CAI v Minister for Immigration

[2017] FCCA 310

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 310

Catchwords:
MIGRATION – Refusal of student visa – judicial review of AAT decision.

Legislation:

Migration Regulations 1994 (Cth), cls. 570.232, 571.232, 572.231, 573.223, 573.231, 574.23, 575.231

Migration Act 1958 (Cth), div.5, pt.5, ss.359A, 360

Federal Circuit Court Rules 2001 (Cth), div.1, pt.3, sch.1

Applicant: YUFANG CAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 122 of 2016

Judgment of: Judge Young

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Darwin

Delivered on: 23 February 2017

REPRESENTATION

The Applicant appearing in person via videolink

Counsel for the Respondents appearing via videolink: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 22 April 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 122 of 2016

YUFANG CAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘AAT’) to affirm a decision of a delegate of the Minister to refuse a student Visa.

2. The applicant is a citizen of China. She was originally granted a student visa in 2007. She completed a nursing degree in 2010 and a Certificate II in Sports (Coaching), a Diploma of Management and an Advanced Diploma of Hospitality in 2013. In 2014 she sought a further visa to undertake a Bachelor of Business.

3. The delegate refused the visa on 13 May 2014 because he was not satisfied that the applicant intended “genuinely to stay in Australia temporarily” in conformity with the requirement of clause 573.223(1)(a) of the (then) Migration Regulations.

4. On 30 May 2014 the applicant sought a review of that decision in the Migration Review Tribunal. A hearing was initially scheduled for 21 January 2015 but the Tribunal member became unavailable. The hearing was relisted and heard by the AAT on 31 August 2015. The applicant was represented by a migration agent.

5. In the intervening period the applicant completed her Bachelor of Business at the Kaplan Business School on 15 July 2015, having been given credit for previous study, and was married on 28 August 2015. Thereafter the applicant did not enrol for further study nor did she have any current offer of enrolment for further study.

6. The Tribunal’s decision was given on 29 March 2016. The Tribunal regarded the issue as having changed since the application was considered by the delegate. The Tribunal found that the issue was not whether the applicant intended “genuinely to stay in Australia temporarily” but whether, at the time of its decision, the applicant met the enrolment requirements for a student visa. The Tribunal was not satisfied that the applicant met the necessary criteria. The Tribunal found that the relevant clauses (clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231, depending on the nature of the course involved, and since amended) of the Migration Regulations required that:

   (a) the applicant is enrolled in, or is subject of a current offer of enrolment in, a course of study that is a principal course

7. On 14 August 2015 the Tribunal wrote to the applicant inviting her to a hearing and asking her to provide the following information:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

8. The Tribunal described the applicant’s response at paragraph [10] of its reasons:

   [10] The applicant gave evidence to the Tribunal in writing and confirmed at hearing on 31 August 2015 that she was not presently enrolled in any course of study. She further confirmed that although she may wish to study in the future, she had no intentions to study in the near future and accordingly had no evidence of any offer of enrolment. The applicant further indicated that she was in a relationship with an Australian spouse and was making a separate application under the partner visa program.

9. The applicant did not challenge the Tribunal’s description.

10. The amended grounds of review are as follows:

    (1) The Tribunal committed jurisdictional error in not providing information or an opportunity to comment to the applicant as to the reason leading to the affirming of the decision to refuse the student visa, namely the failure to enrol.

    (2) The Tribunal committed jurisdictional error in not providing the applicant with an adjournment of the case before the Tribunal, so that the applicant could enrol in a course of study.

11. The applicant was unrepresented at the hearing. I asked her what she meant by the first ground and what comment she had wished to make. She told me that she had made enquiries of course providers about enrolments but had been told that if her visa had been cancelled she could not enrol in a course of study. I asked her if there was any reason why her migration agent, who represented her in the Tribunal, could not have said what was needed to be said to the Tribunal. The applicant answered that she was “not sure”.

12. The Minister submitted that Part 5 of Division 5 of the Migration Act 1958 (“the Act”) is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. He submitted that the requirements are satisfied if the Tribunal complies with the obligations in section 360(1) and section 359A. Section 360(1) requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.  The Minister submitted that this requirement was met by the letter of 14 August 2015 which put the applicant on notice that a current enrolment or offer of enrolment was required for the grant of a student visa. I accept this submission and, furthermore, one might expect this would have been obvious to the applicant and certainly to her representative.

13. The Minister further submitted that the requirement in section 359A(1) to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and to ensure that the applicant understands why it is relevant to the review, and the consequence of it being relied on, and to invite the applicant to comment or respond to it does not apply to the relevant information in this case. Subsection (4)(b) provides that the section does not apply to information that the applicant gave for the purpose of the application for review. I accept this submission because the relevant information, that is, the absence of an enrolment or offer of enrolment, was given by the applicant to the Tribunal.

14. There are a number of difficulties with the applicant’s submission that she was not given the opportunity to explain that she was unable to enrol. First, it appears doubtful that the reason for the failure to enrol or obtain the offer of enrolment is relevant. The requirement is expressed in mandatory terms. Secondly, the applicant told the Tribunal that she did not intend to study and, further, was making an application for a partner visa. This appears inconsistent with the applicant’s present position. Thirdly, the applicant was represented at the hearing by her migration agent and there is no reason to believe that the representative was not given the opportunity to make any submission on the issues arising in relation to the decision under review.

15. In relation to the second ground the applicant said that the Tribunal should have given her an adjournment in order to seek an offer from a course provider and, in addition, ought to have provided her with relevant suggestions and considered her circumstances. I asked her what those “relevant circumstances” were and she said that they were that her study had been completed and she had difficulty enrolling.

16. There was no unfairness in the Tribunal not adjourning the hearing because there is no evidence that the applicant asked for an adjournment to enrol or obtain an offer of enrolment. Her statement to the Tribunal that she did not intend to study in the near future is inconsistent with such a request.  

17. The applicant has not shown any jurisdictional error in the Tribunal’s decision. The application is dismissed with costs (according to the costs scale in item 3, Division 1, Part 3, Schedule 1 of the Federal Circuit Court Rules 2001) in the sum of $7,206.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 23 February 2017