Nasir & Anor v Minister for Immigration & Anor [2018] FCCA 665

1. The applicants were represented before this Court by Ms Okereke-Fisher, of counsel.
2. By consent, the applicants were granted leave to file in Court and rely upon a further amended application identifying the following grounds:
   • 1. That the Migration Review Tribunal erred in its decision given in reasons on 19 April 2016, that the applicant was not a genuine student in that:
     • a. The Tribunal misdirected itself, failed to exercise its inquisitorial role and thereby fell into error in that it assessed the Applicant's case as if the primary question to be determined was whether the Applicant had complied substantially with his last held substantive visa, in compliance with clause 572.235 in circumstances where it had expressly stated that the question before the court was whether the application meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) states:
       • i. (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; ...
     • b. The Tribunal erred by taking into account irrelevant considerations in the exercise of its power and misdirecting itself. At [31] the Tribunal accepted that the Applicant has obtained an offer of enrolment in 2 courses of study (satisfying one of the requirements for a visa grant). However the Tribunal proceeded to suggest that the Applicant obtained the offer of enrolment only because it was pointed out to him at the hearing that he appeared not to meet the time of decision criterion of having a current enrolment and as such the Applicant's enrolment is not indicative of any genuine intention to take up and complete studies. The Applicant contends that the Tribunal misconstrued the requirement of the regulation and thereby fell into error. The Tribunal in its reasoning here has expressly stated that the only reason the Applicant enrolled in the course was in order to meet the requirement for visa grant. This implies that the Applicant is not a genuine student because he has taken the step to enrol in a course in order to satisfy the visa requirement. The Applicant argues that the Tribunal's logic is wrong - primarily because the question before the Tribunal is whether the Applicant is going to genuinely undertake study and not why he was going to study. The Tribunal's exercise of discretion was miscarried in this case in that it failed to pose the question as to whether the Applicant would genuinely undertake the courses enrolled for, rather it went on to speculate the reasons why the applicant enrolled in the course.
     • c. The Tribunal misdirected itself, made contradictory findings and arrived at a conclusion that is not supported by the Direction and thereby fell into error. The central issue before the Tribunal was whether or not the Tribunal was satisfied that the appellant was a genuine applicant for entry and stay as a student as set out in cl 572.223. That provision required the Tribunal to determine whether or not it was satisfied that the appellant "intends genuinely to stay in Australia temporarily", having regard to certain matters. Paragraph 1, Part 2 of the Direction required the Tribunal to "weigh up the applicant's circumstances as a whole in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion".
3. I found both the written submissions and oral submissions difficult to follow. I have dealt below with what I understood to be the applicants' complaints.

1. Ground 1(a) asserts that the Tribunal erred in misdirecting itself and failing to exercise its "inquisitorial role" in that it assessed the applicant case in relation to cl.572.235 of Schedule 2 to the Regulations, rather than cl.572.223 of Schedule 2 to the Regulations.
2. Relevantly, the now repealed cl.572.235 of Schedule 2 to the Regulations stated as follows:
   • "If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa." (Emphasis added)
3. Clause 572.223 (1)(a) of Schedule 2 to the Regulations relevantly states:
   • "(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 matter; and (b)..." (Emphasis added)
4. A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the issue before it was whether the applicant met the time of decision criterion in cl.572.223 of Schedule 2 to the Regulations.
5. The Tribunal makes clear in its decision record that at the time the applicants lodged their visa applications on 5 December 2012, the application was determined on the basis that the Applicant did not satisfy the requirements of cl.572.235 of Schedule 2 of the Regulations.
6. However, by the time the earlier constituted Tribunal handed down its decision on 7 April 2014, that Tribunal noted that cl.572.235 of Schedule 2 to the Regulations had been repealed by s.142(e) of the Migration Amendment (Redundant and other Provisions) Regulation 2014.
7. The Tribunal, the subject of this review, noted that the "complied substantially" criterion required by cl.572.235 of Schedule 2 to the Regulations was removed for all student visas on 22 March 2014 in respect of all visa applications not finally determined after 22 March 2014, as well as those made on or after that date.
8. The Tribunal noted that the earlier constituted Tribunal failed to provide the applicants with Provider Registration and International Students Management System (PRISMS) records, thereby committing jurisdictional error.
9. The Tribunal noted that the applicants were represented before it by their migration agent, who also attended the hearing on 2 March 2016.
10. The Tribunal referred to a submission received from the migration agent, dated 23 February 2016, suggesting that the earlier constituted Tribunal had relied wrongly on cl.572.235 of Schedule 2 to the Regulations (which, as stated above, had been repealed) and that the Tribunal had failed adequately to take into account the Applicant's study history in finding that he was not a genuine student.
11. On 12 March 2016, the Tribunal received a further submission from the applicants' migration agent which the Tribunal identified as again traversing the question of substantial compliance under cl.572.235 of Schedule 2 to the Regulations. The Tribunal stated that such consideration "has no present relevance to the applicant's case".
12. In the circumstances, there was no failure by the Tribunal as alleged in Ground 1(a) to do other than to assess the applicants' visa application in accordance with cl.572.223 of Schedule 2 to the Regulations.
13. In relation to the suggestion in Ground 1(a) that the Tribunal had any "inquisitorial role", there is no general obligation on a tribunal to investigate an applicant's claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
14. The duty imposed on a tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
15. It may be that, in certain circumstances, a tribunal may be obliged to make some further investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] per Heerey, Nicholson and Mansfield JJ; W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432; (2002) 125 FCR 407 at [74]- [78] per Nicholson J; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]- [21] per Jacobson J). However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
16. Accordingly Ground 1(a) does not disclose any jurisdictional error.

1. Ground 1(b) and Ground 1(c), as best I understood Ms Oreke-Fisher's submissions, are assertions of error by the Tribunal because it had regard to matters that were irrelevant; and, whether the Tribunal considered all matters it was required to consider having regard to Minister for Immigration and Border Protection (Cth), Ministerial Direction [No 53] - Assessing the genuine temporary entrant criterion for Student visa applications, 3 November 2011 ("Ministerial Direction No. 53"). For the reasons that follow, neither contention is made out.
2. Ministerial Direction No. 53 relevantly required the Tribunal to have regard to the applicant's circumstances, the applicant's immigration history and any other relevant matter. The Direction makes clear that decision makers should not use the factors specified as a checklist. Rather, the identified factors are intended to guide decision makers in weighing up an applicant's circumstances as a whole as to whether the decision maker is satisfied that an applicant is a genuine temporary entrant. The Applicant contends that the Tribunal failed to give consideration to his visa and travel history.
3. After having considered all evidence, material and submissions placed before it by the Applicant and his migration agent, the Tribunal concluded that the Applicant's poor academic history was indicative of his having used the student visa program as a means of maintaining residence in Australia. The Tribunal noted that it had regard to the applicant's circumstances, his immigration history, Ministerial Direction No. 53 and other relevant matters.
4. In considering factors referred to in Ministerial Direction No. 53 relating to the Applicant's immigration history, the Tribunal accepted that other than the Applicant's extended stay in Australia, there was nothing to indicate that the Applicant does not intend to genuinely stay in Australia temporarily. The Tribunal accepted that the Applicant has relatively few ties in Australia, except his wife, and that his family and prospective employment are in Pakistan. The Tribunal also accepted that the Applicant does not face any particular problems in Pakistan. The Tribunal also accepted that the Applicant suffered some disruption to his studies due to his father's illness in late 2011. However, the Tribunal was not satisfied that the Applicant suffered a period of psychiatric or psychological illness, with associated physical ailments of a severity which would adequately account for the Applicant's failure to achieve success in more than one course of study over six years.
5. The Tribunal also had regard to the Applicant's explanation that his unsatisfactory academic career was due to his psychological condition and immaturity, which caused him to enrol in courses without putting much thought into his selections. Again, the Tribunal rejected those explanations, noting that when the Applicant arrived in Australia he was not a child but an adult of 24 years of age who had completed studies in Pakistan and been employed for some five years.
6. The Tribunal noted that the Applicant had enrolled in a total of 12 courses of study across a range of disciplines including financial services, business, management and accounting. The Tribunal also noted that the Applicant had failed to engage in study of any kind from May 2013 up until March 2016.
7. The Tribunal accepted that the Applicant had obtained an offer of enrolment in two courses of study recently, being his first enrolment since April 2014. In those circumstances, the Tribunal found that the Applicant had enrolled in those courses only because it was pointed out to him at the hearing that he appeared not to meet the time of decision criterion of having a current enrolment or an offer of enrolment. Accordingly, the Tribunal was not satisfied that the enrolment was indicative of any genuine intention by the Applicant to take up and complete studies in the courses selected.
8. The Tribunal noted that in reaching its conclusion that the Applicant did not intend genuinely to stay in Australia temporarily, it had regard to all the evidence, the Applicant's circumstances, his immigration history, any other relevant matter and Ministerial Direction No. 53, as stated above.
9. As is clear from the Tribunal's reasons referred to above, the Tribunal did indeed have regard to all relevant factors identified in Ministerial Direction No. 53.
10. Further, all the findings made by the Tribunal were in respect of factors that it was entitled to consider in assessing whether the Applicant intended genuinely to stay in Australia temporarily, as required by cl.572.223.
11. The Applicant submitted that the Tribunal erred in finding that the Applicant's recent enrolment was not indicative of any genuine intention to take up and complete studies. However, that characterisation misunderstands the Tribunal's reasoning and findings.
12. The Tribunal noted that the Applicant had obtained an offer of enrolment in two courses of study recently. However, in not being satisfied that these enrolments were indicative of any genuine intention to take up and complete studies in the courses selected, the Tribunal also noted that those were the first enrolments by the Applicant since April 2014. The Tribunal noted those matters in the light of its findings that the Applicant had completed only a seven month course in August 2012; had otherwise enrolled in a total of twelve other courses, none of which he had completed; and, that the Applicant had failed to engage in study of any kind from May 2013 up until March 2016.
13. The Tribunal had regard to the explanations offered by the Applicant, however, did not accept those explanations. The Tribunal was not obliged to accept the Applicant's explanations. The Tribunal noted that it had been pointed out to the Applicant at the hearing that he appeared not to meet the time of decision criterion to have a current enrolment or an offer of enrolment.
14. In those circumstances, it was open to the Tribunal to find, as it did, that it was "not satisfied the enrolment is indicative of any genuine intention to take up and complete studies in the courses selected."
15. A fair reading of the Tribunal's reasons make clear that it carefully weighed all the factors relevant to its decision, some it weighed in favour of the applicant and some it did not. The Tribunal also had regard to a written submission provided by the applicants' migration agent in relation to matters that the Tribunal should consider in weighing up whether the Applicant is a genuine student.
16. However ultimately, the Tribunal concluded as follows:
    • "On the basis of the above, and having weighed up the applicant's circumstances as a whole, including his academic history and other matters I consider relevant, consistent with the Ministerial Direction, I am not satisfied that he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a)."
17. That conclusion was open to the Tribunal based on the findings it had made and to which it applied the correct law.
18. A fair reading of the Tribunal's decision as a whole makes clear that the Tribunal did "weigh up the applicant's circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion."
19. The Tribunal's findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility finding that the Applicant was not a genuine student. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was "open to [the tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility." (see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
20. Accordingly Grounds 1(b) and (c) do not disclose any jurisdictional error on the part of the Tribunal.
21. In the circumstances, there was no error in the Tribunal confirming the decision under review not to grant the applicants' Student (Temporary) (Class TU) visas.

1. A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant and his migration agent at a hearing; and had regard to all material provided in support, including all written submissions provided prior to the hearing. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant's responses and explanations.
2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
4. The Tribunal's decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Emmett