Elboray v Minister for Immigration and Anor (No.2)

[2016] FCCA 2994

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELBORAY v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2994

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Student (Temporary (Class TU) visa – whether the orders should be set aside under r.16.05(2)(a) no satisfactory explanation for failure to appear – absence of any arguable jurisdictional error – no utility in setting aside the order – application in a case dismissed.

Legislation:

Federal Circuit Court Rules2001, rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994, cl.572.223 of Sch.2.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: KHALED ABDELWANIS ELBORAY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1667 of 2016

Judgment of: Judge Street

Hearing date: 18 November 2016

Date of Last Submission: 18 November 2016

Delivered at: Sydney

Delivered on: 18 November 2016

REPRESENTATION

The Applicant appeared via telephone.

Solicitors for the Respondents: Ms S Given
HWL Ebsworth Lawyers

ORDERS

1. The application in a case is dismissed.

2. The Applicant pay the First Respondent’s further costs fixed in the amount of $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1667 of 2016

KHALED ABDELWANIS AELBORAY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE 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 24 May 2016 affirming the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Egypt and arrived in Australia on a Student (Temporary) (Class TU) subclass 572 visa on 28 September 2006. The applicant has undertaken approximately 33 courses since arriving in Australia at that time and has completed only eight courses. Five of those courses were English courses. At the commencement of this hearing, the applicant indicated that he required an interpreter to assist him, notwithstanding the undertaking of those English courses. The applicant has had the benefit of the use of the interpreter in those circumstances.

3. On 20 October, the Court made orders dismissing the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (“the Rules”) for the failure of the applicant to appear on that date. Evidence was tendered before the Court that identified that the applicant had been before the Registrar at the time of the fixing of the matter for hearing on 25 August 2016, that the applicant was aware of the orders fixing the matter for hearing on 25 August 2016 and that the applicant had been sent submissions relied upon by the first respondent in answer to the applicant’s application for relief.

Application in a case before this Court

1. The Court now has before it an application under r.16.05(2)(a) of the Rules to set aside the orders made in the absence of the applicant’s appearance on 20 October 2016.

2. At the commencement of the hearing, the Court explained to the applicant that it was considering whether or not to set aside the decision made on 20 October 2016. The Court explained that it would have to consider first whether there was a satisfactory explanation for the failure to appear and secondly, whether there was utility in making that order. 

3. The Court explained that whether there was utility in setting aside the order earlier made depended upon there being a reasonably arguable case that the Tribunal’s decision was affected by legal error. The Court explained that the legal error had to be either an excess of a statutory power or a denial or procedural fairness to the applicant. The Court explained that if satisfied there was an adequate explanation and if satisfied that there was a reasonable argument that the Tribunal’s decision was unlawful or unfair, the Court would set aside the order and fix the matter for hearing on another occasion. The Court explained to the applicant that if not satisfied that there was an adequate explanation and if not satisfied that there is a reasonable argument that the Tribunal’s decision was unlawful or unfair, the application in a case filed by the applicant would be dismissed.

4. The applicant was informed that the Court would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. The applicant filed in support of the application, under r.16.05(2)(a) of the Rules, an affidavit that volunteered an explanation for the failure to appear being an absence of knowledge of a particular decision of this Court that was handed down on 15 July 2016. These proceedings were commenced on 28 June 2016 and the orders were made by the Registrar on 25 August 2016, fixing the matter for hearing. The applicant’s affidavit does not otherwise articulate any explanation for his failure to appear.

6. From the bar table, the applicant informed the Court that he was told by another person that he did not need to appear because if the Court made a decision he could make another application. It was, in those circumstances that the applicant made a deliberate, conscious decision not to attend the hearing date fixed by this Court on the basis that he could make a further application. 

Consideration of the application in a case

1. That is an entirely unsatisfactory explanation for the failure to appear. That of itself is a proper basis upon which this Court would refuse and does refuse to set aside the orders earlier made. It is not open to a party to deliberately fail to attend a hearing date and then seek to obtain the benefit of r.16.05(2)(a) of the Rules on the assumption they can just come back to have a second decision after deliberately deciding not to attend. For that reason alone, the application in a case must be dismissed.

The Delegate

1. The relevant application for a student visa in the present case was applied for on 29 September 2015. On 29 September 2015, the delegate wrote to the applicant acknowledging the application and explaining the information that might be provided to the Department.

2. On 1 October 2015, the delegate wrote to the applicant and requested more information. A timeframe was identified in respect of that further information. On 25 October 2015, the applicant responded to the request for more information. A further email was sent by the applicant on 6 November 2015. On 10 November 2015, the delegate identified the criteria that had to be met under clause 572.223 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and identified having regard to the Ministerial Direction Number 53.

3. The delegate referred to the applicant having departed Australia four times since the initial arrival in 2006. The delegate made reference to the Provider Registration and International Student Management System (PRISMS) which showed the numerous courses that had been the subject of cancellation and the limited number of courses finished by the applicant. The delegate made reference to the gap in study of almost nine months between 12 December 2014 and 27 September 2015. 

4. The delegate made reference to the email sent on 1 October 2015 inviting the applicant to comment on the circumstances in relation to the genuine temporary entrant criterion. The delegate made reference to the response sent on 25 October 2015.  The delegate was not satisfied that the applicant genuinely intends to temporarily stay in Australia. 

5. The delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student because the delegate was not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, and other relevant matters identified by the delegate. In those circumstances, the delegate was not satisfied that the applicant met the criteria under cl.572.223(1)(a) in Schedule 2 to the Regulations and refused to grant the visa.

The Tribunal

1. On 24 November 2015 the applicant applied for a review of the delegate’s decision. At the time the applicant applied for review, the applicant had the benefit of the decision of the delegate that the applicant was not a genuine temporary entrant. On 25 November 2015, the Tribunal wrote to the applicant acknowledging receipt of the application for review.

2. On 5 April 2016, the Tribunal sent a letter to the applicant inviting the applicant to appear to give evidence and present arguments on 11 May 2016. That letter included a proposed response form that was completed by the applicant and returned to the tribunal. The letter also identified a need for the applicant to provide information so that the decision could be made as quickly as possible and relevantly included the following from page 66 of the Court Book:- 

   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, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

3. The letter also included Direction No. 53 and the applicant’s attention was drawn to the issue of whether the applicant was a genuine temporary entrant. In addition to the response to the hearing invitation form, the applicant provided further information to the Tribunal and attended the hearing on 11 May 2016 to give evidence and present arguments. The Tribunal identified in its reasons delivered on 24 May 2016 that the delegate had refused to grant the applicant a visa because the applicant did not satisfy the requirements of cl.572.223 in Schedule 2 to the Regulations because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.

4. The Tribunal identified the applicant’s claims and evidence. The Tribunal made reference to the enrolment by the applicant in 33 courses over nine years, completing only eight. The Tribunal made reference to the substantial period during which the applicant over eight months between 12 December 2014 and 29 September 2015 did not study at all. The Tribunal made reference to the fact that the applicant had never progressed beyond courses at a vocational education and training level. The Tribunal identified the changes in the courses that the applicant had undertaken and that the courses were typically courses of short duration and low cost. The Tribunal observed that the applicant’s enrolments did not appear to form a coherent pattern of studies in related fields directed to a particular career or employment. 

5. The Tribunal’s reasons note that the Tribunal discussed each of those matters with the applicant at the hearing. The Tribunal’s reasons record that the Tribunal put to the applicant that his lack of academic progress, history of unrelated studies being low-cost, short-duration courses, his failure to engage in studies for a significant period of time and the length of his stay in Australia might lead the Tribunal to conclude that he is not a genuine applicant for temporary entry as a student but rather he is using the student visa program to prolong his stay in Australia. 

6. The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal found the applicant did not meet cl.572.223(1)(a) in Schedule 2 to the Regulations and affirmed the decision of the delegate.

Before the Court

1. The grounds identified by the applicant in the application are as follows:-

   1. The MRT did not attempt to understand why I was not able to obtain enrolment in business studies and how this effected my subsequent choice of courses.

   2. I expressed to the MRT that during the period of time during and after the revolution of 2011 in Egypt my studies were affected adversely. The MRT did not ask in a meaningful way how this effected my study.

   3. I studied human resources at different colleges due to a dispute with my migration agent. Despite the fact that I continued to study the same course, the MRT did not acknowledge or attempt to understand the effect of changing colleges due to a dispute have on my ability to study.

   4. The MRT did not ask why I did not continue with my plans to study cookery.

   5. The MRT did not attempt to understand why my Australian studies would advantage me in any country including Qatar and Turkey.

Consideration

1. Grounds 1 to 5 in the application are in substance a disagreement with the adverse findings made by the Tribunal. It is apparent that the applicant was well aware of the live issue in respect of whether he was a genuine temporary student and that this issue was explored with the applicant at the hearing. Nothing in the five grounds in the application identify any arguable ground of jurisdictional error. Nothing said by the applicant from the bar table identified any arguable ground of jurisdictional error. 

2. The Court is however, particularly troubled by an observation made by the applicant regarding the reason why the applicant asserted that the Tribunal should have accepted that he was a temporary entrant. The applicant said that if he wanted to apply for asylum so as to stay here in Australia he could do so and it would take two to three years without any expense for him if he so chose. That is an extraordinary proposition to advance before this Court. It is not the case that that submission advances in any way any jurisdictional error by the Tribunal.  It is a submission however, that does identify a considerable concern for the Court that there may be a perception that students that come to Australia can obtain a further two to three years without expenses by applying for asylum. That is not what Australian law provides for. Students who attend Australia on a student visa are required to provide information as to the reasons why they are coming to Australia. If those reasons are false, that is a matter the Department can take into account in dealing with any other visa application. 

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am not satisfied that there is any arguable case of jurisdictional error disclosed by the application. I am not satisfied that there would be any utility in setting aside the order made on 20 October 2016 even if the Court had been persuaded that there was a satisfactory explanation.

2. I note this is not a case where there is any issue of prejudice advanced by the first respondent. However, a deliberate decision not to appear is likely to engage a favourable exercise of the Court’s powers to set aside a decision under r.16.05(2)(a) of the Rules. Because of the failure of the applicant to provide a satisfactory explanation for his failure to appear and the want of utility in setting aside the orders, given the absence of any arguable case of jurisdictional error, the application in a case is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017