Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 495
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 495
File number(s): SYG 1713 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 June 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 359AA
Migration Regulations 1994 (Cth) cl 500.211
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 16 June 2022 Date of hearing: 16 June 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Fisher appeared on behalf of the First Respondent. ORDERS
SYG 1713 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD AZEEM KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the sum of $5600.00.
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 HUMPHREYS
INTRODUCTION
On 27 March 2017, the applicant applied for a Student (Temporary) (Class TU) visa. On 6 July 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa on the basis that the delegate was not satisfied that the applicant met the criteria for being a genuine temporary entrant.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 11 June 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a Student visa.
The applicant now seeks judicial review of the Tribunal decision
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. The Tribunal noted that the delegate had refused the applicant his Student visa on the basis that the delegate had determined that, the applicant was not a genuine temporary entrant.
The issue before the Tribunal however, was that cl 500.211 of the Migration Regulations 1994 (Cth) (the Regulations”) required that, at the time of the decision by the Tribunal, the applicant needed to be involved in a course of study.
On 6 December 2018 the applicant was invited to attend the hearing scheduled for 22 January 2019. The invitation asked the applicant to provide a copy of his current Confirmation of Enrolment (“COE”) or any other documents to show that he was currently enrolled in an approved course of study. The applicant was advised that a current CEO was required for the grant of a Student visa. The applicant did not provide a copy of a current COE prior to or at the time of the hearing. The applicant did however, provide to the Tribunal, a letter of offer for a Certificate III in Commercial Cookery. The letter was unsigned and no Confirmation of Enrolment was provided.
During the hearing, the applicant was advised pursuant to s 359AA of the Migration Act 1958 (Cth) (“the Act”), of particulars of information the Tribunal considered would be the reason, or part of the reason for affirming the delegates decision under review. The applicant was advised that information in his Provider Registration and International Student Management System (“PRISMS”) record was that he had already completed a Certificate III in Commercial Cookery.
In these circumstances, the Tribunal was not satisfied that the applicant, as at the time of the decision had a current COE in an approved course. Accordingly, the Tribunal affirmed the decision under review. It is to be noted that although the Tribunal hearing was undertaken in January 2019, the Tribunal did not publish its decision until June 2019.
GROUNDS OF JUDICIAL REVIEW.
The applicant relies upon the following verbatim grounds contained within an Initiating Application filed with the Court on 8 July 2019.
1. I Muhammad Azeem Khan, the applicant of this matter.
2. I seek a review of the decision of the Second Respondent affirming a decision of First Respondent to refuse a grant of a Student (Temporary) (class TU) Student (subclass 500) visa.
3. The Respondents reasons for the decision to refuse Subclass 500 visa was that I did not satisfy the criteria under clause 500.212 in Schedule 2 of the Migration Regulations 1994 (the Regulations) at the time of the application.
4. These are the following grounds for review:
Ground One
Tribunal had failed to exercise its discretion and to make an order on the given evidence of the case;
Particulars:
a)The Tribunal's decision to affirm the decision of the First Respondent was that the criteria for the grant of a subclass 500 (Student) visa are not met.
b)However, I request the Court to reconsider my application as this refusal has affected me in a detrimental way.
c)Since I came to Australia to study, I have struggled a lot to select the right course. First, I studied English Language Programs followed by a Diploma of Accounting. Then I decided to study a Certificate III and Certificate IV in Commercial Cookery followed by a Diploma of Hospitality Management.
d)The First Respondent contends that the substantive objective of my study is to maintain residency in Australia and the grant of the student visa application, would lead prolong stay in Australia.
e)I completely deny the First Respondent's Contention.
f)My reasons for denial of the First Respondent's contentions are as follows:
i.At first, I wanted to study Diploma in Accounting, but lost my appetite to continue study in the area of Accounting or Business. Then I took some time to realise what I want. Then I got interested into one of the booming industries around the world, Commercial Cookery and Hospitality Management. So, I wanted to expend my knowledge in this field which would benefit me a lot when I go back to my country.
ii.It is true that having this visa will result me continuing living in Australia, but that will be until I finish my desired course Commercial Cookery and Hospitality Management.
iii.Therefore, I deny what the First Respondent contends that I am not a genuine student and I am intentionally prolonging my stay in Australia.
(g) The Tribunal failed to give effect to the evidence they had before them which reflect my intention to study in Commercial Cookery.
(h) The Tribunal refused my application.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court first that, he wished the matter to be adjourned and transferred to Adelaide. The applicant stated that he wished to have a lawyer represent him and further, that he had moved to Adelaide and wanted to have the hearing in his home town.
Both applications were refused. The applicant had been on notice for some considerable time as to the date of the hearing. No material was produced to the Court of any steps having been taken to retain a lawyer to represent the applicant. Further, given the capacity of the Court to undertake remote hearings using videoconferencing facilities or telephone, a transfer of the hearing was not warranted and would contribute to further delay: (see; AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 per Alstregren CJ at [24], [26], and [29]-[30]). The application was refused.
The applicant stated that what he needed, was more time to submit a COE due to COVD19 and that he was struggling financially. The applicant did not wish to add anything further
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that, he just wanted more time to engage a lawyer.
THE FIRST RESPONDENT’S SUBMISSIONS.
The first respondent noted that in the applicant’s Affidavit, filed on 8 July 2019, he asserted that he was in the process of “getting enrolled” in his desired course, being, Commercial Cookery. The applicant had a period of approximately 6 months between the date of the Tribunal hearing and the decision being published, to provide evidence of a current COE.
It was submitted that none of the grounds formulated by the applicant establish jurisdictional error. They are either misdirected to the decision of the delegate, which the Court does not have power to review, or seek to draw the Court into impermissible merits review.
As at the time of the decision, the applicant did not meet any of the requirements of
cl 500.211 of the Regulations. Accordingly, the Tribunal found that the applicant was not enrolled in a course of study and was therefore bound to affirm the delegate’s decision. This finding was supported by the applicant’s PRISMS records which showed that the last course of study which the applicant was involved in, was a Diploma of Hospitality and Management which was cancelled on 31 December 2018. The applicant submission in his Affidavit that he was “in the process of getting enrolled in his desired course, commercial cookery”, is an admission that the applicant was not enrolled, as at the date of the Tribunal’s decision.
CONSIDERATION.
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In this case, a mandatory requirement for the grant of the visa sought by the applicant was that, as at the time of the decision by the Tribunal, the applicant was enrolled in an approved course of study proven by a current COE. The Tribunal did not have such a document. The applicant gave evidence, in his Affidavit in this Court, that as at the time the Tribunal decision he was not so enrolled. The applicant’s PRISMS record shows that his last valid enrolment was in 2018. This enrolment had been cancelled in January 2018 due to a non-commencement of studies. In these circumstances, the Tribunal had no option other than to affirm the delegate’s decision under review.
In terms of the applicant’s purported grounds of judicial review, none of them have merit. As pointed out by the first respondent, the applicant takes issue with the delegate’s decision, not the Tribunal’s decision. The Court has no power to review a delegate’s decision.
In so far as they relate to the Tribunal, the Court agrees with the first respondent’s submission that they simply invite the Court to undertake impermissible merits review.
CONCLUSION
Accordingly, the application must be dismissed with costs
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 June 2011
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