ZAFAR v Minister for Immigration

[2016] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAFAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1746

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TV) visa – no grounds of review – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12

Migration Act 1958 (Cth), s.499
Migration Regulations1994 (Cth), cls.572.223, 572.223(1)(a)

Applicant: FAWAD ZAFAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 406 of 2015

Judgment of: Judge Hartnett

Hearing date: 17 June 2016

Delivered at: Melbourne

Delivered on: 17 June 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Matheson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 406 of 2015

FAWAD ZAFAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Migration Review Tribunal, (as it then was) (‘the Tribunal’), dated 3 February 2015, affirming a decision of a delegate of the First Respondent refusing to grant the Applicant a Student (Temporary) (Class TV) visa (“the visa”). 

2. The grounds of application are as follows:-

   “1. An order that the decision of the tribunal or Minister be quashed.

   2. I am very aggrieved by the decision as it is clearly wrong.  My Application for Student visa has been Rejected by Migration Review Tribunal.”

3. The Court notes that neither of the above stated grounds are, in fact, proper grounds of application.  The Applicant, however, annexed to his application a further description of those grounds and that annexure is as follows:-

   “The applicant is aggrieved by the decision because:

   I am very aggrieved by the decision as it is clearly wrong.  My application for a Student visa has been rejected by Migration Review Tribunal.

   The decision of the Tribunal means I have to return without completing my studies in Australia.

   I came to Australia to study and gain a permanent resident and settle in Australia.

   I have detailed all these things in my DIBP and MRT application but my applications have been rejected.  I cannot understand why, when I came as a Genuine student, paid a lot of fees to different colleges and attended my course and fulfilled the course requirement and, these bodies have rejected my application for a student visa.

   I am not able to afford the $ 10,000 barristers and lawyers will charge for me to lodge this case through them. Thus I must lodge it myself.  I do not know all the legal framework and cases that should be looked at in order to present my side of argument.

   All I can do is to plead with your Honour to properly look at my case and grant me a student visa so that I can complete my studies and gain benefit of the fees paid to the different colleges in Australia.  You will know all the legal procedures and cases that are necessary and I ask you to draw on your experience and knowledge to grant me visa.

   The grounds of the application are:

   The grounds of this application are that I came to Australia as a genuine student and studied with full devotion.  I face return to Pakistan for something which I am not responsible for.  I have detailed everything in my DIBP case and MRT that I have been subject to changes in Government and change of Immigration Law.  I attach copies of those cases and the rest of the information that has been supplied to the Immigration department and MRT.

   I believe that the MRT has erred in its decision to reject my case.  The legal complexities of the case are too much for me and I cannot really go through them.  I am not a solicitor.  I cannot afford a solicitor or a barrister to represent me.

   I must ask your Honour to look at my case.  You will see that I have been a genuine student in Australia and paid lots of money to the colleges by taking loan from my country from different people on interest and if I return they will kill me for not paying my debts back to them.  I ask that you uphold my appeal and grant me visa in Australia.

   The application claims:-

   I would like the Court to make an order to overturn the Migration Review Tribunal decision and to make an order to grant me a Student visa to study and gain a residency in Australia.”

   There were no further annexures to the application filed on 3 March 2015.

Background

1. The Applicant arrived in Australia on 28 December 2007 as the holder of a student visa.  The Applicant has held student visas or bridging visas since that time. 

2. The Applicant lodged his visa application on 20 December 2012.

3. On 21 December 2012, a delegate of the Minister emailed the Applicant requesting further information including, amongst other things, evidence showing that the Applicant was a “genuine temporary” entrant, such as a statement of purpose and evidence of ties to the Applicant’s home country.

4. On 17 January 2013, the Applicant provided a statement of purpose to the Department.  It noted his previous studies in hospitality courses and explained that he had enrolled in further hospitality courses (a Certificate III in Hospitality and Certificate IV in Hospitality and Advanced Diploma of Hospitality) to “enhance [his] skills in the patisserie and management part of the hospitality industry”. 

5. On 3 April 2013, the Applicant wrote to the Department saying that he had provided all information requested by the delegate.

6. On 25 September 2013, the delegate refused to grant the Applicant the visa on the grounds that the Applicant had not provided sufficient evidence of his English language capacity.

7. On 16 October 2013, the Applicant lodged an application for review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing at which the Applicant was present and subsequently, and on 27 March 2014, remitted the matter back to the Minister for reconsideration on the basis that evidence of the Applicant’s English language proficiency had by then been provided (in the form of a completed Diploma of Business).

8. On 2 April 2014 and following the remittal of the matter, a second delegate of the Minister sought information from the Applicant including a statement of purpose, and on 29 April 2014 the Applicant provided certain documents to the Department, including a Certificate of Enrolment for a Diploma of Accounting.  No explanation was provided as to why the Applicant had changed his course.

9. On 29 July 2014, the delegate refused to grant the Applicant the visa, this time on the basis that the delegate of the Minister was not satisfied that the Applicant genuinely intended to stay in Australia temporarily as a student.

10. The Applicant lodged a second application for review with the Tribunal on 15 August 2014.  The Tribunal invited the Applicant to appear before it on 2 February 2015 by letter dated 5 December 2014.  In addition to inviting the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case, the Tribunal requested the Applicant to provide to it all documents that he intended to rely on to establish that he met the criteria for the visa.  Additionally, the Tribunal requested the Applicant to provide the following information:-

    “1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

    2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

    3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to past or intended studies in Australia.

    4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.”

11. The Tribunal indicated to the Applicant that it would assess whether he intended genuinely to stay in Australia temporarily, as required by cl.572.223(1)(a) of the Migration Regulations1994 (Cth) (‘the Regulations’). Further, the Tribunal noted to the Applicant that relevant to his matter was a direction from the Minister known as Direction No 53. A copy of that Direction was attached to the correspondence of the Tribunal of 5 December 2014 and the Tribunal requested the Applicant to provide a written statement addressing the issue of whether he was a genuine temporary entrant by reference to Direction No 53.

12. The Applicant responded to the hearing invitation indicating that he would appear before the Tribunal on 2 February 2015 but he did not provide any statement addressing the Direction No 53 criteria.

13. At the Tribunal hearing, the Applicant provided a number of documents to the Tribunal, those documents being largely relating to courses he had completed and attempted since 2007.

14. The Tribunal affirmed the decision of the delegate not to grant the Applicant a Student (Temporary) (Class TU) visa on the basis that the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly, the Applicant did not meet cl.572.223(1)(a) of the Regulations.

Tribunal decision

1. The Tribunal correctly set out the issue before it, being whether the applicant met the time of decision criterion in cl.572.223. The Tribunal set out in its Statement of Decision and Reasons (“the Decision Record”) cl.572.223(1)(a) of the Regulations which is as follows:-

   “(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 applicant meets the requirements of subclause (1A) or (2).

   (1A)  If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

   (a)  the applicant gives the Minister evidence that the applicant has:

   (i)  a level of English language proficiency that satisfies the applicant's eligible education provider; and

   (ii)  educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)  the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)  the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)  the costs and expenses required to support each member (if any) of the applicant's family unit.

   (2)  If subclause (1A) does not apply:

   (a)  the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)  the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.”

2. The Tribunal also noted, in considering whether the Applicant satisfied the above criterion, that the Tribunal was required to have regard to Direction No 53 assessing the genuine temporary entrant criterion for student visa applications made under s.499 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal correctly stated in paragraph 9 of its Decision Record that the factors specified in Direction No 53 should not be used as a checklist but, rather, were intended to guide decision-makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfied the genuine temporary entrant criterion.

3. The Tribunal carefully considered the material before it, as provided by the Applicant, which included a copy of the Decision Record of the delegate, which was provided with the Applicant’s application for review.

4. The Tribunal said in its decision, as to its consideration of the matters before it and its raising of issues of concern to it with the Applicant for his response, the following, as taken from the Decision Record:-

   “10. At the hearing, the tribunal discussed the applicant’s study history with him since he first arrived in December 2007.  The applicant advised that while he initially enrolled in and intended to study a diploma in information technology, he did not start the course and instead commenced a Diploma of Hospitality Management at Hales Institute in January 2008 which he did for six months before transferring to Chelsea International College and completing the diploma in December 2009 (copies of his diploma were provided at hearing).  When the tribunal put to him that his PRISMS record, as set out in the decision record, did not list this completed course, he advised that it may be because the college had closed down.

   11. The applicant then gave evidence that he applied for a further student visa which was refused in 2009 or 2010 and that he waited two years until the tribunal remitted his application.  When asked what he did during those two years, he claimed that his migration agent told him that he could not study, despite holding a bridging visa A.  He then studied a Diploma of Business in November 2011 which he completed in October 2012.  The tribunal notes that the decision record indicates that the applicant completed a Certificate IV in Business although the applicant did not mention this or provide evidence of completing any such certificate at his hearing.

   12. The applicant’s evidence what he study (sic) and activities from 2013 was vague and confusing.  He claimed that he commenced but did not complete his Certificate III in Hospitality (Patisserie) in February 2013 because he had to go overseas as his mother was having an operation. He stated that he was told by his college that he had to start the course again.  He produced confirmations of enrolment for that course and for a Certificate IV in Hospitality but he claims he did not start.  He then advised that he had done subjects for the Certificate III in September-November 2013 and was waiting for his college to issue him the Certificate III.  When the Tribunal put to him that his records indicated that he had already completed the Certificate III, he then advised that this was correct and that he meant he did not complete Certificate IV.  The tribunal asked the applicant what he had been doing since August 2013, when he finished studying the Certificate III and now.  He stated that he had gone overseas for one to 1-1/2 months for his mother’s operation and that his grandfather passed away.

   13. The applicant was asked why he had enrolled in courses in different fields.  He stated that after deciding not to do IT he only did hospitality courses.  This is when he stated that he wanted to do a Bachelor of Hospitality and that he only enrolled in the Diploma of Accounting to have evidence of enrolment. The tribunal put to him that his business studies also did not appear to accord with his hospitality studies.  He advised that he wants to do his bachelors and either get a job in Australia or open a restaurant in Pakistan.  The tribunal asked why he would be unable to open a restaurant in Pakistan on the qualifications he already has.  The applicant advised that he needs the bachelors but did not give any specific reasons why.

   14. The tribunal put to the applicant that seven years had passed since he commenced studying in Australia in January 2008 and that on his evidence, he had only completed a diploma in hospitality management, a diploma in business and a certificate III in hospitality (patisserie) and had significant gaps of time where he has not studied or attained qualifications. The applicant was not able to satisfactorily respond when asked by the tribunal why, after seven years, he realised that a bachelor in hospitality was required for his future career plans.  

   15. The tribunal has considered the applicant’s circumstances in light of the guidelines set out in Ministerial Direction No 53 and discussed its concerns with him at hearing. It finds that the applicant’s extended length of residence in Australia, the lack of academic progress and the limited qualifications he has received during that time, his enrolment in a series of short and inexpensive courses, the significant gaps of time in his study, his unconvincing evidence regarding his future plans and his current enrolment in a course which he has stated he does not plan to commence indicate that the applicant is using the student visa program as a means of maintaining ongoing residence in Australia.”

5. The First Respondent relies on the evidence as contained in the Court Book filed by it on 5 June 2016.  The First Respondent also relies upon a response filed on 6 March 2015 wherein the First Respondent sought dismissal of the Applicant’s application and that the Applicant pay the First Respondent’s costs on the ground that the decision under review was not affected by jurisdictional error. 

6. By orders of Registrar Allaway on 10 June 2015, this matter was set down by consent and pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) for a show cause hearing under r.44.12 of the Rules. Each of the parties were ordered to file and serve written submissions. The Applicant filed no such submissions and the First Respondent relies on submissions filed and served by it and dated 3 June 2016. The Court has also before it the evidence as contained in the Court Book.

Consideration

1. The Tribunal’s decision is not affected by jurisdictional error and the Applicant has not raised an arguable case for the following reasons.

2. The Applicant does not demonstrate that the decision is clearly wrong;  indeed, to the contrary, the decision was not unreasonable and the findings of fact made by the Tribunal were open to it on the evidence before it.  The Applicant himself, in his annexure to his application, concedes that he came to Australia to gain permanent residency and settle, which supports the conclusion reached by the Tribunal that the Applicant was not genuinely seeking to remain in Australia to undertake studies on a temporary basis.

3. The Tribunal correctly applied the law and expressly considered Ministerial Direction No 53. The Tribunal took into account the issues relevant to the Applicant’s application in addressing the genuine temporary entrant criterion and matters in Direction No 53.

4. The Applicant was provided, by the Tribunal, with every opportunity to put any relevant material before it. The material that was put before the Tribunal by the Applicant was discussed with the Applicant and those matters of concern to the Tribunal inquired about by the Tribunal.  There was, contrary to the Applicant’s claim, not relevant material that was not considered by the Tribunal.  That claim, that the Tribunal failed to consider all relevant information was not particularised by the Applicant in his application.  Indeed, in the paragraphs taken from the decision record and as set out in paragraph 21 above, the Tribunal gave an accurate and detailed history of the study undertaken by the Applicant since arriving in Australia in 2007. The Tribunal found the Applicant’s evidence about whether he completed his studies in 2013 to be, as stated above, “vague and confusing” and the Tribunal considered how the Applicant’s intention to study a Bachelor of Hospitality would add value to his future career plans. There is nothing on the face of the Decision Record that supports that, or indeed any, ground of judicial review. Otherwise it is not for this Court to particularise the claim for the Applicant.

1. The Applicant seeks merits review of the Tribunal decision. As is said many times in this Court, that is not the function of the Court. 

2. There being no arguable case, the costs order as sought by the First Respondent shall be made.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 12 July 2016