BXV17 v Minister for Home Affairs

[2019] FCCA 2520

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2520

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary (Class TU) visa – whether the Tribunal failed to have to regard to the applicant’s personal circumstances – whether the Tribunal considered the evidence submitted by the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulations 1994 (Cth), cl.500.212 of Schedule 2

Applicant: SURAWEERA ARACHCHIGE DULSHAN MANSHIKA PERERA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 789 of 2018

Judgment of: Judge Street

Hearing date: 7 September 2018

Date of Last Submission: 7 September 2018

Delivered at: Sydney

Delivered on: 7 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Saunders
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 789 of 2018

SURAWEERA ARACHCHIGE DULSHAN MANSHIKA PERERA

Applicant

And

MINISTER FOR HOME AFFAIRS

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 February 2018 affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 2 July 2012 as a holder of a Student (Class TU subclass 573) visa. The applicant applied for a Student Temporary (Class TU subclass 500) visa on 24 August 2016. From 31 October 2016, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) as the applicant had not made satisfactory progress and did not demonstrate that he was a genuine student.

3. On 15 November 2016 the applicant applied for review. Attached to the review application was the delegate’s decision referring to the Provider Registration and International Student Management System (PRISMS) records. The applicant was invited to attend a hearing by letter dated 20 December 2017 to take place on 19 January 2018. The applicant appeared on that date to give evidence and present arguments. The applicant also provided submissions to the Tribunal which were expressly referred to in the Tribunal’s reasons. The Tribunal noted the applicant had difficulty competing the Bachelor of Commerce degree and that there was a gap in his studies.

4. The Tribunal accepted that the applicant’s mother was unwell in 2016 however, the Tribunal noted that the applicant did not defer his studies or return to Sri Lanka at that time. The Tribunal was not satisfied the applicant provided adequate reasons for his unsatisfactory course progression. 

5. The Tribunal found the timing of the applicant’s course of enrolment for a Bachelor of Accounting from the Australian Institute of Higher Education suggested that the applicant enrolled in this course in response to the delegate’s decision rather than for a genuine academic purpose.  The Tribunal found the applicant’s submissions had not adequately explained his lack of course progression since his arrival in Australia.  The Tribunal took into account the medical certificates relating to the applicant’s illness for single days in 2017 and that the applicant was unfit for work or school and found however, that this did not account for the applicant’s overall lack of achievement.

6. The Tribunal noted that it had taken into account the evidence from the applicant’s representative in respect of a letter confirming his father’s employment and his father’s bank balance and a declaration by his father of financial support for the applicant. 

7. The Tribunal found that the applicant should have completed his degree by now if he were dedicated to his studies as claimed, and found the applicant did not appear to be able to complete all of his subjects successfully and that the applicant was unlikely to complete the course by the expected date.

8. The Tribunal was not satisfied on the evidence that the applicant demonstrated that he was a genuine student. The Tribunal had regard to the amount of time the applicant spent in Australia without making progress in his studies, as would be expected of a person who had invested time and money in pursuit of a higher education.

9. The Tribunal was not satisfied the applicant intends to genuinely stay in Australia temporarily and found the applicant did not meet the requirements of cl 500.212(2) of the Regulations and affirmed the decision of the delegate. 

10. The proceedings in this Court were commenced on the 23 March 2018.  On 16 April 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 have been filed.

11. The matter was originally fixed for a show cause hearing to take place on 1 August 2018. An order was made by a Judge of the Court on 11 July 2018 vacating the hearing date and listing the matter for a show cause hearing on 3 August 2018. On 3 August 2018, a Judge of the Court made orders adjourning the matter to the docket of this Court and on 16 August 2018 this Court made orders fixing the matter for hearing today and granting liberty to apply. 

12. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant confirmed that he understand the nature of the hearing as explained by the court. 

13. From the bar table the applicant indicated that he had recently taken steps to try to retain a barrister and had spoken to a barrister called Leonard last Monday who had not formally accepted instructions and had indicated that he would look at the papers. The applicant asserted that he had not been in a financial position to retain a barrister and contended that his circumstances had changed. 

14. These proceedings were commenced on 23 March 2018. The adjournment application was opposed by the first respondent. The applicant has had ample opportunity to obtain representation if he was able to do so. Whilst I accept the applicant may have had a telephone conversation with a barrister last Monday, if in fact the applicant was in a financial position to obtain counsel, counsel would be present. The Court also take into account the lack of prospect of success as referred to below. In the circumstances of the present case, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

The ground

1. The ground in the application is as follows:

   1. The Migration Review Tribunal erred in not giving due considerations to the personal circumstances of the applicant including his mother's serious health condition which prevented the applicant from achieving satisfactory academic results.

   Particulars

   (a) Error in finding that the applicant is not a genuine student in Australia.

2. From the bar table the applicant maintained that the Tribunal had not considered his personal circumstances. Contrary to what is contended in ground 1, it is apparent that the Tribunal expressly referred to the applicant’s mother’s illness in paragraph 13. The Tribunal’s reasons reflect taking into account the applicant’s personal circumstances and the submissions advanced on behalf of the applicant. The Tribunal expressly referred to the medical evidence in relation to the applicant’s mother and the Tribunal accepted the applicant’s mother was unwell but found the applicant did not defer his studies to return to Sri Lanka at that time. The Tribunal also referred to the other additional documents provided in support of the applicant’s application. The Tribunal expressly referred to the applicant’s letter from his father and referred to the circumstances in which the applicant came to Australia to study a Bachelor degree.   

3. The Tribunal expressly referred to having considered the evidence submitted including the statements, transcripts and medical evidence and letter of offer of future employment in his father’s company. The disagreement with the adverse finding that the applicant is not a genuine student does not identify any arguable case of relevant error by the Tribunal. The adverse finding by the Tribunal that the applicant was not a genuine student was open on the material before the Tribunal for the reasons given by the Tribunal taking into account the applicant’s absence of progress of study and failure to return to Sri Lanka, no arguable case of jurisdictional error is made out by ground 1.

4. The applicant’s submissions from the bar table were in substance the same as identified in ground 1, and do not identify any arguable case of jurisdictional error.

5. The first respondent has drawn to the Court’s attention that the Tribunal has taken into account the updated PRISMS record. The earlier PRISMS record referred to in the reasons of the delegate was provided in the form of the delegate’s decision to the Tribunal within the meaning of s 359A(4)(b) of the Act. The updated information is information expressly referred to in the submissions put on on behalf of the applicant. Accordingly, it is information that the applicant has given for the purpose of the application for review within s 359A(4)(b) of the Act.

6. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Based on the material before the court, the applicant had a real and meaningful hearing.  On the face of the material before the Court, there was no denial of procedural fairness in the conduct of the review by the Tribunal.  No arguable case of jurisdictional error is disclosed on the face of the application. 

7. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. 

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

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 January 2019