FEDERAL COURT OF AUSTRALIA

Risha v Minister for Immigration and Border Protection [2018] FCA 1342

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    Mr Mohamed Adel Ahmed Risha is a citizen of Egypt. He has resided in Australia since 2007 as the holder of successive student visas. In January 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Risha a further student visa. Mr Risha applied to the (then) Migration Review Tribunal (MRT) for a review of that decision. That application was unsuccessful. He then challenged the MRT’s decision in judicial review proceedings in the Federal Circuit Court of Australia. That challenge was successful. The MRT’s decision was set aside by consent and remitted for reconsideration.

2    Unfortunately for Mr Risha, his initial success in the Circuit Court was to no avail. After a second hearing before the Administrative Appeals Tribunal, the delegate’s decision refusing Mr Risha’s visa application was again affirmed. Undeterred, Mr Risha again sought judicial review of the Tribunal’s decision in the Circuit Court. He alleged, in short terms, that the Tribunal breached s 360 of the Migration Act 1958 (Cth) and failed to take into account certain relevant considerations in its decision-making. This time he was unsuccessful. The primary judge in the Circuit Court rejected Mr Risha’s contentions concerning the Tribunal’s exercise of its review jurisdiction and dismissed his application.

3    Mr Risha now appeals from the decision of the primary judge. The grounds of appeal that Mr Risha seeks to advance in this Court are essentially identical to the grounds of review advanced before the primary judge in the Circuit Court. For the reasons that follow, the primary judge was correct to dismiss those grounds. Mr Risha’s appeal must accordingly be dismissed.

background

4    Mr Risha applied for a Student (Temporary) (Class TU) (subclass 572) visa on 16 December 2014. Prior to that application, Mr Risha had successfully applied for four previous student visas since arriving in Australia in April 2007.

5    The criteria for the grant of such a visa at the relevant time were set out in cl 572 of Schedule 2 to the Migration Regulations 1994 (Cth). Subclauses 572.223(1) and (2) set out what are commonly called the “genuine temporary entrant criterion” and the “English language criterion”. Those subclauses provided 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).

…

(2)    If subclause (1A) does not apply:

(a)    the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

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

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

6    Mr Risha lodged various documents in support of his visa application, including: a statement relating to the genuine temporary entrant criterion; a series of forms showing his enrolment in courses of study; a signed Student Visa Financial Support Statement; bank statements; a copy of his passport; and various academic transcripts and certificates.

7    On 17 December 2014, the Department of Immigration and Border Protection wrote to Mr Risha and requested that he provide certain additional information in relation to his visa application. Relevantly, the Department asked Mr Risha to provide evidence of his English language ability and further information in relation to the genuine temporary entrant criterion. Mr Risha responded by email to the Department’s letter on 22 December 2014. That email provided some further information in relation to the genuine temporary entrant criterion. Amongst other things, Mr Risha stated:

Currently, I am engaged to my girlfriend who is in Egypt and planning to get married and settle in Egypt once I finish my studies here in Australia.

8    Mr Risha also attached to his email a school certificate which he said was proof of his “English language ability”.

9    On 22 January 2015, a delegate of the Minister refused Mr Risha’s visa application on the basis that she was not satisfied that Mr Risha met the English language criterion.

10    On 28 January 2015, Mr Risha applied to the MRT for a review of the delegate’s decision. On 27 May 2015, the MRT affirmed the delegate’s decision to refuse to grant the visa to Mr Risha. It is unnecessary to refer at length to the MRT’s reasons. Suffice it to say that the MRT found that Mr Risha did not meet the English language criterion.

11    Mr Risha subsequently filed an application in the Circuit Court for review of the MRT’s decision and reasons.

12    Consent orders in relation to Mr Risha’s application were made in the Circuit Court on 19 August 2015. The effect of those orders was to quash the MRT’s decision and direct the MRT to determine Mr Risha’s review application according to law. The consent orders also included a note, the effect of which was to confirm that the MRT’s decision was affected by jurisdictional error because it did not have regard to cl 572.223(1A) of Schedule 2 to the Regulations for the purposes of determining whether Mr Risha satisfied the English language criterion.

the tribunal’s review and decisions

13    On 21 August 2015, Mr Risha was notified that his application would be reallocated to another member of the Tribunal. On 21 December 2015, Mr Risha sent the Tribunal information confirming his enrolment in a diploma of marketing course commencing on 11 January 2016 and his completion of a certificate in small business management.

14    On 1 February 2016, Mr Risha appeared before the Tribunal in relation to his review application.

15    In its reasons, the Tribunal summarised Mr Risha’s evidence in relation to the English language criterion. It is unnecessary to refer in any detail to Mr Risha’s evidence concerning that criterion. It was ultimately not significant to the Tribunal’s decision, though it should perhaps be noted that the Tribunal expressed its concern to Mr Risha that the evidence suggested that he may not satisfy the English language criterion.

16    The Tribunal’s reasons record that it discussed with Mr Risha the requirement that he satisfy the genuine temporary entrant criterion. The Tribunal explained to Mr Risha the relevance and content of Direction No. 53. Direction No. 53 is a direction made under s 499 of the Act which requires the Tribunal to have regard to a number of specified factors in determining whether a visa applicant has met the genuine temporary entrant criterion. Those factors include, amongst other things, the visa applicant’s circumstances in their home country; the visa applicant’s potential circumstances while in Australia; the value of the relevant course to the visa applicant’s future; and the visa applicant’s immigration history, including previous applications and previous travel to Australia.

17    The Tribunal’s reasons also record that it asked Mr Risha a series of questions in relation to the matters referred to in Direction No. 53. In response to those questions, Mr Risha gave evidence about his past, current and future intended courses of study, including the relevance of the diploma of marketing course to a future job opportunity in Cairo. His evidence included, relevantly, that he returned to Egypt in mid-2015 and spoke with a company about a job opportunity. He said that he was told that he needed a diploma in marketing to get that job. He indicated that he would return to Egypt once he had completed that diploma in 2018. Mr Risha also outlined the courses he had successfully completed in Australia. In response to questions about why he had not completed any courses in some of the years he was in Australia, Mr Risha said that his brother had passed away in 2011 and he needed psychological help to deal with that.

18    In relation to his circumstances in his home country, Mr Risha’s evidence was that his sister and parents were in Egypt and that he had no family connections in Australia. He said that it was unlikely that he would have military commitments in Egypt and that he did not fear returning due to civil or political matters. Mr Risha conceded that there was a period of time after the revolution in Egypt in 2011 when he did not want to return to Egypt because he wanted to avoid the political and civil difficulties there. His evidence was, however, that things had now changed and that he wanted to return after he obtained the diploma of marketing.

19    It is readily apparent from the Tribunal’s reasons that, in the course of the hearing, the Tribunal told Mr Risha that it considered that his past behaviour tended to suggest that he was using the student visa to maintain residence in Australia. The Tribunal noted in that regard that Mr Risha had been in Australia for nine years, that he had only successfully completed courses during some of those years, and that the courses were all at a vocational level. The Tribunal told Mr Risha that it had difficulty understanding why a person with his level of academic qualification had spent nine years studying at a vocational level. The Tribunal also questioned Mr Risha as to why he was working in a supermarket if he wanted to return to work in a company in Egypt which required him to have a diploma in marketing.

20    The Tribunal made some findings which were favourable to Mr Risha, in the sense that they tended to suggest that he did intend to return to Egypt at some stage. For example, in relation to Mr Risha’s circumstances in his home country, the Tribunal found as follows (at [43]):

As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Egypt. It accepts that the courses he has undertaken in Australia are regarded as better. There is no convincing evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that he has closer family ties to Egypt which is indicative of a person who is only a temporary entrant and wishes to return to their country.

21    Equally, however, the Tribunal made a number of factual findings which suggested that Mr Risha was not a genuine temporary entrant. The Tribunal found, for example, that although Mr Risha had returned to Egypt on a number of occasions, the extended period of time he had spent in Australia, and the fact that he had studied courses only at a vocational level, was indicative of a person who was using the student visa program to maintain residence in Australia. While the Tribunal accepted that the death of Mr Risha’s brother in 2011 may have affected his study for a period of time, the Tribunal found that it did not fully explain the three year period when he did not successfully complete a course.

22    The Tribunal referred to Mr Risha’s evidence that he had sought to remain in Australia following the political and civil unrest in Egypt in 2011 and reasoned that this was also indicative of a person who was using the student visa program to maintain residence in Australia. In all the circumstances, the Tribunal found that it was not satisfied that Mr Risha now wished to undertake the diploma of marketing for the purposes of particular employment in Egypt.

23    Ultimately, the Tribunal concluded that it was not satisfied that Mr Risha was a genuine applicant for entry and stay as a student in Australia and, therefore, did not meet the genuine temporary entrant criterion. The Tribunal expressed its conclusion in the following terms (at [54]):

Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

24    Having found that it was not satisfied that Mr Risha met the genuine temporary entrant criterion, the Tribunal affirmed the decision not to grant him the visa.

the circuit court proceedings and judgment

25    Mr Risha applied to the Circuit Court for judicial review of the Tribunal’s decision. He was legally represented in relation to that application. His amended application advanced the following three grounds (as drafted):

Ground 1: Jurisdictional Error – Breach of section 360 of the Migration Act 1958 (Cth)

The Second Respondent erred as to jurisdiction in not giving the Applicant an opportunity to to give evidence ad present arguments relating to the issue of the falsity or truthfulness of the applicant’s evidence as to why he intended to undertake the course of study the subject of his visa application, being that he had been offered the prospect of paid employment by a company in Egypt if he undertook a marketing course, as required by section 360 of the Migration Act 1958 (Cth).

Ground 2: Jurisdictional Error – Failure to Take into Account a Relevant Consideration

The Second Respondent erred as to jurisdiction by failing to take into account the Applicant’s ‘immigration history’ as required by Clause 572.223(1)(a) of Schedule 2 of the Migration Act 1958 (Cth) and accordingly failing to give reasons as to how it was taken into account.

Ground 3: Jurisdictional Error – Failure to Take into Account a Relevant Consideration

The Second Respondent erred as to jurisdiction by failing to take into account that the Applicant was engaged to be married to a woman living in Egypt, that being a matter central to the consideration of the ‘applicant’s circumstances’ and required to be taken into account by Clause 572.223(1)(a) of Schedule 2 of the Migration Act 1958 (Cth).

26    Mr Risha also relied on an affidavit which annexed a transcript of the hearing conducted by the Tribunal.

27    On 28 March 2018, the primary judge handed down a judgment and made orders dismissing Mr Risha’s application.

28    In relation to ground one of Mr Risha’s application, the primary judge noted that the gravamen of Mr Risha’s submission was that, to properly afford him procedural fairness, the Tribunal was required to put Mr Risha on notice that the truthfulness of his evidence about his reasons for wanting to study for a diploma of marketing may not necessarily be accepted. That was because that Mr Risha’s evidence in that regard was “such a critically important issue”.

29    The primary judge held, however, that the Tribunal was under no obligation to advise Mr Risha, in writing or orally, that the truthfulness of any of his evidence may not be accepted. His Honour cited, as authority for that proposition, certain passages from the judgment of Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [265]-[268], and passages from the judgment of the plurality in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48]. His Honour also referred to the judgment of the Full Court in Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 as authority for the proposition that the Tribunal had no legal duty to ask Mr Risha to supplement or clarify any deficiencies that it may have perceived in his evidence.

30    The primary judge noted that Mr Risha’s evidence concerning the potential job in Egypt, and his need to get the diploma of marketing to secure that job, was the subject of considerable discussion and questioning at the hearing before the Tribunal. The primary judge rejected the submission advanced on Mr Risha’s behalf that the Tribunal implicitly accepted the truthfulness of Mr Risha’s evidence about that issue. The primary judge referred to passages from the hearing transcript which clearly indicated that the truthfulness and credibility of Mr Risha’s account concerning the job in Egypt was very much in issue, and that this would have been apparent to Mr Risha.

31    In all the circumstances, the primary judge rejected Mr Risha’s contention that the Tribunal had denied him procedural fairness, or otherwise breached s 360 of the Act.

32    The primary judge also rejected ground two of Mr Risha’s application. His Honour found that the Tribunal had, in fact, properly considered Mr Risha’s immigration history and had bought an active intellectual process to that consideration. The primary judge referred to a number of paragraphs of the Tribunal’s reasons, including paragraphs 3, 21, 40 to 42, 45 and 51, which indicated, contrary to Mr Risha’s submissions, that the Tribunal had given genuine consideration to Mr Risha’s immigration history.

33    In relation to ground three, the primary judge reproduced an excerpt from the transcript of the Tribunal hearing in which the Tribunal asked Mr Risha about his family ties in Egypt. The primary judge noted that, while the Tribunal’s reasons did not expressly refer to Mr Risha’s claim to be engaged to his girlfriend in Egypt, the transcript of the Tribunal hearing indicated that Mr Risha never expressly repeated that claim to the Tribunal, despite being given a clear opportunity to do so. His Honour also noted, in that context, that Mr Risha’s claim to be engaged to a girlfriend had been made to the Department some 16 months before the Tribunal hearing. The primary judge found that it was for Mr Risha to make his claims at the time of the decision as he saw fit. His Honour referred, in that regard, to the judgment of Griffiths J in BAZ15 v Minister for Immigration and Border Protection [2018] FCA 230.

34    The primary judge held that, given the Tribunal’s questioning of Mr Risha, it would be reasonable to expect him to have referred to his engagement in Egypt if he wished to maintain that as a circumstance in support of his claim to be a genuine temporary entrant. The primary judge went on to find that, in any event, the Tribunal had accepted that Mr Risha’s family ties in Egypt were indicative of a person who was a temporary entrant to Australia, and who wished to return to Egypt. His Honour held that the Tribunal had made a finding of greater generality in Mr Risha’s favour which obviated the need for it to make a specific finding on the particular issue of his claimed engagement to his girlfriend in Egypt.

35    The primary judge also noted, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46], that it was plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by Mr Risha in its Reasons. A Tribunal that ignores or overlooks an element of evidence does not make a jurisdictional error if it nonetheless considers the applicant’s claims: cf. Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28].

36    Having rejected Mr Risha’s three articulated grounds of review, the primary judge dismissed his application with costs.

appeal grounds and submissions

37    The grounds in Mr Risha’s notice of appeal, filed on 9 April 2018, repeat verbatim the grounds advanced in the Circuit Court.

38    Mr Risha did not file any written submissions as he was directed to do. Mr Risha did, however, make some oral submissions at the hearing of his appeal.

39    It is clear from Mr Risha’s oral submissions that his main grievance is with the Tribunal’s ultimate conclusion that it was not satisfied that he was a genuine temporary entrant to Australia who wished to return to Egypt. Mr Risha advanced a number of submissions in an attempt to persuade the Court that the Tribunal’s conclusion in that respect was wrong. It would be fair to say, however, that ultimately those submissions amounted to little more than arguing about the merits of factual findings made by the Tribunal.

40    Mr Risha was invited to make any specific submissions in relation to his three grounds of appeal but was ultimately unable to do so.

merits of the appeal

41    The primary judge was correct to reject each of Mr Risha’s grounds of review, essentially for the reasons given by his Honour. Mr Risha has failed to identify any reason why the primary judge erred in rejecting those grounds and has failed to point to any other error of fact or law made by the primary judge.

Ground 1

42    There was, and is, no merit in Mr Risha’s contention that the Tribunal failed to allow him to give evidence and present arguments at a hearing, and therefore breached s 360 of the Act.

43    It was made abundantly clear to Mr Risha during the course of the Tribunal hearing that the Tribunal was concerned that Mr Risha may be using the student visa program to maintain residence in Australia, and that he did not intend to genuinely stay in Australia temporarily. In that context, Mr Risha’s claim concerning the prospect of the job in Egypt if he completed a marketing degree was the subject of a good deal of questioning. The primary judge was correct to reject the contention that the Tribunal had implicitly accepted the truthfulness of Mr Risha’s evidence about that matter.

44    As the primary judge found, the Tribunal does not always need to explicitly put to an applicant that it is concerned that he or she may be lying, or that it may not accept that his or her evidence is true, or that it may find that he or she has embellished elements of the account presented to Tribunal: SZBEL at [47]. Nor does procedural fairness “require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL at [48].

45    It is clear that Mr Risha was questioned extensively concerning his evidence about his job prospect in Egypt and the need for the marketing course. The Tribunal was not required to identify the significance of its questioning, or the ultimate matter or issue to which its questioning went: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88].

46    It follows that, as the primary judge held, there is no substance in the contention that the Tribunal failed to afford Mr Risha a fair hearing.

Ground 2

47    The primary judge was correct to reject the contention that the Tribunal failed to take Mr Risha’s immigration history into account. Indeed, a fair reading of the Tribunal’s Reasons clearly reveals that the Tribunal not only took Mr Risha’s immigration history into account, but ultimately found that it counted against him. In [45] of its Reasons, for example, the Tribunal said:

As the above information indicates the applicant has been in Australia since April 2007, a period of almost 9 years and wishes to study for a further two years, resulting in his time studying in Australia being almost 11 years. While the applicant has returned to Egypt on a number of occasions, including for two months in 2010, two months in 2013, two months in 2014 and two months in 205 [sic], the Tribunal views this extended period of time spent in Australia to be indicative of a person who is not a temporary entrant.

48    There was, and is, no basis upon which it could be concluded that the Tribunal did not engage in an active intellectual process in considering Mr Risha’s immigration history, or otherwise failed to give genuine consideration to it: cf. Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45].

Ground 3

49    The primary judge was correct to find that the Tribunal did not fail to have regard to any material aspect of Mr Risha’s evidence or claims concerning his circumstances at the time of the decision. While Mr Risha had originally told the Department that he was engaged to marry his girlfriend in Egypt, that communication occurred about 16 months before the hearing in the Tribunal. At the hearing in the Tribunal, Mr Risha gave evidence and was questioned about his circumstances at that time. He said nothing about being engaged or having a girlfriend in Egypt. It was, in those circumstances, entirely understandable that the Tribunal did not refer to Mr Risha’s earlier claims concerning his engagement.

50    It could hardly be said, in all the circumstances, that what Mr Risha had earlier told the Department about his engagement was “a substantial, clearly articulated argument relying upon established facts”: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [55].

51    In any event, as the primary judge clearly found, the Tribunal had accepted that Mr Risha had “closer family ties to Egypt which is indicative of a person who is only a temporary entrant and wishes to return to their country”: see [43] of the Tribunal’s reasons. That was a general finding favourable to Mr Risha which subsumed any specific consideration of ties to a particular individual in Egypt: see WAEE at [47].

52    It follows that there is no substance to the third ground of Mr Risha’s appeal.

53    It should perhaps also be noted, in the context of ground three, that in his oral submissions to this Court, Mr Risha referred to the fact that he had a wife and daughter in Egypt. It suffices to note that Mr Risha did not give any evidence before the Tribunal about having a wife and daughter in Egypt. Nor did he apply to lead any fresh evidence in support of his appeal.

conclusion and disposition

54    Mr Risha has not made out any of his three appeal grounds. Nor has he demonstrated that the Tribunal made any jurisdictional error in determining his review application, or that the primary judge erred in any way in dismissing his judicial review application. It follows that Mr Risha’s appeal must be dismissed.

55    Mr Risha did not advance any relevant reason why he, as the unsuccessful party, should not be required to pay the Minister’s costs. He should accordingly be ordered to pay the Minister’s costs of the appeal.

Associate:

Dated:    31 August 2018