FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration and Border Protection [2018] FCA 998

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The Appellant 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.

REASONS FOR JUDGMENT

BURLEY J:

1.    Introduction

1    The appellant, Mr Ali, is a citizen of Pakistan. He was first granted a Student Visa (Class TU subclass 573) Offshore on 12 February 2013, which was valid until 30 September 2015. He arrived in Australia on 28 May 2013 and subsequently commenced to study an Advanced Masters of Professional Accounting degree at the University of Western Sydney. Mr Ali completed half of the degree before an accident at work and the death of a family member led him to attempt to defer his studies. That attempt failed, and he then moved to Mackay in Queensland. Once there he unsuccessfully attempted to enrol at the University of Southern Queensland. On 29 September 2015 Mr Ali applied for a Student (Class TU subclass 572) visa (visa application) on the basis of his enrolment in a Diploma of Systems Analysis and Design at the Warwick Institute of Australia. It is that visa application which is the subject of the present proceedings.

2    On 13 November 2015 a delegate of the Minister (delegate) for the Department of Immigration and Border Protection refused to grant the appellant a visa on the basis that he did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (regulations), which requires the visa applicant to be a genuine applicant for entry and stay as a student, on a temporary basis, at the time of the decision. On 3 December 2015 Mr Ali applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision. On 21 September 2016, the Tribunal affirmed the delegate’s decision.

3    Mr Ali then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the Tribunal. On 3 November 2017 a judge of that Court dismissed the application. Mr Ali now appeals to this Court for orders setting aside the decision of the FCCA and remitting his visa application to the Tribunal to be determined in accordance with law.

4    The grounds of the appeal are as follows:

1.    The second respondent did not identify and correctly apply the relevant test as applicable to criterion in cl.572.223(1)(a) of Schedule 1 to the Migration Regulations, namely genuine temporary entrant.

2.    The second respondent asked itself the wrong question when it addressed the criterion in cl 572.223(1)(a); and

3.    The second respondent failed to engage in the balancing exercise articulated by Gray ACJ in Minister for Immigration v Awan [2003] FCAFC 140 (Awan).

5    At the hearing Mr Ali was represented by Mr M Gibian and Mr A Guy of counsel, and the Minister was represented by Mr G Johnson of counsel. Both sides filed written submissions in advance of the hearing.

2.    Decision of the Tribunal

6    The Tribunal observed that the application before it was to review the decision of the delegate to refuse the visa application under s 65 Migration Act 1958 (Cth) (Act). The reasons of the Tribunal are short, and the salient passages are conveniently quoted. After noting that the visa application was in subclass 572 of the regulations, the Tribunal noted the following as reflecting Mr Ali’s claims and evidence:

[9] He applied for a student (Class TU subclass 572) visa on 29/9/2015 to undertake a Diploma of Systems Analysis and Design at Warwick Institute of Australia. The applicant had completed English Language Programs and was enrolled in Advanced Master of Professional Accounting at UWS [University of Western Sydney]. Due to an accident at work and the death of his grandmother he sought to defer his studies but received no response so he went to Mackay in Queensland. His Confirmation of Enrolment [CoE] was cancelled by UWS and his attempts to enrol at USQ [University of Southern Queensland] were unsuccessful.

[10] In evidence to the Tribunal the applicant stated that he has completed an MBA from England. He has completed half his degree from UWS and he wants to finish that degree. The diploma course in which he is enrolled is useless. He has relied on the information provided to him by various institutions and migration agents and he has been misled. He now seeks this visa but he does not want to study for a diploma. The migration agent has advised him that once he gets the visa they can explain his circumstances and seek another visa. He wants to complete 4 more units in his accounting course. He is a genuine student and does not want to stay in Australia. He wants to work in a family business and will work in that business. He states that it is embarrassing for him to go back to Pakistan without completing his qualifications. He is single, he has no-one in Australia all his family are in Pakistan. He does not have to do military service.

7    The Tribunal then stated that the issue in the present application is whether Mr Ali meets the decision criterion in cl 572.223 and observed that in considering the application it must have regard to Direction No.53 Assessing the genuine temporary entrant criterion for Student visa applications (Direction).

8    The Tribunal then made the following observations and findings in relation to Mr Ali’s claims and in concluding that he does not meet the criterion in cl 572.223(1)(a):

[14] The applicant has no military service commitments in Pakistan and there is no evidence before the Tribunal to suggest that he has breached immigration laws of Australia or any other country.

[15] The applicant applied to study a Diploma of Systems Analysis and Design but does not intend to study that course and instead wishes to complete his Accounting Degree. The Tribunal accepts that this course is of no value to the applicant’s future. The applicant claims, and the Tribunal accepts, that he was badly advised when he attempted to re-enrol at USQ and without a visa he is unable to complete his studies in Accounting.

[16] The Tribunal accepts that the applicant’s family all live in Pakistan and he has no family in Australia. The Tribunal also accepts that there is no value to the applicant’s future to study a Diploma of Systems Analysis and Design, in light of his MBA qualification from England and his desire to complete his Accounting qualifications. The Tribunal also accepts that the applicant will be embarrassed returning to Pakistan without the qualifications he wanted to achieve.

[17] As the applicant has stated that he does not intend to study the course in which he is enrolled and the Tribunal accepts that the course in which he is enrolled has no value to his future, the Tribunal finds, having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant is not a genuine applicant for entry and stay as a student.

[18] Accordingly, the applicant does not meet cl.572.223(1)(a).

3.     Decision of the Federal Circuit Court

9    The primary judge sets out the background to the visa application and summarises the effect of the decision of the Tribunal. He notes that the proceedings began with a show cause application filed on 21 October 2016 and that Mr Ali relies on 3 grounds in support of it, which were as follows:

1. The Tribunal did not identify and correctly apply the relevant test as applicable to criterion in cl 572.223 (1)(a) of Schedule 2 to the Migration Regulations, namely genuine temporary entrant;

2. The Tribunal drew factual inferences which were not supported by primary facts. By drawing inferences in the absence of evidence, the Tribunal made an error of law;

3. The cumulative effect of 1 and 2 above are that the applicant was not given a fair and proper hearing, and he pleads breach of rules of natural justice by the Tribunal.

10    Ground 3 was not pressed before the primary judge.

11    After summarising the respective parties’ contentions, the learned primary judge expressed the following conclusions (footnotes omitted):

Resolution

38. In my opinion, there are a range of factors which may bear on a decision maker’s consideration of whether a visa applicant is a genuine student. As noted above, the Tribunal took into account a number of factors, all of which are relevant, but in my opinion found determinative Mr Ali’s frank admission that he did not intend to undertake the course in which he was enrolled. As the Tribunal stated at [17] of its reasons:

As the applicant has stated that he does not intend to study the course in which he is enrolled and the Tribunal accepts that the course in which he is enrolled has no value to his future, the Tribunal finds, having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant is not a genuine applicant for entry and stay as a student.

39. In my opinion, that conclusion was open to the Tribunal on the material before it and its reasoning does not disclose jurisdictional error.

40. In reaching that finding, I do not accept the Minister’s submission (if it were intended) that the question of whether an applicant is a genuine student falls to be determined only by reference to the particular course of study in which an applicant is enrolled. For example, an applicant may be genuinely intending to undertake a course for which they are enrolled but they may not be a genuine student because they have a broader intention to pursue studies indefinitely in order to achieve a migration outcome. In other words, a visa applicant may pursue a series of courses genuinely but with the intention of indefinitely prolonging their stay in Australia.

41. On the other hand, I cannot accept Mr Ali’s contention that the course in which he was enrolled could not be determinative of the Tribunal’s consideration of whether he was a genuine student for the purposes of the visa criterion. Another decision maker may have chosen to place greater weight on the other factors, including Mr Ali’s intention to resume his higher education studies, but that simply goes to the merits of the Tribunal decision. The Tribunal did not ask itself the wrong question or misapply the visa criterion in considering the genuineness of Mr Ali’s chosen studies. Mr Ali’s real complaint is that the Tribunal chose to make that issue determinative. That goes to the weight allocated to that issue by the Tribunal and the merits if its decision, which are beyond the scope of these proceedings.

4.    The present appeal

4.1    The submissions of the appellant

12    Mr Ali contends that the visa criterion set out in cl 572.223(1) requires the Tribunal to determine whether it was satisfied that an applicant “is a genuine applicant for entry and stay as a student because… the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily”. In making that assessment, the Tribunal was required to have regard to the matters set out in subparagraphs (i) to (iv) of that clause. This involved the Tribunal making a finding as to whether or not Mr Ali genuinely intended to stay in Australia temporarily. The only part of the Tribunal’s reasoning addressing that question is set out in [17] of the Tribunal’s reasons. The Tribunal incorrectly treated the criterion as being determined by whether or not Mr Ali intended to complete the particular course in which he was enrolled. In placing emphasis on Mr Ali’s statement that he does not intend to study the course in which he is enrolled (that is, the Diploma of Systems Analysis and Design), the Tribunal incorrectly treated the visa criterion as being determined by whether Mr Ali intended to complete the particular course in which he was enrolled. The Tribunal thereby asked itself the wrong question in determining if it was satisfied of the matters set out in clause 572.223(1)(a) by failing to consider or make the finding required as to whether Mr Ali genuinely intended to stay in Australia on a temporary basis.

13    In addition, Mr Ali submits that clause 572.223(1)(a) requires the Tribunal to undertake a balancing exercise weighing positive and negative factors in arriving at an overall conclusion. Whilst the question of whether Mr Ali intended to complete the course in which he was enrolled may be one such factor, it is one factor amongst others that must be balanced and the Tribunal misapplied the criterion by treating that one factor as determinative. In support of this proposition Mr Ali cites Awan at [16] (Gray ACJ) and [73] (Merkel J) and Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299 at [13].

14    Mr Ali submits that the primary judge incorrectly failed to find that the Tribunal fell into jurisdictional error by reason of these mistakes.

4.2    Consideration

15    Clause 572.223 provides as follows:

572.223 

(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; and

               (b)  the applicant meets the requirements of subclause (1A) or (2).

…

16    It is apparent that cl 572.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because of the reasons set out in 572.223(1)(a) and (b). The particular requirement of (1)(a) is that the Minister be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the four matters identified.

17    The Minister does not dispute that it was necessary for the Tribunal to have regard to each of these matters. He contends, however, that when the decision of the Tribunal is properly understood, it is apparent that those matters were taken into account. For the reasons set out below, I agree with that submission.

18    In [12] of its decision, the Tribunal refers to the Direction and observes that the specified factors to which the Tribunal is to have regard include the following matters; the circumstances in the applicant’s home country; his potential circumstances in Australia; the value of the course to the applicant’s future; the applicant’s immigration history, including previous applications for visas; and any other relevant information provided by the applicant. The Tribunal then observes at [13] that these factors should not be used as a checklist but rather are intended to guide decision-makers to “weigh up the applicant’s circumstances as a whole” about whether the applicant “satisfies the genuine temporary entrant criterion”.

19    The Tribunal then in [14]-[16] identifies the matters quoted above at [10]. It may be noted that those paragraphs pay specific regard to, and make findings in respect of; Mr Ali’s circumstances in Pakistan, Mr Ali’s immigration history and the value of the Diploma of Systems Analysis and Design to Mr Ali’s future. In other words, the particular matters identified within the requirements of clause 572.223(1)(a).

20    It is in this context that one then turns to [17] of the Tribunal decision. In it, the Tribunal repeats its observation that Mr Ali has stated that he does not intend to study the course in which he is enrolled and its acceptance that the diploma course has no value to his future. Critically, it then states:

… Having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant is not a genuine applicant for entry and stay as a student.

21    It will be noted that the emphasised words in the above passage match the three matters to which the Minister must have regard in clause 572.223(1)(a) (the fourth being irrelevant to Mr Ali). The Tribunal then provides at [18] that Mr Ali does not meet the requirements of that sub-clause. In those circumstances, whilst the Tribunal does not expressly parrot the words that it is satisfied “that the applicant intends genuinely to a stay in Australia temporarily”, plainly it is to be understood to be adverting to that requirement, as indeed it has in [11]. It is trite to observe that one should not construe the reasons of the Tribunal with an eye to finding error.

22    The first and second grounds of the present appeal are that the primary judge fell into error by failing to find error by the Tribunal in failing to identify and correctly apply the relevant test as to whether Mr Ali intends genuinely to stay in Australia temporarily, and in so doing asked itself the wrong question. In my view neither of these grounds is made out. The learned primary judge observes that there are a number of factors that apply to the consideration of clause 572.223(1)(a), and that it was a matter for the Tribunal to determine what weight to put on a particular factor. In the present case, the Tribunal chose to place particular emphasis on the fact that Mr Ali did not consider that the diploma course was suitable for him, but, as the primary judge observed, the weight to be given to particular factors was a matter that is appropriately left to the Tribunal, and, regardless whether another decision maker may have chosen to place greater weight on other factors, it is not a matter that sounds in jurisdictional error.

23    Mr Ali submits that the primary judge fell into error by failing to address at [38] the key question arising under clause 572.223(1)(a), namely whether the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily. However, it is apparent that the primary argument advanced before the primary judge was slightly different to the way that Mr Ali put his appeal in the present hearing. At [27] the primary judge summarises the submissions made on behalf of Mr Ali below, which directed emphasis not to the question of genuine intention to stay in Australia temporarily but rather to error on the part of the Tribunal in treating Mr Ali’s lack of intention to study his diploma as determinative. That difference in approach explains why at [38] the primary judge did not emphasise the requirement set out in the chapeau in clause 572.223(1)(a). However, it is apparent that the primary judge considered that the Tribunal did have regard to the correct factors, and not simply the question of whether Mr Ali intended to continue with his Diploma course.

24    The third ground of appeal is that the primary judge erred by failing to find that the Tribunal failed to engage in the balancing exercise articulated in Awan. In that case, Gray ACJ said at [16] (Merkel J agreeing in principle at [72]):

By its terms, item 560.224(1) of Sch 2 to the Migration Regulations required the Tribunal to be satisfied of a single fact before it could grant Mr Awan the visa he sought.  That single fact was that Mr Awan was a genuine applicant for entry and stay as a student.  In reaching a conclusion about that issue, the Tribunal was obliged to have regard to the range of factors specified in pars (a), (b), (c) and (d).  These were not themselves criteria that Mr Awan had to meet to the satisfaction of the Tribunal in order to succeed in his application.  It is perfectly possible that the Tribunal could have found one or more of the factors to be adverse to Mr Awan’s application, but still have found him to be a genuine applicant …

25    The Minister does not dispute that the Tribunal was obliged to engage in a balancing exercise in applying clause 572.223. However, he submits that the passage of the Tribunal’s reasons at [17] reflects the fact that such a balancing exercise has been undertaken. In my view, having regard to the whole of the Tribunal’s reasons, this submission should be accepted. As I have indicated, the Tribunal observed at [13] that it was required to weigh up the applicant’s circumstances as a whole and thereafter proceeded to mention factors drawn from the evidence given by Mr Ali which were pertinent to those factors. The passage in [17] that I have quoted at [22] above repeats that this is the exercise being undertaken. In my view Mr Ali has failed to demonstrate jurisdictional error in this regard.

5.    Disposition

26    The appeal must be dismissed and the Appellant must pay the First Respondent’s costs of the appeal.

Associate:

Dated:    3 July 2018