EL-TAWIL v Minister for Home Affairs

[2018] FCCA 3761

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL-TAWIL v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3761

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the applicant satisfied the mandatory requirements for the grant of the Student visa – whether the Tribunal identified the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), cl. 500.211

Applicant: HENSHAM ANWAR SAAD EL-TAWIL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: SYG 2194 of 2018

Judgment of: Judge Street

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Sydney

Delivered on: 17 December 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr D Baddeley
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 17 December 2017

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2194 of 2018

HENSHAM ANWAR SAAD EL-TAWIL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 August 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) Visa.

2. The applicant was found to be a citizen of Egypt and applied for the Student visa on 22 November 2016. On 11 April 2017, the delegate refused to grant the applicant the visa and found the applicant did not intend genuinely to stay temporarily in Australia.

3. The applicant applied for review on 18 April 2017. By letter dated 19 June 2018, the applicant was invited to attend a hearing on 18 July 2018. The letter sent to the applicant expressly referred to the requirement for the applicant to provide a copy of his current certificate of enrolment or other documents that show he is currently enrolled in a course of study as defined in cl 500.111 of the Migration Regulations 1994 (Cth) (“the Regulations”), as is required for the grant of a Student visa. The applicant appeared at the hearing to give evidence and present arguments, together with the applicant’s migration agent.

4. The Tribunal identified the background to the visa application and the Tribunal found the applicant did not have a current course of enrolment. The Tribunal identified the evidence that was adduced and what occurred at the hearing. The Tribunal correctly identified the mandatory requirements in respect of the applicant being enrolled in a current course of study. The Tribunal found cl 500.211 of the Regulations was not met and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 8 August 2018. On 30 August 2018, a Registrar made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the application confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that he had been unable to study because of a car accident. The Tribunal expressly referred to the car accident in the course of its reasons. The Tribunal also identified that there was an essential requirement of which the applicant was on notice that he had to meet, that is, being enrolled in a current course of study. The applicant was not so enrolled and the Tribunal had no discretion to waive that criteria. The applicant’s disagreement with the decision does not identify any relevant legal error. Nothing said by the applicant identified any jurisdictional error.

The ground

1. The ground in the application is as follows:

   1. I met all the requirements to grant the student visa.

2. The applicant’s bare assertion that he met the requirements is not consistent with the Tribunal’s reasons. It is apparent from the Tribunal’s reasons that the applicant did not meet the requirements of cl 500.211 of the Regulations and, in those circumstances, the Tribunal had no discretion that it could apply in respect of that mandatory criteria.

3. This application filed by the applicant was hopeless. The applicant could never meet the criteria. It is apparent that the applicant is well educated and it is apparent that the applicant must have appreciated that he did not meet the criteria. The ground in the application fails to make out any jurisdictional error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 January 2019