AL-ZAWEETI v Minister for Immigration

[2020] FCCA 2968

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL-ZAWEETI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2968

Catchwords:

CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – whether finding that applicant did not satisfy reg.500.211(a) was affected by jurisdictional error

Legislation:

Migration Act 1958 (Cth), s.477(1)

Migration Regulations 1994 (Cth) regs.500.111, 500.211(a), 500.214 Sch 2, Pt 500

Applicant: ABDULAZEEZ A SHUKRI AL-ZAWEETI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 80 of 2020

Judgment of: Judge Jarrett

Hearing date: 20 August 2020

Date of Last Submission: 20 August 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 13 February, 2020 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 80 of 2020

ABDULAZEEZ A SHUKRI AL-ZAWEETI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 13 February, 2020, the applicant seeks judicial review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. The application was filed one day outside of the 35 day time limit set by s.477(1) of the Migration Act 1958 (Cth). Consequently the applicant requires an extension of time within which to commence these proceedings.

3. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

4. On 9 April, 2020 directions were made for the orderly preparation of this application for hearing.  The directions make it clear that the application has been listed for final hearing.  By implication, that would include the application to extend time as well as the application for review proper.  Both parties presented arguments on the principal application for review when the matter came before me for hearing. 

5. The directions made in this matter required the applicant to file written submissions in support of his application 28 days prior to the hearing.  Whilst the applicant has filed a further affidavit in support of his application on 9 April, 2020 he has not filed any written submissions.

Background

1. The applicant is a citizen of Iraq.  He arrived in Australia in 2013 to study an English language course.  He has subsequently studied a Masters of Urban and Environment Planning at Griffith University.

2. On 14 August, 2019 the applicant applied for a Student (Temporary) (Class TU) visa. On 18 October, 2019 a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy reg.500.214 of Schedule 2 to the Migration Regulations 1994 because the applicant had not provided evidence that he had genuine access to sufficient funds for the purposes of his temporary stay in Australia.

3. On 7 November, 2019 the applicant lodged an application for review of the delegate’s decision and appeared before the second respondent on 8 January, 2020 to give evidence and present arguments in support of his application for review.

4. On 8 January, 2020 the second respondent affirmed the decision under review and gave oral reasons for doing so. Following a written request by the applicant, written reasons for that decision were provided on 31 January, 2020.  The second respondent affirmed the decision under review because the applicant could not demonstrate at the time of the second respondent’s decision that he was enrolled in a course of study and thus, he could not satisfy reg.500.211(a).

5. The applicant lodged this application for judicial review on 12 February, however due to a delay in the Registry (considered by the first respondent) the application was accepted for filing on 13 February, 2020.

Application to extend time

1. Having regard to the reason for the delay and the length of the delay, I am satisfied that in the circumstances of this case it is appropriate to extend the time within which the applicant can commence his application for review without considering any of the other matters ordinarily considered on an application to extend time.

The grounds of review

1. The applicant raises a single ground of review in his application.  It is expressed in the following way (faithfully reproduced):

   My visa initially refused based on financial issues, but I proved that I had enough money to support my application.

   I brought my CoE and every required documents to support my claim, so I believe they made a jurisdictional error.

2. The applicant has also sought to expand on this ground in similar terms in his affidavits and in particular, his affidavit filed on 9 April, 2020.

3. To understand the applicant’s case some context is necessary.  In its reasons for decision, the second respondent explained what occurred at the hearing in the following way:

   6. In the hearing, the Tribunal said that while you were refused the visa on the basis of your financial status and whether you met the financial requirement, the Tribunal was actively considering the enrolment criterion on review. The Tribunal said that while the delegate had refused to grant that visa on the basis of you not having met the financial criterion, your circumstances have now changed and the issue before the Tribunal at the time of this decision is whether you satisfy the enrolment criterion for the visa.

   7. The Tribunal asked you whether you were currently enrolled and noted that in the invitation sent to you by the Tribunal on 27 November 2019, you were asked to provide, at least seven days before the hearing, a copy of your current Confirmation of Enrolment (COE) or other documents that show you are currently enrolled in a registered course of study, as required by the Regulations, for the grant of the visa. The Tribunal noted that you did not provide a current COE prior to the hearing. You responded that you were not sure whether you were enrolled in any course of study in Australia.

   Section 359AA

   8. Adopting the procedure in s.359AA of the Act, the Tribunal said it would put to you some information that was relevant to your case. The information was contained in the Provider Registration and International Student Management System (PRIMS) and contained in its database the details of your history of study in Australia. The Tribunal gave you a copy of your record in the database. This included the information that a COE in a diploma course in which you intended to study at the time of applying for the visa had subsequently been cancelled by your provider. The Tribunal explained the relevance of the information in the database, in that it may be the reason, or part of the reason, to affirm the decision under review.

   9. The Tribunal gave you time to examine the information and after you had examined the information, the Tribunal asked if you needed additional time to consider the information. You said you did not, and were prepared to comment. You stated that you had had issues related to your sponsorship, but your provider was prepared to re-enrol you in the future. You sought from the Tribunal more time to arrange enrolment in a course. You said that you were unaware that your COE had been cancelled, but you accepted the record showed that it had.

   10. The Tribunal said that while it understood your circumstances in relation to your sponsorship, and the other issues you had raised, it appeared you were not currently enrolled in a registered course. The Tribunal said it had considered your request for more time to enrol, but said you had known about your enrolment issues and circumstances since at least 27 November 2019, and potentially longer. You said in the hearing that the first you knew of your COE being cancelled was when the Tribunal provided you with a copy of your PRISMS record.

4. The applicant’s affidavit material filed by him in support of his application does not take issue with any of these factual matters stated by the second respondent, although seeks to give some of the matters a different complexion.  In his affidavit filed on 9 April, 2020, the applicant claims:

   a)the second respondent discriminated against him because it set the hearing day for his review application in “just two weeks despite so many applications have been lodged before mine.  Two years is an average for an applicant to be called”;

   b)consistently with the second respondent’s reasons for decision, at the hearing the second respondent gave to him “a paper (CoE has been cancelled) and told me what is that?”  Although it is a little ambiguous, the applicant asserts that the second respondent told him that his CoE had been cancelled;

   c)He asked the second respondent to give him “a bit of time to get a new” CoE but the second respondent refused “despite they could have given time to me as when they called me, it was Christmas time and could not get any CoE”;

   d)the second respondent did not look at his financial capacity despite that being the issue that caused his application to fail before the first respondent’s delegate.  Instead, the second respondent asked him about his course of study and his confirmation of enrolment;

   e)the second respondent discriminated and harassed him because of the questions that it asked him about his course of study and his confirmation of enrolment;

   f)he was not given enough time “to think about their questions although they knew I am/was having mental health issues”;

   g)based on the above facts and that:

   i)the second respondent had not informed him that his confirmation of enrolment had been cancelled when he sent them “by email”;

   ii)the second respondent’s “decision could have been influenced by another party”;

   iii)he asked the second respondent not to publish his name because of safety reasons but it refused to do so; and

   iv)the second respondent did not bring “my files as well”

   the applicant claims that second respondent’s decision was predetermined and based on “discrimination and fear of not being a genuine entry student that was unlawful”.

5. The primary criteria for the grant of a subclass 500 Student visa (the subclass for which the applicant applied) are set out in Part 500 of Schedule 2 to the Regulations. Relevantly, clause 500.211 requires that the applicant be enrolled in a course of study at the time of the decision.

6. The applicant was not able to satisfy the primary criteria for the grant of the visa as he was not able to prove at the time of the decision that he was enrolled in a course of study, as required by reg.500.211 of the Regulations.  The applicant did not claim to meet any of the alternative criteria.

7. I accept the first respondent’s submission that in those circumstances, the second respondent made the only decision that was available to it, namely to affirm the decision under review.

8. I have considered the applicant’s claim set out in his affidavit that he asked for time to secure a further certificate of enrolment and the proposition that the second respondent’s refusal to give him that time was, in the circumstances, unreasonable. 

9. The second respondent dealt with this issue in its decision record. The factual matters asserted by the second respondent in the decision record are reflected in the material in the court book. That material shows that on 27 November 2018, the second respondent sent an invitation to attend a hearing before the second respondent to the applicant. The invitation expressly requested that the applicant provide, at least seven days prior to his hearing, a copy of his current confirmation of enrolment to prove current enrolment in a course of study. It drew the applicant’s attention to regs.500.111 and 500.211(a) of Schedule 2 to the Regulations. Thus, the applicant had some six weeks to obtain his confirmation of enrolment. The applicant appears to accept that he received that request although he characterises it as “Christmas time”. He gives no evidence in his affidavit that he attempted to obtain confirmation of enrolment but was prevented from doing so because it was “Christmas time”. The applicant did not provide a current confirmation of enrolment to the second respondent at the hearing, nor did he bring a valid CoE to the hearing.

10. It was the applicant’s responsibility to satisfy the second respondent that he met the relevant criteria for the grant of the visa.  He knew from at least the second respondent’s letter of 27 November, 2019 that he needed to demonstrate that he had a current confirmation of enrolment at the time the second respondent was to make its decision.  His attention was drawn to the relevant visa criteria.  In those circumstances, the second respondent’s refusal to permit the applicant more time to obtain a current confirmation of enrolment was not unreasonable.

11. I accept the first respondent’s submission that the applicant is simply seeking to express his disagreement with the second respondent’s decision.  Disagreement about whether the second respondent reached the right decision does not amount to a jurisdictional error enlivening the Court’s jurisdiction to grant relief in respect of the second respondent’s decision.

12. I accept the first respondent’s submissions that the second respondent correctly stated the relevant legal requirements and its reasons disclose no misunderstanding or misapplication of those requirements to the second respondent’s findings of fact.

Conclusion

1. The applicant’s application for review does not disclose any jurisdictional error in the second respondent’s decision.  The application must be dismissed with costs fixed and in the sum of $7,467.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020