Ali v Minister for Immigration
[2017] FCCA 2478
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2478 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary student visa – applicant found not to be a genuine student – applicant admitting he had no interest in the vocational course in which he was enrolled – applicant genuinely interested in higher education studies which had been interrupted – whether the Tribunal erred in its determination as to the genuineness of the applicant as a student considered – no jurisdictional error – observations on Ministerial intervention. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.351, 499 Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 |
| Cases cited: Ghimire v Minister for Immigration [2014] FCA 899 |
| Applicant: | SYED WAQAR ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2879 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem |
| Solicitors for the Applicant: | MIC Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 21 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2879 of 2016
| SYED WAQAR ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Ali, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 September 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Ali a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Ali is a citizen of Pakistan. All of his family reside in Pakistan.
Mr Ali was first granted a student subclass 573 visa offshore on 12 February 2013 which was valid until 30 September 2015. He arrived in Australia on 28 May 2013.
Mr Ali was enrolled in an Advanced Master of Professional Accounting at the University of Western Sydney (UWS) and completed half his course before an accident at work and the death of a family member caused him to attempt to defer his studies. Mr Ali claimed that he received no response from UWS. He then says he travelled to Mackay in Queensland in an attempt to enrol at the University of Southern Queensland (USQ).[1] His confirmation of employment with UWS was cancelled and his attempts to enroll at the USQ were unsuccessful.
[1] The delegate’s decision identifies the Central Queensland University at CB 108-112
On 29 September 2015, Mr Ali applied for a student (subclass 572) visa on the basis of his enrolment in a Diploma of Systems Analysis and Design at the Warwick Institute of Australia.[2] On 13 November 2015, the delegate refused the visa application on the basis that Mr Ali was not a genuine applicant for entry and stay as a student as required by clause 572.223(1)(a) of the Migration Regulations 1994 (Cth) (Regulations).[3]
[2] Court Book (CB) 1-22
[3] CB 105-114
On 3 December 2015, Mr Ali lodged an application with the Tribunal for review of the delegate's decision.[4]
[4] CB 115-116
On 18 August 2016, Mr Ali was invited to a hearing before the Tribunal.[5]
[5] CB 139-141
Mr Ali requested a postponement of the hearing on 17 August 2016.[6] The postponement was granted and Mr Ali was invited to,[7] and attended,[8] a rescheduled hearing before the Tribunal on 25 August 2016.
[6] CB 147-150
[7] CB 152-155
[8] CB 163-165
At the hearing before the Tribunal Mr Ali made it clear that he wanted to complete his degree at UWS. He also conceded that he did not want to study the diploma. It appears when one reads [10] of the Tribunal’s reasons that the member understood Mr Ali to be claiming the diploma was useless. He further claimed that he had been misled by his migration agent.
Mr Ali claimed that he was a genuine student and did not want to stay in Australia. He said that he wanted to return to Pakistan to work in the family business.
Mr Ali further said that he did not want to return to Pakistan without completing his degree, as this would be embarrassing, and that he did not have to perform military service.
After setting out the claims and the evidence, the Tribunal:
a)found that Mr Ali had no military service commitments in Pakistan and there was no evidence before the Tribunal to suggest he breached immigration laws of Australia or any country;[9]
b)appeared to accept that Mr Ali did not want to complete the diploma but wanted to complete his accounting degree at UWS;[10]
c)found that the diploma was of no value to Mr Ali.[11] As to the value of the course, the delegate appears to have proceeded on the basis that Mr Ali claimed the course was relevant on the basis that it would complement his past qualifications and may enable him to secure admission in a university to complete his Masters course;[12]
d)accepted that Mr Ali had applied for a deferral of his studies at UWS, but for reasons beyond his control, the confirmation of enrolment was cancelled;[13]
e)accepted Mr Ali’s claim that he was badly advised;[14]
f)accepted that Mr Ali’s family all lived in Pakistan;[15] and
g)accepted that Mr Ali would suffer embarrassment if he returned to Pakistan without completing his degree.[16]
[9] [14]
[10] [15], [16]
[11] [16]
[12] see CB 113
[13] [15]
[14] [15]
[15] [16]
[16] [16]
The only finding the Tribunal made contrary to any of Mr Ali’s claims was that he was “not a genuine applicant for entry and stay as a student”.[17]
[17] [17]
Having regard to Mr Ali’s oral evidence, the Tribunal accepted that the course he was enrolled in had no value to his future in light of his obtaining a Master of Business Administration from England and his desire to complete his accounting qualifications.[18]
[18] CB 171-172 at [16]
However, as Mr Ali stated that he did not intend to study the course in which he was enrolled, and that the course had no value to his future, together with any other matters it considered relevant, the Tribunal was not satisfied that Mr Ali was a genuine applicant for entry and stay as a student, and found that he did not meet clause 572.223(1)(a) of the Regulations.[19] The Tribunal also found that Mr Ali did not meet the requirements of the other visa subclasses.[20] As the Tribunal found that Mr Ali did not meet the criterion for the grant of a student visa, it affirmed the decision under review.[21]
[19] CB 172 at [17]-[18]
[20] CB 172 at [19]
[21] CB 172 at [20]
The present proceedings
These proceedings began with a show cause application filed on 21 October 2016. Mr Ali continues to rely upon that application. There are three grounds in it:
1.The Tribunal did not identify and correctly apply the relevant test as applicable to criterion in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, namely genuine temporary entrant;
2. The Tribunal drew factual inferences which were not supported by primary facts. By drawing inferences in the absence of evidence, the Tribunal made an error of law;
3. The cumulative effect of 1 and 2 above are that the applicant was not given a fair and a proper hearing, and he pleads breach of rules of natural justice by the Tribunal.
Ground 3 was not pressed.
I have before me as evidence the court book filed on 20 February 2017.
On 10 May 2017, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), I ordered the Minister to show cause why relief should not be granted in relation to the grounds identified in the application in respect of the findings of the Tribunal at [7]-[17] and the Tribunal’s finding[22] that, having regard to Mr Ali’s then proposed course of study, the relevant visa subclass was subclass 572, bearing in mind that at the Tribunal hearing, Mr Ali made clear that he wanted to resume higher education studies, to which the appropriate subclass would be subclass 573.
[22] CB 170-172
Both Mr Ali and the Minister filed written submissions and made oral submissions through their counsel at the trial of the matter on 12 October 2017.
The submissions of the parties addressed the issue arising from the show cause order, within the broader framework of Grounds 1 and 2 in the application.
Consideration
Mr Ali contends that the Tribunal did not identify and correctly apply the relevant test as applicable to the criterion in clause 572.223(1)(a) of Schedule 2 to the Regulations, namely the criterion of Mr Ali being a genuine entrant as a student. As emerged during oral argument, another way of approaching the issue would be to test whether the Tribunal asked itself the wrong question in addressing the criterion.
The Minister’s general response to Mr Ali’s contention is to assert that the criterion in issue bears not on the question of whether one is a genuine student in a general sense but, rather, whether one is a genuine student in respect of the course for which one is enrolled.
I address this issue below by reference to the parties’ submissions.
Mr Ali’s contentions
Looking closely at the wording of clause 572.223(1)(a), the statutory test was about the genuineness of Mr Ali’s intention to stay in Australia temporarily. The case put by Mr Ali was clearly that his genuine intention was to stay in Australia temporarily, complete his accounting degree and return to Pakistan and work in the family business.
The Tribunal appears to have treated the fact that Mr Ali did not intend to study his diploma and the fact that it had no value to him as being determinative of the question before it. Such an approach is said to have been incorrect and a distraction from the statutory duty of the decision maker to consider the real question it had to ask, that is, whether it was satisfied that Mr Ali was a genuine applicant for entry and stay as a student.
Mr Ali contends that the test is not confined to a consideration of the genuineness of the application by reference only to the utility of the proposed course of study. He submits that, while he indicated that he wanted to complete his university degree, he had earlier indicated to the delegate that one of the reasons for him doing the course was to use it as a possible pathway to re-enrolment in the university degree.[23]
[23] CB 113
Gray ACJ in Minister for Immigration v Awan[24] stated at [16]:
By its terms, item 560.224(1) of Sch 2 to the Migration Regulations required the Tribunal to be satisfied of a single fact before it could grant Mr Awan the visa he sought. That single fact was that Mr Awan was a genuine applicant for entry and stay as a student . In reaching a conclusion about that issue, the Tribunal was obliged to have regard to the range of factors specified in pars (a), (b), (c) and (d). These were not themselves criteria that Mr Awan had to meet to the satisfaction of the Tribunal in order to succeed in his application. It is perfectly possible that the Tribunal could have found one or more of the factors to be adverse to Mr Awan's application, but still have found him to be a genuine applicant.
[24] [2003] FCAFC 140 (26 June 2003)
At [18] Gray ACJ also noted that the Tribunal was required to conduct a balancing exercise in relation to the single question that the Tribunal had to determine.
In this matter, Mr Ali submits that the Tribunal did not appear to have engaged in the balancing exercise in which it was required to engage. It appears to have considered itself confined and bound to the finding that the diploma was useless to Mr Ali and that he did not want to complete it. Mr Ali was emphatic that he intended to complete his UWS course and return to Pakistan. The Tribunal accepted that there was no adverse evidence in Mr Ali’s immigration history. The Tribunal did not raise the issue of Mr Ali’s finances or English proficiency.
On the evidence before the Tribunal, there is said to have been no evidence to discount the contention that had it not been for the circumstances that gave rise to cancellation of Mr Ali’s confirmation of enrolment, which were beyond his control, Mr Ali would have continued with the UWS degree.
Notwithstanding the findings of the Tribunal relating to the utility of the diploma and Mr Ali’s intentions regarding it, he contends that the Tribunal’s findings cannot be determinative of the question of his genuine intention to stay in Australia temporarily as a student. Even if he wanted to study a course other than the diploma, that does not mean that he was not a genuine temporary student visa applicant.
In the circumstances, Mr Ali submits that the Tribunal failed to engage in the balancing exercise as required by the relevant regulations. In failing to do so, the Tribunal committed a jurisdictional error justifying the relief which the applicant is seeking.
Minister’s contentions
The Tribunal was plainly aware that in considering whether Mr Ali met the genuine temporary entrant criteria, it was required to consider Direction No. 53, which contained a list of specified factors, as set out in its decision record.[25] For example, in considering Mr Ali’s circumstances, the Direction requires the Tribunal to have regard to the applicant's circumstances in his home country, the applicant’s potential circumstances in Australia and the value of the course to the applicant's future. The Tribunal correctly noted that the factors are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant's circumstances as a whole.[26] The Tribunal expressly had regard to Mr Ali’s immigration history,[27] his circumstances in his home country and potential circumstances in Australia[28] and the value of the course to his future.[29]
[25] CB 171 at [11 ]-[12]; Migration Act, s.499(2A)
[26] Ghimire v Minister for Immigration [2014] FCA 899 at [3]
[27] CB 171, [14]
[28] CB 171-172 at [16]
[29] CB 171-172 at [15]-[16]
The Minister submits that, as a matter of construction of the applicable regulations, the requirement for the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student must be taken to be a reference to entry and stay as a student of the course in respect of which the applicant is seeking to be granted the visa. This construction is said to be consistent with the context, object and purpose of the clause. In order to be satisfied that an applicant who has applied, for instance, for a higher education visa, is a genuine student, it would be “nonsensical, and contrary to the purpose of the student visa scheme” to suggest that the Tribunal needed to consider whether the applicant was a genuine student for a postgraduate research degree.
The Minister submits further that the Tribunal did not treat as “determinative” the question of Mr Ali’s intentions for studying the diploma and the utility of the diploma to his career. The Tribunal referred to these considerations in the course of determining whether it was satisfied that Mr Ali was a genuine applicant for entry and stay as a student. These were factors to which the Tribunal was required to have regard under the Ministerial Direction.
Resolution
In my opinion, there are a range of factors which may bear on a decision maker’s consideration of whether a visa applicant is a genuine student. As noted above, the Tribunal took into account a number of factors, all of which are relevant, but in my opinion found determinative Mr Ali’s frank admission that he did not intend to undertake the course in which he was enrolled. As the Tribunal stated at [17] of its reasons:[30]
As the applicant has stated that he does not intend to study the course in which he is enrolled and the Tribunal accepts that the course in which he is enrolled has no value to his future, the Tribunal finds, having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant is not a genuine applicant for entry and stay as a student.
[30] CB 172
In my opinion, that conclusion was open to the Tribunal on the material before it and its reasoning does not disclose jurisdictional error.
In reaching that finding, I do not accept the Minister’s submission (if it were intended) that the question of whether an applicant is a genuine student falls to be determined only by reference to the particular course of study in which an applicant is enrolled. For example, an applicant may be genuinely intending to undertake a course for which they are enrolled but they may not be a genuine student because they have a broader intention to pursue studies indefinitely in order to achieve a migration outcome. In other words, a visa applicant may pursue a series of courses genuinely but with the intention of indefinitely prolonging their stay in Australia.
On the other hand, I cannot accept Mr Ali’s contention that the course in which he was enrolled could not be determinative of the Tribunal’s consideration of whether he was a genuine student for the purposes of the visa criterion. Another decision maker may have chosen to place greater weight on other factors, including Mr Ali’s intention to resume his higher education studies, but that simply goes to the merits of the Tribunal decision. The Tribunal did not ask itself the wrong question or misapply the visa criterion in considering the genuineness of Mr Ali’s chosen studies. Mr Ali’s real complaint is that the Tribunal chose to make that issue determinative. That goes to the weight allocated to that issue by the Tribunal and the merits of its decision, which are beyond the scope of these proceedings.
I reject Ground 1.
I accept the Minister’s submissions in relation to the second ground.
Mr Ali asserts in his second ground that the Tribunal drew factual inferences not supported by primary facts. However, the contention is in essence a challenge to the Tribunal’s assessment of the circumstances it did consider, and which it was bound to consider by reference to the Regulations and the Ministerial Direction. Whether Mr Ali was a genuine applicant for entry and stay as a student was a matter for the Tribunal to evaluate by reference to, among other things, Mr Ali’s circumstances. It was unnecessary for the Tribunal to conclude that Mr Ali was a discreditable witness before it could find that he was not a genuine applicant for entry and stay as a student. The ground amounts to an invitation to the Court to engage in a review of the Tribunal’s assessment.
The show cause order – did the Tribunal need to consider the application by reference to subclass 573?
Mr Ali’s contentions
Mr Ali made it clear to the Tribunal that he wanted to resume higher education studies, that is, his accounting degree at UWS. That being said, he submits that the appropriate subclass would be subclass 573.
The Tribunal stated at [19] that it assessed Mr Ali’s claim with regard to the requirements of subclasses other than subclass 572. Mr Ali submits that there could not have been a consideration of the requirements of subclass 573.
Mr Ali submits that the Tribunal could have and should have considered the applicability of subclass 573 notwithstanding the fact that Mr Ali did not have a confirmation of enrolment for a higher degree.
Apart from the genuineness of stay test set out in clause 573.223(1)(a), Mr Ali is required to meet the requirements of sub clause (1A) or (2). The use of the word “or” is important as it indicates that an applicant can satisfy the requirement if one of those sub clauses is met.
Sub clause (1A) requires Mr Ali to have a confirmation of enrolment in an eligible higher degree. On the evidence before the Tribunal, Mr Ali at the relevant time was not an eligible higher degree student with a corresponding confirmation of enrolment and therefore it cannot be argued by Mr Ali that (1A) applies.
Since sub clause (1A) does not apply, one would need to consider sub clause (2). To meet this second criterion, Mr Ali must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for thehighest assessment levelfor him. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level.
Mr Ali holds a passport of Pakistan. As at the date of the Tribunal’s decision, the assessment level for a holder of such a passport for subclass 573 (the subclass for Mr Ali’s principal course) appears to have been assessment level 3[31]. In this case, assessment level 3 is the highest assessment levelto which the applicant is subject.
[31] IMMI 14/014.See 1602711(Migration) [2016] AATA 4484 (4 October 2016); and 1516825 (Migration) [2016] AATA 4082 (8 July 2016) where level 3 was held to be applicable to a Pakistani passport holder applying for a 573 visa
The evidentiary requirements for this assessment level for subclass573 are set out in Part 5 of Schedule 5A. Mr Ali submits that there was no consideration of the evidentiary requirements by the Tribunal. It is in that sense that there is said to have been a failure to consider the requirements under subclass 573.
In oral argument, counsel for Mr Ali took me to the criteria for the subclass 573 visa at the time of his visa application set out in Schedule 2 to the Regulations from clause 573.1. Counsel pointed out that under clause 573.223, the Minister might be satisfied that Mr Ali is a genuine applicant for entry and stay as a student in sub clause (1) and Mr Ali could overcome sub clause (1A) which required a confirmation of enrolment in a higher education course, by reference to sub clause (2) which applied in the alternative as follows:
If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
Minister’s contentions
It is necessary first to address the question of the student visa scheme more generally. The Regulations prescribed several visa subclasses within class TU, the purpose of which are to enable a non-citizen to enter and stay in Australia so that a particular kind of course of study may be undertaken. Under class TU at the time Mr Ali applied for his visa, the Regulations did not provide for a student visa “at large”.[32] On 29 September 2015 Mr Ali applied for the grant of a class TU visa, completing a form 157A. At the time of application, class TU contained several subclasses. On the first page of the visa application form, Mr Ali ticked a box indicating that he wished to be considered for a subclass 572 (Vocational Education and Training Sector) visa.[33] He did not tick the box to be considered for a subclass 573 (Higher Education Sector) visa. On page 4 of the visa application, Mr Ali stated that his intended course of study was a Diploma of Systems Analysis and Design at the Warwick Institute of Australia.[34] He confirmed that evidence of his enrolment in that course was attached.[35] Mr Ali applied specifically for a subclass 572 visa[36] because he was enrolled in a diploma course in the vocational and education training sector and desired a visa to enable him to remain lawfully in Australia to undertake that course.
[32] The Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 which commenced on 16 April 2016, introduced a simplified student visa framework
[33] CB 1
[34] CB 4
[35] see CB 29
[36] CB 1
Whilst addressing some relevant background, it is to be recalled that Mr Ali was previously granted a subclass 573 visa in order to undertake the accounting degree course. He told the Minister’s Department (through his migration agent)[37] that he completed successfully one semester of the degree program, but then failed two units in the second semester.[38] Shortly afterwards a string of personal issues in his life (including a back injury and the illness and then death of his grandmother in Pakistan) made it difficult for him to progress with his studies, and he sought a vacation from his degree program. On 2 December 2014 UWS cancelled Mr Ali’s confirmation of enrolment for the degree due to him failing to pay course fees.[39] In September 2015 Mr Ali re-applied to the university to resume his studies, but was refused.[40] This appears to have been the reason why Mr Ali enrolled in a diploma course and applied for a subclass 572 visa.[41]
[37] see letter dated 3 November 2015 at CB 57-60
[38] see [3] of the agent’s letter; CB 57
[39] see [12] of the agent’s letter; CB 58
[40] see [18] of the agent’s letter; CB 59
[41] see [20] of the agent’s letter: CB 59
The issue arising from my show cause order is that, by virtue of Mr Ali signalling to the Tribunal that he wanted to resume his accounting degree course at UWS, this created some particular obligation on the Tribunal when it came to considering if Mr Ali met the requirements of subclass 573. However, the Tribunal states that it did consider whether Mr Ali met any of the requirements of the other subclasses within class TU.[42] The Tribunal found Mr Ali was not entitled to a visa within the other subclasses (save for subclass 580) because he was not a genuine applicant for entry and stay as a student. While this might appear to be a circular argument, the Minister submits that the Tribunal’s findings were plainly open to it, in light of the fact that Mr Ali was neither enrolled in nor the subject of an offer of enrolment from a tertiary institution for a higher education course, including the accounting degree course he mentioned to the Tribunal.
[42] [19]
The Minister submits that, whilst the Tribunal did not express further reasons for why Mr Ali did not meet the requirements for the grant of a subclass 573 visa, it is necessary to point these out, as they would be relevant to the question of discretionary refusal of relief, were the Court satisfied that the Tribunal had made a jurisdictional error.[43]
[43] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [57]
First, it was a requirement for the grant of the subclass 573 visa that Mr Ali give the Minister a “certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider”.[44] The analogous sub clause in clause 572.222 has been described as a “pre-requisite” for the grant of the visa.[45] Mr Ali did not have a confirmation of enrolment for a higher education course.
[44] clause 573.222(1)
[45] see Hasnat v Minister for Immigration & Anor [2013] FCCA 1922 at [2]
Secondly, it was a requirement for the grant of the subclass 573 visa that if clause 573.223(1A) does not apply, “the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course” specified by the Minister in an instrument made under regulation 1.40A.[46] Mr Ali was neither enrolled in nor the subject of an offer of enrolment in a pre-requisite course.[47] In fact, he told the Minister’s Department that he had been rejected by UWS when he had tried to re-enrol.
[46] clause 573.231
[47] See the instrument made by the Minister under regulation 1.40A, IMMI 14/015
The question is not whether the Tribunal erred in considering whether Mr Ali satisfied the requirement for the grant of a subclass 573 visa, but rather whether Mr Ali was permitted to rely upon a higher education course for the purposes of obtaining a student visa in circumstances where he was not enrolled in any such course, or in receipt of an offer of enrolment for any such course. Put simply, the Minister submits that Mr Ali was not eligible for a subclass 573 visa. Whatever criticism might be made of the Tribunal’s reasoning, for the reasons outlined the outcome cannot have been any different.
Resolution
I accept the Minister’s submissions. The Tribunal was not required to specifically consider Mr Ali’s eligibility for a subclass 573 higher education visa because, at the time of the Tribunal’s decision, not only had he not applied for it but he was not even eligible for it. In oral argument, counsel for the Minister took me to sub clause 573.231 which stated, as outlined at [59] above:
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i)made under regulation 1.40A; and
(ii) in force at the time the application was made.
In short, the operation of the visa criteria had the result that, even if Mr Ali had been able to persuade a decision maker that he was a genuine student, he would also have needed to provide either a current enrolment in a higher education sector course or an offer of enrolment. He had neither. It would, therefore, have been futile for Mr Ali to have sought a subclass 573 visa at the time of the Tribunal decision and there was no legal obligation on the Tribunal to consider Mr Ali’s eligibility for that subclass of visa.
I find that the Tribunal did not fall into error by failing to consider Mr Ali’s eligibility for a subclass 573 visa.
Referral to the Minister
It is unfortunate that the Tribunal did not consider referring Mr Ali’s case to the Minister for his possible consideration under s.351 of the Migration Act. There was no such legal obligation on the Tribunal but, if it had done so, it is possible that these proceedings could have been avoided. Mr Ali’s circumstances are unfortunate. It is clear that he came to this country specifically for the purpose of studying to obtain a Master of Professional Accounting and he progressed halfway through his studies before an accident and unfortunate family circumstances caused an interruption. His only wish is to be able to complete that course, which he was unable to complete because of circumstances beyond his control. He was frank and honest with the Tribunal in disclosing that his subclass 572 visa application, and the course enrolment he had obtained in support of it was no more than a holding operation in order to maintain his visa status in Australia so that he might find a way to resume his chosen studies. Mr Ali was not attempting to use the Australia visa system in order to prolong his stay in Australia for its own sake or to achieve a migration outcome. He was seeking to find a way through the highly technical requirements for a student visa in order to resume his chosen studies. Although he was unsuccessful in that attempt, the Minister might properly consider whether he should be given the opportunity to complete the higher education degree which he so earnestly desires. That is a matter for the Minister to consider, should he be so minded.
Conclusion
Mr Ali has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 November 2017
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