ALAM v Minister for Immigration

[2016] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 652

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal applied the correct test in as to whether the applicant was a genuine temporary entrant for the purpose of study – whether the Tribunal considered the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.573.223

Applicant: KHORSHED ALAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3144 of 2015

Judgment of: Judge Street

Hearing date: 29 March 2016

Date of Last Submission: 29 March 2016

Delivered at: Sydney

Delivered on: 29 March 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms F Taah
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3144 of 2015

KHORSHED ALAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 24 October 2015 affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa. The applicant is a citizen of Bangladesh. The applicant arrived in Australia on 26 November 2007, having been granted a Student (Class TU) subclass 575 visa offshore on 21 November 2007. The applicant has undertaken a large number of courses since 2007, amounting to 19 in total, only five of which the applicant has completed.

2. The delegate was not satisfied that the applicant was a genuine temporary entrant consistent with the requirements of cl.573.223 of the Migration Regulations 1994.  On 28 July 2015, the applicant was invited to attend a hearing before the Tribunal on 1 September 2015 at which the applicant appeared, assisted by a migration agent.  Prior to that hearing on 28 August 2015 the applicant provided further information, including a statement by the applicant.  The Tribunal’s reasons made reference to the applicant’s statement and found that there were a number of matters which militate against the finding that the applicant intends to stay in Australia temporarily for the purposes of study. 

3. The Tribunal identified the number of courses in which the applicant had enrolled and the limited number completed. The Tribunal made reference to the majority of the courses having a business flavour and that the food course seemed to be somewhat of an aberration. The Tribunal referred to the quality of the courses and the applicant’s concession that he enrolled in too many subjects at the wrong time which indicated a lack of direction and planning for his future. The Tribunal referred to the applicant taking a long time to finally determine that he wished to now pursue and complete a bachelor degree. The Tribunal also made reference to the applicant’s observation in relation to his studying food processing that he wanted to acquire permanent residency. It was in these circumstances that the Tribunal found that it was not satisfied the applicant intends genuinely to stay in Australia temporary and accordingly did not meet the requirements of cl.573.223(1)(a) and affirmed the decision under review.

4. The application filed by the applicant raises the following grounds:

   1. The member did not apply the law clause 573.223 courses.

   2. At the end of the hearing the member gave 7 days to provide health insurance.  The member did not put to me any other concern, the tribunal has.

5. A Registrar of the Court made orders for the filing of an amended application, affidavit evidence and submissions.  Those orders were made on 21 January 2016.  No documents were filed pursuant to those orders by the applicant. 

6. At the commencement of the hearing the Court read the applicant’s affidavit evidence on which he wished to rely and confirmed that the applicant had received the court book and the written submissions of the first respondent.  The Court explained that jurisdictional error had to be made out by the applicant and that this involved either an excess of statutory power by the Tribunal or a denial of procedural fairness by the Tribunal to the applicant.  The applicant confirmed that he understood what the Court had explained. 

7. In response to the invitation from the Court to put submissions in answer to the first respondent’s submissions or in support of his application the applicant said that he did not breach any visa condition.  The applicant said he had performed academically well in the courses that he had completed.  The applicant said that he was continuing to study and that he had not undertaken any full-time work. 

8. The solicitor for the respondent submitted that nothing said by the applicant identified any jurisdictional error by the Tribunal and that the matters raised were, in substance, an impermissible invitation to review the merits of the matter.  This Court does not have jurisdiction to make fresh findings of facts on the merits.

9. In relation to ground 1, the Tribunal correctly applied the relevant law and the adverse finding by the Tribunal as to whether the applicant was a genuine temporary entrant for the purpose of study was an adverse finding that was open on the material before the Tribunal.  Ground 1 fails to make out any jurisdictional error.

10. In relation to ground 2, the Court notes that the applicant’s representative by email dated 2 September 2015, thanked the Tribunal for additional time to provide the applicant’s attached overseas student health cover and contended that the certificates met the requirements for a successful review application. 

11. It is apparent that that health certificate was attached and provided to the Tribunal.  The provision of that health certificate does not give rise to any arguable ground of jurisdictional error. Insofar as ground 2 includes a proposition that the Tribunal had not to put to the applicant matters of concern, it is apparent that whether the applicant was a genuine temporary entrant was a live issue before the Tribunal.  Ground 2 fails to make out any jurisdictional error.

12. The applicant indicated that it was his intention to finish his bachelor degree and apologised for the lack of direction and the aberration in his courses.  These are not matters that give rise to any basis upon which this Court can grant any relief.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 April 2016