Jalda v Minister for Immigration

[2017] FCCA 2052

FEDERAL CIRCUIT COURT OF AUSTRALIA

JALDA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2052

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – where applicant did not hold a certificate of enrolment or an offer of enrolment – where applicant could not satisfy a criterion for grant of visa – no jurisdictional error established.

Legislation:

Migration Regulations 1994 (Cth), schedule 2 cls. 573.223, 572.223(1)(a), 572.223(2)(b)(ii)

Aulakh & Ors v Minister for Immigration & Anor [2017] FCCA 544

Applicant: PRAVEEN KUMAR JALDA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1239 of 2017

Judgment of: Judge Jarrett

Hearing date: 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Brisbane

Delivered on: 4 August 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 24 April, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 1239 of 2017

PRAVEEN KUMAR JALDA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal that was made on 6 April, 2017.  In that decision the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. 

2. On 29 May, 2017 the matter came before me for its first court date, or effectively its first court date, and I made some directions for the further conduct of the proceedings in preparation for the final hearing of the application.  Relevantly, I directed that the applicant file and serve any amended application upon which he intended to rely by a certain date;  that he file and serve any affidavit containing any additional evidence upon which he intended to rely by the same date;  and that he subsequently file and serve some written submissions in support of his application.  The applicant has done none of that.  There is no amended application, there is no further evidence and there are no written submissions.

3. The decision of the Tribunal in this matter is relatively brief. The decision records the application for the visa, and it records the issue that was before the first respondent’s delegate. According to the Tribunal’s reasons, and consistently with the delegate’s reasons, the issue was whether the applicant met the criterion in clause 573.223 of the Schedule 2 of the Migration Regulations 1994 (Cth). But by the time the application reached the Tribunal the issue had changed. In paragraph 7 of its reasons the Tribunal describes the issue as:

   Whether, at the time of the decision, the applicant meets the enrolment requirements for a student visa.  That is to say, whether the applicant had at the relevant time an offer of enrolment or a certificate of enrolment in respect of a relevant course.

4. Because that issue was not an issue which was dispositive of the application before the first respondent’s delegate, it was incumbent on the Tribunal to raise that with the applicant and to permit him to be heard in respect of that issue.  According to the evidence before me, and in particular the reasons delivered by the Tribunal, that is what the Tribunal did.  It gave the applicant notice of that issue and gave him the opportunity to deal with it.  The applicant told the Tribunal and the Tribunal accepted, that he had neither an offer of enrolment nor a certificate of enrolment sufficient to satisfy the relevant visa criterion.  And so, on that basis, the Tribunal determined the application against him.  It affirmed the decision under review.

5. From that decision, the applicant now seeks judicial review. His grounds of review – drawn by himself, it seems – are four in number. The first asserts that the Tribunal made a jurisdictional error because it failed to consider clause 572.223(1)(a) and clause 572.223(2)(b)(ii) of Schedule 2 of the Migration Regulations. The difficulty with the applicant’s ground in this respect is that the Tribunal was not called upon to consider those matters because it determined the application on a different basis. It determined that one of the criteria – that relating to the requirement for a certificate of enrolment or offer of enrolment – was not met and there was no obligation therefore on the Tribunal to proceed any further.

6. The second ground is that the Tribunal made a jurisdictional error when it failed to consider that the delegate made a decision on the basis of no evidence:

   Applying the case of QAAA of 2004 v Minister of Immigration and Indigenous Affairs.

7. However, the Tribunal made no such error.  There is no such error apparent on the face of the reasoning of the Tribunal.  I accept the submissions for the first respondent that this ground really misunderstands or misconstrues the role of the Tribunal.  It is not the role of the Tribunal to identify and then correct errors on the part of the delegate.  It is not an appeal as such, but rather a review de novo.  The application is reconsidered afresh.

8. The third ground is that the Tribunal erred in failing to consider that the delegate was “imparting its own observation and knowledge without any basis in law and fact”.  Some particulars are given.  However, that ground, too misapprehends the role of the Tribunal.  It does not demonstrate any jurisdictional error.

9. The final ground is that the Tribunal failed to consider applying the case of Aulakh & Ors v Minister for Immigration & Anor [2017] FCCA 544. He asserts that inconsistences in the evidence of the applicant that do not go to the core of his claim for a student visa – and I am interpreting the ground a little – were considered critical in the Tribunal’s decision. But that is not the case here. Here, the Tribunal has acted on the applicant’s own evidence. That is, it has accepted the applicant’s evidence that he did not hold the requisite offer of enrolment or certificate of enrolment necessary to satisfy one or other of the relevant criteria that depended upon the existence, at the time of the decision, of either an offer of enrolment or a certificate of enrolment.

10. The Tribunal’s decision in this case is unattended by jurisdictional error.  It is difficult to see how the Tribunal could have come to any other conclusion than that which it did. In those circumstances the application must be dismissed.

[RECORDED: NOT TRANSCRIBED]

1. Costs should follow the event unless there are special circumstances which suggest that the ordinary rule ought not apply.  The applicant says that he cannot pay the costs that are being sought by the Minister.  But impecuniosity is not an answer to an order for costs generally speaking.  The usual rule should apply.  Costs should follow the event.

ORDERS PRONOUNCED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  29 August 2017