Asif v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 909

FEDERAL CIRCUIT COURT OF AUSTRALIA

Asif v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 909

File number(s):

SYG 2505 of 2018

Judgment of:

JUDGE STREET

Date of judgment:

3 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – whether the Tribunal failed to consider relevant evidence/take into account relevant considerations – where primary criteria applicable to the grant of the Student Visa was not satisfied at the time the decision was made – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12

Migration Act 1958 (Cth), s 476

Number of paragraphs:

10

Date of hearing:

3 May 2021

Place:

Sydney

Applicant:

In person

Solicitor for the First Respondent:

Ms A Wang, Clayton Utz

ORDERS

SYG 2505 of 2018

BETWEEN:

MOHAMMED ASIF

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRAN SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	3 MAY 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

2.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

3.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

4.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 August 2018, affirming a decision of a delegate of the first respondent (“the Delegate”) refusing to grant the applicant a Student visa. 

2. The background to the proceedings and procedural history, including argument in relation to the grounds, is set out in paragraphs 4 to 18 of the Minister’s submissions which the Court adopts, as follows:

   Background and Procedural History

   (4)On 14 March 2016, the Applicant, a citizen of India, applied for the Student Visa.[1] On 31 May 2016, the Delegate made a decision that the Applicant did not meet the genuine temporary entrant requirement, as required under cl 572.223 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations).[2]

   [1] CB 1-9.

   [2] CB 58-63.

   (5)On 17 June 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision.[3] On 10 May 2017, the Tribunal (differently constituted) affirmed the Delegate's decision.[4] On 17 July 2017, the Federal Circuit Court remitted the matter, by consent, to the Tribunal for redetermination.[5]

   [3] CB 64-65.

   [4] CB 89-92.

   [5] CB 93.

   (6)On 10 July 2018, the Applicant was invited to appear before the Tribunal on 7 August 2018.[6] The Applicant was requested to provide “any additional documents or information that [he] may wish to rely on during the hearing”.[7]

   [6] CB 99-100.

   [7] CB 100.

   (7)On 7 August 2018, the Applicant appeared before the Tribunal to give evidence and present arguments.[8]

   [8] Tribunal’s Statement of Decision and Reasons (DR) 5 (CB 112).

   (8)On 7 August 2018, the Tribunal affirmed the decision on the basis that there is no evidence that the Applicant is “now enrolled in, or has a current offer of enrolment in any applicable course of study” and thus did not meet cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations.[9] In summary, the Tribunal:

   [9] DR [12] (CB 113).

   (a)set out the procedural history of the application;[10]

   [10] DR [1]-[6] (CB 112).

   (b)noted that, during the Tribunal hearing, it addressed the issue behind the Court decision to remit the matter;[11]

   [11] DR [8] (CB 112).

   (c)considered the Applicant’s oral evidence and concluded that cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations were not met as the Applicant was not currently enrolled in and did not have a current offer of enrolment in any applicable course of study;[12] and

   [12] DR [9]-[12] (CB 112-113).

   (d)affirmed the decision under review.[13]

   [13] DR [14]-[15] (CB 113).

   Grounds of Review

   (9)By his Application filed on 6 September 2018, the Applicant pleads two grounds of review, being (verbatim):

   “1. The Tribunal’s decision is affected by error because it was made contrary to the evidence presented to the Member which included confirmation of enrolment in a course leading to an Advanced Diploma qualification.

   2. The Tribunal failed to understand that I was waiting for permission to study and the outcome of the Tribunal to be able to continue my education.”

   Standard of Review at Show Cause Hearings

   (10)Pursuant to r 44.13(1) of the Rules, the Applicant is confined to the relief sought and the ground mentioned in the Application at a show cause hearing proceeding under r 44.12. As noted above, the Applicant did not take the opportunity to file any amended application by 2 April 2021 pursuant to the Court orders of 1 March 2021.

   (11)The power to dismiss an application pursuant to r 44.12(1)(a) of the Rules is conditioned upon the Court being satisfied that the application (as confined by the effect of r 44.13(1)) fails to raise “an arguable case for the relief claimed”.[14] An arguable case is “one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success”.[15]

   (12)Notably, the onus lies upon an Applicant to demonstrate that an arguable case has been raised.[16]

   (13)Furthermore, in SZTVU, the Court emphasised that the Court's assessment of this matter must not proceed “the same way as if it were proceeding to trial”.[17] The Court will misconceive its function or power and act in excess of its jurisdiction if it goes beyond an assessment of whether the application is arguable and undertakes a determination of the substantive merits of the case.[18]

   Consideration

   (14)The two grounds of review advanced by the Applicant disclose no jurisdictional error and the Application should fail. Ground One is contrary to the evidence which was before the Tribunal. The Applicant’s document, shown to the Tribunal on his iPhone and reproduced at CB 103-104, did not display a current Certificate of Enrolment.[19] The document provides that the last course he was enrolled in was an Advanced Diploma of Marketing and Communication, and that course ceased on 18 May 2018. Moreover, the Applicant conceded at the hearing that he had not finished his course, and had not yet re-enrolled to complete the remaining subjects.[20]

   (15)To the extent that the Applicant contends that the Tribunal failed to take into account a relevant consideration under Ground Two, no error is made out. A failure to consider a relevant consideration only constitutes jurisdictional error if the proper construction of the statute indicates that the decision-maker was required to consider the relevant matter in making the decision.[21] The only relevant legal consideration was whether the Applicant was enrolled in or had an offer of enrolment in an applicable course of study at the time of the Tribunal’s decision. He did not. The Tribunal was under no obligation to consider that the Applicant was waiting for permission to study or the outcome of the Tribunal’s decision in assessing the Applicant’s circumstances against the requirements for the grant of the Student Visa.

   (16)Even if the Tribunal did err (which is denied), the Applicant is unable to demonstrate that those errors could have made a difference to the decision.

   (17)The primary criteria applicable to the grant of the Student Visa must be satisfied at the time a decision is made on the application. There is no power, discretionary or otherwise, reposed in the Tribunal to dispense with those requirements.[22] At the time of the Tribunal’s decision, the Applicant did not satisfy the requirement of cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231. He was also not an “eligible higher degree student”, “eligible university exchange student” or “eligible non-award student” to which the requirement does not apply. The Tribunal was therefore bound by the governing statute to affirm the Delegate’s decision, and the “threshold of materiality”[23] cannot be met.

   (18)It follows that no jurisdictional error is disclosed in the Tribunal’s decision and the Applicant has not raised an arguable case. The First Respondent submits that it is both open and appropriate for the Court to dismiss the Application without further consideration.

   [14] BUS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1913 at [22].

   [15] Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at [262].

   [16] SZTVU v Minister for Home Affairs (2019) 268 FCR 497 (SZTVU) at [10], [92].

   [17] SZTVU at [11]-[12].

   [18] SZTVU at [12].

   [19] DR [9] (CB 112).

   [20] DR [10] (CB 112-113).

   [21] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

   [22] Nehrupandiyan v Minister for Immigration & Border Protection [2019] FCA 123 at [14]; Kwatra v Minister for Home Affairs [2019] FCA 1308 at [19].

   [23] See generally Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2], [45], [49]-

   BEFORE THE COURT

3. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing. 

4. The applicant alleged that he had completed other studies and wanted more time.

5. These proceedings were commenced on 6 September 2018, and on 4 October 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The adjournment was opposed by the first respondent.  Nothing was said by the applicant to identify any utility in granting an adjournment. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice, and it is for these reasons that the Court made an order refusing the oral application for an adjournment. 

6. The reference to the studies undertaken by the applicant does not identify any basis upon which it could be said the Tribunal’s decision is the subject of any arguable case of error. 

7. The applicant’s assertion that the process before the Tribunal was unfair is inconsistent with the opportunity that the applicant was given by the Tribunal’s to present a current course of enrolment. 

8. Nothing said by the applicant identified any arguable case of relevant error. For the reasons identified in the first respondent’s submissions, the two grounds fail to identify any arguable case of relevant error. The Court is not satisfied that the application has raised an arguable case for the relief claimed. 

9. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

10. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       21 May 2021

[50]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31], [72]; Nobarani v
Mariconte (2018) 265 CLR 236 at [38] and discussion in Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 at [32]-[33] and PQSM v Minister for Home Affairs [2020] FCAFC 125 at [75], [77]-[87].