Kwatra v Minister for Home Affairs

[2019] FCCA 197

FEDERAL CIRCUIT COURT OF AUSTRALIA

KWATRA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 197

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Hossain v Minister for Immigration [2018] HCA 34

Saini & Anor v Minister for Immigration & Anor [2018] FCCA 2782

SZBEL v Minister for Immigration [2006] HCA 63

Applicant: ANMOL KWATRA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1050 of 2018

Judgment of: Judge Driver

Hearing date: 1 February 2019

Delivered at: Sydney

Delivered on: 1 February 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1050 of 2018

ANMOL KWATRA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Kwatra, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 March 2018.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a temporary student visa.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 23 January 2019. 

2. Mr Kwatra is a 24 year old citizen of India. He arrived in Australia on 13 March 2013 as the holder of a subclass 573 student visa.[1]

   [1] Relevant Documents (RD) 35

3. Since his arrival, Mr Kwatra has completed courses in English and part of a Bachelor of Commerce degree from July 2013 to March 2016. In March 2016, Mr Kwatra’s confirmation of enrolment (CoE) was cancelled.  Mr Kwatra re-enrolled in a Bachelor of Commerce from August 2016 and applied for a subsequent student visa on 20 September 2016.[2]  The student visa application was refused on 6 December 2016, on the basis that Mr Kwatra did not meet the genuine temporary entrant criterion.[3]

   [2] RD 35

   [3] RD 29 to 37

4. Mr Kwatra applied to the Tribunal for a review of this decision on 22 December 2016.[4]  Mr Kwatra attended a hearing on 9 March 2018[5] and told the Tribunal that he had been informed by the education provider in January 2018 that his CoE was cancelled because he had not enrolled for two consecutive semesters.[6]  The Tribunal affirmed the decision under review on 15 March 2018.[7]

   [4] RD 38 to 39

   [5] RD 64 to 65

   [6] Affidavit of Cameron O’Sullivan affirmed 16 July 2018 12 at [24]-[47]

   [7] RD 84 to 88

Legislation

1. Clause 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as at the time Mr Kwatra applied for the visa, provided in relevant part:

   Primary Criteria

   …

   All criteria must be satisfied at the time a decision is made on the application.

2. Clause 500.211 of Schedule 2 to the Regulations (clause 500.211), as at the time the applicant applied for the visa, provided in relevant part:

   One of the following applies:

   (a)  the applicant is enrolled in a course of study;

   …

Tribunal decision

1. At the Tribunal hearing on 9 March 2018, Mr Kwatra’s told the Tribunal that he had not completed any subjects since 2016 and confirmed that he had not maintained enrolment.[8]

   [8] Affidavit of Mr O’Sullivan 10 at [39], 16 at [13]-[16]

2. The Tribunal noted that clause 500.211 is a primary criterion which must be satisfied in order to obtain the student visa.[9]

   [9] RD 86 at [7]

3. The Tribunal found that, as at the time of its decision, Mr Kwatra was not enrolled in a course of study and therefore that clause 500.211 was not met.[10]

   [10] RD 87 at [12]

The present proceedings

1. These proceedings began with a show cause application filed on 13 April 2018.  Mr Kwatra continues to rely upon that application.  There are two grounds in it:

   Ground

   1. The Tribunal, based on then called department of immigration and Border Protection ‘DIBP’ decision, denied the Applicant appeal that he has fulfilled significantly the student visa application requirement and meet the visa application of student (Temporary) (Class TU) visa hence misconstrued the requirement by the DIBP.

   Particulars

   1.1    The Tribunal misconstrued the requirement by the DIBP decision to refuse the visa under clause 500.211(a) in Schedule 2 of the migration Regulations

   1.2    The Tribunal failed to consider the Applicant has complied substantially all student visa conditions hence denied procedural fairness at the time of tribunal hearing

   1.3    Applicant obeyed substantially student visa condition hence Tribunal failed to consider the applicant intends genuinely to stay in Australia temporarily.

   2   The Tribunal committed jurisdictional error when took into account irrelevant considerations by DIBP and constructively failed to consider the requirement of visa grant was met hence misconstrued the criteria or applied wrong test regarding the grant f the visa application of subclass 500.

   Particulars

   1.1    The Tribunal, based on the decision by DIBP, failed to consider the Applicant has and meet the requirement of visa grant clause 500.211 of the applicant is enrolled in a registered course of study.

   1.2    The Tribunal failed to consider that applicant has met all other relevant requirement to grant of student visa subclass 500.

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received.  I also received, subject to relevance, the affidavit of Mr O’Sullivan made on 16 July 2018, to which is annexed a transcript of the Tribunal hearing conducted on 9 March 2018.  I also received the book of relevant documents filed on 31 May 2018.

3. Only the Minister filed written submissions prior to today’s hearing.  I invited oral submissions from Mr Kwatra.  He explained to me the difficulties he has encountered in attempting to pursue his studies.  These were the same difficulties which were explained to the Tribunal as reflected in its reasons and in the transcript.  He is concerned that the delegate rejected his visa application on the basis that he was found not to be a genuine student.

4. The Tribunal made its decision on a different basis, namely that Mr Kwatra was not enrolled in a course of study at the time the Tribunal made its decision.  That conclusion appears correct on the facts.  Those being the facts, it seems to me that the Tribunal had no option but to affirm the delegate’s decision.  Mr Kwatra is concerned that, on the one hand, he cannot get a visa to pursue his studies and, on the other hand, he cannot pursue his studies because he has not got a student visa.  He sees himself as trapped in a vicious cycle.  That may well be right, but it is not a problem which either the Tribunal or this Court can resolve.  Mr Kwatra was unable to meet an essential criterion for the visa, and the Tribunal did its duty in making its decision.

5. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced. 

Ground 1

1. The Tribunal did not misconstrue the student visa requirements. In particular, the Tribunal correctly applied clause 500.211(a).

2. Mr Kwatra was required to be enrolled in a course of study at the time of the Tribunal’s decision. By his own evidence, he did not maintain enrolment. In the circumstances, the only finding open to the Tribunal was that Mr Kwatra did not satisfy clause 500.211(a).

3. With respect to particulars 1.2 and 1.3 of Ground 1, to the extent that Mr Kwatra is contending that the Tribunal failed to consider whether he met the requirements of clause 500.212 of the Regulations (commonly referred to as the genuine temporary entrant criterion), such a complaint is misconceived. Although this was the basis for the delegate’s decision, the Tribunal is not confined to the issues that the delegate considered.

4. Here the Tribunal expressly identified the issues that arose on the material before it.[11]  By way of letter dated 2 February 2018, the Tribunal informed Mr Kwatra amongst other things that a current CoE is a requirement for the grant of the student visa.[12]  Mr Kwatra was accorded procedural fairness by being put on notice of the dispositive issue before the Tribunal.[13]

   [11] SZBEL v Minister for Immigration [2006] HCA 63 at [35]

   [12] RD 47

   [13] Saini & Anor v Minister for Immigration & Anor [2018] FCCA 2782 at [26]-[28]

Ground 2

1. The first particular to Ground 2 asserts that the Tribunal failed to consider whether Mr Kwatra is enrolled in a registered course of study. This is incorrect. As has been set out above, the Tribunal found that Mr Kwatra was not enrolled in a registered course of study.

2. The second particular to Ground 2 complains that the Tribunal failed to consider the other requirements for the student visa.  The Tribunal was not required to determine whether Mr Kwatra met this genuine temporary entrant criterion. Here, it determined the application on a separate and wholly independent basis.[14] 

   [14] Hossain v Minister for Immigration [2018] HCA 34 at [41]

3. Mr Kwatra has not identified any alleged irrelevant considerations. There is no substance to the complaint in Ground 2.

4. I conclude that Mr Kwatra is unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and, accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed.  Mr Kwatra indicated that he may require time to pay.  I will not requirement payment of the costs by any particular date.

6. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 5 February 2019