Chowdhury v Minister for Immigration and Multicultural Affairs

Case •

[2024] FedCFamC2G 1277

•

29 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Chowdhury v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1277

File number(s): SYG 2528 of 2020
Judgment of: JUDGE ZIPSER
Date of judgment: 29 November 2024
Catchwords:  MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (subclass 500) visa – where applicant not enrolled in course of study – where cl 500.211 not met – no jurisdictional error established – application dismissed – costs ordered
Legislation:

 Migration Act 1958 (Cth) s 65, s 476

Migration Regulations 1994 (Cth) cl 500.211

Cases: Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197
W375/0IA v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; (2002) 67 ALD 757
Division: Division 2 General Federal Law
Number of paragraphs: 31
Date of hearing: 21 November 2024
Place: Parramatta
Applicant: In person
Solicitor for the Respondents: Ms A Wilford of Sparke Helmore

ORDERS

SYG 2528 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MOHAMMAD SHAHINUR HOSSAIN CHOWDHURY

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the costs of the first respondent in the amount of $6,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

  1. On 8 November 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.

  2. For the following reasons, the application is dismissed.

    FACTUAL BACKGROUND

  3. The applicant, a citizen of Bangladesh, arrived in Australia in February 2017 as the holder of a student visa valid until 15 March 2018. It appears that the applicant obtained the visa to undertake a Master of Professional Accounting (Advanced) course at Torrens University Australia.

  4. On 8 February 2018, the applicant applied for a further student visa to complete the Master of Professional Accounting (Advanced).

  5. On 23 May 2018, the Department of Home Affairs wrote to the applicant requesting he provide evidence that he was currently enrolled in a course of study.

  6. On 18 July 2018, a delegate of the first respondent refused to grant the applicant the visa on the basis that he was not enrolled in a course of study as required by cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2). It appears from documents in the Court Book (CB) that the applicant sat a final supplementary exam for the Master of Professional Accounting (Advanced) on 31 May 2018 (CB 69) and attended a graduation ceremony on 6 July 2018 (CB 70). In this context, and in the absence of evidence from the applicant that he was enrolled in a further course of study, the delegate found that he did not satisfy cl 500.211.

  7. On 30 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision.

  8. On 28 September 2020, the Tribunal invited the applicant to attend a hearing before it on 13 October 2020. The hearing invitation requested that the applicant provide evidence he was enrolled in a course of study.

  9. On 12 October 2020, the applicant provided the Tribunal with a letter from an educational institution dated 12 October 2020 which contained an offer to the applicant to study two courses at the institution between November 2020 and April 2023 (Offer Letter). The Offer Letter stated in part:

    To accept this offer you are required to accept the following Terms and Conditions in the Contract with AHIC then you sign the Acceptance letter on and forward it to the College or your agent along with the “Total Course Money due to the College on Enrolment” shown on page 2.

  10. On 13 October 2020, the applicant attended a hearing before the Tribunal. Shortly after the hearing, and on the same day, the Tribunal made a decision affirming the decision under review.

    TRIBUNAL’S DECISION

  11. Cl 500.211(a) in Schedule 2 states as a criterion for a subclass 500 student visa that “the applicant is enrolled in a course of study”. The Tribunal stated that the issue before it was whether the applicant was enrolled in a course of study as required by cl 500.211(a).

  12. The Tribunal confirmed with the applicant that a mandatory criterion for the visa was that the applicant be enrolled in a course of study.

  13. The Tribunal noted that it discussed with the applicant the Offer Letter and the applicant acknowledged “that he was not actually enrolled in these courses but it was a letter of offer”. The applicant added that he would like to enrol in a course of study should he be given the opportunity.

  14. In the above circumstances, the Tribunal was not satisfied that the applicant was enrolled in a course of study at the time of its decision. Accordingly, it was not satisfied that the applicant met cl 500.211 and affirmed the decision under review.

    PROCEEDINGS IN THIS COURT

    Application and events up to hearing on 21 November 2024

  15. On 8 November 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (Application) which contained the following grounds of review (as written):

    Ground One:

    The Administrative Appeals Tribunal has failed to apply the correct test pursuant to clause cl.500.211 of the Migration Regulation 1994 (Cth).

    Particulars:

    In dealing with the applicant’s claim under clause cl.500.211 of the Migration Regulation 1994, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under the provision.

    Ground Two:

    The AAT fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.

  16. On 3 December 2020, a registrar of the Court made procedural orders permitting the applicant to file any amended application by 18 March 2021 and a written submission, once the matter was listed for hearing, no later than 28 days before the hearing. The applicant did not take up this opportunity.

  17. Following a period of inactivity, on 1 October 2024 the parties were informed that the matter was listed for hearing on 21 November 2024.

    Hearing on 21 November 2024

  18. At the hearing on 21 November 2024, the applicant appeared before the Court unrepresented. He was assisted by an interpreter in the Bengali language. At the commencement of the hearing, the Court ensured that the applicant had a copy of relevant documents. The Court explained the limited role of the Court in a judicial review application, and the need for the applicant, if he wanted to win, to persuade the Court that there is a jurisdictional error in the Tribunal’s decision. The Court briefly explained the main established categories of jurisdictional error.

  19. The applicant stated that reasons he was not enrolled in a course of study at the time of the hearing before the Tribunal on 13 October 2020 included that he faced financial hardship, he was depressed, and there was the COVID period. The applicant stated that the Tribunal did not understand these circumstances.

  20. The applicant stated that, following the Tribunal’s decision dated 13 October 2020, he completed a Certificate III in Painting and Decoration and an Advanced Diploma of Civil and Construction Design. The applicant stated that he wants to use his skills in Australia.

  21. The Court directed the applicant’s attention to the Offer Letter which the applicant provided to the Tribunal shortly before the hearing on 13 October 2020. The applicant acknowledged to the Court, as he had acknowledged to the Tribunal in October 2020, that he was not, by the Offer Letter or otherwise, enrolled in a course of study on 13 October 2020. The applicant explained to the Court that he did not have money to pay the enrolment and course fees referred to in the Offer Letter, and he could not enrol in the course until he paid the requested fee.

  22. The Court directed the applicant’s attention to the grounds in the Application. The applicant had nothing further to add to the matters outlined above.

  23. At the hearing, the Court permitted the applicant to tender a letter of offer from an educational institution to the applicant dated 13 November 2024. The letter contained an offer for the applicant to study a course at the institution from 18 November 2024 to 15 November 2026. The Court, while permitting the tender, noted that documents which were not before the maker of a decision the subject of a judicial review application are not usually relevant in establishing jurisdictional error in the decision.

  24. At the hearing on 21 November 2024, Annabelle Wilford from Sparke Helmore appeared for the first respondent. Ms Wilford made oral submissions which supplemented a written submission filed on 7 November 2024.

    CONSIDERATION

    Ground one

  25. Ground one in the Application is not particularised. In the absence of particulars, the meaning of ground one is not clear. During the hearing, the Court invited the applicant to make submissions about ground one. The applicant had no submission to make.

  26. One issue which it is appropriate for the Court to consider, which potentially falls within ground one, is as follows. In light of cl 500.211 of Schedule 2, the applicant needed to persuade the Tribunal that he was “enrolled in a course of study” within the meaning of cl 500.211(a) at the time of the Tribunal’s decision. While the applicant acknowledged before the Tribunal, and before the Court at the hearing on 21 November 2024, that he was not enrolled in a course of study, the Court has separately considered whether, by virtue of the Offer Letter, the applicant was in fact enrolled in a course of study. The Offer Letter indicates in a number of ways that the letter was an offer available for acceptance by the applicant, and the applicant would not be enrolled in a course of study until he accepted the offer, which included paying at least the enrolment fee. There was no evidence before the Tribunal, as well as no evidence before the Court, that the applicant paid the enrolment fee and accepted the offer. In the circumstances, the Court agrees with the Tribunal’s conclusion that the applicant was not, based on the evidence before the Tribunal, enrolled in a course of study on 13 October 2020. The Court is not persuaded that the Tribunal has “failed to apply the correct test” as contended in ground 1.

  27. The Court is not persuaded that ground one identifies any other form of jurisdictional error in the Tribunal’s decision.

    Ground two

  28. Ground two in the Application is not particularised. In the absence of particulars, the meaning of ground two is not clear. During the hearing, the Court invited the applicant to make submissions about ground two. In response to this invitation, the applicant stated that reasons he was not enrolled in a course of study at the time of the hearing before the Tribunal on 13 October 2020 included that he faced financial hardship, he was depressed, and there was the COVID period. The applicant contended that the Tribunal did not understand his circumstances.

  29. The applicant, in written submissions to the Tribunal, referred to his poor mental health and limited financial position: see, for example CB 184-185, 206-207. If the Tribunal had overlooked these matters, a question might arise as to whether the Tribunal’s decision involved jurisdictional error. However, first, the Tribunal stated in paragraph 11 of its decision that it “has considered material put by the applicant”. There is no reason to doubt this statement by the Tribunal: see W375/0IA v Ministerfor Immigration and Multicultural Affairs [2002] FCAFC 89; (2002) 67 ALD 757 at [16]; Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197 at [85]. Second, the applicant’s mental health and financial position, and the impact of the COVID-19 pandemic on the applicant, were not directly relevant to the issue the Tribunal considered determinative, being whether or not the applicant was enrolled in a course of study at the time of the Tribunal’s decision. The Court is not persuaded that the Tribunal overlooked submissions made by the applicant to the Tribunal concerning his mental health, financial position or any other matters.

    Concluding observation

  30. As stated in paragraph 20 above, the applicant informed the Court of educational courses he has completed since October 2020 and told the Court that he wants to use his skills in Australia. The applicant appears to have educational qualifications and skills. However, as the Court attempted to explain to the applicant at the commencement of the hearing, the Court’s role is limited to determining whether or not there is a jurisdictional error in the Tribunal’s decision. Since the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, the Court must dismiss the Application.

    COSTS

  31. At the conclusion of the hearing, the Court invited submissions from the parties on costs. Neither party objected to the principle that costs should follow the event. Ms Wilford sought costs in the amount of $6,500. This amount, which is below scale costs, appears reasonable. The applicant did not object to this amount. The applicant should pay the first respondent’s costs in this amount.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       29 November 2024

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