El-Tawil v Minister for Home Affairs
[2019] FCA 1012
•5 July 2019
FEDERAL COURT OF AUSTRALIA
El-Tawil v Minister for Home Affairs [2019] FCA 1012
Appeal from: El-Tawil v Minister for Home Affairs [2018] FCCA 3761 File number: NSD 2426 of 2018 Judge: GRIFFITHS J Date of judgment: 5 July 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming the Minister’s delegate’s decision to reject an application for a Student (Temporary) (class TU) (subclass 500) visa – where the AAT concluded that cl 500.211 of the Migration Regulations 1994 (Cth) was not satisfied on the basis of PRISMS records which indicated that the appellant was not enrolled in a course of study at the time of decision – no jurisdictional error in the AAT’s decision identified – no appealable error – appeal dismissed with costs Legislation: Migration Regulations 1994 (Cth) sch 2 cl 500.11, 500.211 Cases cited: El-Tawil v Minister for Home Affairs [2018] FCCA 3761 Date of hearing: 2 July 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr P M Knowles Solicitor for the Respondents: Mills Oakley ORDERS
NSD 2426 of 2018 BETWEEN: HESHAM ANWAR SAAD EL-TAWIL
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
5 JULY 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This appeal is from a judgment and orders dated 17 December 2018 of the Federal Circuit Court of Australia (FCCA). The reasons for judgment are reported as El-Tawil v Minister for Home Affairs [2018] FCCA 3761.
For the following reasons the appeal will be dismissed, with costs.
Summary of background facts
The appellant appeared in person, assisted by an interpreter. The appellant is a citizen of Egypt. He first arrived in Australia as the holder of a Student (Subclass 572) visa in August 2007. He was subsequently granted further student or bridging visas. On 5 September 2014, the appellant applied for a protection visa which was refused on 16 March 2015. Although initially the appellant applied for review of that decision in the then Refugee Review Tribunal, the application was withdrawn on 2 June 2016. On 22 November 2016 he applied for a Student (Temporary) (class TU) (subclass 500) visa (visa) to study in a Bachelor of Business course commencing on 5 December 2016. His visa application was accompanied by a letter of offer dated 22 November 2016 which invited him to enrol in a Bachelor of Business degree commencing on 5 December 2016 and ending on 2 December 2018. It appears the appellant did not enrol in that course but some 4 months later (on 22 March 2017) he provided a confirmation of enrolment for a Bachelor of Business course commencing on 31 July 2017 and ending on 28 July 2019. His application was refused by the Minister’s delegate on 11 April 2017, who found that the appellant did not intend genuinely to stay temporarily in Australia. In essence, the delegate found that the appellant’s immigration and study history indicated that he was using the student visa program as a means of maintaining ongoing residence in Australia. This meant the delegate could not be satisfied that the appellant was a genuine temporary entrant and would return to his home country at the end of the proposed stay in Australia.
The appellant sought a review of the delegate’s decision in the Administrative Appeals Tribunal (AAT). By letter dated 19 June 2018, the AAT invited the appellant to attend the hearing on 18 July 2018. The letter also requested that he provide a copy of his current certificate of enrolment or other documentation to show that he was currently enrolled in a course of study as defined in cl 500.111 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The appellant provided additional documents, including expired confirmation of enrolment certificates.
On 18 July 2018, the appellant appeared at the AAT hearing, together with his migration agent. The appellant was given an opportunity to provide further information by 1 August 2018, but none was provided. At the hearing, the AAT invited the appellant to comment on information contained in the Provider Registration and International Student Management System (PRISMS) database which suggested that he was not currently enrolled in a course of study.
On 2 August 2018, the application for review was dismissed by the AAT on the basis that the appellant had not satisfied the criterion in cl 500.211. This required the appellant to be enrolled in a course of study at the time of the AAT’s decision. Although the AAT accepted that the appellant had been physically and medically affected by a motor vehicle accident in early 2016, it was not satisfied that his injuries contributed significantly to his decision to cease study in or around July 2017 and onwards. The AAT found that the appellant had ceased study in his Bachelor of Business course in or around March 2017 and that his enrolment had been subsequently cancelled due to the non-commencement of his studies. The AAT found that there was no evidence that the appellant had a current offer of enrolment in any course.
The FCCA proceedings
Shortly after the appellant commenced judicial review proceedings in the FCCA on 8 August 2018, the Registrar made orders on 30 August 2018 which enabled the appellant to put on an amended application, additional affidavit evidence and submissions. He failed to do so. In his reasons for judgment, the primary judge noted at [7] that the appellant claimed from the bar table that he had been unable to study because of a car accident and that this matter had also been referred to by the AAT in its reasons for decision. His Honour also noted that being enrolled in a course of study was an essential criterion of cl 500.211 and the AAT had no power to waive that criterion.
In the FCCA, the appellant contended that he had met all the requirements for the visa. The primary judge said that this “bare assertion” was inconsistent with the AAT’s reasons and that it was apparent from those reasons that the appellant was not enrolled in a course of study. In those circumstances, the AAT had no discretion to waive the requirements of cl 500.211.
At [10], the primary judge described the judicial review application as “hopeless” and that the appellant “could never meet the criteria”. The judicial review application was rejected on the basis that the appellant had failed to make out any jurisdictional error.
The proceedings in this Court
By a notice of appeal dated 27 December 2018 and filed on 31 December 2018, the appellant, who represented himself, complained that the FCCA’s decision was “wrong” because he had given his explanation to the FCCA and the primary judge failed to “accept my argument rather he accepted the Respondent’s outline of submissions” (sic). He said that he would be presenting the same argument to this Court as he did to the primary judge. It might be noted that the FCCA delivered an ex tempore judgment on 17 December 2018 and written reasons were published on 11 January 2019.
The parties’ submissions summarised
The appellant failed to provide a written outline of submissions despite the orders made on 31 January 2019.
In his oral submissions, the appellant substantially repeated what he had put to the FCCA. He said that because of the accident in which he had been involved he needed to return to Egypt for medical treatment and needed a visa for that purpose. He said that he had been unable to continue his studies because of the effects of the accident. The Court pointed out to the appellant the mandatory nature of the relevant criterion applicable to his visa application and that there was no power in either the AAT, the FCCA or this Court to waive the requirement that he have a current certificate of enrolment as at the date of the AAT’s decision. The Court pointed out that even if there were compelling circumstances in his case only the Minister could take those matters into account in the exercise of his discretionary powers.
It is unnecessary to summarise the Minister’s submissions as they are substantially reflected in the reasons below for dismissing the appeal.
Analysis and determination of the appeal
The Minister’s submission that the appellant has failed to establish any appealable error on the part of the FCCA, nor any jurisdictional error on the part of the AAT, must be accepted.
The central issue for the AAT was whether the appellant, at the time of the AAT’s decision, satisfied the enrolment requirement for the grant of the visa set out in cl 500.211. The AAT found, on the basis of the PRISMS records, that the appellant had ceased study in or around March 2017 and that his enrolment had subsequently been cancelled due to non-commencement of studies. When the AAT put those records to him and indicated that they may mean he could not meet a threshold requirement for the grant of the visa, the appellant did not contest their accuracy, but instead sought to clarify why he postponed or cancelled the relevant courses. In those circumstances, it was well open for the AAT to conclude as it did that the appellant did not satisfy the mandatory criterion, which could not be waived. Accordingly, the AAT had no option but to affirm the delegate’s decision.
The appellant failed to establish any jurisdictional error on the part of the AAT and he has not identified, let alone established, any appealable error on the part of the primary judge.
Conclusion
For these reasons, the appeal will be dismissed, with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 5 July 2019
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