Giri v Minister for Home Affairs

[2020] FCCA 2423

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRI v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2423

Catchwords:

MIGRATION – Review of administrative appeals decision – show cause hearing – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1994 (Cth), cl.500.211

Applicant: KISHOR GIRI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 426 of 2019

Judgment of: Judge Vasta

Hearing date: 20 July 2020

Date of Last Submission: 20 July 2020

Delivered at: Brisbane

Delivered on: 20 July 2020

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 3 May 2019 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 426 of 2019

KISHOR GIRI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 5 April 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to give Mr Kishor Giri, the Applicant, a student visa.  That decision was an oral decision and was given at 11.55 am that day.  On 3 May 2019, the Applicant asked this Court to review that decision.  Some 12 days later, on 15 May 2019, the AAT put its decision in writing. 

2. The background to the matter is this; the Applicant is a citizen of Nepal and he arrived in Australia as the holder of a 573 visa back in November 2013.  On 15 March 2017, he applied for the student visa, the subject of these proceedings, on the basis of an enrolment in an advanced diploma of business. 

3. That diploma was due to commence on 13 March 2017 and conclude on 9 March 2018.  The delegate was not satisfied that the Applicant was a genuine student, and so, on 19 June 2017, refused to grant him that visa. 

4. On 9 July 2017, the Applicant applied to the Tribunal for a review of the delegate’s decision.  Now, it took some time – about 19 months or so, before the Tribunal was ready to actually have the hearing.  On 18 February 2019, the Applicant was invited to provide information to the Tribunal.  The Tribunal wanted information to show that the Applicant was enrolled in a registered course and that he was a genuine Applicant for entry and stay as a student.

5. The Applicant responded that he had completed the Certificate IV and the diploma of business, and he was looking to study in the accounting sector.  The Tribunal invited the Applicant to a hearing on 5 April 2019.  The invitation requested that the Applicant provide, amongst some other things, a copy of his confirmation of enrolment. 

6. On 3 April 2019, the Applicant wrote to the Tribunal requesting an adjournment of the hearing on the basis that he was having difficulty obtaining a certificate of enrolment and he would have better opportunities in May.  That request was refused, but the Tribunal said that it would be happy to hear arguments about an adjournment at the hearing.

7. The information, which the Tribunal had before it, was that the Applicant’s last confirmation of enrolment was cancelled because of non-payment of fees.  That was in March 2018.  The Tribunal noted that the Applicant had been on notice of the hearing date for several weeks.  The Applicant had an agent, and the agent had been advised that the Tribunal had determined not to adjourn the hearings, but again would hear arguments about the adjournment during the hearing.

8. At the hearing, the Applicant gave evidence that he hasn’t held a confirmation of enrolment since March 2018, and he has not been able to obtain one.

9. The Tribunal put to the Applicant that, because he hasn’t held a CoE since March 2018 and holds no current CoE, he didn’t satisfy the requirements of cl.500.211, and that this would be a reason, or part of the reason for affirming the decision under review. The Tribunal told the Applicant that this was a mandatory requirement for the grant of a student visa, and that, unless this was fulfilled, there was simply no basis upon which he could get a visa.

10. The Tribunal confirmed with the Applicant that he understood this, and then, pursuant to s.359AA of the Act, invited the Applicant to respond or comment.

11. The Applicant elected to respond, and he did so, according to the Tribunal, at some length, explaining his personal circumstances and emotional suffering – but ultimately, said that he had been unable to obtain a confirmation of enrolment. 

12. The Tribunal found that because there was no proof that the Applicant was enrolled in the course of study, that they had no choice but to find that the Applicant had not met the criteria and therefore the decision was affirmed. 

13. The originating application had three grounds they are as follows,

    1. The Second Respondent failed to provide natural justice to the Applicant which is an error of law;

    2. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to take relevant information into consideration; and

    3. The Second Respondent refused to provide an extension of time to afford Procedural Fairness to the Applicant which is an error of law.

14. It’s trite to say that none of those grounds really have any particularity and are meaningless without such particularity.  For this reason, when the matter came before Registrar Lynch on 4 June 2019, the Minister asked that this matter be set down as a show cause hearing.  Today is 20 July 2020, so there has been nearly 14 months that has elapsed since Registrar Lynch had the matter before her.  In that time, the Applicant has not provided any further information as to why it is that he had an arguable claim.

15. What he has said to me today is that he had a great deal of emotional suffering at the time.  He claimed that the AAT did not give him proper respect.  They referred to him as a citizen of India when he is a citizen of Nepal.  He said that his financial circumstances and his emotional circumstances had changed. 

16. He spoke of the earthquake that had occurred in Nepal and the fact that there were aftershocks during that time and that he was scared that the situation in Nepal was changing.  He was worried about his family.  His family did contact him and told him not to come back to Nepal because of the situation and that he, because of that, couldn’t concentrate on his studies.  He said he had a lack of finances because of that and it’s only now that his father, in his taxi business, is starting to get back onto an even keel and can afford to maintain him here in Australia. 

17. He said that he should have been given more time to get a certificate of enrolment, but the Tribunal did not allow him to do so. 

18. As far as that aspect is concerned – which is really count three of his application – it would seem to me that the Applicant had put the matter before the Tribunal in 2017.  The AAT informed him that he needed to enrol and be a genuine student.  When the Tribunal contacted him in February, it reiterated that the Applicant had to be enrolled and be a genuine student. 

19. There was no evidence before the Tribunal as to what the Applicant had actually been doing since his certificate of enrolment had been cancelled in March 2018 that would in any way show that he was trying to be enrolled.  It would seem to me, in those circumstances, that the decision of the Tribunal not to allow an adjournment, was one that was open to it.  Therefore it could not amount to a jurisdictional error. 

20. As far as the other aspects are concerned, it is clear from the way in which the Tribunal has set out its reasons that it has complied with the exhaustive statement of natural justice and procedural fairness contained in the Migration Act 1958 (Cth). The Tribunal has bent over backwards to ensure that the Applicant had the fairness to which he was entitled s.359AA, even though it may be thought that there was no need for the Tribunal to utilise that section of the Act.

21. But the fact remained that the Applicant simply did not have a certificate of enrolment and therefore the matter could never have been successfully argued.

22. This matter is a show cause hearing.  The Applicant has not satisfied me that this is a matter where an arguable case for the relief claimed has been made out. 

23. I therefore dismiss the application with costs in the sum of $3,737. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 September 2020