Abidi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 330
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 330
File number(s): MLG 2725 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 17 April 2024 Catchwords: MIGRATION LAW – application for judicial review – Student (Class TU) (subclass 500) visa – decision of Administrative Appeals Tribunal – where applicants take issue with Tribunal’s failure to consider whether they met genuine temporary entrant criteria – where dispositive issue before Tribunal was whether first applicant had current certificate of enrolment – where applicant was requested to, but did not provide, certificate of enrolment – where applicant sought adjournment to provide certificate of enrolment which was refused – where Tribunal gave logical and probative reasons for refusal – where Tribunal not required to consider genuine temporary entrant criteria – no jurisdictional error established – application dismissed with costs. Legislation: Migration Regulations 1994 (Cth), cls 500.211, 500.212 Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 14 March 2024 Date of hearing: 14 March 2024 Place: Melbourne Solicitor for the Applicants: The First and Second Applicants appeared in person on behalf of the First to Third Applicants Solicitor for the First Respondent: Ms M Baras-Miller of Australian Government Solicitor ORDERS
MLG 2725 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED ASAD ABBAS ABIDI
First Applicant
SYEDA RIDA ZEHRA ABIDI
Second Applicant
SYEDA BAREEHA FATIMA ABIDI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.The applicants’ application filed on 11 September 2018 be dismissed.
2.The first and second applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicants’ applications for a Student (Class TU) (subclass 500) visa (‘student visa’).
BACKGROUND
The applicants are citizens of Pakistan.[1]
[1] Court book at pages 11 to 14.
The first applicant arrived in Australia on a Student (Class TU) (subclass 572) visa in October 2007.[2] The second applicant is the first applicant’s wife, and in 2014, the first and second applicants had a child, the third applicant.[3]
[2] Court book at page 131.
[3] Court book at page 75.
Application for student visa on 18 November 2016
On 18 November 2016, the first applicant applied for a further student visa,[4] stating that he was seeking to undertake a Diploma of Hospitality.[5] The second and third applicants were included on the applicant’s application as his dependants.[6] At the time of his application, the first applicant indicated that he had a Certificate of Enrolment (‘COE’).[7]
[4] Court book at pages 10 to 30.
[5] Court book at page 33.
[6] See Court book at page 13 and following.
[7] Court book at page 10.
On 6 January 2017, the applicant was asked to provide further information, including information regarding the genuine temporary entrant (‘GTE’) criteria.[8] Relevantly, in that correspondence, the applicant was put on notice that there were concerns about whether he met the GTE criteria having regard to the fact that:
(a)he had been in Australia since 10 October 2007;
(b)he had married in Pakistan in June 2012, but then returned to Australia;
(c)his wife subsequently joined him in Australia and they had a child together in 2014 in Australia;
(d)he had seven successive student visas, and in that time, he had not completed a course higher than a Diploma level program and he also changed his fields of study on more than one occasion; and
(e)the last student visa was granted to allow him to complete an Advanced Diploma of Marketing, which he did not undertake, but rather, he completed a lower-level Certificate III in Commercial Cookery.[9]
[8] Court book at page 68.
[9] Court book at page 75 and following.
In this context, the first applicant was requested to provide various information.
The first applicant’s response to this request was provided on 3 February 2017 and is set out at pages 79 to 83 of the court book.
On 1 May 2017, a delegate of the Minister refused the first applicant’s student visa application on the ground that they were not satisfied that the first applicant met the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), in so far as the delegate was not satisfied that the first applicant was a genuine applicant for temporary entry and stay in Australia.[10]
[10] Court book at page 124 and following.
As the first applicant was found not to meet the criteria in clause 500.212, the delegate was similarly not satisfied that the second and third applicants met the criteria for the grant of a student visa as the first applicant’s dependents.
Application for review in Tribunal on 21 May 2017
On 21 May 2017, the applicants lodged an application for review with the Tribunal.[11]
[11] Court book at pages 136 to 138.
By letter dated 2 August 2018, the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments in relation to their review application.[12] That letter of invitation also contained the following:
[12] Court book at page 143.
… please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
2. …
3. …
…
We may make a decision at the end of your hearing.[13] (emphasis in original)
[13] Court book at page 144.
By email dated 7 August 2018, the applicant responded to the Tribunal, enclosing a copy of the response to hearing invitation form, in which he indicated that he and the second and third applicants would attend the hearing on 20 August 2018, that he did not require an interpreter and that he would not be calling any witnesses.[14] He did not provide a current COE as requested, nor did he indicate why that was not being provided.
[14] Court book at page 151 and following.
In addition, by email dated 13 August 2018, the first applicant provided further documents to the Tribunal.[15] Again, in the written submissions provided, the applicant addresses the GTE criteria but does not attach a copy of a COE as requested.[16]
[15] Court book at page 157 and following.
[16] Court book at pages 158 to 168.
The first applicant’s PRISM report is set out at page 155 of the court book. That report indicated that the applicant was not enrolled in any course after he completed the Diploma of Hospitality Management on 1 September 2017.
On 20 August 2018, the applicants attended a hearing before the Tribunal.[17] After considering the matters before him, the Tribunal member issued an oral decision,[18] in which the Tribunal affirmed the delegate’s decision to refuse the applicants a student visa.
[17] Court book at pages 218 to 220.
[18] Court book at pages 220 and 223.
Ultimately, the oral reasons were reduced to writing and provided to the applicants on 27 November 2018.[19]
[19] Court book at page 230.
TRIBUNAL DECISION
A copy of the Tribunal’s written reasons dated 26 November 2018 is set out at pages 231 to 234 of the court book.
The Tribunal noted that the delegate had initially refused the applicant’s application for a student visa on the basis that they were not satisfied that the applicant satisfied the GTE criteria.[20] The Tribunal then went on to note that the applicants appeared at the Tribunal hearing represented by a migration agent.[21]
[20] Tribunal decision record dated 26 November 2018 at paragraph [5].
[21] Tribunal decision record dated 26 November 2018 at paragraph [6].
The Tribunal stated that the dispositive issue before it was whether the first applicant satisfied the criteria in clause 500.211 of the Regulations. Relevantly, the issue was whether, at the time of the decision, the applicant was enrolled in a course of study as required for the granting of a student visa.[22] This was explained to the applicants and their migration agent.
[22] Tribunal decision record dated 26 November 2018 at paragraph [7].
The Tribunal then went on to refer to the fact that the applicant had been invited to provide evidence of enrolment in an approved course of study by its letter dated 2 August 2018, but that such evidence had not been provided, either as requested seven days prior to the hearing, or at all.[23]
[23] Tribunal decision record dated 26 November 2018 at paragraphs [13] and [14].
The Tribunal also recorded that after being provided with his PRISM record, the first applicant confirmed that he was last enrolled in study on 1 September 2017 and that he had not enrolled in a course since that time.[24] The first applicant also confirmed that he did not currently hold a valid COE.[25]
[24] Tribunal decision record dated 26 November 2018 at paragraph [18].
[25] Tribunal decision record dated 26 November 2018 at paragraph [14].
The Tribunal noted that the applicant then sought an adjournment to allow him to obtain a further COE, but rejected that request after consideration.[26] This refusal was stated to be based on the ground that the applicant had not applied for enrolment in an approved course since September 2017, as well as the fact that the applicant had been notified of the need to provide a COE seven days prior to the hearing by its letter dated 2 August 2018, but had not taken any steps to obtain one in that timeframe.[27]
[26] Tribunal decision record dated 26 November 2018 at paragraph [20].
[27] Tribunal decision record dated 26 November 2018 at paragraphs [20] to [22].
At paragraph [23], the Tribunal stated:
23.Accordingly, there is no evidence before me that you the applicant are now enrolled in or have a current offer of enrolment in any course of study. Therefore, the tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly clause 500.211 is not met.
The Tribunal therefore affirmed the decision of the delegate and refused to grant the applicants a student visa.[28]
[28] Tribunal decision record dated 26 November 2018 at paragraphs [25] and [26].
PROCEEDINGS IN THIS COURT
The applicants filed their application for judicial review in this court on 11 September 2018.
In their application to this court, the applicants seek an order quashing the Tribunal’s decision and a further order directing the Tribunal to reconsider the matter according to law.
The applicants raise the following grounds of review:
1. Tribunal does not consider case on merit considering direction 69.
2.Did not consider all factors mention in direction 69 under section 499 of Migration Act (Assessing the genuine temporary entrant criterion for student visa).
3.Delegate consider the clause 500.212 as the reason of decision which was not fairly judge in my case. Even I had provided all the evidences against the criterion.
Orders were made by Registrar Carlton on 20 April 2020 allowing the applicants to file any amended application and written submissions no less than 28 days prior to the hearing. The applicants did not file any amended application or written submissions.
Hearing on 14 March 2024
When the matter came before me for hearing on 14 March 2024, the first applicant appeared on his own behalf and made submissions on behalf of each of the other applicants.
The first applicant submitted that at the time of the hearing before the Tribunal, he was not aware that the determinative issue was whether he had a current COE. The first applicant said that at the time of the Tribunal hearing, the second applicant was pregnant with their second child and they were very busy.
He also submitted that he sought advice from a migration agent and was advised that as the visa had been rejected on the basis that he did not meet the GTE criteria, the Tribunal would need to address that issue first. The first applicant said that it was his understanding that he would then have a couple of months within which to obtain a COE, if required.
The first applicant also said that ultimately, it was only when he attended the hearing and the member explained that the COE issue was determinative, that he understood that he needed to have a COE. He then asked for a brief adjournment to allow him to obtain a current COE, but that request was denied.
The first applicant said that had he understood that he required a current COE, he would have obtained one prior to the Tribunal hearing, but he did not understand this until the hearing itself.
The second applicant adopted the first applicant’s submissions and simply added that the amount of time taken to deal with this matter has added ‘mental pressure’ and that this should be taken into account in considering their application.
GROUNDS OF REVIEW
Taken together, the grounds of review in the applicants’ application, outlined above, essentially take issue with the Tribunal’s failure to determine whether the applicants met the GTE requirements in clause 500.212 of the Regulations and its consideration of the issues addressed in Ministerial Direction No. 69.
It is submitted for the Minister that these grounds do not disclose any jurisdictional error. For the following reasons, I agree.
As outlined above, the dispositive issue before the Tribunal was whether the first applicant had a current COE at the time of making its decision. In circumstances where he did not, the Tribunal could not grant a student visa. Moreover, in those circumstances, the Tribunal was not required to consider the GTE criteria and whether the applicant met them.
It is apparent from the first applicant’s submissions that he takes issue with the manner in which the Tribunal refused him the opportunity to obtain a COE. It is further apparent from the Tribunal’s reasons that the first applicant, upon becoming aware that the question of a current COE would be dispositive, requested an adjournment.
As stated, the Tribunal then refused that request. In its reasons, the Tribunal explained the basis of that refusal, and in doing so, set out a reasonable and rational basis for that decision.
This is particularly so in circumstances where the applicant was put on notice that he needed to provide a copy of his COE to the Tribunal, and indeed, was asked to do so no less than seven days prior to the hearing.
The Tribunal’s letter of 2 August 2018 makes it clear that the applicants are required to provide all documents that they seek to rely on to establish that they meet the criteria for the student visa. It then refers to the delegate’s decision and says that that decision:
… should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.[29]
[29] Court book at pages 143 to 144.
It then goes on to say:
In addition, please provide the following information at least 7 days before the hearing date (emphasis in original) …:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 of schedule 2 to the Migration Regulations 1994 … as is required for the grant of a student visa.[30] (emphasis added)
[30] Court book at page 144.
Relevantly, clause 500.211 to schedule 2 of the Regulations provides:
500.2 Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) …
(c) …
(d) …
The applicant was therefore adequately put on notice by the Tribunal’s letter of 2 August 2018 that it was a requirement for the grant of a visa that at the time of the decision, he was enrolled in a course of study. The fact that he obtained incorrect or incompetent advice does not, of itself, disclose a jurisdictional error.
In addition, at the hearing before the Tribunal, the applicant confirmed, not only that he was not then currently enrolled in a course of study, but that he had not been enrolled in one since September 2017, a period of almost 12 months.
In those circumstances, the Tribunal’s decision to refuse an adjournment to allow the applicant an opportunity to obtain a COE could not, in my view, be said to be unreasonable. There was a logical, probative and intelligible basis for the Tribunal’s decision to refuse an adjournment.
For each of these reasons, I find that the Tribunal’s decision is not affected by jurisdictional error on the grounds as articulated in the applicant’s application or otherwise.
CONCLUSION
For each of these reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 17 April 2024
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