Dahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 355
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 355
File number(s): SYG 952 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 13 May 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal affirming decision not to grant student visa because applicant did not satisfy criterion requiring applicant be enrolled in a course of study – no jurisdictional error. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Schedule 2, cls 500.111, 500.211, 500.212Division: General Number of paragraphs: 15 Date of hearing: 4 May 2022 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the First Respondent: Mr E Taylor, by telephone ORDERS
SYG 952 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NILESH DAHAL
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 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $4,500.
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
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) 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) (Subclass 500) visa (Student visa).
BACKGROUND
The applicant is a citizen of Nepal. He entered Australia in 2013 holding a student visa.
On 28 September 2016 the applicant applied for a Student visa. To have been entitled to the grant of a Student visa the applicant had to satisfy cl 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2), namely, that he is “enrolled in a course of study”. The expression “course of study” is defined in cl 500.111 of Schedule 2. The applicant claimed he was enrolled in a bachelor of accounting course, and he provided a certificate of enrolment (COE) which recorded the applicant had been enrolled in that course, and that the course was due to commence on 5 February 2016.[1]
[1] CB29-30
On 5 January 2017 the delegate refused to grant the applicant a Student visa because the delegate was not satisfied the applicant met the “genuine applicant for entry and stay as a student” criterion prescribed by cl 500.212 of Schedule 2. On 25 January 2017 the applicant applied to the Tribunal for review of the delegate’s decision.
BEFORE THE TRIBUNAL
By letter dated 9 February 2018 the Tribunal invited the applicant to attend a hearing before the Tribunal on 9 March 2018 to give evidence and present arguments.[2] In its letter the Tribunal requested the applicant provide a copy of his “current Certificate of Enrolment (COE) or other document/s that show you [the applicant] is currently enrolled in a course of study as defined in cl.500.111 of [Schedule 2], as is required for the grant of a student visa”. The applicant did not respond to the Tribunal’s letter.
[2] CB94
On 2 March 2018 the Tribunal accessed a database known as the “Provider Registration and International Student Management System” which recorded that the applicant’s enrolment in the bachelor of accounting course had been cancelled on 26 October 2016, and he had not been enrolled in a course of study since 24 February 2017.[3]
[3] CB102-103
On 9 March 2018 the applicant appeared before the Tribunal to give evidence and present arguments.[4] According to the Tribunal’s reasons for decision, the applicant confirmed at his hearing before the Tribunal he had not provided any documentary or other evidence that confirmed he was enrolled in a course of study; and the Tribunal explained to the applicant that he needed to be enrolled in a course of study to be granted a Student visa. The Tribunal also told the applicant that, in the circumstances, it was unlikely the applicant would receive a positive decision.
[4] CB105-108
TRIBUNAL’S REASONS
The Tribunal was not satisfied that at the time of its decision the applicant met the requirement of cl 500.211 because it was not satisfied the applicant was then enrolled in a course of study.
GROUNDS OF APPLICATION
The applicant, who is not legally represented, relies on the following grounds of application stated in his application:
1.Department of Home Affairs (DHA) made decision on speculative ground not the facts I provided to them
2. My strong desire to study in Australia was totally ignored by DHA and Administrative Appeals Tribunal (AAT)
3. Even though AAT has power to refer my application to DHA for reconsideration, however, AAT failed to do that
The applicant did not at the hearing wish to make any submissions in relation to the grounds stated in his application.
Ground 1 cannot succeed because this Court does not have jurisdiction to determine whether the delegate made any jurisdictional error. Ground 2 also cannot succeed. Assuming the applicant expressed to the Tribunal a strong desire to study in Australia, it would have been irrelevant to whether, as cl 500.211(a) of Schedule 2 requires, the applicant was enrolled in a course of study; and the applicant’s failure to meet cl 500.211 means he was unable to meet one of the essential requirements for the grant of a Student visa. As for ground 3 the Tribunal was not satisfied the applicant met the requirements of cl 500.211 of Schedule 2 and, therefore, there was no occasion for the Tribunal to consider remitting the applicant’s application to the delegate.
GROUNDS STATED IN AFFIDAVIT
The applicant also relied on matters stated in the affidavit he filed with his application. In that affidavit the applicant says that even though he did not have a current COE or letter of offer the applicant had shown a strong desire to commence study if the Tribunal so permitted; the Tribunal ignored the applicant’s strong desire to commence his study; the Tribunal “did not examine my facts properly”; the applicant is ready to commence study if permission were granted; the applicant has a strong desire to acquire an Australian qualification because it is highly regarded in Nepal, and would help the applicant find a suitable job in Nepal.
None of these matters is relevant to whether the applicant failed to satisfy the requirement of cl 500.211 of Schedule 2 and, therefore, they were not matters the Tribunal ought to have considered in determining whether the applicant did meet cl 500.211 of Schedule 2. The applicant’s affidavit does not disclose any jurisdictional error.
DISPOSITION AND COSTS
I propose to make an order dismissing the application.
The Minister applied for an order for costs set in the amount of $4,500. The applicant in effect submitted he is not in a position to meet an order for costs. That is not a reason for not applying the usual rule which is that costs should follow the event. I will also order that the applicant pay the Minister’s costs, and that those costs be set I the amount of $4,500, which I find is a fair indemnity for the costs the Minister has incurred in resisting the application.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 13 May 2022
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