Zeb v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 941
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zeb v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 941
File number(s): MLG 539 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 25 September 2024 Catchwords: MIGRATION – student visa – whether applicant is a genuine temporary entrant – consideration of Ministerial Direction No. 69 – no grounds of jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) sch, 2, cls 500.211, 500.212, 500.214 and 500.218 Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCFCA 3
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Singh v Minster for Home Affairs [2019] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 10 September 2024 Date of hearing: 10 September 2024 Place: Melbourne Solicitor for the Applicant: The Applicant appeared In Person Advocate for the First Respondent: Mr Slevison Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting appearance ORDERS
MLG 539 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NOOR ZEB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICUTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application filed 28 February 2019 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00.
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 CORBETT
The applicant seeks judicial review of the decision of the second respondent (Tribunal) made on 19 February 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa (Visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a 39-year-old male citizen of Pakistan. He first arrived in Australia on 12 March 2012 on a student visa.
On 23 June 2017, the applicant applied for the Visa (CB 10-31).
On 4 August 2017, the delegate of the Minister refused the applicant’s visa application on the basis that the applicant did not meet the genuine temporary entrant criteria in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) (CB 83-88).
On 16 August 2017 the applicant made an application for review to the Tribunal (CB 89-90).
On 11 January 2019, the Tribunal invited the applicant to provide information about his enrolment in a registered course of study and whether he is a genuine applicant for entry and to stay in Australia as a student. Included in that invitation was Ministerial Direction No. 69 for assessing the genuine temporary entrant criterion for student visa applications (Direction No. 69) (CB 95-101).
On 24 January 2019 the applicant provided his response to the Tribunal’s invitation and request for student visa information (CB 104-114).
On 4 February 2019 the Tribunal invited the applicant to attend a hearing in person on 19 February 2019 (CB 116-118).
On 12 February 2019 the applicant provided further information to the Tribunal in advance of a hearing. That information included student records and evidence of completed studies together with a four-page written statement dated 6 July 2017 (CB 119–133).
TRIBUNAL DECISION
On 19 February 2019, the applicant attended a hearing before the Tribunal. He was not represented and did not require the assistance of an interpreter. He did not provide any additional documents to the Tribunal at the hearing (CB 135-137). The Tribunal affirmed the delegate’s decision not to grant the applicant the Visa.
On 20 February 2019 the Tribunal delivered written reasons dated 19 February 2019 (CB 140). The written reasons comprise eight pages and 47 paragraphs (Decision) (CB 141–148). The Tribunal identified the issue to be determined in paragraph [7] of the Decision, namely whether the applicant satisfied the criteria in cl 500.211 to cl 500.218 of Sch 2 of the Regulations. In particular, whether the applicant was a genuine applicant for entry and stay as a student in accordance with cl 500.212(a) set out at paragraph [8] of the Decision.
The Tribunal then considered and had regard to Direction No. 69 (paragraphs [9] and [10] of the Decision). The Tribunal summarised the applicant’s history as a student in Australia and noted that since October 2015 the applicant had not completed any further course of study apart from the completion of a professional year of practical training in 2017 (paragraphs [12] and [13] of the Decision).
The Tribunal referred to the four-page written statement of the applicant and the evidence of the applicant at the hearing that he had not commenced the courses in which he had been enrolled after refusal of the Visa because he was “upset” (paragraph [15] of the Decision).
The Tribunal considered clauses 9, 10, 11, 12 13, 14, 15, and 16 of Direction No. 69 (paragraphs [20] - [41] of the Decision), and any other matters that may be relevant to the assessment of the applicant’s intention to genuinely stay in Australia temporarily (paragraph [42] of the Decision). At paragraphs [22] and [23] of the Decision the Tribunal considered and held that the economic circumstances of the applicant present a significant incentive not to return to his home country. Similarly at paragraph [28] of the Decision the Tribunal found that the applicant was not compelled to return to his home country on account of any economic reasons.
At paragraph [29] of the Decision the Tribunal held that the applicant “is using the student visa programme to circumvent the intentions of the migration program and to maintain ongoing residence”. At paragraph [33] of the Decision the Tribunal considered the value of the courses of study proposed by the applicant to the applicant’s future employment. The Tribunal noted that the applicant had no offer of employment at the completion of his studies and that there was no evidence to suggest that he had researched any employment or business opportunities in his home country.
The Tribunal held that it was not satisfied, after considering all of the evidence, that the applicant intends genuinely to stay in Australia temporarily and ultimately concluded that he did not meet the criteria in cl 500.212(a) of Sch 2 of the Regulations (paragraph [44] of the Decision).
PROCEEDINGS IN THIS COURT
The applicant’s judicial review application was filed on 28 February 2019. The applicant identified six grounds of review, as follows:
1. I have provided the running finance statements which satisfy my economic situation, beside that I have strong ties with my home country, I left my wife and a newborn baby behind.
2. Foreign country certificate worth more in my home country. This is the main reason why I wanted to pursue my education in Australia.
3. During my 485 Visa I completed my professional year which included three months internship in Telstra.
4. As soon as, I completed my professional year I have gone through the process of assessing my degree through ‘ACS’ which was time consuming process.
5. The course which I have chosen to study will certainly enhance my skills and help me to set up my own business in my own country.
6. Throughout my stay in Australia I completed all courses, which indicate I am genuine student.
The application was supported by a short form affidavit affirmed 28 February 2019 that annexed the Decision.
The hearing of the application took place on 10 September 2024. The applicant appeared in person and was assisted by an interpreter in the Pashto and English languages. Mr Slevison, solicitor appeared for the Minister.
The Court confirmed that the applicant had received the Court Book and the Minister’s outline of written submissions filed 24 April 2024. The Court Book was tendered and marked exhibit “R1”.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further articulate, his grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.
To assist the applicant the Court explained that this Court can only turn its attention to the issue of “jurisdictional error” in the Tribunal’s decision.
It was also explained that this Court cannot review the merits of the Tribunal’s decision to grant the Visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang).
The applicant started his submissions by referring to paragraph [11] of the Decision and in particular the third dot point that summarised the delegate’s decision to refuse the Visa. Unfortunately, he could not develop his submission further but with the assistance of the Court he went through each of the grounds of review articulated in the application. He explained that:
·He had produced to the Tribunal financial records and bank statements that were not in his name but that of his brother and father which he said showed he had strong ties to his home country.
·He had a wife and child in his home country.
·In 2017 he had not completed study in a tertiary course because he was completing a professional year and then an internship with Telstra. Following that year, after assessing his options he had decided to enrol in a Diploma of Project Management and an Advanced Diploma in Project Management that he considered would enhance his opportunities of establishing an IT business in his home country. He then enrolled in those courses and intended to pursue them but did not because of the uncertainty created by the refusal of the Visa and the appeal process.
·A Diploma and Advance Diploma in Project Management were of value to his future as they supplemented the Master of Information Technology degree that he completed in 2014. An Australian diploma qualification was of more value to him than a degree from his home country.
·He was a “genuine student’ that had completed all courses on time and diligently and that the Tribunal was wrong to say that he was not a genuine student with an intention to study.
The Court invited the applicant to address the issue considered by the Tribunal of whether he intended genuinely to stay in Australia, temporarily. The applicant submitted that he could have brought his wife and child to Australia under the visas previously held and his bridging visa but elected not to. So too members of his family. This he submitted showed an intention to return to Pakistan. He repeated that he was a genuine student and that he had completed all previous courses in which he had been enrolled.
On behalf of the Minister, it was submitted that none of the grounds identified by the applicant in the application and his submissions to the Court constituted any error of law or jurisdictional error by the Tribunal. Instead, the applicant’s submissions were to the effect that the Tribunal should have made a different decision based on the evidence before it. The solicitor for the Minister also submitted that the applicant misconceived the Court’s judicial review function and was inviting the Court to engage in an impermissible merits review. This was contrary to the decision in Wu Shan Liang cited above.
Whilst the Minister accepted that the provision of financial statements and information was necessary and relevant to the consideration of the criteria identified in cl 500.214 of Sch 2 of the Regulations, it was open to the Tribunal to find on the evidence that the applicant had no strong incentive to return home. It was further submitted that there was nothing unreasonable, irrational or illogical about that finding.
It was submitted that the Tribunal did consider the fact that the applicant’s wife and child remained in Pakistan but it did not accept this was a significant incentive for him to return home given the duration of time the applicant had already spent in Australia, the proposed period of his future stay in Australia and his unwillingness to engage in any study to completion since at least October 2015. That finding was rational and open to the Tribunal to make on the material before it.
In relation to ground two of the application the Minister submitted that there was no error in the finding by the Tribunal that the applicant had not advanced any substantial or serious reasons for now enrolling in the Diploma and Advanced Diploma level courses and that the applicant did not have any reasonable basis for not undertaking that study in his home country. The Minister reiterated that the onus was upon the applicant to produce such evidence to the Tribunal in order to satisfy the criteria under cl 500.212. The Minister relied on the statement of principle of the High Court in Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] that before the Tribunal, the applicant bears the onus of advancing the evidence and argument to support the applicant’s contentions.
Grounds 3 and 4 were submitted to be factual statements that did not identify any legal or other error.
It was submitted that ground 5 of the application was considered by the Tribunal at paragraph [33] of the Decision, however it was the absence of any offer of employment on completion of the applicant’s studies that was a telling against the applicant and so too the absence of evidence of a clear business plan or research of business opportunities in the applicant’s home country.
Finally, it was submitted, in relation to ground 6 that it was open to the Tribunal on the evidence before it to find that the applicant had not completed any further courses of study since October 2015. Further, that the applicant had worked almost continuously as a baker and taxi driver since January 2014 and that the certificate of enrolments at CB 134 was an undisputed record of the applicant’s lack of progress as an enrolled student since October 2015. This entitled the Tribunal to reasonably conclude that the applicant did not genuinely intend to stay in Australia temporarily at the time of seeking the Visa.
In reply, the applicant reiterated that he had completed all course in which he had enrolled prior to applying for the Visa and submitted that he remains a genuine and diligent student.
CONSIDERATION
The role of the Court is to determine if the Tribunal has fallen into jurisdictional error. The Court is not permitted to undertake a review of the merits of the Decision.
The Court has also scrutinised the application, the materials before the Tribunal contained in the Court Book and the Decision to identify jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], and [100], [112] and [113]. The applicant was asked if there were any further documents or things that should have been placed before the Tribunal that were not and whether there was any other aspect of the hearing before the Tribunal that he considered unfair. He did not wish to rely on any further documents or submissions.
The issue to be determined by the Tribunal when considering afresh the application for the Visa was whether the applicant satisfied the criteria in cl 500.212(a) of Schedule 2 of the Regulations. In doing so the Tribunal was required to have regard to Direction No. 69 and any other relevant information provided by the applicant or otherwise available to the decision maker. This is what was done by the Tribunal, and it did so in a logical and legally reasonable way.
The Decision shows that the Tribunal considered each relevant part of cl 500.212(a) and Direction No. 69. The Tribunal considered all the known circumstances presented to it by the applicant and drew available inferences from that information. That information included financial information (which the applicant admitted was not his own but in fact related to his brother and farther), his immigration history, his enrolment history, his personal circumstances and the absence of any clear employment or business plan upon return to Pakistan.
The grounds of review identified by the applicant in the application were no more than statements of fact. None of which identify any jurisdictional error by the Tribunal.
Ground 1 is not disputed by the Minister but simply states that financial information was provided to the Tribunal. This information was considered by the Tribunal at paragraph [23] of the Decision where the Tribunal concluded that the economic circumstances of the applicant present as a significant incentive not to return to his home country. The Tribunal made a similar finding at paragraph [28] of the Decision.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCFCA 3 at [34]; Chief Justice Allsop said:
“The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.”
The conclusions reached by the Tribunal in relation to the applicant’s financial circumstances were reasonable and logical and there was a logical connection between the evidence before the Tribunal and the inferences and conclusions drawn from that evidence: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[135]. No error arises in relation to ground 1.
In Ground 2 the applicant repeats the undisputed fact that his wife and child reside in Pakistan. This too was considered by the Tribunal at paragraph [22] of the Decision when considering the criteria in clauses 9 and 10 of Direction No. 69. The Tribunal concluded that it was not satisfied that these ties represent a significant incentive for the applicant to return home. The Tribunal went on to consider the financial information provided as part of the applicant’s circumstances in his home country.
In Singh v Minster for Home Affairs [2019] FCAFC 3 at [37] Reeves, O’Callaghan and Thawley JJ said:
“In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
The Tribunal did engage with the fact that the applicant’s wife and child reside in Pakistan and gave that fact proper and genuine consideration. There was no jurisdictional error in relation to the consideration of ground 2.
Grounds 3, 4, 5 and 6 of the application were also facts that were considered by the Tribunal in the Decision. Grounds 3 and 4 were considered at paragraphs [12] and [18] of the Decision, ground 5 at paragraphs [32] and [33] and ground 6, the applicant’s academic history, at paragraphs [13],[18], [28] and [30]. All were relevant considerations to the criteria in Direction No. 69. All of the findings made by the Tribunal in relation to those facts were open and reasonably available to the decision maker.
CONCLUSION AND ORDERS
There is no jurisdictional error identified by the applicant and no error identifiable from the reasoning in the Decision. The application must be dismissed.
At the conclusion of the hearing the parties made submissions on costs. The solicitor for the Minister sought the Minister’s legal costs of the proceeding in the sum of $6,000.00 which is less than the applicable scale and reasonable.
I therefore order that the application filed 28 February 2019 is dismissed and that the applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate: KH
Dated: 25 September 2024
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