Uzair v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 416
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uzair v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 416
File number: MLG 2354 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 27 May 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to take into consideration applicants’ evidence – whether the Tribunal decision was affected by actual or apprehended bias – no jurisdictional error – application dismissed. Legislation: Constitution s 75(v)
Migration Act 1958 (Cth), ss 359A, 359AA, 476, 477
Migration Regulations 1994 (Cth), cll 572.223, 572.322
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 24 May 2022 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2354 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARIS BIN UZAIR
First Applicant
HINA HARIS
Second Applicant
HIBA HARRIS SIDDUQUI, BY HER LITIGATION GUARDIAN, HARIS BIN UZAIR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 18 October 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Student (Temporary) (Class TU) visas (student visa).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicants are non-citizens who applied for the student visa on 19 October 2015. The first applicant was the primary visa applicant and the second and third applicants, who are respectively the spouse and child of the first applicant, were included in the application as members of the same family unit.
On 21 June 2016 a delegate of the Minister refused to grant student visas to the applicants. The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily as required by cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second and third applicants were members of the family unit of a person who holds a student visa as required by cl 572.322(b).
On 8 July 2016 the applicants lodged an application to the Tribunal for review of the delegate’s decision.
The first applicant attended a hearing convened by the Tribunal on 14 September 2017 to give evidence and present arguments.
On 18 October 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the first applicant met the time of decision criterion in cl 572.223(1)(a) of Schedule 2 to the Regulations, which provides:
(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
(b) …
The Tribunal acknowledged that it was required to have regard to the factors listed in Ministerial Direction No 53 in assessing the first applicant’s circumstances as a whole.
In considering the first applicant’s circumstances, the Tribunal acknowledged that the first applicant has a parent and siblings in Pakistan and currently lives in a suburb in Victoria with his wife and their two children. The Tribunal acknowledged that prior to arriving in Australia as a 26 year old, the first applicant was working in the hotel industry in Pakistan and training to be a chef. He told the Tribunal he wanted to obtain a higher level of study to enable him to be employed at a higher level.
In considering the first applicant’s immigration history, the Tribunal noted that the first applicant returned to Pakistan from 17 February 2006 to 10 October 2008 for ‘personal and unavoidable reasons’. The Tribunal observed that it had been 10 years since the first applicant last returned to Pakistan and did not accept that this was a travel history of a person with significant ties to his home country.
The Tribunal noted that the first applicant was currently enrolled in a Bachelor of Tourism and Hospitality Management course which he was due to complete on 3 November 2017. The Tribunal considered at length the first applicant’s Provider Registration and International Student Management System (PRISMS) record, which documented a long history of him enrolling in seemingly unrelated courses, with many courses that were not started or started and cancelled. The long history of unrelated courses, over a period of 12 years, caused the Tribunal to doubt whether the first applicant intended to stay in Australia temporarily, for a genuine study purpose.
The Tribunal found that the first applicant was already qualified to achieve his stated career objective of working as a chef and hotel manager, because of his completion of apprenticeship training in cookery, two years’ work experience as a chef in his home country, his current casual employment as a chef in Australia, his completed Certificate III in Hospitality Management, Diploma of Hospitality Management, and Certificates III and IV in Patisserie.
The Tribunal found that the first applicant had an incentive to remain in Australia because his family appeared settled in the Australian community and because of his lack of academic progression over a lengthy 12 year period.
Based on the above findings, the Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily and therefore found that he did not meet cl 572.223(1)(a) in Schedule 2 to the Regulations. The Tribunal further found that the second and third applicants did not meet cl 573.322(b).
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 2 November 2017, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act. The original application omitted the page that sets out the relief sought by the applicant and the grounds of application. An amended application including these details was filed on 30 November 2017.
The amended application raises four grounds of review, reproduced without alteration:
1.AAT decision is not acceptable. AAT member didn't consider my immigration history and bona fide study records in Australia. As per the GTE criteria, I fulfil the GTE terms and conditions. Decision is full of discrepancies. They have mentioned that I never went back to my home country, which is incorrect. Due to family reason I took break from study and lived in my home country from Feb 2006 to Sep 2008.
2.Decision was not taken in fairly manner. MRT member was very aggressive during entire hearing.
3.That MRT didn't consider my genuineness and consistency in my study in their decision. Since my arrival in Australia I always maintained my enrolment and completed all of my studies.
4.MRT should have given me an opportunity to complete my current study and allow me to apply 485 visa.
On 8 October 2021 a Registrar of this Court made an Order to progress the matter to hearing. The Order required the applicants to file and serve by 8 December 2021 any amended application, supplementary court book, affidavits and written submissions. The applicants did not file any documents in accordance with the Order. The Minister filed written submissions on 7 February 2022 in accordance with the Order.
In his written submissions, the Minister properly drew to the Court’s attention that the only relief sought by the applicants was a writ of certiorari for the Tribunal’s decision to be quashed. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which does not extend to matters where only a writ of certiorari is sought. At the hearing, I made an Order to allow an oral amendment to the applicants’ amended application to the effect that they also seek a writ of mandamus. The Minister did not object to this.
CONSIDERATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicants must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicants of the opportunity of a successful outcome: SZMTA at [45].
Ground 1
By ground 1 the applicants assert that the Tribunal decision was unacceptable and that the Tribunal failed to take into consideration the first applicant’s immigration history and his study records in Australia. The applicants assert that the first applicant fulfilled the requirements of the genuine temporary entrant criteria.
To the extent that the applicants disagree with the Tribunal decision and suggest by this ground that the first applicant meets the genuine temporary entrant criteria, the ground essentially invites the Court to engage in merits review. This Court has no jurisdiction to consider the merits of the Tribunal decision or to decide for itself whether the applicants meet the criteria for a student visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Tribunal’s reasons clearly show that the Tribunal considered the first applicant’s immigration history and study records in Australia.
The Tribunal considered the first applicant’s immigration history at [29]-[32] of its reasons. One of the main complaints of the first applicant by this ground, both in the written application and in his oral submissions to the Court, is that the Tribunal failed to consider that the first applicant returned to Pakistan between February 2006 and October 2008. This assertion fails at a factual level, as it is abundantly clear that the Tribunal considered this. This can be seen at [29]-[30] of the Tribunal’s reasons, where the Tribunal said:
29.The applicant has travelled back to his home country once during the last 12 years.
30.He departed Australia on 17 February 2006 and returned on 10 October 2008 and he states that he was in Pakistan for ‘personal and unavoidable reasons’. When asked what that meant, he re-stated that it was for personal reasons and that while he was there one of his grandparents passed away.
The Tribunal formed the view that the first applicant’s immigration history did not suggest he had strong ties with Pakistan because of the length of time since he had last returned to Pakistan. This finding was open to the Tribunal on the evidence before it.
It is also apparent on the face of the Tribunal’s reasons for decision that the Tribunal carefully considered the first applicant’s study history. This can be seen in particular:
(a)at [11] and [13]-[17] of the Tribunal’s reasons, where the Tribunal discussed the courses that the first applicant studied and completed; and
(b)at [33]-[38] of the Tribunal’s reasons, where the Tribunal addressed its concerns about changes in the first applicant’s courses and various courses that the first applicant had started but not completed, along with the first applicant’s explanations for this.
The findings made by the Tribunal in relation to the applicant’s study records were also open to it on the evidence before it.
Ground 1 is not established.
Ground 2
Ground 2 alleges that the Tribunal decision was not made in a fair manner and that the Tribunal member was aggressive.
I accept the Minister’s submission that, to the extent that this ground amounts to an allegation of bias, it is not substantiated. Any allegation of bias must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. To establish that the Tribunal was biased, the onus is on the applicants to prove that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]; Jia Legeng at [35].
The applicants have not provided any particulars to this ground and there is no evidence before the Court, such as a transcript or audio recording of the Tribunal hearing, which would enable the Court to draw the inference that the Tribunal member was aggressive towards the first applicant at the hearing. The only relevant evidence before the Court is the Tribunal’s reasons for decision and there is nothing on the face of the reasons that would suggest in any way that the Tribunal adopted an unfair process or that the member was aggressive.
At the hearing before the Court, I invited the first applicant to tell me what he meant by this ground. The first applicant said that the Tribunal member asked him if he was drunk and said he did not understand why the first applicant had changed his courses of study. The allegation that a Tribunal member asked the applicant if he was drunk is extraordinary and it is an allegation that I cannot accept in the absence of evidence. The first applicant said at the hearing that he did not have any evidence to support this ground.
I accept that the Tribunal may have asked the first applicant about changing courses of study because this is evident on the face of the Tribunal’s reasons. However, it does not indicate any bias on the part of the Tribunal and instead reflects the inquisitorial nature of the Tribunal’s function. It was appropriate for the Tribunal to ask the first applicant questions relevant to the issues that the Tribunal needed to determine. The first applicant’s study history and the reason he changed courses was relevant to the decision made by the Tribunal.
Further, the Tribunal’s reasons record that the Tribunal used the process in s 359AA of the Migration Act to invite the first applicant to comment on adverse information in his PRISMS record. The Tribunal considered that the first applicant’s PRISMS record documented a long history of the first applicant enrolling in seemingly unrelated courses and indicated that he had enrolled in many courses that he had not started or that he started and shortly after cancelled, over a 12 month period. It was a requirement under ss 359A and 359AA of the Migration Act for the Tribunal to invite the applicant to comment on information it obtained which might be the reason or part of the reason for affirming the decision under review. That the Tribunal did this does not indicate bias in any way.
Ground 2 is not established.
Ground 3
Ground 3 asserts that the Tribunal did not consider the genuineness and consistency of the first applicant’s study. The first applicant asserted, in this ground and in his oral submissions to the Court, that he completed all his studies and maintained his enrolments. In his oral submissions to the Court, he also submitted that he had no problem with attendance.
As with ground 1, the applicants by this ground are really complaining about the findings of the Tribunal and the outcome of the review by the Tribunal. They are inviting the Court to engage in merits review, which is beyond the jurisdiction of the Court.
The first applicant in his submissions to the Court focused on the courses that he had completed and suggested that his downfall in the eyes of the Tribunal was that he changed his course. However, this view does not take into account all of the evidence that was before the Tribunal. As identified in the Minister’s submissions, contrary to the first applicant’s assertion that he had completed all of his studies, the Tribunal had before it the PRISMS record of the first applicant which indicated a history of enrolment in unrelated courses which were cancelled after he failed to commence the course or shortly after he commenced. As indicated above, the Tribunal invited the first applicant to comment on or respond to the information in his PRISMS record pursuant to s 359AA of the Migration Act. The Tribunal explained the concerns it had regarding the first applicant’s study history and did not accept the first applicant’s explanations in response to the expressed concerns. The concerns that the Tribunal identified in relation to the first applicant’s study record ultimately caused it to doubt whether the first applicant intended to stay in Australia temporarily for a genuine study purpose. The Tribunal’s findings were open to it on the evidence before it and do not disclose any jurisdictional error.
Ground 3 is not established.
Ground 4
By ground 4 the applicants assert that the Tribunal should have given the first applicant an opportunity to complete his study and allow him to apply for a ‘485 visa’.
When I asked the first applicant about this ground at the hearing, he simply said that he asked the Tribunal to give him more time to complete his Bachelor course.
This ground does not allege any jurisdictional error in the Tribunal decision. The first applicant simply expresses by this ground that he had hoped for a particular outcome that he did not receive as a result of the Tribunal decision. In conducting the review, the Tribunal was required to consider for itself whether the applicants met the criteria for a student visa. Having found that the applicants did not meet the criteria for the student visa, the Tribunal had no discretion to otherwise grant a visa to allow the first applicant to complete his study or to apply for a subclass 485 visa.
Ground 4 is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 May 2022
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