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

[2021] FCCA 1873

FEDERAL CIRCUIT COURT OF AUSTRALIA

Byanjankar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1873

File number(s):

SYG 2866 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

13 August 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Student visa on the ground the applicant was not enrolled in a relevant course – whether Tribunal considered applicant’s study history – whether Tribunal afforded applicant opportunity to put forward circumstances of cancellation of enrolment – no jurisdictional error

Legislation:

Migration Act 1958 (Cth), ss 368D, 476

Migration Regulations 1994 (Cth), reg 1.40(2), Sch 2, cls 572.223, 572.231(a)

Number of paragraphs:

22

Date of hearing:

6 August 2021

Place:

Sydney

Solicitor for the Applicant:

Mr J Dadgar of HWL Ebsworth Lawyers, by telephone

Solicitor for the Applicant:

In person, by telephone

ORDERS

SYG 2866 of 2017

BETWEEN:

GAURAV BYANJANKAR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	13 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a national of Nepal, applies for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa (Student visa).

   BACKGROUND

2. The applicant entered Australia on 16 November 2007 as the holder of a student visa that was valid until 15 March 2010. The applicant was granted another student visa that covered the period from 15 March 2010 until 17 December 2014, when the applicant was granted a Temporary Graduate visa.[1] That visa was valid until 17 June 2016.

   [1] CB72

3. The applicant applied for the Student visa on 15 June 2016. To have been entitled to the grant of the Student visa the applicant had to satisfy cl 572.223(1) of Schedule 2 (Schedule) to the Migration Regulations 1994 (Cth) which required that the applicant be a “genuine applicant for entry and stay”. Whether the applicant could satisfy that criteria required, among other things, the Minister to be satisfied the applicant intended “genuinely to stay in Australia temporarily” having regard to the matters identifies in cl 572.223(1)(a).[2]

   [2] Item 32 of Schedule 4 to the Migration Legislation Amendment (2016 Measure No 1) Regulation 2016 (Cth) (Repealing Regulation) provides that it “repeals” “the Parts” that included Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Subclause 5401(1) of Schedule 5 to the Repealing Regulation provides that the amendments made to the Regulations by Schedule 4 to the Repealing Regulation (save for two exceptions that do not apply to Part 572) “apply in relation to an application for a visa made on or after 1 July 2016”. Given the applicant applied for the Student visa on 15 June 2016, the Regulations as they existed immediately before the amendment in Schedule 4 to the Amending Regulation came into effect apply to the applicant’s application for the Student visa.

4. The applicant was also required to meet, at the time of the decision, the criterion specified in cl 572.231(a) of the Schedule, namely, that, where cl 572.223(1A) of the Schedule does not apply (and there is nothing to suggest it did apply), the applicant had to show that “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”. The expression “principal course” is defined in reg 1.40(2) of the Regulations, but it is not necessary to set out that definition.

5. In a letter dated 12 July 2016 the applicant provided to the delegate, the applicant stated he was currently enrolled at a particular institute to attain an advanced diploma of marketing, and he explained why he intended to undertake that course.

6. On 5 August 2016 the delegate refused to grant the applicant the Student visa because the delegate was not satisfied the applicant was a “genuine applicant for entry and stay”.

7. According to the Tribunal’s reasons, the applicant informed the Tribunal that he had enrolled in the advanced diploma in marketing, but his enrolment was cancelled in August 2016.

   BEFORE THE TRIBUNAL

8. By letter dated 26 May 2017 the Tribunal invited the applicant to appear before the Tribunal at 2:00 pm on 29 June 2017 to give evidence and present arguments. That was later adjourned to 15 August 2017. The invitation stated that the applicant’s hearing “is scheduled to start at 2:00 pm and is one of several cases to be heard in the following two hours”. The letter requested the applicant “provide all documents you intend to rely on to establish that you meet the criteria for the visa”. The letter also requested the applicant provide, among other things, a “copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa”, an explanation of any gaps in the applicant’s enrolments, and documents relevant to that explanation.

9. The applicant appeared before the Tribunal on 15 August 2017. According to a document headed “Migration Hearing Record”,[3] the hearing opened at 2:37 pm and was completed at 2:50 pm; and the Tribunal member made an oral decision at 2:44 pm. The Tribunal member was entitled to give an oral decision under s 368D of the Act. The Tribunal provided a written statement of its decision and reasons on 24 October 2017 in response to the applicant’s request made on 3 October 2017.[4]

   [3] CB124

   [4] CB133

10. According to the Tribunal’s reasons, at the hearing the applicant gave some information about what he had done in Australia since 2007. After noting the applicant had not produced any document in support of what he said, the Tribunal “informed the applicant that, as this matter today was a non-enrolment matter the Tribunal had no discretion to exercise in these circumstances”. The Tribunal then informed the applicant, “in summary form”, the significance of non-enrolment as being a threshold issue, indicating that the issue had to be satisfied before the Tribunal could deal with any substantive issue.

    TRIBUNAL’S DECISION

11. The Tribunal noted the applicant agreed he did not hold a “COE”, which I take to be a “current confirmation of enrolment” referred to in cl 572.223(1A) of the Schedule, or a “current offer of enrolment”; and that the applicant said he was not studying anything at the moment. In those circumstances the Tribunal concluded:

    [T]here is no evidence before the Tribunal that the applicant is now enrolled in, nor has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231, 574.231 and 575.231 are not met.

12. I should record that at the beginning of its written reasons the Tribunal noted the application for review before it related to the delegate’s decision not to grant a subclass 573 visa. This does not give rise to any arguable case of jurisdictional error because the Tribunal in terms found that cl 572.231 was not satisfied.

    GROUNDS OF APPLICATION

13. The application contains one ground of application:

    The student Applicant adduced evidence that he had made progress in his studies and had secured a degree. As far as is known – no written decision as yet being available – the Tribunal ignored evidence of such nature causing the decision to offend against the strictures of the High Court in Yusuf v MI&MA [2001] HCA 30. The applicant seeks leave to add further or other grounds as soon as the Tribunal’s decision becomes available.

14. The application was filed before the Tribunal provided its written reasons and, therefore, this ground was formulated without the benefit of the written reasons the Tribunal provided. The applicant, however, has not applied to amend the application.

15. The Tribunal’s written reasons demonstrate the Tribunal recorded the information the applicant had given it about his studies, and that the applicant had an interest in marketing. To that extent, the Tribunal did refer to what the applicant said about his studies. But as the Tribunal noted earlier in its reasons in relation to what the applicant said about his activities in Australia after he arrived in 2007, it was a requirement for the grant of the Student visa that the applicant demonstrate he was enrolled in an applicable course, and the Tribunal had no discretion to waive such requirement. The Tribunal was correct in finding it had no discretion to waive the requirement prescribed by cl 572.231(a) of the Schedule, namely, that 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”. The ground stated in the application, therefore, discloses no jurisdictional error by the Tribunal.

16. At the hearing before me the applicant, who is not legally represented, gave what I understood to be two explanations why his enrolment in the advanced diploma in marketing was cancelled. The first is the delegate’s decision not to grant the applicant a Student visa. The second is the applicant was late in paying his fees but had managed to pay them together with a late fee. The applicant said the Tribunal did not give him an opportunity to present these explanations. The applicant claimed the Tribunal only asked him whether he was enrolled in a course, and required that he answer that question “yes or no”.

17. The evidence shows the hearing before the Tribunal was very short. That is not surprising given the Tribunal correctly proceeded on the view that the issue before it was whether 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 that it did not have a discretion to waive this requirement. I do not accept, however, that the hearing consisted of nothing more than the Tribunal asking the applicant whether he was enrolled in a course and requiring him to answer that question “yes or no”. The Tribunal’s reasons record the applicant giving other information to the Tribunal. In any event, given I have found that the Tribunal was correct to proceed on the view that the issue before it was whether 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”, whether or not the Tribunal gave the applicant the opportunity to provide an explanation for the circumstance in which his course had been cancelled was not relevant to the question the Tribunal was required to decide.

18. The applicant informed me that he was currently enrolled in a project management course which he was due to complete in 2023, but which he could fast track to complete in 2022. The applicant asked that I give him time to complete that course so that he could gain qualifications to gain employment in Nepal. Unfortunately, that is not a request that is open to me to fulfil. My jurisdiction in hearing the application before me is to determine whether on the grounds advanced by the applicant, or on any other grounds that appear from the evidence before me, the Tribunal made a jurisdictional error in affirming the delegate’s decision not to grant the applicant a Student visa.

19. The applicant has not established the Tribunal made any jurisdictional error. That means the application must be dismissed.

    COSTS

20. The Minister applies for costs set in the amount of $5,600. I explained to the applicant that the usual rule is that the successful party is entitled to an order that the unsuccessful party pay his or her costs. I asked the applicant whether there was any reason why that should not apply. The applicant said he did not know what to say.

21. I am satisfied it is appropriate that the applicant pay the Minister’s costs. I am also satisfied that $5,600 represents a fair indemnity of the costs the Minister has incurred in defending the Tribunal’s decision.

    DISPOSITION

22. I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs set in the amount of $5,600.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate: 

Dated:       13 August 2021