Elshenawy v Minister for Immigration

[2018] FCCA 875

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELSHENAWY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 875

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant: ABDELATY ABDELFATAH ABDELATY ELSHENAWY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1887 of 2017

Judgment of: Judge Driver

Hearing date: 11 April 2018

Delivered at: Sydney

Delivered on: 11 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1887 of 2017

ABDELATY ABDELFATAH ABDELATY ELSHENAWY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr Elshenawy, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Elshenawy a temporary student visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 4 April this year. 

2. Mr Elshenawy is a male citizen of Egypt who applied for a student visa on 20 August 2015.[1]  At that time, Mr Elshenawy proposed to undertake a “package” of courses including a Diploma of Marketing and Advanced Diploma of Marketing.[2]  These courses commenced on 2 November 2015 and were due for completion on 17 September 2017, extending Mr Elshenawy’s length of proposed stay in Australia on a student visa to more than 11 years.[3]

   [1] Court Book (CB) 1-8

   [2] CB 23

   [3] CB 23

3. On 24 May 2016, a delegate of the Minister refused to grant the visa as he was not satisfied Mr Elshenawy was a genuine applicant for entry and stay in Australia as a student as required by clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4]

   [4] CB 28-38

The Tribunal

1. On 7 June 2016, Mr Elshenawy applied to the Tribunal for review of the delegate’s decision.[5]

   [5] CB 39-40

2. On 12 April 2017, Mr Elshenawy was invited to a hearing before the Tribunal scheduled for 10 May 2017.[6]  The invitation also requested that Mr Elshenawy provide, amongst other things, a copy of his current Certificate of Enrolment, as required for the grant of a student visa.[7]

   [6] CB 45-48

   [7] CB 47.3

3. The hearing was subsequently re-scheduled to 19 May 2017 at Elshenawy’s behest.[8]  On 17 May 2017 (two days prior to the hearing), Mr Elshenawy provided a Confirmation of Enrolment (COE) in respect of a Diploma of Human Resources Management, which ended on 19 July 2015.[9]  Mr Elshenawy attended the hearing before the Tribunal on 19 May 2017.[10]

   [8] CB 57

   [9] CB 62

   [10] CB 65-68

4. On 19 May 2017, the Tribunal affirmed the decision under review.[11] The Tribunal found there was no evidence that Mr Elshenawy was enrolled in, or had a current offer of enrolment in, any applicable course of study as required by clause 572.231.

   [11] CB 71-73

5. The Tribunal identified the issue on the review was whether Mr Elshenawy met the “enrolment requirements” for a student visa.[12] Clause 572.231 was a criterion that required that Mr Elshenawy was enrolled in, or was the subject of a current offer of enrolment in a course of study that was a principal course which was of a type that was specified for subclass 572 visas made under regulation 1.40A and was in force at the time the application was made. The enrolment requirements also applied to the other subclasses of student visas considered by the Tribunal.[13]

   [12] CB 72 at [6]

   [13] CB 72 at [9]

6. The Tribunal found that at the hearing, Mr Elshenawy “informed” it he did not have a current COE or offer and was “investigating other courses”.[14]  The Tribunal found there was no evidence before it that Mr Elshenawy was now enrolled in, or had a current offer of enrolment in any applicable course of study[15] and affirmed the decision under review.

   [14] CB 72 at [8]

   [15] CB 72 at [10]

The present proceedings

1. These proceedings began with a show cause application lodged on 16 June 2016.  Mr Elshenawy continues to rely upon that application.  The ground in it is:

   I got refused from Administrative Appeals Tribunal.  The reason given behind refusal is just long duration of staying that does not seems to be fair enough.  So, I request you to extend time.

2. Mr Elshenawy was in error that he needed an extension of time.  The ground in the application is however repeated as the ground of review. 

3. I have before me as evidence the court book filed on 7 August 2017. 

4. I accepted as a submission, Mr Elshenawy’s affidavit filed with his application, in which he again states that the decision was not fair. 

5. The ground misconceives the basis of the Tribunal decision. The Tribunal affirmed the delegate’s decision on the basis that there was no evidence Mr Elshenawy was enrolled in, or had a current offer of enrolment in, any applicable course of study. The Tribunal decision was not made on the basis of the duration of Mr Elshenawy’s stay in Australia. 

6. I invited oral submissions from Mr Elshenawy this afternoon.  I initially had difficulty understanding those submissions.  Following the intervention of the Minister’s solicitor, however, it became clear that Mr Elshenawy asserts that, following the decision of the Minister’s delegate, he thought he needed to stop studying and wait for the decision on review.  In that, he was labouring under a misapprehension.  That should have been dispelled by the Tribunal’s invitation to hearing in which it specifically requested Mr Elshenawy to furnish a current certificate of enrolment.  Mr Elshenawy actually responded by providing a certificate of enrolment which was, however, two years out of date by the time of the Tribunal’s decision.

7. Apart from that issue, Mr Elshenawy is not able to articulate any assertion of jurisdictional error.  The Tribunal was correct to find that, at the time of its decision, Mr Elshenawy did not have a current certificate of enrolment, and I conclude that no arguable case of jurisdictional error by the Tribunal is available.  I otherwise agree with the Minister’s submissions. 

8. I conclude that Mr Elshenawy is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore dismiss the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  Mr Elshenawy did not wish to be heard on costs. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  12 April 2018