Elsharkawi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 939

FEDERAL CIRCUIT COURT OF AUSTRALIA

Elsharkawi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 939

File number(s):

SYG 2112 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

5 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Application for a Student visa – where applicant could not provide a current course of enrolment to the Tribunal – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error made out – amended application dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

 Federal Circuit Court Rules 2001 (Cth), r 44.12

Migration Act 1958 (Cth), s 476

Number of paragraphs:

9

Date of hearing:

5 May 2021

Place:

Sydney

Applicant:

In person

Solicitor for the First Applicant:

Ms E Warner Knight, Australian Government Solicitor

ORDERS

SYG 2112 of 2019

BETWEEN:

MOHAMED ELSAYED ISSA ELSHARKAWI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 MAY 2021

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely upon the amended application filed on 15 January 2020.

2.The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction, under s 476 of the Migration Act 1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on the 12th of August 2019, affirming a decision of a delegate of the first respondent not to grant the applicant a Student visa.

2. The Court adopts the background, summary and grounds in paragraphs 3 to paragraph 19 of the first respondent’s submissions:

   PART II        CHRONOLOGY

   (3)The applicant is an Egyptian citizen born 20 April 1988. He first arrived in Australia on 16 November 2006 on a student visa granted November 2006 and valid through to 5 November 2008. He largely continued to reside in Australia as the holder of student visas or associated bridging visas.

   (4)The applicant applied for the visa on 27 July 2017: Relevant Documents (RD) 1–18. With his application he provided a Confirmation of Enrolment (COE) to study a Bachelor of Business from 28 August 2017 and ending 21 August 2020 with Group Colleges Australia Pty Ltd and an offer letter from the course provider stating the course started 2 September 2019 and ended 12 August 2022: RD 38–51, 56.

   (5)On 6 September 2017, the delegate refused to grant the student visa, on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that the applicant was a genuine temporary entrant: RD 65–69.

   (6)The applicant sought review by the Tribunal on 22 September 2017: RD 70–71. On 30 July 2019, the Tribunal wrote to the applicant inviting him to attend a hearing on 20 August 2019: RD 83–86. In that letter, the Tribunal requested ‘a copy of you’re a current [COE] or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (Regulations), as is required for the grant of a student visa’. The applicant requested that the hearing date be changed and the Tribunal agreed to reschedule the hearing for 7 August 2019: RD 92–102. The Tribunal had before it a copy of the applicant’s PRISM records: RD 103–104. On 6 August 2019, the applicant provided a submission, confirming that he discontinued his Bachelor of Business in November 2017 due to his mother’s ill health and stating that he intended to resume studies in the following year: RD 116. On 7 August 2019, the applicant attended the hearing: RD 125–127.

   (7)On 12 August 2019, the Tribunal affirmed the decision under review: RD 137–140.

   PART            III TRIBUNAL DECISION

   (8)The Tribunal set out the applicant’s educational background and details of the Tribunal proceeding: RD 138, [4]–[8].

   (9)The issue for the Tribunal was whether the applicant was enrolled in a course of study for the purpose of cl 500.211 at the time of decision: RD 139, [9]–[11].

   (10)The Tribunal noted that, in its invitation to attend a hearing, he was asked to provide a current COE or similar document, but that no such document was provided. Rather, his evidence was that he discontinued his Bachelor of Business in 2018, had not reenrolled, and that his intention was to resume studies in 2019: RD 139, [12].

   (11)The requirement to be enrolled at the time of decision was again explained to the applicant during the hearing, and the applicant repeated his evidence about an intention to seek re-enrolment upon return to Australia: RD 139, [13].

   (12)The Tribunal found that the applicant did not meet cl 5011.211 and so affirmed the decision under review: RD 139–140, [14]–[16].

   PART IV       APPLICATION FOR JUDICIAL REVIEW

   (13)The originating application contained three grounds.

   (14)On 15 January 2020, the applicant filed an amended application. The amended application contains four grounds:

   1. The Tribunal respectfully did not take into account my study history.

   2. Due to family health issues, I had to return to Egypt and put my studies on hold.     Medical reports were produced.

   3. I mentioned to the Tribunal of my intention to continue study, but the Tribunal did not consider any submissions as it felt I had breached my visa conditions.

   4. I have been advised of a Federal Court case which overturned a Tribunal decision due to the students health issues despite him being classified as breaching conditions.

   (15)As at the date of these submissions, the applicant had not filed or served any written submissions.

   BEFORE THE COURT

3. These proceedings were commenced on 16 August 2019. On 7 November 2019, a Registrar of the Court made orders, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application on 15 January 2020, raising four grounds. On 3 March 2020, this Court made orders, fixing the matter today for a show cause hearing, under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

4. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing.

5. The applicant raised that the Tribunal had not determined the matter on compassionate grounds.  The Tribunal had no power to do so, and nor does this Court. 

6. The applicant referred to his personal circumstances, and why it was that he had to depart from his studies to return home, and why he had not provided the Tribunal with a current course of enrolment. The applicant was clearly on notice, before the hearing in the Tribunal, that he had to have a current course of enrolment, and did not have one. Nothing said by the applicant identified any arguable case of relevant error.

7. For the reasons set out in the Minister’s submissions above, none of the four grounds in the amended application raise an arguable case for the relief claimed. 

8. The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12(1)(a) of the Rules. 

9. Accordingly, the amended application is dismissed pursuant to r 44.12 of the Rules.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       21 May 2021