Kamoh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 861
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 861
File number: MLG 2248 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 28 September 2023 Catchwords: MIGRATION LAW – Student (Subclass 572) visa – Whether the Applicant satisfied mandatory prerequisite for the grant of a student visa when the Applicant was not enrolled in, or the subject of a current offer of enrolment in, a course of study – whether the Applicant was a genuine temporary entrant – No jurisdictional error – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 31, 476
Migration Regulations 1994 (Cth) cl. 572.223
Cases cited: Kaur v Minister for Immigration (2016) 245 FCR 296; [2016] FCA 132 Division: General Division Number of paragraphs: 20 Date of last submissions: 14 September 2023 Date of hearing: 14 September 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2248 of 2018 BETWEEN: HIRA SINGH KAMOH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
By an application filed 31 July 2018, Mr Hira Singh Kamoh (Applicant) seeks judicial review pursuant to s. 476 of the Migration Act 1958 (Cth) (Act) of an Administrative Appeals Tribunal (Tribunal) decision dated 4 July 2018. The Tribunal affirmed the decision of a delegate of the First Respondent (Delegate) dated 2 November 2016 to refuse to grant the Applicant’s Student (Subclass 572) Visa (Student Visa).
BACKGROUND AND PROCEDURAL HISTORY
The Applicant is a citizen of India and arrived in Australia on 13 November 2008 holding a student visa in order to complete a Diploma and Bachelor of Information Technology (CB 47–48).
On 27 June 2016, the Applicant applied for the Student Visa to study an Advanced Diploma of Business, commencing 11 July 2016 and to be completed on 9 July 2017 (CB 1–32).
On 4 November 2016, the Delegate refused to grant the Student Visa (CB 45–50). The Delegate was not satisfied the Applicant met cl. 572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which required the Minister to be “satisfied that the applicant intend[ed] genuinely to stay in Australia temporarily…” [emphasis added].
Tribunal Decision
On 21 May 2018, the Applicant was invited to attend a hearing before the Tribunal scheduled for 20 June 2018 (CB 60–70). The Tribunal’s invitation requested the Applicant to provide a copy of his Confirmation of Enrolment (COE) or other documents that showed that he was enrolled in a course of study (CB 64).
On 20 June 2018, the Applicant attended the Tribunal hearing with the assistance of a representative (CB 71–73).
On 4 July 2018, the Tribunal affirmed the decision of the Delegate and provided written reasons (CB 74–80).
The Tribunal decision included the following:
10. The issue before the delegate was whether the applicant met the criterion in cl. 572.223. However the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
[…]
12. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl. 570.232, 571.232, 572.231, and 575.231 are not met. This status was confirmed by the applicant in evidence.
[…]
18. Given the applicant’s personal circumstances, immigration history, the lack of value of the courses previously undertaken in a lower level academic stream, relative to the stated future goals and the comparatively greater economic and employment opportunities in Australia, the Tribunal finds that the applicant is using the Student visa program to circumvent the intentions of the migration program. Further, the applicant has previously breached visa conditions by overstaying without a visa, which suggests that the applicant is a risk of repeating this behaviour.
19. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and that the applicant intends to stay in Australia temporarily. In combination, the non-enrolment in a course of study at the time of hearing, the history of the transition from the stated Higher Education stream to the VET sector, the extended period of stay in Australia, the non-participation in the Higher Education sector during the last nine years, the period of non-study when that opportunity was available to complete studies, supports the delegate’s decision that the applicant’s Student (Temporary) (Class TU) visa refusal should be affirmed.
20. For these reasons, the decision under review must be affirmed.
[Emphasis added]
The Tribunal set out the Applicant’s personal or family reason for wishing to stay in Australia as follows (CB79):
15.The applicant stated in evidence that he wanted to remain in Australia for the sake of a better future for his 9 year old daughter, who is in Grade III at Noble Park Primary. The applicant is divorced and the daughter lives with her mother and the applicant has a regular access each week. The applicant advised the Tribunal that he is working as a van driver and earns $1,200 per fortnight.
JUDICIAL REVIEW APPLICATION
On 31 July 2018, the Applicant commenced this application for judicial review. The single ground of the application is set out in the originating application as follows:
My student visa application has been refused by the immigration department and by the Administrative Appeals tribunal. The reasons for the refusal is that I do not meet the “GENUINE TEMPORARY ENTRANT” criteria. I want to dispute the decision by both department and want the Federal Circuit Court to look into the decisions. I believe that both departments made jurisdictional errors in interpreting “GENUINE TEMPORARY criteria” and in making a decision on my application.
On 22 January 2020, the Court made orders by consent for the Applicant to file and serve any amended application and written submissions 28 days before the hearing. The Applicant did not file any further material before the hearing.
To the extent that the Applicant seeks review of the Delegate’s decision, the Court does not have jurisdiction to review a primary decision of the Delegate pursuant to s. 476(2) of the Act.
Did the Tribunal make a jurisdictional error?
The Applicant has not proved that that there was any jurisdictional error.
No certificate of enrolment
The first issue before the Tribunal was whether the Applicant was enrolled in, or was the subject of a current offer of enrolment in, a course of study. Because there was no evidence before the Tribunal that the Applicant was enrolled in, or was the subject of a current offer of enrolment in, any applicable course of study, the Tribunal was correct to decide that the Applicant did not meet the mandatory prerequisite for the grant of the Student Visa under the Regulations it identified (CB78–79, [10]–[11]).
In Kaur v Minister for Immigration [2016] FCA 132 at [27], Perry J observed that s. 31(3) of the Act provides that the Regulations may prescribe the criteria for a visa of a specified class. Her Honour observed at [30] that the “primary criteria are prescribed in mandatory and exhaustive terms […]. the language does not indicate the existence of any discretion” [emphasis added]. Perry J concluded in Kaur at [31]:
[…] where there was no evidence of current enrolment or of an offer of enrolment before the Tribunal, it was not open to the Tribunal to grant a visa for those subclasses for which the appellant applied. The reasons why an applicant may be unable to satisfy those criteria are not relevant in the absence of any discretion.
In this case, that the Applicant himself confirmed in his evidence before the Tribunal that he was not enrolled in, or the subject of a current offer of enrolment in, a course of study: (CB79, [12]; emphasised above).
Genuine temporary entrant
In circumstances in which the Applicant did not satisfy that mandatory enrolment prerequisite for the Student Visa to be granted, it was strictly unnecessary for the Tribunal to consider the additional issue of whether it was satisfied that the Applicant met the genuine temporary entrant criterion under cl. 572.223(1) of Sch. 2 to the Regulations (GTE Criterion).
In any event, the Tribunal duly addressed the GTE Criterion. There was no jurisdictional error in the Tribunal’s identification of relevant matters as to whether the Applicant was a genuine temporary entrant. The Tribunal identified several relevant matters which individually and cumulatively weighed against a conclusion that the Applicant was a genuine temporary entrant: namely, the Applicant’s personal circumstances, his immigration history and the lack of value of courses he had previously undertaken in a lower level academic stream relative to his stated future goals (CB79, [17]).There was no error in the Tribunal’s conclusion that it was not satisfied that the Applicant was a genuine temporary entrant under the GTE Criterion (CB79, [19]).
An additional matter
At the hearing before me, the Applicant submitted that his daughter, now 14 years old, has become an Australian citizen and a motivation for him to secure a valid visa was to ensure that he could fulfil his duties as a parent. The Applicant’s status as a parent was not relevant to any issue of whether there was a jurisdictional error in the Tribunal’s decision that he did not satisfy the mandatory prerequisite for the grant of the Student Visa, because he was not enrolled in, or the subject of a current offer of enrolment in, a course of study.
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the sum sought of $5,000.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 September 2023
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