Afzal v Minister for Immigration

[2020] FCCA 940

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFZAL v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 940

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Application for a Student (Temporary) (Class TU) visa – show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether application raised arguable case of relevant error – no relevant error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 359C, 360
Migration Regulations 1994 (Cth), sch.2, cls.500.211, 500.212
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: SYED ZAIN AFZAL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1874 of 2019

Judgment of: Judge Street

Hearing date: 18 March 2020

Date of Last Submission: 18 March 2020

Delivered at: Sydney

Delivered on: 18 March 2020

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 18 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1874 of 2019

SYED ZAIN AFZAL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal) made on 11 July 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) visa (“the Student visa”). 

2. The applicant applied for the Student visa on 16 August 2017. On 21 September 2017, the Delegate refused to grant the applicant the Student visa on the basis that he did not meet the requirements of cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

3. On 4 October 2017, the applicant applied to the Tribunal for review. By letter dated 5 April 2019, the Tribunal invited the applicant to provide information about the course of study he was undertaking and his entry and stay in Australia. The letter dated 5 April 2019 advised that, if the applicant failed to provide such information by 19 April 2019, the Tribunal could proceed to make a decision and the applicant would lose any entitlement to appear, put on evidence and provide arguments. The applicant did not provide any evidence in response to the letter dated 5 April 2019.

4. In para 6 of its reasons, the Tribunal correctly identified the consequences of s 359C of the Migration Act 1958 (Cth) (“the Act”) that, as the applicant had no entitlement to a hearing pursuant to s 360(3) of the Act, the Tribunal now had no power to permit him to appear. 

5. The Tribunal identified in its reasons that a relevant requirement for the grant of the Student visa was that the applicant was currently enrolled in a course of study pursuant to cl 500.211(a) in sch 2 of the Regulations.

6. The Tribunal found that there was no evidence before it that the applicant met that criteria. The Tribunal was not satisfied that, at the time of the hearing, the applicant was enrolled in a course of study and accordingly, cl 500.211 in sch 2 of the Regulations was not met.

7. The Tribunal concluded that the applicant did not meet the mandatory criteria in accordance with the requirements of cl 500.211 and affirmed the decision under review.

8. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicant the Student visa.

Before the Court

1. These proceedings were commenced on 24 July 2019. On 15 August 2019, a Registrar of the Court fixed the matter for a show cause hearing. 

2. The Registrar provided the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents have been filed. 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed he understood the nature of the show cause hearing as explained by the Court. 

4. From the bar table, the applicant explained that he was feeling depressed at the time of the hearing before the Tribunal and that is why he did not appear. In fact, as the Tribunal’s reasons identified, the applicant was requested to provide information to the Tribunal pursuant to s 359 of the Act on 5 April 2019. The applicant did not provide any information or seek a response and, accordingly, pursuant to s 360(3) of the Act, the applicant lost the entitlement to appear before the Tribunal.

5. The applicant’s reference to being depressed at the time of the hearing does not explain why the applicant did not provide the information requested in the Tribunal’s letter dated 5 April 2019. 

6. On the face of the material before the Court, the Tribunal complied with the statutory requirements in relation to the sending of the applicant of the invitation to provide information pursuant to s 359 of the Act. The Tribunal was correct to hold that the applicant had lost his right to appear by reason of not providing the information or seeking an extension within the relevant time period.

7. Before this Court, the applicant acknowledged that he was not enrolled in a course of study at the time he received the letter from the Tribunal dated 5 April 2019. The enrolment was a mandatory criteria for the applicant to succeed in the request for the Student visa. The applicant referred to having now undertaken or having completed at some stage a further diploma. The applicant stated that he wanted to stay a further year in Australia and asked for the matter to be sent back to the Tribunal. 

8. This Court has no power to determine the matter on compassionate or discretionary grounds. The Court has no ability to send the matter back to the Tribunal unless it is satisfied that the Tribunal has exceeded its statutory authority in the conduct of the review. 

9. In the present case, the applicant’s submissions from the bar table, in substance, invited the Court to determine the matter on compassionate and discretionary grounds. This Court has no power to do so.

10. Nothing said by the applicant from the bar table identified any arguable case of relevant error in relation to the Tribunal’s decision or the conduct of the review. 

The ground

1. The ground in the application is as follows:  

   I am applying for the review of my application.

2. It is apparent that the application does not identify any arguable ground of relevant error. 

3. The Court is satisfied that the application has not raised an arguable case for the relief claimed. 

4. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under rule 44.12 of the Rules. 

5. As the application has not made out an arguable case of relevant error, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 18 March 2020 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  24 April 2020