Nasir v Minister for Home Affairs

1. The appeal is dismissed.
2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH J: 1 Before the Court is in an appeal from orders made by the Federal Circuit Court on 22 March 2018. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 19 April 2016. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs, not to grant the first appellant a Student (Temporary)(Class TU) visa. 2 The issue which arises in the appeal is whether the first appellant, who is the husband of the second appellant, met the requirements of cl 572.223(1)(a) of the Migration Regulations1994 (Cth) (the Regulations), which 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 relevant matter; 3 The first appellant came to Australia from Pakistan in 2010. At the time of the hearing before the Tribunal, he had enrolled in 14 courses of study. The Tribunal explained the situation from the records before it as follows: • He had been in Australia for almost six years, during which time he had been enrolled (or had CoEs) in fourteen courses of study. • He had withdrawn from a number of these enrolments without beginning his studies. • In some enrolments he had withdrawn without completing the full course. • In others he had completed the course but had not achieved the award because he had not passed his exams. • There had been gaps between his enrolments: August- October 2012, January-June 2013 and from April 2014 to the present. • He had passed only one course in six years. 4 The one course which the first appellant completed and passed was a Diploma of Business which he gained in August 2012. He commenced that course in January 2012. The Tribunal examined the reasons the first appellant gave for failing to advance his academic career. The first appellant said that he was anxious and depressed over his father suffering a heart attack in March 2011. The Tribunal did not accept that this explained the first appellant's failure to advance his academic career. 5 The explanation did not explain why he failed to complete any courses prior to September 2011 when he left Australia to visit his father. It did not explain why he completed and passed the one course starting in January 2012. Further, the limited medical evidence did not establish any psychiatric or psychological issues which explained the lack of progress. 6 The Tribunal did not accept the explanations for the first appellant's failure to enrol in any courses between May 2013 and March 2016. The first appellant said that this was because his visa status preventing him enrolling in any course of study. That was not factually correct, and he subsequently did enrol in some further courses. Then the first appellant said he did not enrol in further courses because he had begun proceedings to overturn the refusal of the visa. The records demonstrated that this was factually wrong. He enrolled in a number of course in 2014 and 2015 after the refusal decision was made in 2013. 7 The Tribunal considered some further factors and concluded: 31. I accept that the applicant has obtained an offer of enrolment in two courses of study, at Austech Business Institute, his first enrolments since April 2014. In the circumstances I consider that he has taken this action 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, in a course of study of the required kind. In these circumstances I am not satisfied the enrolment it is indicative of any genuine intention to take up and complete studies in the courses selected. 32. I note the applicant's claim that on completion of his studies in Australia he intends to return to Pakistan in order to help his father in his construction business. As put to him at the hearing, however, there is no clear link between this career goal and his studies in Australia. I find generally unconvincing his claim that he needed to follow a numerous and diverse series of courses in Australia for this purpose - even if these courses are in some way all related to business. This is particularly so if, as he claimed, he had already been employed as an assistant accountant in the business for a number of years after he completed his studies in Pakistan. 33. In making my decision I have considered all the evidence before me as to whether the applicant intends genuinely to stay in Australia temporarily, having regard to his circumstances, immigration history and any other relevant matter, as provided in cl.572.223 and Ministerial Direction No. 53. In considering his immigration history I accept that, besides his extended stay in Australia, there is nothing to indicate that he does not genuinely intend to stay in Australia temporarily. I similarly accept that he has relatively few ties in Australia - with the obvious exception that his wife is living here with him - and that his family and prospective employment are in Pakistan. I also accept his claim at the hearing that he does not face any particular problems in Pakistan which might incline him to wish to remain in Australia. I accept that he suffered some disruption to his studies caused by his father's illness in late 2011. However, the student visa for which he applied is granted for the purpose of achieving a reasonable level of academic progress. I am not satisfied that he has done so and I have concluded that his poor academic history is indicative of his having used the student visa program as a means of maintaining residence in Australia. 34. 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). 8 The appellants applied to the Federal Circuit Court for judicial review of the decision of the Tribunal. The grounds were not easy to follow. 9 First, the appellants argued that the Tribunal had applied cl 572.235 which required the appellants to show that the first appellant had substantially complied with the visa. It was contended that that clause had been repealed and the proper consideration was whether the first appellant was a genuine applicant for entry and stay as a student under cl 572.223. It was argued that the Tribunal failed to apply the correct clause of the Regulations. The Federal Circuit Court correctly rejected this argument based on the express terms of the Tribunal decision. 10 Then, the appellants argued that the Tribunal adopted illogical reasoning when it found that the first appellant had obtained two offers of enrolment only for the purpose of satisfying the requirement of the regulation. The Federal Circuit Court rejected this argument as follows: 32. 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. 33. 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. 11 Finally, the appellants argued that the Tribunal considered irrelevant matters and failed to consider matters required by the Ministerial Direction No. 53 to be considered. The Federal Circuit Court examined the reasoning of the Tribunal and concluded: 30. 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. 31. 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. 12 On 6 April 2018, the appellants filed a notice of appeal in this Court. The grounds were stated as follows: 1. That His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223(1 )(a) and clause 572.223(2)(b)(ii) Migration Regulations 1994 Particulars The Tribunal erred in not considering cl 572.223(a) [the provision should read cl 572.223(1)(a)] 2. His Honour erred in not referring and applying clause 573.223(2)(b)(ii) [the provision should read 572.223(2)(b)(ii) 3. The delegate misconstrued clause 572.223(1)(a) in finding that the appellant was not a genuine temporary entrant (GTE) 4. The Tribunal erred in not applying the facts when considering the cl 572.223 5. His Honour ... erred in not looking closely at the structure of [the] Tribunal's reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. 6. The appellant's application clearly raises an arguable case. 7. That [His] Honour ... erred in not holding that the Tribunal made jurisdictional error as it failed to consider section 359AA Migration Act 1958 Particulars The Tribunal misconstrued section 359AA of the Act The Tribunal failed to ensure that the applicant understands why the information is relevant to the review. 8. That [His] Honour ... erred in not holding that the Tribunal made jurisdictional error as it failed to accord to the Applicants procedural fairness and natural justice. 13 Each of those grounds will now be considered. As to grounds 1 and 2, the Tribunal applied cl 572.223(1)(a) of the Regulations. The contention that it did not do so is untenable. The reasons of the Tribunal clearly indicate that it applied that clause after having set out the terms of it. The contention that the Tribunal failed to apply cl 572.223(2)(b)(ii) is correct, however, there was no requirement in the circumstances of this case for the Tribunal to apply that clause because its application was dependent upon satisfaction under cl 572.223(1)(a). The Tribunal was not satisfied under that clause and hence no occasion arose for it to consider the latter provision. 14 As for ground 3, the complaint is that the delegate misconceived cl 572.223. This ground is untenable because this Court and the Federal Circuit Court have no jurisdiction to review the decision of the delegate. That is the function of the Tribunal. 15 As to ground 4, the complaint is that the Tribunal did not apply the facts. This ground is meaningless. The point which it seeks to make is not explained. It is clear from the decision of the Tribunal that it heard evidence from the first appellant concerning the factual circumstances. The Tribunal then analysed those facts in order to come to its conclusion. In truth, the ground at best might be seen as seeking merits review, a process which is not available in this Court. 16 As to ground 5, the complaint is that the Federal Circuit Court did not look at the structure of the Tribunal's reasons. The ground does not stipulate in what way the complaint arises. Without some explanation the ground is meaningless. The ground refers to a judgment of the court in Lafu v the Minister for Immigration and Citizenship (2009) FCAFC 140, which seems to have nothing to do with the ground proposed. That case concerned whether the Tribunal gave genuine consideration to the requirement of general deterrence in a visa cancellation case. 17 As to ground 6, the assertion is that the application raises an arguable case. Again no particulars are provided. Furthermore, the ground seems to relate to an interlocutory application, where the test is arguability, rather than to an appeal, where arguability alone is insufficient. 18 As to ground 7, the complaint is the Tribunal failed to consider s 359AA of the Migration Act 1958 (Cth) by failing to ensure that the appellants understood that the information sought from them was relevant to the review. The Tribunal addressed this matter at [22] and [23] of its decision. Those paragraphs demonstrate that the first appellant was asked for information, told the purpose for which it was sought, responded that he understood that purpose and then provided the information. That process was described by the Tribunal as follows: 22. Pursuant to s.359AA I put to the Applicant that the information from his PRISMS and movements records which I had discussed with him could indicate that he had had an unsatisfactory study history in Australia over almost six years and had achieved very little in academic terms. In some of his courses he had not studied at all while in others he had studied only part of the time. In others he had failed to make satisfactory progress. Together with the psychological problems he had mentioned arising over the death of his father, this information might indicate that he would not meet the criteria in 572.223 as a genuine entrant for temporary study in Australia. Asked if he understood the information he said he believed his PRISMS records were correct, although they were somewhat confusing as they did not mention the name of the college. Asked if he understood why the information was important for the decision in his case he said he did not. I explained again that it could lead to a conclusion that he did not meet the criteria in 572.223 for the grant of a student visa and that the decision to refuse the visa should be affirmed. Asked again if he understood why the information was important he said he did, adding that he had been studying courses in Australia and attending classes but could not pass the exams. This did not mean that he had not studied. I invited him to comment on the information or respond to it, explaining that he could do so immediately, at a resumed session of the hearing or later in writing. He said he needed further time and, in consultation with his representative, indicated that he wished to respond in writing. It was agreed that he could have two weeks for this purpose. 23. On 12 March 2016 the Tribunal received a submission from the representative covering a statutory declaration signed by the applicant on that date. He states, in summary, that: • His failure to achieve satisfactory attendance in his course in Advanced Diploma of Business at Zenith Business Academy, the main reason for the refusal of his visa, was due to his father's illness, which caused him anxiety and depression. He also suffered back pain as a result of his psychological problems. • He has not studied since May 2013, because he faces an uncertain future in Australia in the circumstances that his visa application was refused, he applied to the MRT for review, the MRT affirmed the decision, he appealed to the Federal Circuit Court and the matter was remitted to the AAT. He did not want to incur the cost and inconvenience of enrolling in a course and paying the fees when it was possible he would be made to return to Pakistan. Neither he nor his family are wealthy and they could not afford to waste the tuition fees in this way. • Regarding his enrolment in numerous courses since arriving in Australia, he enrolled in some of them '... without putting too much thought into my selections. I put this down to psychological condition and immaturity.' • He has now recovered from his depression and has a new outlook on life. His wife gives him the love and support he needs. His father's [sic] is much better. Notwithstanding the uncertainty that still looms over his future he has become more optimistic and has taken steps to plan ahead by enrolling in a course in Diploma of Leadership and Management. As he is fully recovered from his psychological disorders he believes he will be able to complete his studies satisfactorily. • On completion of his studies he intends to return to Pakistan to assist his father in his construction business, using the business knowledge and skills he has acquired through his studies here. • It is correct that he could have undertaken these studies in Pakistan but Australia has a much higher standard of education and by studying here he hopes to maximise his potential. 19 The appellants did not seek to tender the transcript of the proceedings before the Tribunal to show that the extracts from the Tribunal decision do not properly explain what occurred. There is no substance in ground 7. 20 As to ground 8, the complaint is that the Tribunal denied the appellants procedural fairness and natural justice, again without particulars. This allegation is not substantiated. The first appellant appeared on the hearing of the appeal. He said that a friend had provided him with the grounds but that he was not knowledgeable about legal matters and could not expand on any of the grounds. The first appellant, was asked to tell the Court what mistake the Federal Circuit Court made. He said that he was a genuine student and that he disagreed with the conclusion reached by the Tribunal to the contrary. That is a dispute about the merits of the case. It was explained to the first appellant that the Court is not able to rehear the merits of the case. The first appellant repeated that he was not able to address any of the legal issues. 21 The helpful submissions of the first respondent indicate that the grounds of appeal appear to have been taken from, in particular, three other cases, namely, Bishnoi v Minister for Immigration and Border Protection (2018) FCA 445, Bolla v Minister for Immigration and Border Protection (2018) FCA 455, and Grewal v Minister for Immigration and Border Protection (2018) FCA 1533. In those cases one or other of the grounds of appeal which are repeated in this case were considered and rejected for much the same reasons as have been explained earlier in these reasons for judgment. There seems merit in consideration perhaps by the first respondent's representatives to alerting the Court at an early stage of the appeal process when this form of notice of appeal arises so that the appellants responsible for the form of the notice of appeal might be subjected to an early summary process for disposing of the appeal where the grounds are hopeless on their face. It follows from these reasons, that the appeal is dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.