Ali v Minister for Immigration

[2019] FCCA 2278

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2278

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.362B, 476, 501, 501CA

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Jia (2001) 205 CLR 507

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: ARSHAD ALI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2903 of 2018

Judgment of: Judge Driver

Hearing date: 19 August 2019

Delivered at: Sydney

Delivered on: 19 August 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H Gao of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

3. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2903 of 2018

ARSHAD ALI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Ali, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 September 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Ali a temporary student visa. 

2. Background facts concerning Mr Ali’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 12 August 2019. 

3. Mr Ali is a Pakistani citizen who arrived in Australia on the 17 July 2014 as the holder of a student visa.  On 30 September 2016, he lodged an application for a further student visa.[1]  On 5 April 2017, the delegate refused the student visa on the basis that Mr Ali did not satisfy clause 500.212 (genuine temporary entrant criterion) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2]

   [1] Book of Relevant Documents (RD) 1-16

   [2] RD 29-35

4. On 24 April 2017, Mr Ali sought review of the delegate’s decision by the Tribunal.  He was initially represented before the Tribunal by his migration agent, Mr Mark Mahfouz.[3]

   [3] RD 36-37

5. On 30 May 2018, Mr Matthew Semaan advised the Tribunal that Mr Mahfouz had purportedly transferred the matter to him, and sought Mr Ali’s files from the Tribunal.[4]  On 31 May 2018, the Tribunal indicated to Mr Semaan that he was required to complete an MR5 Form, “Appointment of Representative Appointment of Authorised Recipient – MR Division”.[5]  There is no evidence that such a form was ever completed and submitted by Mr Semaan.

   [4] RD 42

   [5] RD 43-45

6. By email dated 20 June 2018, addressed to Mr Mahfouz at his email address, Mr Ali was invited to attend a hearing on 11 July 2018.[6] However, Mr Ali did not appear at the hearing on 11 July 2018 and for that reason, his application was dismissed on 16 July 2018 under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act).[7]

   [6] RD 46-50

   [7] RD 65

7. On 26 July 2018, Mr Ali’s new migration agent, Mr Raminder Singh, advised the Tribunal that he was engaged to represent Mr Ali before the Tribunal.[8]  On 30 July 2018, Mr Ali applied for the reinstatement of the review application.  He explained that he had been unable to attend the hearing due to medical conditions.  In support, he attached a medical certificate and a report of an MRI scan.[9]

   [8] RD 66-67

   [9] RD 68-73

8. On 30 July 2018, the Tribunal reinstated the application.  Mr Ali was invited to attend a hearing before the Tribunal on 22 August 2018.[10]  On 6 August 2018, Mr Singh indicated to the Tribunal that he no longer represented Mr Ali and confirmed that Mr Ali’s contact details remained unchanged.[11]  Mr Ali did not attend the hearing on 22 August 2018.[12]

   [10] RD 75-77

   [11] RD 79-81

   [12] RD 82-84

9. On 23 August 2018, Mr Ali was invited to comment on particulars of information under s.359A of the Migration Act (s.359A letter), as follows:

   According to the Provider Registration and International Student Management System (PRISMS) records, you are not enrolled in a course of study.

   PRISMS records show that you completed a Diploma of Business on 3 September 2017 and your enrolment in a Bachelor of Accounting scheduled to begin on 4 December 2017 and end on 1 December 2019 has been cancelled.

10. The s.359A letter explained that it was a requirement for the grant of the student visa that Mr Ali be enrolled in a course of study, and that if the Tribunal relied on this information, it might lead to the decision being affirmed.[13]

    [13] RD 85-87

11. On 6 September 2018, Mr Ali responded to the s.359A letter stating that he had been unable to attend the hearing and continue with his Bachelor of Accounting degree due to his medical conditions. In support, he attached the same medical documents that were provided to the Tribunal on 30 July 2018.[14]

    [14] RD 88

Tribunal decision

1. On 11 September 2018, the Tribunal affirmed the decision under review.[15]

   [15] RD 94

2. The Tribunal noted the background of the matter, including the relevant legislative provisions, the content of the s.359A letter and Mr Ali’s response to that letter.[16]

   [16] RD 95-96 at [1]-[13]

3. The Tribunal accepted that Mr Ali appeared to have been suffering from back pain.  It noted the medical certificate stated that Mr Ali would be unfit for normal studies from 3 to 16 July 2018.  It found that there was no evidence before it to suggest that Mr Ali had been unable to study since completing a Diploma of Business in September 2017, or that he had undertaken any approved course of study since that date.[17]

   [17] RD 97 at [14]

4. As Mr Ali was not enrolled in a course of study at the time of the decision, the Tribunal found that he did not satisfy clause 500.211 of Schedule 2 to the Regulations and affirmed the decision under review.[18]

   [18] RD 97 at [15]-[17]

The present proceedings

1. These proceedings began with a show cause application filed on 16 October 2018.  Mr Ali continues to rely upon that application.  There are three grounds in it: 

   1.The decision made by the AAT and Case officer is biased in nature and I feel that I was not provided procedural fairness as the Tribunal did not recognised the evidences and facts presented during the hearing time

   2.I do believe that the law was incorrectly applied as the AAT did not attempt to follow the Ministerial Direction 69 & 65 along with the cl.500.212. The jurisdictional error is that AAT did not in truth undertake the inquiry as per cl.500.212 and Direction 69 required to undertake, namely, to consider whether the applicant is a genuine applicant for entry and stay as student, to consider whether the applicant intends to return to his home country at the expiry of the period for which the subclass 500 visa he applied for would be valid.

   3.I feel that the natural justice was denied to me as my application was decided without giving me any opportunity to comment on event during the time of refusal of my visa application.

   (errors in original)

2. The application is supported by an affidavit filed with it which I received as a submission.  I have before me as evidence the book of relevant documents filed on 4 December 2018. 

3. I invited oral submissions this afternoon from Mr Ali who represented himself. He told me that he continues to suffer back pain and at the time of the Tribunal’s review he had an additional difficulty in that the lawyer who had previously been assisting him ceased acting for him. He is not studying or working at present and explained that his visa status does not permit him to do either. He seeks a further opportunity to put his case to the Tribunal. As I explained to him, however, in the absence of an arguable case of jurisdictional error by the Tribunal, his judicial review application should be dismissed.

4. The relevant criteria for the visa sought by Mr Ali were:

   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;

   (c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

   (d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

5. The grounds advanced by Mr Ali in his application do not point to any arguable case of jurisdictional error by the Tribunal.  I agree with the Minister’s submissions on those grounds. 

Ground 1

1. Insofar as this ground asserts that the Tribunal was biased, it must be rejected.  It is well established that any allegation of bias must be distinctly made and clearly proved.[19]  Although the Tribunal’s reasons for decision were brief, it was a reflection of the narrow issue before it, namely, whether Mr Ali was enrolled in a course of study at the time of its decision, as required under clause 500.211 of Schedule 2 to the Regulations.  As the only evidence available before the Tribunal was that he was not enrolled in a course of study, the Tribunal had no choice but to affirm the decision under review.

   [19] See Minister for Immigration v Jia (2001) 205 CLR 507 at [69]

2. Mr Ali’s contention that he was denied procedural fairness must also be rejected.  He did not appear before the Tribunal at a hearing, despite being invited to do so.  Therefore, it is unclear to what “evidence and facts presented during the hearing time” this ground is referring.

3. To the extent that this ground takes issue with the failure of the Tribunal to refer to Mr Ali’s evidence submitted in connection with the visa application, it is misguided. As the Tribunal noted in the s.359A letter, the issue before it was whether Mr Ali was enrolled in a course of studies as required under clause 500.211 of Schedule 2 to the Regulations. This was different to the issue of whether Mr Ali met the genuine temporary entrant criterion. As those documents were irrelevant to the dispositive issue before the Tribunal, nothing turned on the Tribunal’s failure to refer to them.

4. For completeness, the s.359A letter put Mr Ali on notice that the dispositive issue before the Tribunal was different to the issue before the delegate such that he was not denied procedural fairness.[20]

   [20] See SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35]

Ground 2

1. This ground is misconceived. Ministerial Direction No.69 – Assessing the Genuine Temporary Entrant Criterion for student visa and Student Guardian visa applications (Direction 69) is only relevant to the assessment of whether an applicant met the genuine temporary entrant criterion. As such, Direction 69 had no relevance to the dispositive issue before the Tribunal. For completeness, it is unclear what relevance, if any, does “Ministerial Direction No 65 - Visa refusal and cancellation under s.501 and revocation of mandatory cancellation under s.501CA” has in relation to Mr Ali’s student visa application.

Ground 3

1. This ground cannot succeed in circumstances where Mr Ali was invited to comment on information that the Tribunal considered would be the reason, or a part of the reason for affirming the decision under review. As summarised above, an invitation to comment under s.359A of the Migration Act had been issued and Mr Ali had responded to this invitation. No denial of natural justice is apparent in this case.

2. In the circumstances, none of the grounds of application raises any arguable case for the relief claimed.

3. For completeness, insofar as the content of Mr Ali’s affidavit affirmed on 15 October 2018 can be considered as raising additional grounds of review, they should be rejected for the following reasons.

4. First, to the extent that Mr Ali disputes the correctness of the delegate’s decision, it is a primary decision over which the Court has no jurisdiction to review.[21]

   [21] See s.476(2)(a) of the Migration Act

5. Secondly, insofar as Mr Ali contends that his failure to enrol in a course of study was due to his medical condition, and that the Tribunal should have accepted that explanation, such contention misunderstands the issue before the Tribunal.  As Mr Ali was not enrolled in a course of study, he was not entitled to a student visa. The Tribunal must affirm the decision under review.

Conclusion

1. I conclude that Mr Ali is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Ali doubted his capacity to pay, but impecuniosity is not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  20 August 2019