Liaquat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 934
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Liaquat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 934
File number: SYG 881 of 2018 Judgment of: JUDGE STREET Date of judgment: 5 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant had no course of enrolment – no arguable jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Number of paragraphs: 8 Date of hearing: 5 May 2021 Place: Sydney Applicant: In person Solicitor for the First Respondent: Ms S Wright, Mills Oakley ORDERS
SYG 881 of 2018 BETWEEN: AKIF LIAQUAT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 March 2018 affirming a decision of a delegate of the first respondent (“the Delegate”) refusing to grant the applicant a Student (subclass 500) visa.
The Court adopts the first respondent’s submission from paragraph 3 to paragraph 20:
Background
(3)The applicant is a male citizen of Pakistan (CB 18) who arrived on Australia on 5 January 2011 as the holder of a Student (Subclass 572) visa (CB 71).
(4)On 12 September 2016, the applicant lodged an application for a Student (Subclass 500) visa on the basis of his enrolment in a Bachelor of Business (CB 1-17), which was due for completion on 31 July 2019 (CB 102). It was a requirement for the grant of the visa that the applicant satisfy the primary criteria including cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), which required that the applicant genuinely intended to stay in Australia temporarily.
(5)On 14 December 2016, the delegate refused to grant the applicant a Student visa on the basis that he was not satisfied the applicant met the requirements in cl 500.212 (CB 69-73). The delegate found that the applicant’s family in Pakistan did not provide a compelling reason to return. The delegate found the applicant had not demonstrated the relevance of the studies and found that the applicant’s immigration and educational background was indicative of someone who was utilising the Student visa program to maintain ongoing residence in Australia (CB 71-72).
The Tribunal
(6)On 4 January 2017, the applicant applied to the Tribunal for review of the delegate’s decision and appointed a registered migration agent, Parish Patience Immigration (CB 74-75).
(7)On 5 February 2018, the Tribunal invited the applicant to attend a hearing, in accordance with s 360 of the Act, scheduled for 1 March 2018 (CB 93-101). Relevantly, the hearing invitation requested that the applicant provide (CB 95):
A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of the visa.
(8)On 22 February 2018, the Tribunal accessed Provider Registration and International Student Management System (PRISMS) records which confirmed the applicant’s enrolment in a Bachelor of Business had been cancelled (CB 102).
(9)On 23 February 2018 the applicant’s representative indicated that he was no longer representing the applicant (CB 103) and on 28 February 2018, he provided a completed form withdrawing his representation signed by the applicant (CB 109-111).
(10)On 1 March 2018, the applicant attended the scheduled hearing to give evidence and present arguments (CB 115-117, 122, [5])
The Tribunal’s decision
(11)On 2 March 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant’s Student visa (CB 121-123).
(12)The Tribunal identified that although the issue before the delegate was whether the applicant met the genuine temporary entrant criteria (CB 122, at [3]),1 the issue on review was whether the applicant met the enrolment criteria in cl 500.211 of Schedule 2 to the Regulations (CB 122, [7]).[1]
[1] The Tribunal refers to cl 500.223 as the genuine temporary entrant criteria (as opposed to cl 500.212). This is merely a typographical error that does not give rise to any deflection from the statutory task: AYS15 v Minister for Immigration & Anor [2015] FCCA 2865, at [7]
(13)The Tribunal noted that the applicant had given evidence that he had been unable to obtain enrolment due to his visa status (CB 122, [4]) and that he still wanted to complete a Bachelor of Business (CB 123, [11]).
(14)The Tribunal concluded that the applicant had not provided evidence of enrolment and therefore did not satisfy cl 500.211 and affirmed the delegate’s decision (CB 123, [11]-[13]).
The application for judicial review
(15)The applicant commenced his judicial review proceedings in the Federal Circuit Court on 29 March 2018. Despite orders being made by consent on 23 April 2018 for the applicant to file and serve any amended application and additional evidence by 2 July 2018 and further orders made on 3 March 2021 for the applicant to file serve any amended application and additional evidence to file written submissions by 2 April 2021, the applicant has filed no further documents in support of his case.
(16)The applicant is self-represented and the application for judicial review contains a sole ground. The applicant’s supporting affidavit annexes the Tribunal’s decision and states that he is the applicant. The affidavit does not advance the applicant’s case in any meaningful way.
(17)The sole ground contends that the Tribunal failed to “exercise its jurisdiction by failing to consider all aspects of my claims”. In the absence of particulars to support this complaint, it ought to be dismissed.[2] Nothing in the evidence suggests that the Tribunal failed to consider evidence or claims. Critically, the issue before the Tribunal was whether the applicant satisfied the enrolment requirement for the grant of the visa set out in cl 500.211 of Schedule 2 to the Regulations. Obtaining a confirmation of enrolment certificate is a “pre-requisite” for obtaining a Student visa.[3] As the applicant had conceded at the hearing that he was not enrolled (CB 122, [4]), he was unable to satisfy cl 500.211. Accordingly, this ground of review must fail.
(18)The applicant had the opportunity to submit documents to the Tribunal throughout the review process and was specifically requested to provide a Certificate of Enrolment in the hearing invitation sent approximately four weeks before the hearing (CB 95). It was for the applicant to provide evidence that he met the enrolment requirements for the grant of the visa, and the Tribunal was not required to make the applicant’s case for him.[4]
PRISMS Records
(19)The Tribunal’s file indicated that it accessed PRISMS records on 22 February 2018 which showed that the applicant was not enrolled in a course of study (CB 102). However, as the applicant gave evidence at the hearing that he was not currently enrolled (CB 122, [4],[11]), this information fell within the exception contained in s 359A(4)(ba) and therefore did not enliven the Tribunal’s obligations under s 359A of the Act.[5] Accordingly, there is no error in the Tribunal’s treatment of the applicant’s PRISMS records.
Conclusion
(20)For all these reasons, the applicant’s complaints do not establish an arguable case of jurisdictional error in the Tribunal’s decision. The Tribunal correctly found that cl 500.211 was mandatory and there was no power, discretionary or otherwise, for the Tribunal to dispense with the requirement for the applicant to be enrolled in a course of study.6 In circumstances where the applicant did not meet a mandatory criteria for the grant of the visa, there was no other decision open to the Tribunal other than to affirm the decision under review.
[2] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
[3] Hasnat v Minister for Immigration and Border Protection [2013] FCCA 1922
[4] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]
[5] Singh v Minister for Immigration & Anor [2020] FCCA 2336 at [26]
BEFORE THE COURT
These proceedings were commenced on 29 March 2018. On 23 April 2018 a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. By orders made on 3 March 2021, this matter was fixed for a show cause hearing today under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing.
The applicant referred to the documents he had provided to the Tribunal and did not identify any argument in support of an arguable case of relevant error by the Tribunal.
For the reasons identified in the Minister’s submissions set out above, which the Court adopts, the ground in the application fails to identify any arguable case of relevant error. The Court is not satisfied the application has raised an arguable case for the relief claimed.
The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.
Accordingly, the application is dismissed under r 44.12 of the Rules.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 10 June 2021
0
6
0