FEDERAL COURT OF AUSTRALIA

Malik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 253

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Appellant was born in Pakistan in 1991 and is a citizen of that country. He first arrived in Australia in April 2011 holding a subclass 572 student visa which had been granted offshore. This visa was valid from 5 April 2011 to 20 June 2012 and it had been granted to him on the basis of his enrolment in a Diploma of Business. He commenced that course on 25 April 2011 and he completed it on 7 April 2012. At around this time he applied for another subclass 572 student visa although this time onshore. This was issued on 30 July 2012 on the basis of his enrolment in an Advanced Diploma of Accounting. He was certainly enrolled in such a diploma and completed the first course in it (Business Communication) on 14 September 2012. However, he did not ultimately complete the Advanced Diploma of Accounting although he did claim in response to an inquiry from the Department of Immigration and Border Protection (‘the Department’) that he had successfully completed it.

2    A delegate of the First Respondent (‘the Minister’) subsequently stated that the Appellant’s second visa (the further subclass 572 visa) had expired on 27 August 2012 but I believe this is a typographical error and the reference should have been to 27 August 2014—the Advanced Diploma in Accounting seems to have been of at least one year’s duration and probably two. It seems unlikely that a student visa would be issued which would expire before the first course in the diploma was even completed. During the period of this second subclass 572 visa the Appellant enrolled in an Advanced Diploma of Management which he completed and which was awarded to him on 5 June 2014. On 14 July 2014 he enrolled in a Bachelor of Business course which was shortly before his second visa was due to expire on 27 August 2014.

3    On 17 September 2014 the Appellant was granted a subclass 573 student visa onshore on the basis of his enrolment in the Bachelor of Business. This visa was due to expire on 11 September 2016. The visa was subject to a condition (‘Condition 8516’) that the Appellant continue to be enrolled in a higher education sector course.

4    As it happens, the Appellant only participated in one trimester of the Bachelor of Business in 2014, all the subjects of which he either passed on the basis of prior experience or failed. In any event, it seems that he did not pursue this degree further in 2015. Commonwealth records confirm that he did not complete it.

5    By the end of 2014 the Appellant held the following business-oriented qualifications: a Diploma of Business and an Advanced Diploma of Management.

6    The most probable reason that he did not pursue further studies in the Bachelor of Business course in 2015 was because he had commenced a Certificate IV in Commercial Cookery on 24 November 2014. All of the Appellant’s prior studies had been in a Diploma of Business, an Advanced Diploma of Management or a Bachelor’s qualification, each of which were courses in the higher education sector (and hence which satisfied Condition 8516). The Certificate IV, by contrast, was a trade qualification in the vocational education sector and his enrolment in it did not satisfy Condition 8516. On 23 February 2015, three months after he commenced that course in commercial cookery, he obtained employment as a casual pizza maker at Angelino’s Pizzeria in Waterloo, Sydney.

7    The Appellant completed the Certificate IV in Commercial Cookery and was issued it on 27 July 2016. It will, no doubt, be recalled that his subclass 573 student visa was due to expire on 11 September 2016. On 8 September 2016 he applied for another, now fourth, student visa (a subclass 500), this time on the basis of his enrolment in a Diploma of Hospitality Management at the Illawarra Business College, commencing on 22 August 2016. He completed that course on 8 September 2017.

8    In the Appellant’s application for the fourth visa he indicated that although he did not presently have work arranged relating to the Diploma of Hospitality Management, he did intend to seek work in that area when he completed it. He attached a number of documents to his application.

9    On 14 October 2016 the Department wrote to the Appellant and indicated to him that its records suggested that he had spent a considerable amount of time in Australia in the preceding five years on temporary visas. It also suggested to him that it appeared that he had been granted his third student visa (the subclass 573) in 2014 so as to enrol in a Bachelor of Business but the relevant education provider said that he had never commenced that course (though this is not quite consistent with what the documents show which is that he failed four subjects and was granted credit for the other subjects on the basis of prior experience). Further, the Appellant’s recent commencement of a Diploma of Hospitality Management appeared unrelated to the Bachelor of Business and was of ‘low cost within the Vocation Education and Training Sector’. The author of the letter expressed some concern that the Appellant might not be intending to return to Pakistan at the end of his course and might be using the student visa as means of maintaining de facto residence in Australia. The letter then proceeded to ask him a large number of (somewhat sceptical) questions about, inter alia, his career, his study goals, his history of study and his financial position in Pakistan.

10    On 25 October 2016 the Appellant responded to this detailed request by providing a long statement which had attached to it a number of supporting documents. He explained the circumstances which had piqued his interest in hospitality and, generally speaking, responded to the queries which the Department had raised. His explanation for why he had failed to complete his Bachelor of Business and why he had turned to the culinary arts was essentially that his interests had changed. He clarified that it was his dream to run a hotel or restaurant in Pakistan. The Diploma of Hospitality Management was to assist in the pursuit of that dream.

11    By 13 December 2016 the Appellant had heard nothing back from the Department so he sent a politely worded inquiry by email. He enclosed confirmation of his enrolment in the Diploma of Hospitality Management at the Illawarra College.

12    On 2 February 2017 the Department responded advising him that his application for a student visa had been refused and enclosing a statement of the reasons for that decision. The delegate who made the decision was not satisfied that the Appellant satisfied cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which provides:

The applicant is a genuine applicant for entry and stay as a student because:

(a)    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 intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)    the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

  (c)    of any other relevant matter.

13    The visa could not be granted to the Appellant unless the delegate was satisfied that he met the criterion in cl 500.212, namely, that the Appellant was a genuine applicant for entry and stay as a student: s 65(1)(a) of the Migration Act 1958 (Cth) (‘the Act’). In exercising the Minister’s power to grant or refuse to grant a visa under s 29 of the Act the delegate was obliged to obey any written directions given by the Minister about the exercise of that power: ss 499(1)(b), (2A). The Minister has, as it happens, issued an encyclical about how exercises of power involving cl 500.212 are to be approached in student visa cases in the provocatively entitled Ministerial Direction No 69—Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (2016) (‘Direction No 69’). There is a lot in Direction No 69 for avid readers but summarising its contents a delegate is instructed relevantly to assess, inter alia, an applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the course to the applicant’s future and their immigration history.

14    The delegate then recited the Appellant’s education history in Australia. His principal focus was on his failure to complete the Bachelor of Business. He accepted that the Appellant had found the course difficult and he noted that, indeed, the Appellant had failed some units (which was of course inconsistent with the Department’s statement in its letter of 14 October 2016 that he had not commenced it—but nothing turns on this). It appears that the delegate also accepted as genuine the Appellant’s claim in his statement that he felt that he was more suited to vocational education.

15    Importantly, the delegate also observed that the Appellant’s previous visa (the subclass 573) had been subject to Condition 8516 which required him to continue to be enrolled in a higher education sector course (such as a Bachelor of Business) and that this condition was not satisfied by his enrolment in a vocational education course such as the Certificate IV in Commercial Cookery which he had commenced whilst that visa was in place. The effect of the Appellant’s switch from a Bachelor degree to the Certificate IV meant that he ceased being eligible for his previous subclass 573 visa because he no longer satisfied condition 8516. The delegate felt that if the Appellant was going to switch from a higher education course to a vocational training course it was incumbent upon him to ensure that he had held a valid visa to do so. The delegate made no ‘adverse finding directly relating to the applicant’s non-compliance’ with the requirements of his subclass 573 visa but noted the ‘matter in the context of the current application’, perhaps an example of apophasis.

16    The delegate’s observation was, in fact, a reference to one of the criteria for determining whether an applicant is making a genuine application for entry and stay as a student under cl 500.212. This is that an applicant should intend to comply with any conditions subject to which the visa is granted ‘having regard to … the applicant’s record of compliance with any condition of a visa previously held’: cl 500.212(b)(i).

17    The delegate was also concerned that since 2011 the Appellant had departed Australia only once for a period of 29 days which he thought tended to suggest that the Appellant might be using the visa to maintain de facto residency. This goes to the issue of whether an applicant is making a genuine application for entry and stay, in the sense that the applicant must intend genuinely to stay in Australia temporarily: cl 500.212(a).

18    The delegate noted that the Appellant had claimed he decided to switch from his Bachelor studies to cookery as it was a field which interested him. The Appellant had stated that he had become interested in this area after studying the Certificate IV in Commercial Cookery and working in the pizzeria. However, the delegate observed that the Appellant had only commenced the Certificate IV after he had already ceased his Bachelor studies. Therefore the delegate considered it was not possible for the interest generated from studying the Certificate IV to have led the Appellant to change his studies. In this respect, the delegate concluded that the Appellant had provided contradictory information.

19    In light of these concerns the delegate concluded that he was not satisfied that the Appellant did have a genuine intention of returning to Pakistan after the completion of his studies. This was because he found it more likely that the Appellant had ‘enrolled in low-cost courses for reasons not primarily of study but rather for the purpose of applying for a Student visa to prolong his stay in Australia’. The delegate was also not satisfied that he would comply with any conditions imposed on his visa in the future. In those circumstances, he was not satisfied that the Appellant was a genuine applicant for entry and stay as a student and the Appellant’s visa application was accordingly refused

20    On 9 February 2017 the Appellant applied for a review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’). He attached to the application a letter of the same date. In summary this letter made the same point that he had made to the delegate—he was not interested in accounting and wished to switch to hospitality at a vocational level.

21    Meanwhile it will be recalled that the Appellant had completed the Diploma in Hospitality Management on 8 September 2017. He embarked, more or less immediately, upon further study. On 6 November 2017 he commenced studies in a Diploma of Leadership and Management.

22    The Appellant was asked to provide seven days before the Tribunal hearing a number of documents including a written statement as to whether he was a genuine applicant for entry and stay ‘by referring to Direction No 69’, a copy of which was helpfully enclosed. On 22 February 2018 the Appellant provided documents to the Tribunal under cover of an email of that date. These included documents now proving his completion of the Diploma of Hospitality Management and his more recent enrolment in the Diploma of Leadership and Management together with the statement the Tribunal had sought which outlined his interest in being a cook and the fact that, as a result of his Certificate IV, he was now working as a chef at the Opera Bar in Sydney. The Appellant did not, perhaps understandably, dip his toes into the detail of Direction No 69.

23    The Tribunal summoned him to a hearing at 9.30 am on 15 March 2018 at Clarence St in Sydney which appears to have lasted for 37 minutes. He was asked about his recent enrolment in a Diploma of Leadership and Management which he had commenced on 6 November 2017, four months before the hearing, and how that fitted with his culinary aspirations. He explained, in response, that he greatly desired to be a head cook or sous chef and hence needed to have leadership skills. Quizzed on why he could not do that in Pakistan he responded that Australian qualifications were internationally recognised and that he wanted to work in major hotels in the Gulf region where this would be useful.

24    A decision was not made at the hearing. On 2 May 2018, however, the Tribunal informed the Appellant that it had decided to affirm the delegate’s decision and provided reasons for that conclusion.

25    The Tribunal concluded that the Appellant did not satisfy the requirement that he should intend genuinely to stay in Australia temporarily under cl 500.212(a). The Tribunal at [27] accepted the validity of the Appellant’s aspiration to continue to work as a chef in the hospitality sector for his current or similar employers in Australia but it thought that this provided him with an incentive to maintain residency in Australia. At [28] the Tribunal was not impressed by the Appellant’s explanation for why he had enrolled in the Diploma of Leadership and Management as it thought this demonstrated that the course would benefit him in working for his current employers and that what he really wanted was to work in Australia. It also thought his explanations of his incentives to return to Pakistan were inconsistent: at [29]. On the one hand, the Appellant claimed he was to return to Pakistan to work in his father’s proposed restaurant but, on the other, he also said he wanted to work in large hotels in the Gulf region. It pointed to other inconsistencies too and concluded that it should not rely on his evidence in this regard.

26    Ultimately the Tribunal thought he had been in Australia for a long time studying, had rarely travelled home and now seemed settled into a stable career as a cook in Australia. For that reason at [31] it did not accept that he genuinely intended to stay in Australia temporarily. The Tribunal therefore affirmed the decision under review.

27    On 16 May 2018 the Appellant applied for judicial review in the Federal Circuit Court. The expressed ground of review was that he was not satisfied with the decision and was a genuine student.

28    The matter was eventually heard by Judge Humphreys on 22 August 2019 and decided on that day. His Honour dismissed the application with costs: Malik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2334. Although his Honour gave reasons ex tempore, he did not provide a settled written version of those reasons within the time fixed for the filing of any appeal.

29    His Honour first dealt with an adjournment application by the Appellant which was pursued on the basis that he wished to obtain legal representation. He said that he had been unable to obtain sufficient funds and had been in a difficult situation since he had needed to return to Pakistan because his father had passed away. His Honour refused the application on the basis that he did not think the situation would improve even if an adjournment were granted. Following the refusal of the adjournment the Appellant did not seek to make further submissions.

30    His Honour then characterised the review application as an invitation to review the merits of the Tribunal’s decision which he declined to do on the basis that it was not the role of the Federal Circuit Court to do so. His Honour then explained that he could see no procedural errors himself in the way the Tribunal had approached the matter and accordingly dismissed the application.

31    On 10 September 2019 the Appellant filed the notice of appeal which is now before this Court. The notice of appeal was drawn without the benefit of Judge Humphreys’ ex tempore reasons which had not at that point been settled by the Judge. Accordingly, no grounds of appeal were articulated. Obviously, this is undesirable. It is a simple matter for a Federal Circuit Judge to order that his dismissal of the proceeding only takes effect when the settled reasons are published. This Court has made this point a number of times now: CEV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26].

32    The situation this Court finds itself in is that there is no allegation that the Federal Circuit made any error. The Appellant made oral submissions at the hearing of the appeal which successfully impressed on me his interest in being a chef and his desire to continue his studies. I accept these matters.

33    Notwithstanding that Judge Humphreys’ delivery of settled reasons after the expiry of the appeal time has denied this Court the assistance of a notice of appeal, I have reviewed the course of decision-making undertaken in this case. Like Judge Humphreys I cannot perceive any errors. The Tribunal was entitled, indeed obliged, to form a view on the genuine temporary residency issue. It seems to have accepted the bona fides of the Appellant’s interest in being a chef. But the fact is that since his enrolment in the Certificate IV in Commercial Cookery he has pursued qualifications directed at cooking and it is quite clear that he is now working successfully as a chef. The Tribunal, for its part, thought this tended only to emphasise the Appellant’s desire to continue working in Australia. It thought that his long period of study (eight years to date), his infrequent visits to Pakistan and its view that he probably wanted to work as a chef in Australia all rather tended to suggest that he did not really intend to return to Pakistan. It considered carefully the Appellant’s explanation for why he did want to return to Pakistan but it detected inconsistencies in them (i.e. working for hotels in the Gulf versus working in his late father’s proposed new restaurant business in Pakistan). I do not think that the Tribunal’s conclusion in that regard was inevitable but neither do I think it can be denounced as irrational or as lacking in logic. Consequently, I do not see it as being available to the Appellant a contention that the Tribunal’s decision was legally unreasonable.

34    The Tribunal put its concerns to the Appellant both before the hearing in writing and at the hearing. He was given an opportunity to address them and, indeed, he did. Consequently it cannot be said that he has been denied procedural fairness.

35    Having read the reasons of the Tribunal with care, I have also been unable to detect any instances in which it took into account considerations which were forbidden to it by law nor that it took account of any matters which by law it was prohibited from considering. Consequently, it cannot be said as a matter of administrative law that it failed to take account of a relevant consideration or that it took into account irrelevant considerations.

36    In the course of making its decision, the Tribunal did of course apply cl 500.212 of the Regulations. I am unable to discern in its approach to that clause any misinterpretation of it. It also applied Direction No 69 but again, I can see no available argument that it was misapplied.

37    In those circumstances, I do not think that the Tribunal made any jurisdictional errors (or at least any which are obvious to me) and I must therefore affirm Judge Humphreys’ similar conclusion. The appeal must be dismissed with costs.

Associate:

Dated:    4 March 2020