’s decision (at [20]-[23]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 13 December 2018, relying upon the following ground:
1. The Tribunal erred in law by not providing a notice under Sec 359A or 359AA as to matters which might be the reason or part of the reason, for affirming the decision under review.
Particulars
The applicant attended the hearing pursuant to an invitation to attend under Sec 360. The applicant filed documents and gave evidence before the Tribunal. At no point of time, during the course of hearing the Tribunal gave oral notice pursuant to Sec 359AA expressing concern or stating the reasons which would be the basis for affirming the decision under review and did not seek an explanation or comments from the applicant. Similarly no notice under Sec 359A was issued to the applicant subsequent to the hearing seeking any explanation or evidence on matters which would constitute the reason for the affirmation of decision under review. The Tribunal took a decision after a lapse of about 8 months from the date of hearing without any notice under Sec 359A or 359AA. This approach of the Tribunal violated the provisions of law and also the principles of natural justice, since if only the Tribunal expressed its concern on certain matters then the applicant would have provided additional documents / evidence in support of his claim.
The ground contended that the Tribunal breached s 359A of the Act, which was as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 359AA provided a method of complying with s 359A of the Act orally at a hearing before the Tribunal.
I accept that the Tribunal does not appear to have put to the applicant any information using the procedure in ss 359A or 359AA of the Act.
However, “information” for the purposes of s 359A of the Act has a limited meaning. For the purposes of such provisions, “information” concerns evidentiary material or documentation and not the Tribunal’s “subjective appraisals” such as those regarding “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18]. In order to attract the obligations under s 359A of the Act, “information” must contain in its “terms a rejection, denial or undermining of the [applicant’s] claims”: SZBYR at [17] and Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431 at [19]-[28]. Additionally, the requirements of s 359A will not apply to information that falls within the exceptions contained within s 359A(4) of the Act.
At the hearing, these matters were discussed with the applicant. The applicant accepted that the Tribunal had possibly given him all necessary information. However, he still wished to press his application before the Court. The applicant did not seek to identify any “information” that may have engaged s 359A of the Act, but did not wish to withdraw his application. In these circumstances, I have considered the materials carefully with a view to identifying if there was any “information” before the Tribunal that may have required the Tribunal to communicate it to the applicant in accordance with the procedure under s 359A.
I accept the Minister’s submission that there was no “information” capable of enlivening s 359A of the Act in the present matter. The material relied upon by the Tribunal consisted of:
(a)material submitted by the applicant for the purpose of the review, including that set out at [8] of the Tribunal’s decision, and that which was contained within the Delegate’s decision. This material fell within the exception in s 359A(4)(b) of the Act; and
(b)the applicant’s evidence submitted to the Department, set out at [9] of the Tribunal’s decision, which the applicant gave during the process that led to the Delegate’s decision. This material fell within the exception in s 359A(4)(ba) of the Act. In this regard, it is not apparent that any oral evidence provided by the applicant to the Department capable of attracting the operation of s 359A of the Act was before the Tribunal.
For these reasons, I do not accept that the Tribunal breached s 359A of the Act.
The ground relied upon by the applicant additionally referred to the fact that the Tribunal’s decision was made several months after his hearing before the Tribunal (whilst the ground referred to 8 months, the decision was made approximately 7 months after the Tribunal hearing). Delay may, in some cases, result in an impaired capacity to assess evidence and render a decision procedurally unfair: see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS). However, I accept the Minister’s submission that it has not been shown that the delay in this case created relevant unfairness, or led to a real and substantial risk that the Tribunal’s capacity to make an assessment was impaired. The Tribunal’s assessment at [15]-[19] appears to have been largely concerned with more objective indicia of the applicant’s intentions, by reference to matters other than the applicant’s demeanour. The delay in this matter was not as long as in NAIS, being measurable in months rather than years. I am not persuaded that it has been shown to have resulted in jurisdictional error on the part of the Tribunal.
CONCLUSION
For the above reasons, the application before this Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 October 2023
0
5
2