Akram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 350
•9 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Akram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 350
File number: MLG 3718 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 9 November 2021 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error – no matter of principle.
Legislation: Migration Act 1958 (Cth) s 474
Migration Regulations 1994 (Cth) cl 500.211
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 18 Date of hearing: 9 November 2021 Place: By video to Hobart Counsel for the Applicant: The applicant appeared in person by telephone Solicitor for the First Respondent: Mr D. Wilson, Australian Government Solicitor ORDERS
MLG 3718 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZOHAIB AKRAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.
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, 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
JUDGE CAMERON
The applicant is a citizen of Pakistan. On 18 August 2018 he applied to the Department of Home Affairs (“Department”) for a Student (Temporary) (Class TU) Student (Subclass 500) visa.
On 14 September 2018 the applicant’s application was refused by a delegate (“Delegate”) of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this proceeding, the Court’s task is to determine whether the Tribunal’s decision was affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
RELEVANT LEGISLATION
Part 500 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of a Subclass 500 (Student) visa and relevantly provides:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia--the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
…
BACKGROUND FACTS
The applicant came to Australia in 2012 to study a Bachelor of Business Accounting, which he completed in 2016. He was then granted a Post Study Work Stream subclass 485 visa. The applicant subsequently completed a Diploma of Leadership and Management, and gained work experience as a junior accountant. The applicant returned to Pakistan in January 2020 and has not been able to return to Australia since then.
The applicant’s most recent visa application, which was refused, was made on the basis that he wished to undertake a course of study in Australia. He expressed a desire to enrol in an Advanced Diploma of Leadership and Management but did not provide any confirmation of having enrolled in the course.
The Tribunal’s decision and reasons
The applicant attended a Tribunal hearing on 14 September 2020. On 14 September 2020 the Tribunal affirmed the decision of the Delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal found that the information provided by the applicant was insufficient to demonstrate that he met the cl.500.211 criterion, being that he was enrolled in a course of study.
The Tribunal relevantly reasoned as follows:
19.The applicant claims that as at July 2019 he was unsure as to his visa status. He decided to undertake some further training to do a PTE with a view of an intention enrol in January 2020 in an Advanced Diploma of Leadership and Management. The applicant claimed that he was required to return home in January 2020 due to illness at home and has since been situate in Pakistan and has been unable to return to Australia.
20.The applicant gave evidence that he has had several discussions with his education provider about obtaining a Confirmation of Enrolment, however in his evidence to Tribunal he conceded that there was nothing preventing him from obtaining a COE whilst in Pakistan for him to undertake a future enrolment in in Australia six months’ time.
21.Based on that evidence, it is clear that the applicant is not currently enrolled in a course of study and has not been enrolled in a course of study since July 2019 and has had ample opportunity to gain an enrolment or future enrolment in a course of study.
22.When the Tribunal questioned the applicant about whether he understood the consequences of not being enrolled, the applicant replied that he understood.
23.The applicant has been in Australia for a considerable period of time and has held several visas and is aware that it is important that he complies with visa conditions and he had been given adequate notice by the Tribunal of the requirement that he needed to be enrolled in a registered course of study.
24.Therefore, in the circumstances, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant made the following allegations:
1.The department of home affairs error in applying ‘Ministerial Direction No. 69, Assessing the genuine temporary entrant criterion for student & student Guardian visa Application towards assessment of GTE (Genuine Temporary Entrant) requirement for this application.
Particular: - A holistic approach was not used; several aspects of applicant personal information were disregarded.
2.The Department of Home Affairs made error in applying clause 500.212 in schedule 2 of migration regulations towards assessing whether the applicant is genuine applicant for entry & stay as student.
Particular: - the Department has not given due regards to applicant choice of course & relation to his previous studied instead the department carried out assessment with a biased focus based on general checklist prepared to help case officer determine GTE.
3.The Department & Tribunal failed to afford Procedural fairness & natural Justice.
Particular: - Particulars of ground 1 & 2.
CONSIDERATION
Grounds 1 & 2
The first two grounds of the application failed to engage with the reason underlying the Tribunal’s decision, namely that the applicant did not have a certificate of enrolment and so did not satisfy clause 500.211. They identify no error on the part of the Tribunal.
Ground 3
Turning to the third ground of the application, to the extent that the applicant alleges error on the part of the Delegate, the ground is misconceived because the Court has no authority, in the circumstances of this case, to review the Delegate’s decision. Its jurisdiction is relevantly limited to reviewing the Tribunal’s decision.
The allegation of a denial of natural justice by the Tribunal which the applicant also makes in the third ground of his application lacks meaningful substance because it purports to be particularised by reference to the two earlier grounds. They are of no assistance because, as I have said, they do not engage with the basis of the Tribunal’s decision.
The Tribunal advised the applicant in three letters prior to its hearing that evidence of enrolment was significant to the outcome of the review. The Tribunal said, for example, in its letter of 10 September 2020:
In addition, please provide the following information before the hearing date so that a decision can be made as quickly as possible:
1. a copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
…
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
The applicant was therefore well notified that enrolment was an issue and of the significance of evidence of it.
It should be noted that the applicant did say in his address to the Court that his migration agent had not told him that he needed a certificate of enrolment, but he did not elaborate on that statement to any material degree.
The applicant has not sought to identify any error in the conduct of the Tribunal’s hearing and none is apparent from its decision record.
Finally, the allegation of bias found in the particulars of the second ground of the application, which is, as noted earlier, referred to and relied on as a particular of the third ground of the application, can be dismissed summarily on the basis that it presumes an application of Ministerial Direction No. 69, which was not relevant to and was not part of the Tribunal’s reasoning.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 December 2021
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