FEDERAL COURT OF AUSTRALIA

Rao v Minister for Immigration and Border Protection [2019] FCA 199

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The first appellant arrived in Australia from Pakistan on 3 July 2009. The other appellants are his wife and two children. On 23 April 2015, the first appellant applied for a student (Temporary) (Class TU) visa. This was refused by a delegate of the first respondent (the “Minister”) on 3 August 2015. The appellants then sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”). After a hearing, at which the first appellant’s registered migration agent attended, the delegate’s decision was affirmed.

2    The appellants then sought judicial review of that decision in the Federal Circuit Court. That application was heard on 19 September 2017 and, just under a year later, on 20 August 2018, judgment was delivered. The application was dismissed. The appellants now appeal that judgment to this Court.

The Tribunal

3    Before the Tribunal, the only issue for determination was whether it was satisfied that the first appellant was a genuine applicant for entry and stay as a student for the purposes of former cl 573.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth). It was not in dispute that having regard to the type of course the first appellant wished to complete, former subclass 573 was applicable. Clause 573.223(1)(a) was in the following terms:

(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; …

4    The Tribunal had regard, pursuant to s 499 of the Migration Act 1958 (Cth), to Ministerial Direction No. 53 which is titled “Assessing the Genuine Temporary Entrant Criteria for Student Visa Applications”. That requires the Tribunal to have regard to the following factors:

    the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future;

    the applicant’s immigration history, including previous applications for an entry visa or for visas to other countries, and previous travel to Australia or other countries;

    if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    any other relevant information provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

5    The Tribunal firstly found that in the seven years the first appellant had been in Australia (it is now just short of 10 years), he had only successfully completed five courses out of a total of 22 enrolments. Of these five, the courses were brief, with the longest being for 11 months. One of the five was a course which the first appellant enrolled in again on two further occasions after satisfactorily completing the course, albeit with different providers. The Tribunal rejected the first appellant’s explanation for this being that the courses, whilst the same, involved different standards because they were taught by different providers. In relation to the first appellant’s then current enrolment, the Tribunal found that his academic progress at that point had been marginal. He had passed two subjects but failed two others.

6    Secondly, the Tribunal accepted that there were incentives for the appellant to return to Pakistan on completion of his studies. The first appellant had substantial resources in that country comprising property, a petrol station business and cash. However, it observed that his children and wife were in Australia and that the assets in Pakistan could be sold to support a life here.

7    Thirdly, the Tribunal accepted that there were factors which explained in part the first appellant’s poor academic progress. This included certain health issues which had afflicted his wife and daughter, and a land dispute with his family in Pakistan. These difficulties, however, were found not to be a sufficient excuse or explanation for what the Tribunal described as “a marked lack of academic achievement”, nor did they explain the persistent enrolment in only brief courses.

8    Fourthly, the Tribunal did not consider that it had been given a clear explanation for the first appellant’s choice of courses or their relevance for his career plans. The Tribunal nonetheless found that the first appellant’s enrolments in divergent fields of study were “not entirely unrelated”.

9    Finally, the Tribunal rejected the first appellant’s claim that his future career lay in working in Thailand with his brother and that, for that purpose, he needed to complete his current studies. It found that given the size and nature of the brother’s business, its needs could be adequately served by a local accountant or bookkeeper. It was implausible, it so found, that the brother needed to fund the first appellant’s further education, which would involve the payment of very large sums of money.

10    The Tribunal ultimately 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. 573.223(1)(a).

The Federal Circuit Court

11    The grounds of review before the Federal Circuit Court were as follows:

1.    The Tribunal had sufficient evidence concerning compelling circumstances yet failed to accord fairness knowing that our circumstances were beyond control as it appears in point 32 of the decision.

2.    The decision not to grant student visa is contrary to natural justice and the Member failed to accept that I intend genuinely to stay in Australia temporarily.

3.    I reserve my right to obtain copy of the file and provide transcript to demonstrate that the decision of the Tribunal is contrary to the evidence before it.

(Errors in the original.)

12    The first appellant represented himself and his family before the primary judge. The judge below rejected each of these grounds in the briefest of terms. The first ground was rejected as it appeared to require merits review of the Tribunal’s decision. The primary judge observed that the Tribunal had taken into account the difficulties the first appellant had faced in completing his various courses, but was not prepared to make a finding that these difficulties rendered completion of the courses beyond the first appellant’s control. That finding was open to the Tribunal to make.

13    In relation to the second ground, the primary judge rejected it because it did not allege any particular breach of procedural fairness.

14    Ground 3 was rejected because it did not allege any form of jurisdictional error. Whilst the first appellant did tender a transcript of the Tribunal hearing, he never referred the primary judge to any portion of it.

15    The Court allowed the tender of three additional documents at the hearing, two of which confirmed that the first appellant had since completed the degree of Bachelor of Business (Business Management) on 25 July 2017. This did not appear to be the same course in which the first appellant was enrolled when he appeared before the Tribunal. The Court otherwise rejected an attempt to tender more evidence months after the hearing had been heard. It dismissed the first appellant’s application for judicial review.

The Appeal

16    Before me, and once again, the first appellant represented himself and his family.

17    The grounds of appeal before me were as follows:

1.    I do not agree with the judgment of His Honour Judge Dowdy because he failed to accept that the Tribunal decision is affected by jurisdictional error as I complied with my student visa and the compelling circumstances were not acted upon.

2.    His Honour had evidence that I had completed a degree of Bachelor of Business (Business Management) which can easily be accepted that I was and continue to be a genuine student.

3.    I do believe that the Tribunal decision is affected by error of law and I am hoping that the honourable Federal Court will argue and will remit my case back to the Tribunal.

(Errors in the original.)

The Minister submitted that each ground should be rejected for the following reasons.

18    Ground 1 did not identify how the primary judge erred. Ground 2 was misconceived because the documents tendered post-dated the Tribunal’s decision and were not before the Tribunal. Ground 3 was a “bare assertion” which, in the absence of particularisation of error, should fail.

19    The first appellant filed the following written submissions on 28 November 2018 which I set out in full as follows:

1.    The Appellants appeal from the judgment of the Federal Circuit Court of Australia given on 20 August 2018.

2.    His Honour Judge Dowdy of the Federal Circuit Court fell into error in finding that the appellant had applied to enrol to study and misapprehended the course enrolled in contrary to the evidence before him and His Honour’s findings lack evident justification and contrary to his judgment the decision of the Administrative Appeals Tribunal is affected by error of1aw.

3.    His Honour failed to consider three documents which I believe should not be treated as irrelevant in the legal sense to the proceedings. Two of those documents confirmed that I had completed a degree of Bachelor of Business (Business Management) at Elite Education Institution on 25 July 2017.

4.    Contrary to the finding by the Tribunal as well as His Honour I am a genuine applicant as a student and I intended to genuinely stay in Australia temporarily to complete my education and the Tribunal based its decision on assumption and not on reality even ignored my compelling circumstances and denied me to confirm that I genuinely intended to stay in Australia and I completed courses at academic level and the Tribunal misapprehended my achievement and ignored the evidence that I complied with my student visa and I continue to rely on the grounds of appeal submitted to the Federal Court in early September 2018.

(Errors in the original.)

20    Before me, the appellant handed up further written submissions relating to certain academic transcripts which post-dated the decision below and which the first appellant wished to rely upon. Those documents were not received into evidence other than the submission. It was explained to the first appellant that they could not bear upon whether the decision of the Tribunal was affected by jurisdictional error.

21    I invited the first appellant to consider the reasons of the Tribunal, in particular [29]-[39], and asked him to identify where the Tribunal had been mistaken or had erred. In essence, he submitted that the Tribunal had not given proper attention to his particular circumstances in finding that he was not a genuine student. The first appellant especially emphasised the health of his daughter and wife and the burden of being a father with responsibilities. In my view, this constituted an invitation for me to review the merits of the Tribunal’s decision, which I explained to the first appellant I could not do. Other than this, the first appellant relied upon events which post-dated the Tribunal’s decision such as a hernia operation and his progress in other courses. I have not taken these new matters into account.

22    As to the first appellant’s written submissions, I respectfully disagree with the contention that the primary judge’s reasoning lacked “evident justification”. Whilst expressed in the briefest of ways, their minimal content reflected the grounds relied upon by the first appellant below. I also respectfully disagree with the submission that his Honour below incorrectly treated the three documents tendered as “irrelevant”. In the first place, the documents were considered by the primary judge, his Honour having noted that there had since been the completion of a Bachelor of Business course. However, that fact, post-dating as it did the Tribunal’s decision, was not relevant to the ascertainment of jurisdictional error in the reasons of the decision of the Tribunal below. Generally speaking, fresh evidence is not admissible in judicial review proceedings: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J.

23    The next submission that the first appellant is a “genuine applicant” because he intended “genuinely” to stay in Australia temporarily does not identify jurisdictional error but, rather, invites again the Court to undertake a review of the merits of the first appellant’s claims. For that reason, and with respect, it should be rejected.

24    The first appellant said that he also relied upon the grounds of review before the Federal Circuit Court as set out above. However, before me, the first appellant did not progress those contentions in any real way. No jurisdictional error of law was identified by him. Whether the first appellant was a genuine student required the Tribunal to undertake an evaluative and essentially fact-driven exercise and, for that purpose, the Tribunal considered the evidence before it and reached a decision, in my view, within jurisdiction. For the reasons given in the Minister’s submissions, with which I generally agree, no jurisdictional error of law has been identified.

25    There is one final matter I should note. The student visa sought here in 2015 was in respect of a Bachelor of Professional Accounting at the Holmes Institute. This was the course the first appellant needed to complete to enable him, he contended, to go and work in Thailand. By the time the first appellant came before the primary judge, this course had not been pursued, but, instead, the first appellant had enrolled in and completed a Bachelor of Business (Business Management) at another tertiary institution. I asked the first appellant why he had not now gone to Thailand to join his brother given that he had finished that course. He replied that his brother no longer wanted him and that he now wished to undertake a PhD in Australia.

26    In these circumstances, it is not at all clear to me now whether the current appeal seeks relief which is futile in nature. The first appellant has finished his original course whilst pursuing his appeal rights and now wishes to undertake a new and different course. Whether he can apply for a fresh student visa in relation to that new course will be a matter for the first appellant to consider.

27    For these reasons, the appeal should be dismissed with costs as agreed or assessed.

Associate:

Dated:    13 March 2019

SCHEDULE OF PARTIES