Ali v Minister for Immigration

[2018] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1783

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) (subclass 500) visa – whether the Tribunal ‘neglected’ the applicant’s – whether the Department failed to comply with the obligations of procedural fairness – whether the Tribunal complied with the obligations of procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), cl. 500.211, 500.212

Applicant: SYED FAHAD ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4056 of 2017

Judgment of: Judge Street

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Sydney

Delivered on: 3 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4056 of 2017

SYED FAHAD ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 December 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Pakistan and first arrived in Australia on 10 August 2007 as a student on a Student (TU-572) visa holder to study an English course followed by Advanced Diploma of Accounting at the Illawarra Business College. The applicant completed the English course on 12 October 2007 and he completed an Advanced Diploma of Accounting course on 4 November 2009. The applicant was granted a further Student (TU-573) visa to study a Bachelor of Business (Accounting) at Charles Sturt University. This course was deferred from 28 February 2011 to 30 June 2011.

3. The information provided by the university for the reason of the applicant’s deferment was that the applicant was required to travel back to his home due to his father’s ill health. The applicant, however, did not depart Australia until 18 May 2011. The applicant arrived back in Australia on 28 June 2011 and continued with his course at Charles Stuart University.

4. On 25 July 2011, the applicant changed his education provider to study at Victoria University, and then deferred his course from 20 July 2012 to 26 November 2012, and departed Australia on 22 October 2012. The applicant returned to Australia on 16 November 2012, and his course was again deferred from 30 July 2013 to 30 March 2013, and the applicant did not depart Australia again until 30 December 2013. The applicant arrived back in Australia on 14 February 2014 and continued with his course until 17 July 2015, when his course was cancelled due to non-payment of fees. Another course was cancelled on 24 March 2016 due to non-payment of fees. On 11 April 2016, the applicant changed education provider to Holmes Institute to study at Bachelor of Professional Accounting. The applicant extended this course until 31 July 2017.

5. The applicant applied for the Student (Temporary) (Class TU) Student (subclass 500) visa on 22 September 2016 to undertake courses of study in Australia at the higher education sector, being a Bachelor of Professional Accounting from 11 April 2016 to 31 December 2016, and an extension in a Bachelor of Professional Accounting from 1 January 2017 to 31 July 2017.

6. The criteria for the grant of the visa was identified in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), which is as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant's circumstances; and

   (ii) the applicant's immigration history; and

   (iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (iii) of any other relevant matter.

7. On 12 October 2016, the delegate found the applicant failed to meet the criteria for the grant of the student visa. The delegate found the applicant failed to demonstrate course progression in Australia and found that the applicant was maintaining the same course of study but placed more weight on the duration taken to study this course with multiple changes in education providers. The delegate was, accordingly, not satisfied that the applicant was a genuine student.

The Tribunal

1. On 31 October 2016, the applicant applied to the Tribunal for review. The applicant was invited to attend a hearing on 30 November 2017. The applicant appeared on that date to give evidence and to present arguments. At the hearing, the applicant proffered evidence of a motor vehicle accident that he was involved in on 9 July 2017, as a result of which he had a number of injuries. The applicant claimed that the effect of these injuries compromised his ability to undertake his academic studies.

2. The Tribunal acknowledged that the circumstances of the applicant were disrupted by the motor vehicle accident in 2015, as a result of which he suffered physical injuries. The Tribunal was not, however, satisfied that the applicant was enrolled in a course of study which is a mandatory criteria and, accordingly, found that the requirements of cl 500.211 were not met and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

2. On 5 February 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. The grounds in the application are as follows:

   1. I applied for my Student visa on 22 September 2016 which was subsequently refused on 12^th October 2016.

   2. After my visa was refused, I applied for review of the decision which was again refused because I did not meet the criteria for the Student Visa. I want to appeal to Federal Circuit Court as I believe Administrative Appeals Tribunal could not fairly consider the reasons before making the decision, which as it turns out, is not in my favour.

   3. At the time of hearing, I had provided various evidences of my genuine intention to study. I had provided detailed answers to which tribunal asked me. I had clearly provided all the answers which can support that intention to stay in Australia is temporary only. As per me, tribunal completely neglected the issues that I faced related to my health, family and issues faced with university making it stressful to cope with my studies.

   4. I had lodged my Student Visa on 22nd September 2016 to study Bachelor of Professional Accounting which was rejected.

   5. I came to Australia in August 2007 to study Advanced Diploma of Accounting after my English course. I finished both the courses in 2009.

   6. In May of 2010, I started Bachelor of Business (Accounting) and then deferred the course from February 2011 to June 2011 due to my father’s ill health. Following which after returning to Australia, I changed my course provider to Victoria University and continued until July 2012. But again, my mother encountered a cyst formation in the intestine and the doctors said that they can proceed with the surgery in a short time. While I was deferred, I was waiting for the doctors to decide the surgery date so that I can plan my travel. But as it turned out, there were a lot of complications as my mother is diabetic as well as a heart patient. The surgery was cancelled, and I came back on 16^th of November 2012 as soon as everything settled back in there. There was a lot of uncertainty during the time and hence it so happened that I deferred and left late during the deferral window.

   7. I again deferred this course in July 2013 until the March of 2014 because I had a medical issue with my lower back, specifically in the L5 vertebrae. Due to the fractured back and the associated issues with it, I was in no condition to attend the University. Also, I had a car accident in 9th July 2015 I was traveling with my sister and my nieces and end up in hospital after allegedly drunk woman hit car at high speed. I had fracture in my ribs, back, neck, lost tooths, cut in my right eye (and I lost vision for my right eye for few months), I have been through a lot of treatments. I also have a Police report number E-58192232. I was still ready to study in the Victoria University to enhance my career, but management didn’t help me at all and ask me to pay more money otherwise they will cancel my COE.

   8. Following which, my tryst with Victoria University began wherein, there was an issue with the payment of fees, and the university wanted me to pay for extra a subject which was totally unfair on their part.

   9. The tribunal passed the decision not to grant me visa based on the fact that I did not meet requirements of Cl.500.212 of Schedule 2 of the Migration Regulations 1994.

   I believe that while making the decision on my application, DIBP did not follow a procedural fairness.

4. The applicant, when invited to put submissions, candidly acknowledged that the Tribunal’s decision was not unlawful or unfair and that he had been slack in pursuing his courses but wanted an opportunity to complete his study. The Court explained to the applicant that the Court had no power to determine the matter on discretionary or compassionate grounds. The Court was, however, impressed by the applicant’s command of English and particularly impressed by the applicant’s candour. However, nothing said by the applicant identified any jurisdictional error.

5. The applicant’s grounds in the application mirror the grounds in the affidavit in support. The grounds in the application, in substance, reflect disagreement with the adverse finding by the Tribunal but do not identify any jurisdictional error. The generalised assertion that the Tribunal did not comply with the requirements of procedural fairness is not, on its face, capable of making out any relevant error. On the material before the Court, the Tribunal complied with its statutory obligations and the applicant had a real and meaningful hearing. On the material before the Court, the Tribunal complied with the requirements of procedural fairness. The generalised assertion as to belief of the applicant does not identify any failure by the Tribunal to comply with procedural fairness.

6. The Tribunal made findings that the applicant was not enrolled in a course of study based on the applicant’s own evidence to the Tribunal. None of the grounds in the application identify any jurisdictional error. The Tribunal’s adverse finding was open to the Tribunal for the reasons given by the Tribunal as summarised above. No jurisdictional error as alleged in the grounds of the application is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  24 August 2018