FEDERAL COURT OF AUSTRALIA

Abbasi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 568

MIGRATION – application for student visa – whether applicant a genuine applicant for entry and stay as a student – whether the Migration Review Tribunal erred by making finding that it was not satisfied that the applicant had not breached a condition of his previous visa.

Migration Act 1958 (Cth) ss 65, 474

Migration Regulations 1994 (Cth), Sch No 2 Pt 560, cl 560.224(1)

Migration Amendment Regulations 2001 (No 5) (Cth), Schedule 1, Item 97

Judiciary Act 1903 (Cth), s 39B(1)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299, cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, cited.

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, cited.

Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 177 ALR 473, cited.

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311, cited.

ABBASI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 19 of 2002

SACKVILLE J

SYDNEY

7 MAY 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the proceedings

1                     This is an application to review a decision of the Migration Review Tribunal (“MRT”) made on 12 December 2001.  The MRT affirmed a decision of a delegate of the respondent (“the Minister”), made on 29 May 2000, to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2                     The applicant is a Pakistani national, born on 1 April 1972.  He first entered Australia on a student visa in August 1996.  He thereafter received a series of student visas, the last of which expired on 31 August 1999.  On that date he applied for the visa the subject of the MRT’s decision.

3                     At the time the applicant lodged his visa application, Class TU contained a number of sub-classes.  The only sub-class relevant to his application was sub-class 560 – Student, the criteria for which were specified in Part 560 of Schedule 2 to the Migration Regulations 1999 (Cth).  Part 560 was repealed with effect from 1 July 2001: Migration Amendment Regulations 2001 (No 5), Schedule 1, Item 97.  However, Part 560 continues to apply to applications made but not finally determined before that date: Migration Amendment Regulations 2001 (Cth), reg 4.

4                     The MRT held a hearing at which the applicant was represented by a solicitor.  The MRT found that the applicant satisfied all criteria for the grant of the visa other than that specified in cl 560.224(1).  That provision, which had to be satisfied at the time of the decision, was as follows:

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

(a)               to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and

(b)               subject to subclauses (2) and (3), to the applicant’s comprehension of English for the purposes of the course; and

(c)               to whether the applicant intends to comply with any conditions subject to which the visa is granted; and

(d)               to any other relevant matter.”

The MRT found that the applicant was not a genuine applicant for entry and stay as a student and thus failed to meet one of the prescribed criteria governing the grant of the Student visa.

5                     The applicant was unrepresented in this Court.  His application for review of the MRT’s decision, although not expressly referring to s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) appears to invoke the jurisdiction conferred on the Court by that provision.  The application states that the applicant is aggrieved by the decision because:

“1.       The applicant has been refused to grant of a student visa, Class-TU, Sub Class-560 to study here in Australia.

 2.        The applicant was not considered as a genuine student under sub class-560 of the Migration Regulation 1994.

 3.        The Tribunal failed to consider relevant factors and there is no evidence to suggest that the visa applicant is not a genuine student under sub class-560.

 4.        The Tribunal did not consider any evidence in relation to the applicant’s claim and made an imaginary or hypothetical suspects regarding applicant’s financial capability or financial source which made her mind not to be a genuine student.”

The grounds of the application are said to be these:

“1.       The Migration Review Tribunal on his decision on the 12 December 2001 failed to exercise his power to grant student visa sub class 560 of the Migration Regulation 194.

 2.        The Tribunal member did not consider applicant’s claim as a genuine student, therefore is reviewable under Section 474(2) of the Migration Act 1958.

 3.        Migration Review Tribunal’s decision was contradictory, hypothetical, self-motivated and therefore decision must be quashed and review be allowed under section 474(2)(3) of the Migration Act 1958.”

background

6                     Before arriving in Australia, the applicant obtained a Bachelor of Commerce from the University of Punjab in 1994.  On 30 July 1996, he applied for, and was granted, a Student (subclass 560) visa to study for an Associate Diploma of Business (Accounting) at the Holmesglen Institute of Technical and Further Education (TAFE).  He entered Australia on 25 August 1996 and completed the TAFE course in mid-1997. He received a further student visa to enable him to study for a Graduate Diploma of Business (Accounting and Finance) at the Victorian University of Technology (VUT).

7                     On 12 May 1998, the applicant was granted third student visa in order for him to study for a Masters of Business in Accounting at VUT.  This visa expired on 15 March 1999 and for a brief period the applicant was an unlawful citizen.  However, on 30 March 1999 he was granted a bridging visa pending the determination of a fourth application for a student visa.  The applicant was ultimately granted a fourth student visa to allow him to complete his Masters course at VUT.  This visa was valid to 30 August 1999.  On that date, the applicant applied for a fifth student visa.  It is the application for that visa that is the subject of the MRT’s decision.

8                     From 30 August 1999, the applicant’s status in Australia was regularised by the grant to him of a bridging visa pending the final determination of his application for the fifth student visa.  He completed the requirements for the Masters of Business in Accounting at VUT on 5 October 1999 and graduated on 31 March 2000.  In the meantime, on 6 September 1999, he commenced a Diploma of Information Technology at Uniworld Business College (“Uniworld”). He completed the requirements for that course, which had a tuition fee of $1,650, on 6 September 2001.  At the time of the MRT hearing, the applicant had enrolled for the degree of Masters in Electronic Commerce at the University of Central Queensland (Sydney Campus) (“UCQ”).  The course was to commence on 9 November 2001 and the applicant’s then enrolment was current until 31 December 2001.

9                     The applicant gave evidence that the Masters in Electronic Commerce course was normally a two year program, but that he proposed to complete it in one, although this proposal was dependent on receiving credit for a number of subjects on the basis of his previous studies.  The MRT found that the total course fee for the Masters course at UCQ was $21,000, on the basis that the course would last for two years.

the privative clause

10                  The MRT’s decision is a “privative clause decision” within the meaning of s 474(2) of the Migration Act 1958 (Cth) (“Migration Act”).  Section 474(1) of the Migration Act provides as follows:

“(1)     A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

Section 474 is located within Part 8 of the Migration Act and was inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), effective from 2 October 2001.

the mrt’s reasons

11                  The MRT first noted that the applicant’s comprehension of English (cl 560.224(1)(b)) was not in dispute. 

12                  Before addressing the other elements of cl 560.224, the MRT considered it useful to set out the likely period and conditions of the visa if granted.  Since the course at UCQ was ordinarily for a two year period, the visa period could extend until December 2003.  The applicable visa conditions would include condition 8105 (“no more than 20 hours work per week while institution in session”) and condition 8202 (“meet course requirements”): see cl 560.611.

13                  The MRT observed that so far as the applicant’s financial ability to undertake the course was concerned (cl 560.224(1)(a)), the Procedures Advice Manual 3 (“PAM3”) stated that the factors to consider included the student’s capacity to cover return fares and tuition fees and expenses and his or her prospects of obtaining part-time work.  PAM3 also stated that it was unlikely that income from permissible part-time work would cover a student’s expenses.

14                  The MRT next referred to the approach to cl 560.224(1) adopted by Gray J in Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299, where his Honour said this (at [17]):

“…that subclause contains a single criterion, the genuineness of the visa applicant for entry and stay as a student.  The matters referred to in its four paragraphs are matters to which a decision-maker is required to have regard, using a balancing process, in reaching a conclusion on that single criterion.  With the exception of comprehension of English in circumstances where a test has been required and not undertaken or failed, none of the matters in those paragraphs can be fatal to a visa applicant’s case without a consideration of the other factors.”

15                  The MRT then addressed the question of financial viability.  It found that the applicant earned $240 for two days work per week at a college.  The RRT accepted that the applicant had a positive bank balance of about $6,500 on 25 October 2001.  In the absence of documentary evidence (which the MRT had requested), it rejected the applicant’s statement that he had $4,000 in a term deposit.

16                  The MRT was not satisfied that the applicant had the financial ability to undertake his proposed course without breaching condition 8105 (limiting work to 20 hours per week).  It reached that conclusion for the following reasons:

• The applicant’s cash resources, together with his income from part-time work, were sufficient to meet the first instalment of fees and other costs for perhaps three to four months only.
• Although the applicant stated that he was reliant on funds from family or other persons there was no evidence of deposits from any such source between July 2000 and October 2001.
• Since the applicant had failed to provide detailed bank statements as requested by the MRT and had produced statements for “unusual periods” (that is, for brief periods when the account was active), the MRT was not satisfied that any portion of the $6,500 had been genuinely provided by other persons.  This conclusion was based in part on what appeared to be recycling of funds through an otherwise inactive account.
• There was no evidence that the applicant had received significant funds from his family or financial guarantors during the twelve months prior to October 2001.  Nor was there evidence of the financial circumstances of the persons said by the applicant to be his guarantors.  Accordingly, the MRT was not satisfied that they had the funds to support the applicant’s proposed study program.
• The MRT considered that the applicant had obtained funds from a source not disclosed to it.

17                  The MRT stated that in these circumstances it could not be

“satisfied that the visa applicant has not been working in excess of the hours permitted by 8105, or that he would not do so when undertaking the proposed Masters degree.  In making this finding, the Tribunal has considered the visa applicant’s claim that he may receive exemption for some subjects in the proposed Masters’ course and that he may complete the degree in one year instead of two, thereby significantly reducing his fees.  As no evidence has been supplied by the education provider to confirm this claim the Tribunal does not accept it.”

It followed that the MRT could not be satisfied that the applicant could undertake his course without breaching condition 8105.  It therefore could not be satisfied that the applicant intended to comply with the conditions to which the visa would be subject (cl 560.224(1)(c)).

18                  The MRT then turned to “any other relevant matter” (cl 560.224(1)(d)).  It found that no negative weight should be attached to

• interim advice from Uniworld that the applicant had an attendance rate of only 75 per cent (since he had achieved an 86 per cent attendance rate over the whole course);
• the length of the applicant’s studies in Australia;
• his decision to pursue a comparatively low level course at Uniworld (since the issue was not whether he was a genuine student then but whether he was a genuine student at the date of the MRT’s decision); or
• the nature of the proposed course (since it could be useful to the applicant’s future career).

19                  The MRT concluded as follows:

“Weighing all the factors of clause 560.244, to which it is required to have regard… the Tribunal finds that although there are, at the time of decision, some positive aspects which are consistent with the visa applicant being a genuine student, these are outweighed by the fact that the Tribunal is not satisfied that the visa applicant is able to fund his course and living costs without breaching visa condition 8105.

The Tribunal therefore finds that the visa applicant is not a genuine applicant for entry and stay as a student and does not meet clause 560.224.  As this is one of the prescribed criteria for the visa for which he has applied, this application must fail.”

reasoning

20                  The applicant did not file any written submissions in support of his appeal.  His oral submissions did not elaborate on any of the grounds of review.  His complaints essentially related to whether the MRT was justified in finding, as it did, that it was not satisfied that the applicant had not been working in excess of the hours permitted by condition 8105 and that he would not do so in the future.  The complaints raise only factual questions and fall short of establishing any jurisdictional error which, independently of s 474(1) of the Migration Act, might attract relief pursuant to s 39B(1) of the Judiciary Act.

21                  To the extent that the applicant intended to suggest that there was no evidence to support the MRT’s findings, that contention cannot be upheld.  The MRT had evidence of the fees and living expenses that had been incurred by the applicant and of the funds available to him.  That material provided a basis for the MRT’s findings.  The MRT was also entitled to take into account the applicant’s failure, in the face of specific requests from the MRT, to produce documentary evidence within his control that could have supported his claims.

22                  The applicant sought a further opportunity to advance documentation that was said to support his case.  He did not, however, produce any such documentation to the Court, other than a document in Bengali that appeared to have no relevance.  So far as I was able to gather, the applicant simply wanted the opportunity to reargue his case by relying on documents that were not in existence at the time of the MRT’s decision.  The fact that the applicant wishes now to supplement the case he put to the MRT cannot establish jurisdictional error on the part of the MRT.

23                  The applicant did not advert to any question of construction arising from cl 560.224(1).  It would have been an erroneous construction of cl 560.224(1) had the MRT taken the view that the existence of what Gray J described in Qu v Minister as “a single negative factor”, such as the applicant’s lack of financial ability to undertake the course without contravening a condition of the visa, necessarily meant that the MRT could not be satisfied that the applicant was a “genuine applicant for entry and stay as a student”.  But the MRT clearly appreciated that cl 560.224(1) lays down but one criterion which an applicant must satisfy and that the specific maters referred to in pars (a)-(d) are simply matters to which the decision-maker is required to have regard.  So much appears from the passage from Qu v Minister quoted in the MRT’s reasons.

24                  It is true that the MRT appeared to give very considerable weight to its lack of satisfaction that the applicant would not work in excess of the hours permitted by condition 8105.  Moreover, it is by no means clear that other decision-makers would have been so ready to conclude that the applicant had failed to satisfy them that he was not a genuine applicant for entry and stay as a student.  Nonetheless, the MRT directed itself to the correct question and did not regard the applicant’s failure to satisfy it of his financial ability to pay for the course without breaching condition 8105 as necessarily fatal to his application.

25                  I have also given consideration to whether the MRT placed an inappropriate burden on the applicant by finding that it could not be

“satisfied that the applicant ha[d] not been working in excess of the hours permitted by condition 8105”.

It might be said that a finding of this kind places the burden on an applicant of establishing a negative, namely that he had not worked more than 20 hours per week. 

26                  The High Court has made it clear that administrative decision-making is of a different character to fact-finding in civil litigation: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282-283, per Brennan CJ, Toohey, McHugh and Gummow JJ.  In general, an applicant for a visa does not carry an onus of proof, although it is not an error to make findings of fact based on the likelihood of them occurring or not occurring: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, at 418-419, per curiam; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, at 231-233, per Sackville J.

27                  In this case, the starting point is s 65(1) of the Migration Act which provides that the Minister (or the MRT on review), if satisfied that the relevant criteria have been satisfied, “is to grant the visa”; if not satisfied, the Minister (or MRT) “is to refuse to grant the visa”.  It follows that the MRT in this case was obliged to refuse to grant the visa if not satisfied that the applicant was a genuine applicant for entry and stay as a student: Qu v Minister, at [7] and cases cited.  Conversely, if satisfied that the applicant was a genuine applicant it was bound to grant the visa.

28                  The MRT was bound by cl 560.224(1)(a) to have regard to the applicant’s financial ability to undertake the course without contravening, relevantly, condition 8105.  In the circumstances of this case, par (a) required the MRT to consider whether the applicant had the financial ability to undertake the course for which he was enrolled without breaching condition 8105: that is, without working more than 20 hours per week.  In order to make a judgment on this question, it was relevant for the MRT to consider the applicant’s financial position in Australia and, in particular, whether he had been able to complete his previous courses without working in excess of the hours permitted by condition 8105.

29                  The finding made by the MRT reflects its assessment of the material before it.  There was no direct evidence that the applicant had breached condition 8105 in the past.  On the other hand, the applicant had not produced evidence within his knowledge and control that would have shown both the nature and source of the funds he had used to support himself in Australia.  It would have been a simple matter for the applicant to produce bank statements (as the MRT had requested) covering a substantial period prior to the hearing.  Those statements might have demonstrated (if this was the position) that the applicant had received support from family and sponsors and that he had not received regular payments from an employer other than those that he had disclosed.

30                  The MRT framed its finding carefully.  It did not elevate the material before it to a positive finding that the applicant had been working in excess of the permitted hours.  It merely said that it could not be satisfied that the applicant had not been working excess hours.  It then took that finding of fact into account in finding that it could not be satisfied that the applicant would not breach condition 8105 if he undertook the Masters course at UCQ.  That, in turn, was a factor that weighed heavily with the MRT when making its ultimate finding that it was not satisfied that the applicant was a genuine student.  Since it was not satisfied that the applicant satisfied the criterion laid down by cl 560.224(1), the MRT was bound to refuse the visa.

31                  In my opinion, the MRT did not commit any legal error in framing its finding of fact in the way it did.  As the joint judgment observed in Minister v Wu Shan Liang, at 282:

“A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a [decision-maker] would not be an error of law.”

32                  Even if the MRT had erred by placing an inappropriate onus on the applicant, it would not follow (leaving to one side s 474(1) of the Migration Act) that it committed a jurisdictional error such as to justify the grant of a writ of mandamus or prohibition or injunction as provided for in s 39B(1) of the Judiciary Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473, at 481-482, per McHugh J; Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311, at [18]-[19], per Hill J.  And even if the error could be characterised as jurisdictional, the question would remain as to the effect of s 474(1) of the Migration Act.  It is not necessary to resolve these questions in the present case.

conclusion

33                  The application must be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              7 May 2002

The applicant was self-represented.