Das v Minister for Immigration
[2017] FCCA 2532
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2532 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Student visa to the Applicant – at time of decision Applicant was not enrolled in or the subject of a current offer of enrolment under cl.572.231(a) nor did the Tribunal find him to intend to stay in Australia as a student temporarily – no jurisdictional error or procedural unfairness established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 360, 363 Migration Regulations 1994 (Cth) |
| Cases cited: Kaur v Minister for Immigration [2016] FCA 132 Vatti v Minister for Immigration [2014] FCA 893 |
| Applicant: | SHUVAMOY DAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 441 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr T Shaw |
| Solicitors for the Respondents: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS
The Application filed in this Court on 29 February 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 441 of 2016
| SHUVAMOY DAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 29 years, having been born on 22 January 1988.
By Application filed in this Court on 29 February 2016 he seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 8 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 1 June 2015 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visa (Student visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant was granted a Student visa on 24 January 2007 offshore and arrived in Australia on 5 February 2007.
On 13 August 2012 the Applicant was granted a Subclass 485 visa.
Then on 10 April 2015 the Applicant made his present Student visa application.
Decision of Delegate
By letter dated 13 April 2015 an officer of the Department of the Minister requested further information from the Applicant’s registered migration agent in relation to his Student visa application and in particular sought that the Applicant provide a statement setting out his reasons for undertaking the courses of study specified in his Student visa application. The letter pointed out that the Applicant had recently completed an Advanced Diploma of Management at Pacific College of Technology but was now seeking to enrol, for the purposes of this Student visa application, in the same course at a different education provider and the letter sought an explanation of why the Applicant was repeating the same course at a different college. The evidence indicates that the Applicant never responded to this enquiry from the Department.
By her Decision Record of 1 June 2015 the Delegate refused to grant to the Applicant a Student visa because at the time of decision she was not satisfied that the Applicant was a genuine applicant for entry and stay as a student because she was not satisfied that the Applicant intended to stay in Australia temporarily for the purposes of cl.572.223(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) which required as follows:
572.223
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and ……
…………………………………………………………………………
(emphasis added)
The Delegate noted that the Applicant had enrolled in an Advanced Diploma of Management course at Cambridge Business College for the purposes of his Student visa application, but that he had previously studied the same course from 10 February 2014 to 10 February 2015 at Pacific College of Technology. She therefore questioned the value to his future of the proposed course at Cambridge Business College. The Delegate also noted that she did not have the benefit of any response to the Department’s letter of 13 April 2015 and therefore could not consider the Applicant’s viewpoint concerning the various matters enquired of in that letter.
In the result the Delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student as required by cl.572.223(1) and she refused to grant a Student visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal on 19 June 2015 for review of the Delegate’s decision and appeared before it on 4 February 2016 to give evidence and present argument, together with his registered migration agent.
Prior to the Tribunal hearing the Tribunal sent to the Applicant’s registered migration agent a letter dated 13 January 2016 which specifically asked for the Applicant to provide the following:
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.
3.Documents that show your past studies in Australia…
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
In response to the Tribunal’s letter the Applicant provided a statement to the Tribunal dated 2 February 2016 headed “Explanation of Any Gaps in Enrolment”. He commenced the substance of that document by stating:
I came in Australia 5th of September 2007 with the intention of finishing my studies and apply for permanent visas.
He further stated in this document that he had suffered from depression and the breakup of relationships with his fiancé and another girl and that he had started to drink and smoke heavily, which had affected every aspect of his life. He ended by saying:
I want to move on with my life & really want a second chance from everyone. I am more motivated than ever before but my current situation hold me back but I don’t want to give up yet.
Thus I request the member, to consider my matter enable me to undertake further study.
In the result, the Tribunal affirmed the Delegate’s decision not to grant a Student visa to the Applicant on two bases.
First, like the Delegate, the Tribunal was not satisfied that the Applicant met the requirement of cl.572.223(1)(a) of Sch.2 to the Regulations in that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student intending to genuinely stay in Australia temporarily. Its findings in this regard were recorded in [10] –[11] of its Decision Record:
[10]The applicant confirmed that since arriving in Australia in 2007, he had completed a Diploma of Accounting, an Advanced Diploma of Accounting and a Bachelor of Business, then held a temporary residence visa (subclass 485), which expired in February 2014. Although he was subsequently granted another Student visa, he but did not complete his course due to emotional and mental problems and the break up of his relationship. However, he now wished to move on with his life and get another degree – either in Sports Science or a Masters in Accounting. He confirmed that he wished to find a job in Australia and that, as he stated in his written submission, he came to Australia with the intention of finishing his studies and applying for a permanent visa.
[11]In view of this evidence, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and intends to genuinely stay in Australia temporarily. Therefore, he does not meet the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994.
Second, by force of cl.572.221 at the time of decision the Applicant had to satisfy cl.572.231(a) by establishing that he was enrolled in, or the subject of a current offer of enrolment, in a course of study that was a principal course for the type specified for Subclass 572 visas by the Minister in a legislative instrument.
However, at the hearing before the Tribunal the Applicant confirmed that he was not enrolled in any course of study, allegedly because his Student visa had been refused by the Delegate.
Further, there was no evidence that the Applicant had a current offer of enrolment in any applicable course of study
Accordingly, at [13] of its Decision Record the Tribunal found that there was no evidence that the Applicant was now enrolled in or had a current offer of enrolment in any applicable course of study for the purposes of cl.572.231or indeed any other subclass comprised within the class of Student (Temporary) (Class TU) visas. As there was no other basis for the grant of a Student visa to the Applicant the Tribunal affirmed the Delegate’s decision to refuse the grant of a Student visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds in the Application are as follows (renumbered for convenience):
1. AAT fell into jurisdictional error for Failure to consider intentions of enrolment.
2. AAT has misplaced reliance on my intention to stay permanently in Australia.
3. AAT has fail to consider capacity to travel to Bangladesh.
4. AAT has failed to grant me time to arrange enrolment.
Consideration
Unfortunately, at the hearing the Applicant was not able to make any meaningful submissions in support of these Grounds.
Ground 1
This Ground appears to assert that the Tribunal committed jurisdictional error by not taking into account the Applicant’s future intentions of enrolling in study courses. However, such intentions were simply not relevant. In the absence of evidence of the Applicant’s current enrolment, or of an offer of enrolment to him, it was simply not open to the Tribunal to grant to him a Student visa. There was no discretion open to the Tribunal to take into account the reasons why the Applicant was unable to satisfy those criteria: Kaur v Minister for Immigration [2016] FCA 132 at [31] per Perry J. In my view it was not open to the Tribunal to take into account any intentions or plans in relation to enrolment that the Applicant might have had.
Accordingly, Ground 1 fails.
Ground 2
In my view, this Ground also fails.
Subclass 572.223(1)(a) required that the Minister be satisfied that the Applicant intended “genuinely to stay in Australia temporarily”. However, in light of the Applicant’s evidence in his statement dated 2 February 2016 (see [12] above), and oral evidence at the Tribunal hearing, the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily. Having considered the Applicant’s personal circumstances in Australia and his enrolment in study courses the Tribunal did not thereby act “legally unreasonably”, “capriciously”, and “irrationally” nor did its finding “lack an evident or intelligible justification”.
Accordingly, Ground 2 fails.
Ground 3
This Ground does not make any meaningful sense and does not support any finding that the Tribunal committed jurisdictional error.
Ground 3 fails.
Ground 4
I take this Ground as asserting that the Tribunal acted in a procedurally unfair way by not adjourning the Tribunal hearing to allow the Applicant to enrol in an applicable and relevant course of study.
In my view, this Ground also fails for the following reasons.
First, neither the Applicant nor his registered migration agent actually sought an adjournment of the Tribunal hearing. It was not suggested to the Tribunal that the Applicant’s enrolment in an applicable course of study was imminent and that therefore the Tribunal hearing should be adjourned so that the Applicant could satisfy cl.572.231(1)(a).
Failure to seek an adjournment could conceivably not be the end of the matter. This is because in some circumstances a Court or Tribunal may be required to suggest the possibility of an adjournment to a party, particularly an unrepresented party. As Deane J said in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, in connection with a hearing in the Administrative Appeals Tribunal:
A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case…… The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478 ; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
Nevertheless, in the circumstances of this case the Tribunal did not act in a legally unreasonable or procedurally unfair way in not itself offering the Applicant an adjournment under s.363(1)(b) of the Act. The circumstances of this case are quite unlike those considered by the High Court in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and by the Full Court of the Federal Court of Australia in Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 in which the relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been recently analysed.
In the circumstances the Applicant and his registered migration agent must have been aware of the essentiality of the Applicant being enrolled or the subject of a current offer of enrolment in a course of study. The Tribunal’s letter of invitation of 13 January 2016 expressly asked for provision of a copy of his current certificate of enrolment in a course and documents showing enrolment or the offer of enrolment in a registered course and that both were required for the grant of a Student visa.
The Applicant’s response to the Tribunal’s letter dated 2 February 2016 did not suggest he was enrolled or the subject of an offer of enrolment in any course of study and this was again admitted at the Tribunal hearing. It was at that point that the Applicant, if he had any present intention of enrolling in a further applicable course of study, ought to have asked the Tribunal to adjourn the hearing to allow that enrolment to be completed. However, no application for adjournment was made.
In my view, the Tribunal complied with its obligation under s.360 of the Act in giving the Applicant a meaningful hearing. It was not legally bound to offer the Applicant an adjournment which he himself did not request. As the Tribunal was of the view that the Applicant was not a genuine applicant for entry and stay as a student as required by cl.572.223(1)(a) it would have been arguably perverse and unfair for the Tribunal to raise the Applicant’s expectations of a successful outcome by offering an adjournment for the purpose of securing an enrolment in a course of study: see Vatti v Minister for Immigration [2014] FCA 893 at [16] and [32] per Mortimer J.
Conclusion
For the above reasons I consider that the Applicant has failed to establish that the Tribunal’s decision is affected by jurisdictional error or that the Tribunal treated him procedurally unfairly and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 20 October 2017
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