GOPIYANI v Minister for Home Affairs

[2019] FCCA 1859

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOPIYANI & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1859

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

N/A

First Applicant: BHAVESH PRAVINCHANDRA GOPIYANI

Second Applicant: JANKI BHAVESH GOPIYANI

Third Applicant: VAHIN GOPIYANI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1210 of 2018

Judgment of: Judge Vasta

Hearing date: 24 June 2019

Date of Last Submission: 24 June 2019

Delivered at: Brisbane

Delivered on: 24 June 2019

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 19 November 2018 is dismissed.

2. That the Applicants pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1210 of 2018

BHAVESH PRAVINCHANDRA GOPIYANI

First Applicant

JANKI BHAVESH GOPIYANI

Second Applicant

VAHIN GOPIYANI

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 25 October 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant a student visa.  On 19 November 2011, the Applicant filed an originating application asking this Court to review that decision. 

2. The background, in short compass, is this:  the Applicant had been in the country for some little time.  He applied for a visa on 24 December 2016 to undertake study in Australia.  His visa was a subclass 500 visa.  At the original hearing of the application before the delegate, the delegate refused to grant the Applicant a visa on the basis that the delegate was not satisfied that the Applicant was a genuine student who intended to stay in Australia temporarily.

3. The Applicant, not happy with that decision and exercised his right to take the matter to the Tribunal.  The Tribunal heard the matter on 25 October 2018 and put to the Applicant the information it had as to his enrolment records from the Prism system. 

4. The Tribunal said to the Applicant that he could seek additional time before commenting or responding on that information.  He did not seek the additional time, and commented during the course of the hearing and said to the Tribunal that he had voluntarily advised his institution that he wanted to cancel his most recent confirmation of enrolment.  The Tribunal then informed him that the determinative issue before the Tribunal had therefore changed because the criteria for that visa was one where a person had to have been enrolled in a course. 

5. Therefore, the Tribunal’s focus went from whether or not the Applicant was a genuine Applicant to a focus on whether he actually had been enrolled in a course. 

6. He was given an opportunity to address the Tribunal in relation to that, and he again restated that he had voluntarily cancelled his most recent enrolment.  The Tribunal then pointed out that the visa had a requirement that, at the time of the decision, the Applicant was enrolled in a course of study.  Therefore, at the time of the hearing before the AAT, there was no evidence that the Applicant was enrolled in any course of study. 

7. Therefore, the Tribunal could never have been satisfied, at the time of their decision, that the Applicant had been enrolled in a course of study and therefore found that the criteria in cl.500.211 was not met.  For those reasons, the Tribunal concluded that the decision under review must be affirmed. 

8. Having made that decision orally, the Applicant asked the Tribunal to give to the Applicant the reasons in writing.  It appears that decision in writing was not given until 7 January 2019, which was outside of the time limit that the legislation says the Tribunal needs to give written reasons, if they have been asked for.  However, it does not seem legislatively, that this invalidates the decision that had been given, because a decision had been given in October. 

9. The grounds of this application are as follows:

   1.  The decision maker engaged in jurisdictional error in making a decision that was unreasonable:

   2.  The tribunals finding is unreasonable.

   3.  The tribunal did not give any reasons for its decision.

   4.  The second applicant was not provided with an interpreter at the time hearing and would not make submission she wanted to.

   5.  I asked them to provide me statement of decision and reasons, But still up to19 Nov. 2018 it is still not provided by Administrative Appeal Tribunal( Migration & Refugee Division)

10. Before me today, the Applicant appeared with the aid of interpreter, although he did not seem to need the interpreter at all and exchanged freely with the Bench in English.  He submitted to me that the Tribunal did not consider his personal circumstances and that the Tribunal did not take into consideration that he had completed all the components of his course except for the last one. 

11. He told me of a number of reasons why it was that he cancelled his enrolment in the course and a number of reasons why he had failed the course.  However, it is quite clear, that the subclass visa to which the Applicant was applying had as a prerequisite that the Applicant had to be enrolled in a course of study. 

12. His submission, today, is that he was not enrolled in a course of study, and he gave me the reasons why he was not enrolled.  Those reasons really do not matter, because the legislation does not permit anything other than the Applicant being enrolled in a course of study.  Either he is, or he is not.  If he is not, then he is not eligible for the visa, no matter what the excuses are. 

13. Therefore, it seems to me that one cannot ever categorise the decision made by the Tribunal as being unreasonable.  That disposes of Grounds one and two of the application.

14. It is clear to me, that the Tribunal gave reasons for its decision.  It just did not give those reasons in writing before it was that the Applicant had lodged this application.  However, the record shows that the decision-maker did give written reasons on 7 January. 

15. The Applicant appeared at the first Court date before Registrar Belcher on 30 January 2019.  By that time, he had been provided with the written statement of reasons.  The Applicant had his wife and child as the Second and Third Applicants, as they were family members for his visa. 

16. The Registrar ordered that the Applicant have until 20 March 2019 to file and serve any amended application upon which he intended to rely, and the Applicant did not do so.  The Registrar also ordered that by 17 April 2019, the Applicant file and serve any affidavit upon which he intends to rely and that by 14 days prior to the hearing, that being 10 June, he file and serve written submissions. 

17. He did file an affidavit on 8 April 2019.  However, that affidavit simply restates his view that the Tribunal’s finding was unreasonable. Further, he states that he was not provided with the written reasons for the decision.

18. He claimed that he was not able to attach the AAT form due to some technical reason, therefore he withdrew the ground that related to the Second Applicant “not being provided with an interpreter at the time of hearing and would not make submissions”.  He did acknowledge that he received the written reasons on 8 January 2019. 

19. It is trite to say that it is not a jurisdictional error that the Tribunal had not given the written reasons within time, but as I say, that does not, in any way, invalidate the decision.  The Tribunal did give reasons for its decision orally and repeated those reasons in the 7 January written document.  Therefore, there is no merit in Ground three. 

20. Ground Four, I take it from the affidavit, is not being proceeded with.  However, even if it did proceed, the Second Applicant was, simply, a person who was a family member, and her claims rested solely upon the success of the First Applicant’s claims.  If the First Applicant was not entitled to a visa because he was not enrolled in a course, then the Second Applicant was not entitled to the visa.  Therefore, it really did not matter, whether she had an interpreter at the time of the hearing or what submissions she could make, because it would have been irrelevant to the decision of the Tribunal.  Therefore, there is no merit in Ground four. 

21. Ground five has already been dealt with, when I looked at ground three. 

22. There is nothing that indicates jurisdictional error in any of the material, nor in any of the submissions that the Applicant has made.  In effect, his submission is that, “even though the rules say that I need to have a certificate of enrolment before I can apply for this visa, the Court should somehow bend the rules because I am a nice person and the Court should feel sympathy for my plight”. 

23. Whilst I do feel sympathy for his plight that is not a reason to find that there is a jurisdictional error.  Therefore, I dismiss the application with costs in the sum of $7,467.00.

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

Date: 2 August 2019