Cheema v Minister for Immigration

[2017] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEEMA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1618

Catchwords:
MIGRATION – Student visa – whether visa applicant intended genuinely to stay in Australia temporarily – Tribunal not so satisfied – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A(4)(b), 362B, 372B

Migration Regulations 1994 (Cth), Sch.2, cls.570.232, 571.232, 572.223(1)(a), 572.231, 573.231, 574.231, 575.231

Cases cited:

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439

Applicant: USMAN IQBAL CHEEMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 886 of 2015

Judgment of: Judge Wilson

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Melbourne

Delivered on: 8 June 2017

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Mr A. Yuile

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 27 April 2015 is dismissed.

2. The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 886 of 2015

USMAN IQBAL CHEEMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. By application filed in this Court on 27 April 2015 the applicant sought judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made

   
   

   27 March 2015. The Tribunal affirmed a decision of the Minister’s delegate made on 30 September 2014. The delegate refused to grant the applicant a Student (Temporary) (Class TU) visa mainly on the basis that the delegate was not satisfied the applicant met the requirements of cl.572.223(1)(a) of Sch.2 of the Migration Regulations 1994 (Cth) (“the regulations”). In essence, the delegate was not satisfied that the applicant intended, genuinely, to stay in Australia temporarily.

2. The Tribunal undertook a merits review of the applicant’s application for the visa and affirmed the decision of the delegate. Being dissatisfied with the decision of the Tribunal, the applicant brought this application for judicial review. He relied on four grounds. They were as follows, verbatim -

   1.  The tribunal erred in concluding that applicant was not enrolled in any course.

   2.  The Tribunal erred in concluding that applicant was not a genuine student.

   3.  The Tribunal failed to consider the courses completed by the applicant.

   4.  The delegate of Minister erred in concluding that applicant is not a genuine student.[1]

   [1] Application filed 27 April 2015 at p.3.

Synopsis

1. For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error whether on the grounds alleged or at all.

   
   

   I dismiss this application for judicial review and order the applicant to pay the Minister’s costs. Let me explain my reasoning.

Relevant factual setting

1. The applicant arrived in Australia on 3 March 2010, after holding two earlier subclass 573 visas. On 28 November 2013 the applicant applied for a subclass 572 visa. The Tribunal correctly recorded that, generally speaking, the subclass of visa that can be granted to a student depended on the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (subclasses 570 to 575) or whether the visa applicant has the Minister’s support (subclass 576).

2. The applicant supplied the Tribunal with evidence of his high school results in India in 2002 and evidence that he had completed a

   
   

   Diploma of Information Technology in Australia, the certificate being dated 14 January 2012. He also supplied evidence that he had completed an Advanced Diploma of Information Technology in Australia, the certificate being dated 11 February 2012, one month after the earlier certificate.

3. The applicant was told by letter dated 11 February 2015 that the Tribunal had considered the material the applicant supplied but that the Tribunal was unable to make a decision based on that information alone. The Tribunal invited the applicant to a hearing to be held on

   
   

   27 March 2015. The applicant did not reply to that invitation nor did he provide the information the Tribunal requested nor did he attend the hearing on 27 March 2015. The Tribunal made its decision consistent with its powers under s.372B of the Migration Act1958 (Cth)

   
   

   (“the Act”).

4. The Tribunal correctly recited the question it had to address, namely whether the applicant met the criteria in cl.572.223(1)(a) of the regulations. The Tribunal found there was no evidence that the applicant was, at the date of the hearing, enrolled in or had a current offer of enrolment in any applicable course of study. It therefore found that relevantly the requirement of cl.572.231 of the regulations was not satisfied and it affirmed the delegate’s decision.

Consideration

1. Let me at once address ground 4 even though it is the last of the four grounds of review. On the hearing of an application for judicial review, my task is to examine the work of the Tribunal, not the delegate.

   
   

   The Tribunal considered the delegate’s analysis, yet it undertook its own merits review. Whatever the delegate did is irrelevant to my task. Ground 4 had no merit.

2. Let me go through grounds 1, 2 and 3 sequentially.

Ground 1

1. This ground addressed the applicant’s enrolment. In paragraph 16 of its reasons the Tribunal found there was no evidence the applicant was enrolled in a course or had a current offer of enrolment. That was a finding of fact open to it. The applicant was required to show that he met the criteria of cl.572.231 of the regulations. He did not do so, despite the Tribunal’s invitation for him to do so. The PRISM records showed an array of cancelled courses. The applicant did not demonstrate that he met the requirements of any of clauses 570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Sch.2 of the regulations. Ground 1 failed. The Tribunal made no jurisdictional error in relation to it.

Ground 2

1. Under this ground the applicant asserted that the Tribunal erred in concluding that the applicant was not a genuine student. It must be pointed out, as the Minister submitted, that the genuineness of the applicant as a student may have been relevant to the delegate but the Tribunal determined the visa application by reference to the applicant’s enrolment as was evident from paragraph 14 of the Tribunal’s reasons. This ground was not made out.

Ground 3

1. Under ground 3 the applicant asserted that the Tribunal failed to consider the courses completed by the applicant. That issue did not bear upon the real issue that the Tribunal did in fact address, namely whether the applicant was enrolled in a course at the time of the Tribunal hearing. The Tribunal found the applicant was not so enrolled.

   
   

   Ground 3 failed.

Additional matters

1. The Minister correctly brought to my attention two points that were agitated by the applicant. The first was the Tribunal’s decision to proceed in the absence of the applicant. The second was the PRISM documentation. Let me address each.

2. There was no error in the Tribunal’s decision to proceed. Section 362B of the Act authorised it. The Tribunal was not required to adjourn the hearing. True, the Tribunal was required to invite the applicant to appear. The Tribunal did that as the Full Court of the Federal Court of Australia said it must in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC.[2] The Tribunal sent SMS notifications to the applicant and an email to his agent. The Tribunal acted properly in doing those things.

   [2] (2006) 150 FCR 439.

3. Next, the applicant asserted that the Tribunal erred by investigating the PRISM records itself then not putting to the applicant whatever it discovered from its investigations. The PRISM information was before the delegate. It was among the material presented to the Tribunal.

   
   

   It was therefore “information given to the Tribunal” within the meaning of s.359A(4)(b) of the Act. Two decisions of the

   
   

   Federal Court of Australia have held to like effect, those being Gupta v Minister for Immigration and Border Protection[3] and Minister for Immigration and Citizenship v Chamnam You.[4]

   [3] [2016] FCA 1004.

   [4] [2008] FCA 241.

4. Further, by failing to respond to the Tribunal’s invitation to attend the hearing the applicant abandoned his opportunity to provide whatever evidence he could have offered about his enrolment. The applicant himself sacrificed his opportunity to demonstrate that he had satisfied the relevant clause of the regulations. No error was demonstrated.

5. Before me today the applicant said it was his fault he did not appear before the Tribunal. That appeared to reflect the reality of the situation. He implored that he needed time to finish his course. That was not the relevant inquiry for me. My task was to assess whether the Tribunal engaged in any form of jurisdictional error.

6. The applicant failed in his application for judicial review. I detected no error by the Tribunal.

7. I dismiss this application and order that the Minister’s costs are to be paid by the applicant.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  11 July 2017