Kumarasiri v Minister for Home Affairs

[2021] FCCA 1910

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kumarasiri v Minister for Home Affairs [2021] FCCA 1910

File number:

MLG 2916 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

9 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Minister’s delegate to refuse to grant a Subclass 500 (Student) Visa – whether the applicant satisfied a mandatory criterion –  whether the applicant was denied procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) sch 2 cl 500.211

Number of paragraphs:

10

Date of hearing:

9 August 2021

Place:

Darwin

The Applicant:

Appearing on his own behalf

Solicitor for the First Respondent:

Ms Stokes of Australian Government Solicitor

ORDERS

MLG 2916 of 2018

BETWEEN:

APPUHENNEDITOTA HEWAGE ASANGA PERAKUM KUMARASIRI

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

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

THE COURT ORDERS THAT:

1.The Application filed on 27 September 2018 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $3,737.00.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 31 August 2018 affirming a decision of the Minister’s delegate (the Delegate) made on 19 June 2018 to refuse to grant the applicant a Subclass 500 (Student) Visa (the visa). 

2. The reason the Delegate and, subsequently, the Tribunal refused the visa application is that the applicant did not to satisfy a mandatory criterion pursuant to clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) as he failed to provide evidence of enrolment in an approved course. That evidence of enrolment is called a confirmation of enrolment (COE). 

3. The applicant was initially enrolled at the Australian Catholic University at the beginning of 2017 to complete a Bachelor of Psychological Sciences. In early 2017, he sought to discontinue from that course. That discontinuance was approved by the university.  The reason he discontinued is that his mother, who lived in Sri Lanka, was seriously ill.  He apparently returned to Sri Lanka for a period in 2017.  When the Delegate made the decision on 19 June 2018 the applicant was possibly back in Australia.  At that stage, notwithstanding that the academic year for 2018 had commenced, and it appears it would have been open to the applicant to have sought to be enrolled in a course of approved study at the beginning of 2018, he was, for reasons which are unclear to me, unable to produce a COE.  His earlier COE was cancelled, it would appear, by the Australian Catholic University after he discontinued. 

4. In August 2018, when the applicant appeared before the Tribunal, he was still unable to produce a COE – that is, evidence that he had enrolled in an approved course of study.  The applicant said that he had not enrolled in an approved course of study in 2018. 

5. The applicant’s grounds of review are that the Tribunal did not, in effect, enquire as to the reasons for his inability to produce a COE and did not enquire as to the circumstances that led to the COE being cancelled. 

6. In the Minister’s written submissions, it is pointed out that the reasons for the inability to satisfy a mandatory requirement are, strictly speaking, irrelevant. Therefore, a duty to enquire, if there was one, could not have arisen.  I accept that submission. 

7. The other point raised by the Minister addresses one interpretation of the grounds of review as drafted by the applicant himself. It may have been arguable or the grounds might have been interpreted as raising a challenge to the fact that the Tribunal did not adjourn its consideration of his application to permit the applicant an opportunity to seek to enrol in an approved course of study and obtain a COE. The applicant did not, however, seek to have those proceedings adjourned. Further, there is no evidence before me that at any stage between 2017 to now (three and a half years) the applicant has enrolled in an approved course of study or obtained a COE.

8. While that issue raised above, of itself, may not be of legal significance, I have simply mentioned it because it was clear that, for whatever reason, the applicant did not seek to be enrolled in an approved course of study in 2018 or in early 2019. It is therefore difficult to see that even if an adjournment had been sought that it would have produced any different result. For this reason, I agree with the Minister’s submission that the failure of the Tribunal to consider and perhaps grant an adjournment to the applicant in order to allow him an opportunity to enrol in an approved course of study would not have served any purpose. 

9. In all the circumstances, I am not satisfied that the decision was affected by any error. The application will be dismissed.

10. The applicant is to pay the first respondent’s costs in the sum of $3,737.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       17 August 2021