FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHISHIMBA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1208 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – Student Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Applicant: | FRANK CHISHIMBA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 649 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The applicant’s originating application filed 27 November 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 649 of 2017
| FRANK CHISHIMBA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed in this Court on 27 November 2017 the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the “AAT”), dated 6 November 2017.
The AAT affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”) made on 21 October 2015…
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Details
- Case
- [2018] FCCA 1208
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant the applicant a student (Temporary) (Class TU) visa. The applicant had applied for the visa to undertake study in Australia. The delegate's refusal was based on the applicant not satisfying the requirements of clause 572.223 of Schedule 2 to the Migration Regulations 1994, specifically that he was not a genuine applicant for entry and stay as a student. The Administrative Appeals Tribunal (AAT) considered the matter and ultimately affirmed the delegate's decision.
The primary legal issue before the AAT was whether the applicant met the enrolment requirements for a student visa at the time of the AAT's decision. This involved determining if the applicant was currently enrolled in a course of study or held a current offer of enrolment, as generally required by various clauses within Schedule 2 of the Regulations for different student visa subclasses. The AAT also considered whether the applicant fell within any exceptions to these enrolment requirements, such as being an eligible higher degree student, eligible university exchange student, or eligible non-award student.
The AAT reasoned that, with limited exceptions not applicable to the applicant, the relevant clauses of the Regulations required an applicant to be enrolled in, or have a current offer of enrolment in, a principal course of study at the time of the decision. The Tribunal noted that records indicated the applicant was not currently enrolled and had ceased enrolment in October 2015. The applicant confirmed he was not enrolled and stated he believed he could not be enrolled due to the visa refusal, but had not sought clarification. The AAT found no evidence that the applicant was currently enrolled or had a current offer of enrolment, and therefore concluded that the applicant did not satisfy the enrolment criteria for a student visa. The AAT also found no evidence that the applicant met the criteria for a Subclass 576 or Subclass 580 visa.
Consequently, the AAT affirmed the decision under review.
The primary legal issue before the AAT was whether the applicant met the enrolment requirements for a student visa at the time of the AAT's decision. This involved determining if the applicant was currently enrolled in a course of study or held a current offer of enrolment, as generally required by various clauses within Schedule 2 of the Regulations for different student visa subclasses. The AAT also considered whether the applicant fell within any exceptions to these enrolment requirements, such as being an eligible higher degree student, eligible university exchange student, or eligible non-award student.
The AAT reasoned that, with limited exceptions not applicable to the applicant, the relevant clauses of the Regulations required an applicant to be enrolled in, or have a current offer of enrolment in, a principal course of study at the time of the decision. The Tribunal noted that records indicated the applicant was not currently enrolled and had ceased enrolment in October 2015. The applicant confirmed he was not enrolled and stated he believed he could not be enrolled due to the visa refusal, but had not sought clarification. The AAT found no evidence that the applicant was currently enrolled or had a current offer of enrolment, and therefore concluded that the applicant did not satisfy the enrolment criteria for a student visa. The AAT also found no evidence that the applicant met the criteria for a Subclass 576 or Subclass 580 visa.
Consequently, the AAT affirmed the decision under review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The AAT’s reasons provide as follows:1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2015 to refuse to grant the applicant a student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (the “Act”).2.The applicant applied for the visa on 2 September 2015 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).3.The delegate in this case refused to grant the visas on the basis that the visa applicant (the applicant) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student.4.On 11 October 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 6 November 2017 in Perth. The applicant was invited to provide evidence, such as a copy of a current certificate of enrolment as required for the grant of a student visa and/or documents to demonstrate he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the student visa. He was also invited to provide a written statement as to whether he is a genuine temporary entrant by referring to Direction 53 which was attached. He provided evidence of courses he successfully completed in the past and a bank statement.5.The applicant appeared before the Tribunal by video on 6 November 2017 to give evidence and present arguments.6.The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicate he is not currently enrolled in a course. It also noted that these records indicate he ceased being enrolled in October 2015. It raised with them the relevance of this matter and that it may lead it to find he does not meet the enrolment criteria and that it may lead it to find he is not entitled to the grant of a student visa. The applicant confirmed he was not enrolled or under a current offer of enrolment. He said he thought he could not be enrolled as the Department refused his student visa. The Tribunal asked whether he had approached the Department or anyone else to clarify the issue and he said he had not. It raised with him that it may expect a genuine student who was in Australia to study would have clarified the issue.7.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE8.The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.9.With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.10.Information from the Department’s electronic (PRISMS) records before the Tribunal indicates that the applicant is not currently enrolled in a course of study and he has not provided any evidence that he is subject to a current offer of enrolment. The applicant also confirmed he is not enrolled. The evidence indicates that his enrolment ceased in October 2015. The Tribunal has considered the applicant’s response as to why he is not enrolled but is of the view there is no evidence he is currently enrolled or under an offer of enrolment. On that basis, the Tribunal finds that the applicant does not satisfy cl.572.222 of Schedule 2 to the Regulations. Additionally, there is no evidence before the Tribunal that the first named applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.11.Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.12.For these reasons, the decision under review must be affirmed.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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