Zoheb v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 252
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zoheb v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 252
File number(s): MLG 1441 of 2022 Judgment of: JUDGE LAING Date of judgment: 5 April 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – genuine temporary entrant criterion – whether the Tribunal’s findings were relevantly open – whether the Tribunal assessed the applicant “above the applicable jurisdictional scope” –whether the Tribunal’s approach to Direction No. 69 resulted in relevant error – application dismissed. Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 31 March 2023 Place: Sydney Solicitor for the Applicant The applicant appeared in person Solicitor for the First Respondent Ms S. Wright, Mills Oakley (appeared by video-link) Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
MLG 1441 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHMED ZOHEB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
5 APRIL 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
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a citizen of India. On 20 December 2019, he applied for the student visa that was the subject of the decision under review.
The Delegate refused the applicant’s visa application on 13 March 2020. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 3 April 2020, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 9 February 2022.
On 20 May 2022, 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). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their 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”.
TRIBUNAL’S DECISION
At [1]-[31] of its decision, the Tribunal summarised the background to the matter as well as the material that was before it. This included evidence that the applicant had given regarding his circumstances in his home country and in Australia, his immigration, study and travel history, the value of the proposed course to his future, as well as his intentions towards remaining in Australia.
The Tribunal set out the relevant criterion in issue and the effect of Direction No. 69 at [32]-[34]. At [35], the Tribunal concluded that the applicant did not intend genuinely to stay in Australia temporarily. This was for the following reasons:
35. The Tribunal has considered the evidence provided by the applicant at hearing, together with written statements and submissions from the applicant and finds that the applicant does not intend genuinely to stay in Australia temporarily for the following reasons:
a. The applicant provided evidence that he entered Australia on 29 July 2008 on a dependent visa and has not returned to his home country for two and one-half years and overall has only returned to his home country in 2013 for 60 days; April 2015 for 60 days; August 2017 for 90 days; 2018 for 60 days and in September 2019. This indicates to the Tribunal that the applicant has stronger ties to Australia (based upon the applicant’s evidence at hearing) than that of his home country, despite evidence that he owns property in India and that his wife left Australia in 2012 and that he has children resident in India. Further, the applicant stated in evidence that he seeks to stay in Australia permanently and is seeking any visa to accommodate that objective. The Tribunal finds that this is not the expected behaviour of a genuine temporary entrant for entry and stay as a student;
b. The Tribunal considers that the applicant has made inadequate academic progress in his studies in the almost 14 years of residency with having irregularly participated in studies whilst holding a confirmation of enrolment since 2014 and has not participated in studies since discontinuing enrolment at the Oceania Polytechnic Institute of Education in a Certificate IV in Building and Construction (Building) course scheduled from 09/2020 to 09/2021, which he confirmed at hearing he never started;
c. The applicant has been resident in Australia since July 2008 and has had a significant period of almost 14 years on various visas to complete studies in the VET sector. As such, the Tribunal finds that the applicant is using the Student visa stream to maintain lifestyle and residency and to gain access to employment, where he has maintained work access without undertaking studies. The Tribunal finds that this is not in keeping with the Temporary Student Visa stream requirements and demonstrates that the applicant is not a genuine temporary entrant for entry and stay as a student;
d. The applicant’s response to the Tribunal at hearing, including whether he would not have any difficulty in assimilating back into Indian society and his response: “After the best years I have to start my life from scratch. I want my children to get a standard of life here” and whether there was any reason that would preclude the applicant from returning to India with a response: “Not about the reason, it is about 15 years put into this country” clearly demonstrated to the Tribunal that the applicant is not a genuine temporary entrant and seeks to remain in Australia permanently. In this regard, the applicant stated, when asked if it was his motivation to remain in Australia permanently, responded: “Yes, one hundred percent”.
At [36]-[38], the Tribunal stated:
36.The Tribunal has considered the applicant’s circumstances in relation to Direction 69 and is satisfied that on the weight of evidence that there is no apparent reason that would preclude the applicant from returning to his home country based upon military service obligations, political stability or any other factor.
37.Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including immigration and study history, circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
38.It is the finding of the Tribunal that the applicant is using the student visa stream to secure lifestyle and residency in Australia.
Based upon the above, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant was unable to meet cl 500.212 and affirmed the Delegate’s decision (at [39]-[42]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 24 June 2022. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1. The tribunal made an error of law by assuming that I have stronger ties to Australia
At Paragraph 35 (a) of the decision record, the Tribunal decision to assume that I have strong ties to Australia is an error of law.
Despite the fact that the Tribunal has considered that my whole family is in Australia (at Paragraph of 25 of the Tribunal decision record) and all my assets are only in India (at Paragraph of 24 of the Tribunal decision record), the Tribunal has assumed that I have stronger ties to Australia which is a contrary to the facts on the record.
I am a student in Australia and working as a part timer does not make me have any ties to Australia. As temporary entrant, I am not allowed to own any assets in Australia, and I do not have any extend family in Australia. The tribunal made an error by assuming that I have strong ties to Australia.
2. The Tribunal was assessing me above the applicable jurisdictional scope of the matter
At paragraph 35 (b) of the Tribunal decision record, the Tribunal was considering me that I had a poor academic progress in Australia. It is a very surprising finding of the Tribunal, when there is no report of any poor academic progress from any of my previous education providers or no report of non-compliance in the immigration records. The Tribunal was assuming it falsely that my previous overstay of student visa for few days is a non-compliance (at paragraph 3 of its decision record). In fact, schedule 3 of the Migration Regulations 1994 allows any student is eligible to apply further student visa in Australia within 28 days of their student visa expiry which means I have never breached any visa condition and I always maintained good academic progress in Australia. So far, I have achieved four qualifications ranging from trade certificate to Diploma level courses in a span of eight years and never had any complaints from my education providers for poor academic performance.
3. The Tribunal's review procedure is lacking a holistic approach
The Tribunal wants to reward the liars and punish the honest truth telling applicant. The tribunal made an error of law (at paragraph 35 (d) of its decision record) by mentioning that my motivation to remain in Australia is against the genuine temporary entrant criteria (cl.500.212 of the Migration Regulations 1994). As a fact of matter, when Tribunal asked me if l would like to further stay in Australia, I was answering saying that I chose legitimate pathways (at paragraphs 27 -31 of the Tribunal decision record) to stay in Australia to have a quality of life for me and my family if they are available to us. Australia is known for its world class skilled migration program, and it offers 05 points for studying in Australia which means legitimately, I can choose a study path to apply for skilled migration in Australia. By overstepping its jurisdictional scope on this matter, the Tribunal is considering me that I am seeking a life style and maintaining quasiresidence in Australia which is an utter mistake in Tribunal decisional procedure.
Ground 1
Ground 1 contended that Tribunal “made an error of law by assuming that” the applicant had “stronger ties to Australia”. The ground disputed this finding, by reference to the applicant’s ties in India and Australia.
The Tribunal considered the evidence before it regarding the applicant’s ties to both India and Australia. This included the applicant’s evidence regarding his assets and family in India: [24]-[31] and [35](a). However, the Tribunal considered that the applicant had stronger ties to Australia. This was on the basis of evidence regarding:
(a)the amount of time that the applicant had spent outside of his home country and in Australia;
(b)his limited academic progress; and, significantly,
(c)the applicant’s evidence that he “one hundred percent” intended to remain in Australia permanently.
This evidence that was relied upon by the Tribunal was logically capable of supporting the Tribunal’s findings regarding the relative strength of the applicant’s ties to Australia. It has not been demonstrated that those findings were relevantly closed to the Tribunal. Rather, the applicant appears by this ground to seek for this Court to overturn the Tribunal’s decision on the basis of disagreement. This Court has no power to overturn the Tribunal’s decision on this basis.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal assessed the applicant “above the applicable jurisdictional scope of the matter”. In this regard, the applicant took issue with the Tribunal’s reasoning at [35(b)] regarding the applicant’s “inadequate academic progress”. The applicant contended that the material before the Tribunal did not support such a finding, as there were no reports of poor academic progress from any of his education providers.
At [35(b)], the Tribunal considered that the applicant had made “inadequate academic progress in his studies in… almost 14 years of residency”. This was on the basis that the applicant had “irregularly participated in studies whilst holding a confirmation of enrolment since 2014” and had not participated in any study since discontinuing his enrolment in a Certificate IV in Building and Construction (Building) course that had been scheduled from September 2020 to September 2021. The Tribunal observed that the applicant had “confirmed at hearing he never started” the latter course.
I accept the Minister’s submission that the Tribunal’s findings at [35] regarding the applicant’s limited and irregular study over a lengthy period of residence in Australia provided an available basis upon which the Tribunal was able to conclude that the applicant had not demonstrated sufficient academic progress to support his contention that he was a genuine temporary entrant. In coming to this conclusion, the Tribunal was aware of the applicant’s previous study and qualifications, which were referred to at [13] of its decision. The applicant has not demonstrated how the Tribunal’s reasoning at [35(b)] could be said to have been relevantly closed to the Tribunal. The Tribunal was not required to hold reports from education providers complaining of poor academic progress in order to reason in the manner that it did.
Ground 2 additionally took issue with the Tribunal “falsely” assuming at [3] that the applicant’s previous overstay of his student visa for a few days was a “non-compliance” when he was able to apply for another student visa within 28 days.
However, as was submitted by the Minister, [3] of the Tribunal’s decision did not purport to make any findings but instead summarised the basis of the Delegate’s decision. From [37] of the Tribunal’s decision, it appears that the Tribunal did not make any adverse finding in this regard in relation to the applicant’s immigration history. There is also no indication in the reasons given by the Tribunal at [35] that the applicant’s overstay of his previous visa had any material bearing upon the Tribunal’s decision. That is not to say that it would have been closed to the Tribunal to have taken this into account in a manner adverse to the applicant. However, that is not how the Tribunal reasoned. This aspect of ground 2 therefore appears to have been premised on a misunderstanding of the Tribunal’s decision.
For these reasons, I am not persuaded that ground 2 is able to succeed.
Ground 3
Ground 3 contended that the Tribunal’s review procedure was “lacking a holistic approach”. It suggested that the Tribunal erred in holding against the applicant at [35(d)] his desire to stay in Australia when he intended to do so choosing legitimate pathways. This was said to reflect a mistaken desire to “reward the liars and punish the honest truth telling applicant”.
However, it was open to the Tribunal to take into account the applicant’s evidence that his motivation was “one hundred percent” to remain in Australia permanently. There is no transcript in evidence challenging the Tribunal’s understanding of the evidence that was given. A settled intention to seek other than temporary residence (whether through subsequent legitimate pathways or otherwise) at the time of the Tribunal’s decision is a matter capable of being regarded as inconsistent with an intention “genuinely to stay in Australia temporarily”: see Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528 at [37]-[42]. The Tribunal went on to consider the applicant’s evidence in this regard, together with the other material that was before it, in assessing whether the applicant genuinely intended to stay in Australia temporarily. I am unable to see any legally relevant error in the approach that was taken by the Tribunal.
It follows that ground 3 is unable to succeed.
Further matters raised by the applicant regarding the Tribunal’s decision
In an affidavit filed with the application, the applicant suggested that the Tribunal applied Direction 69 “as an objective test and caused an error of law”. However, the applicant did not explain how the Tribunal’s approach to Direction 69 could be said to have resulted in relevant error in this manner. As the Minister submitted, the Tribunal was not obliged to “formulaically address” the matters in Direction 69: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [106]. The Tribunal’s decision reflected a correct understanding that Direction 69 was not to be used “as a checklist”: [34]. The applicant has not demonstrated how the Tribunal’s approach to Direction 69 could be said to have resulted in relevant error. At hearing, the applicant suggested that he was a genuine student because he had been engaging in studies in Australia. However, the genuine temporary entrant criterion required that the Tribunal also be satisfied that the applicant genuinely intended to stay in Australia temporarily.
The balance of the matters raised in the applicant’s affidavit and at hearing sought to persuade the Court that the applicant met cl 500.212. However, as I explained at the hearing, this Court has no power to substitute its own decision as to whether the applicant meets this criterion for the decision of the Tribunal. The role of this Court is limited to determining whether a material, legally recognisable error is apparent in either the procedure or the decision of the Tribunal. I have not identified such an error in the present case.
Other matters
The initial hearing of this matter was adjourned after the applicant expressed surprise at the commencement that his migration agent, whom he identified, had not attended to assist him after drafting his application and accepting the sum of $1,400 to provide him with assistance in relation to the proceedings. As the applicant indicated that he had documents to support these allegations and appeared unprepared to proceed in the absence of his agent, I adjourned the matter. I also made orders (a) allowing the applicant to file and serve evidence in support of his allegations; and (b) requiring that the migration agent be given notice of the allegations.
No further evidence or submissions were ultimately filed by the applicant. At the resumed hearing, the applicant expressed that he had misunderstood the situation. I therefore did not understand the applicant to press his allegations against the migration agent.
CONCLUSION
For the above reasons, no legally relevant error has been demonstrated by the applicant in relation to the Tribunal’s decision. Nor has any such error been identified upon my own review of the materials. The application before the Court must therefore be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 5 April 2023
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