Agastya v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs

[2021] FCCA 2135

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agastya v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs [2021] FCCA 2135

File number:

DNG 15 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

25 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse to grant a Student (Temporary) (Class TU) (Subclass 500) visa – where the applicant failed to satisfy a mandatory criterion – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), sch 2 cls 500.11, 500.12, 500.13, 500.14, 500.15, 500.16, 500.17, 500.18

Number of paragraphs:

5

Date of hearing:

25 August 2021

Place:

Darwin

The Applicant:

Appearing on his own behalf

Solicitor for the First Respondent:

Ms Calabrese of Australian Government Solicitor

ORDERS

DNG 15 of 2020

BETWEEN:

SAI AGASTYA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIR

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	25 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 20 May 2020 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $1,800.

REASONS FOR JUDGMENT

Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 30 March 2020 which affirmed a decision of the Minister’s delegate (the delegate) made on 11 October 2017.  The delegate refused the applicant’s application for a Student (Temporary) (Class TU) (Subclass 500) visa because the delegate was not satisfied that the applicant was a genuine temporary entrant into Australia.  The applicant sought a review of that decision before the Tribunal. The Tribunal member affirmed the decision of the delegate to refuse the application but on a different ground.  That different ground was that the applicant did not satisfy the mandatory criteria for a Subclass 500 student visa.

2. The primary criteria are set out in clause 500.211 to clause 500.218 of Schedule 2 of the Migration Regulations 1994 (Cth). The relevant mandatory criterion in this case is that there needed to be proof that the applicant was enrolled in an approved course of study and as such a confirmation of enrolment (COE) was required. 

3. The applicant acknowledged to the Tribunal on 17 March 2020 when he appeared before the Tribunal member that he did not have a COE – in other words, he was not enrolled in an approved course of study.

4. I discussed the matter with the applicant at the hearing today and explained the problem he faced. He also acknowledged today that he did not have a COE at this stage and that he was not enrolled in a course of study. He said that he had been suffering from some mental health problems for a period which saw him drop out of his course of study.  I have no reason to doubt anything that Mr Agastya has told me about that, however, unfortunately the reason for Mr Agastya’s failure to continue to maintain his enrolment is not germane to the decision making process that was carried out.  I am not satisfied there is any jurisdictional error.

5. The application will be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Dated:       7 September 2021