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

[2021] FCCA 1827

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hamouda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1827   

File number(s):

SYG 823 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

9 August 2021

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – application for a Student Temporary TU subclass 500 visa – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to provide the applicant with a real and meaningful hearings – whether the applicant had a current course of enrolment – no arguable case for relief claimed – amended application dismissed under r 44.12.

Legislation:

 Migration Act 1958 (Cth) ss 359(2), 476

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Regulations 1994 (Cth) cl 500.211

Number of paragraphs:

37

Date of hearing:

9 August 2021

Place:

Sydney

Solicitors for the applicant: 

In person

Solicitors for the respondent: 

Ms C Saunders, Minter Ellison

ORDERS

SYG 823 of 2020

BETWEEN:

MOHAMED ABDELBARI HAMOUDA

Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	9 AUGUST 2021

THE COURT ORDERS THAT:

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

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

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in respect of an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”). The application is in respect of an Administrative Appeal Tribunal (“the Tribunal”) decision made orally on 16 March 2020, reduced to writing on 27 March 2020, affirming the decision of a delegate of the first respondent (“the delegate”)  not to grant the applicant a Student Temporary Class TU, Subclass 500 visa (“the Visa”).

2. The applicant is a citizen of Egypt and was first granted a student visa offshore on 21 December 2006. The applicant arrived in Australia on 12 January 2007, and was subsequently granted a further five Student Class TU Subclass 572 visas and associated bridging visas.  The delegate identified, in relation to the latest application for a student visa made on 21 March 2018 that the migration history of the applicant was unimpressive. The delegate found that the applicant did not genuinely intend to stay in Australia temporarily as a student.

3. The delegate’s decision, dated 29 May 2018, was the subject of an application for review to the Tribunal made on 31 May 2018.

4. The applicant was sent a request for information under s 359(2) of the Act, to which the applicant responded on 20 November 2019. In that response, at question 14, the applicant confirmed he did not have a current confirmation of enrolment in a registered course of study. The applicant was sent an invitation to appear at a hearing by letter dated 25 February 2020. That letter expressly identified that the applicant had to provide a copy of his current confirmation of enrolment seven days before the hearing.

5. On 16 March 2020, the applicant attended the hearing to give evidence and present arguments.  The transcript of the hearing has been tendered into evidence. The Tribunal clearly identified for the applicant that he had to have a current course of enrolment. The applicant confirmed he did not have one. The applicant wanted to proffer reasons why he was not enrolled. 

6. The Tribunal made it clear that the applicant had to meet a basic requirement that an applicant have a current confirmation of enrolment in a course. The applicant acknowledged he did not have a current course of enrolment. In those circumstances, the applicant could not succeed before the Tribunal. 

7. In its reasons, the Tribunal identified the background to the review application. The Tribunal found there was no evidence that the applicant is currently enrolled in a course of study, and accordingly, that the applicant does not meet cl 500.211 of the Migration Regulations 1994 (Cth). The Tribunal therefore affirmed the decision of the delegate under review.

   BEFORE THE COURT

8. These proceedings were commenced on 3 April 2020, and the applicant filed an amended application on 9 April 2021. 

9. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed he understood the explanation given by the Court. 

10. The applicant orally sought to identify errors in the delegate’s decision. The delegate’s decision is not the subject of the jurisdiction of this Court. The applicant wanted to advance the explanations as to why he did not have a current course of enrolment. The difficulty with the applicant’s submissions are that it was an essential requirement that he have a current course of enrolment in order to succeed before the Tribunal. The applicant asserted that he could not obtain one, and therefore it was not his fault. 

11. The applicant was clearly on notice of the need for a current course of enrolment from the invitation to hearing. Further, the applicant, in his response dated 20 November 2019, confirmed that he didn’t have a current course of enrolment. At the hearing, the transcript of which has been tendered, the applicant again confirmed he did not have a current course of enrolment. 

12. In those circumstances, regardless of the applicant’s explanation for its absence, he could not succeed. The applicant, notwithstanding his study history, contended that he was a genuine student and that he promised to return to Egypt once he completed his studies, making reference to having family in Egypt. This Court has no power to determine the matter on compassionate or discretionary grounds. The applicant’s contentions as to being a genuine student and his desire to continue his studies do not identify any arguable error by the Tribunal in the conduct of the review. 

13. The applicant asserted that there was a transcription error by the interpreter in relation to what he said as his reasons for not being currently enrolled in a course. Whilst there is no evidence to support it, the applicant contended he was never told by his agent that he would lose money paid. Whether there was any such interpretation error, it was clearly immaterial. Because it was an essential requirement that the applicant be enrolled in a course, it did not matter why the applicant was not currently enrolled. Contrary to the applicant’s contention that it was not his fault, he was clearly on notice of the need for a current course of enrolment both from the questionnaire that he completed and the invitation to hearing. Further fault was irrelevant as was the absence of any fault. Either the applicant met the essential criterion or he did not. The applicant’s explanation for why he did not have a current course of enrolment identifies no arguable error for the relief claimed.

14. The applicant orally submitted that the Tribunal had made up its mind before it came up into the hearing. The transcript does not support that submission. The Tribunal clearly identified for the applicant the essential criteria that he had to meet to obtain the Visa. The applicant’s obstinacy in failing to comprehend that it was an essential requirement for him to have a current course of enrolment reflects his own misunderstanding. On the face of the transcript, the applicant had a real and meaningful hearing before the Tribunal. 

15. Both the transcript and the Tribunal’s reasons support the Tribunal having approached the review with an open mind, reasonably capable of persuasion as to the merits. The applicant’s submissions otherwise invited impermissible merits review. Nothing said by the applicant identifies any arguable case of jurisdictional error. The applicant’s assertion that the Court Book supports him having a current course of enrolment is incorrect.

    THE GROUNDS

16. The grounds in the amended application are as follows:

    Ground 1

    1.        Contrary to the comment made by the Delegate of Department of Home Affairs on 29 May 2018 I believe that I have genuine intention to stay in Australia temporarily as a full-time student and I have provided evidence in my application which appears in Court Book pages 17-41 that I have strong ties in Egypt including parents, siblings, wife and children and on page 44 of the Court Book in my statement for student visa application I explained the purpose of my studies and the course I was enrolled in from 15/7/2019 until 11/7/2021 after which I would have the return to my country and start my business with my Australian qualifications.

    Ground 2

    2.        During my interview with the Tribunal Member the Member mentioned two basic requirements namely, whether I am enrolled in a course of study, and whether I have a genuine intention to stay temporarily in Australia. The Member failed to accept my genuine intention to stay in Australia temporarily and failed to take into account my strong ties with my family in Egypt.

    Ground 3

    3.        I told the Tribunal that I have many reasons and I do want to continue studying my course and that no College has accepted me before I get the visa and I drew the Member’s attention to my strong intention that I want to continue my studies and provided all my other Certificates (transcript, page 8).

    Ground 4

    4.        The Tribunal Member failed to understand the reasons as to why I was not studying at the time of the hearing even though I had genuine enrolment which appears in Court Book pages 151-152.

    Ground 5

    5.        The Member had no probative evidence to support the finding of the Delegate that I was not a genuine student who intends genuinely to stay in Australia temporarily.

    Ground 6

    6.        The Tribunal had evidence that I want to open up my own business in Egypt (Court Book p.133).

    Ground 7

    7.        The Member of the Tribunal overlooked my CoE which appears in Court Book pages 151-152. The Tribunal Member failed to refer me during the interview to the mentioned CoE which appears in Court Book pages 151-152.

    Ground 8

    8.        The Tribunal misapplied the law and made a decision contrary to the evidence on file and I admit that during my interview I was not myself and was unable to recollect my circumstances and concentrate properly.

    GROUND 1

17. In relation to Ground 1, the delegate’s decision does not engage the jurisdiction of this Court.  Whether the applicant was a genuine student who wanted to stay temporarily was not, of itself, a criteria that the Tribunal had to determine. That is because the Tribunal found the applicant did not have a current course of enrolment. That fact was supported by the applicant’s evidence and his response to the questionnaire. It was also consistent with the information that the applicant had provided, in which the applicant contends, incorrectly, that the course ending on 14 July 2019 somehow amounts to a current course of enrolment. 

18. The next course of enrolment identifies there has been no payment made for the course commencing 15 July 2019 until 11 July 2021.  It identifies that fees were only paid up to 15 July 2019.  Contrary to the applicant’s contentions, the Court Book confirmation of enrolment does not support the applicant having a current course of enrolment at the time of the hearing before the Tribunal.  Whatever the purpose or intention of the applicant in relation to his study was accordingly irrelevant. Without a current course of enrolment, the applicant could not succeed before the Tribunal.

19. Ground 1 fails to make out any arguable case of jurisdictional error.

    GROUND 2

20. Ground 2 again erroneously attempts to engage with whether the applicant had a genuine intention to stay temporarily.  That proposition again misses the point that, unless the applicant was currently enrolled in a course and had confirmation of that enrolment, he could not succeed before the Tribunal. 

21. No arguable case of jurisdictional error is made out by Ground 2.

    GROUND 3

22. Ground 3 perpetuates the applicant’s misunderstanding as to his intentions being somehow able to overcome the want of having a current course of enrolment. 

23. Whatever the applicant’s reasons for wanting to continue to study, he couldn’t overcome the want of an essential criterion, being the current course of enrolment at the time of the hearing before the Tribunal.

24. Ground 3 fails to make out any arguable case of jurisdictional error.

    GROUND 4 

25. Ground 4 again reflects the applicant’s misunderstanding as to the relevance of his genuine intention.

26. It also misunderstands the documents that appear at page 151 to 152 in the Court book.  Those documents do not support the contention that the applicant had a current course of enrolment at the time of hearing. 

27. No arguable case of jurisdictional error is disclosed by Ground 4. 

    GROUND 5

28. Ground 5 again appears to address the delegate’s decision in respect of which this Court has no jurisdiction.  Insofar as Ground 5 concerns the Tribunal, the Tribunal did not hold that the applicant did not genuinely intend to stay in Australia temporarily. The Tribunal did not have to determine that issue because the applicant did not have a current course of enrolment, which was an essential criterion to succeed.

29. No arguable case of relevant error is disclosed by Ground 5. 

    GROUND 6

30. In relation to Ground 6, this again reflects the applicant’s misunderstanding about his reasons and whether he was a genuine temporary entrant as a student. Whatever the applicant’s alleged intentions upon his return to Egypt, having arrived in Australia in 2007, the Tribunal did not have to decide. That is because the applicant did not have a current course of enrolment, which was an essential criterion to obtain the Visa.  

31. No arguable case of jurisdictional error is made out by Ground 6. 

    GROUND 7

32. In relation to Ground 7, the applicant misunderstands the documents that he has referred to in the Court Book. The Tribunal clearly took into account the applicant’s response to the questionnaire and the evidence he gave at the hearing. There is no basis to find that the Tribunal failed to take into account the documents to which the applicant has referred to for the period of 16 July 2018 to 14 July 2019.  The course of enrolment was not current at the time of the Tribunal’s hearing on 16 March 2020. 

33. No arguable case of jurisdictional error is made out by Ground 7. 

    GROUND 8

34. In relation to Ground 8, this in substance appears to invite impermissible merits review. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law. Further, as the Court has earlier identified, the transcript supports the applicant having a real and meaningful hearing. 

35. No arguable case of jurisdictional error is made out by Ground 8. 

36. The Court is not satisfied the amended 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 of the Federal Circuit Court Rules 2001 (Cth).

37. Accordingly, the amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       3 September 2021