Liu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1333
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1333
File number: SYG 3096 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 December 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal - student visa (class TU) (subclass 500) visa – Whether the applicant was enrolled in a course of study at the time of the Tribunal decision – Where the grounds of judicial review are not supported by particulars – No merit – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359, 359C, 350(3), 363A.
Migration Regulations 1994 (Cth) sch 2, cls 500.211(a), 500.2, 500.212-218.
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 28 November 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Pasas (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3096 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: QIAO LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
3.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to and including 25 November 2019.
4.The application filed on 25 November 2019 is dismissed.
5.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 17 October 2019. The Tribunal affirmed the decision made on 11 December 2017 by a delegate of the then Minister of Immigration and Border Protection (“delegate”) to refuse to grant the applicant a student visa (class TU) (subclass 500) visa (“the visa”).
For the reasons outlined below, the application must be dismissed.
BACKGROUND
The applicant is a 51-year-old male citizen of China. He first arrived in Australia on 3 November 2013 on a Temporary Work (Skilled) visa (class UC) (subclass 457) (“457 visa”) which was valid until 1 October 2017. The applicant’s spouse and two children were included as dependents in the 457 visa application. His spouse arrived in Australia on 3 November 2013 and the two dependent children arrived on 25 May 2014.
The applicant applied for the student visa on 22 September 2017. A delegate refused the application on 11 December 2017 under s 65 of the Migration Act 1958 (Cth) (“the Act”). The delegate stated the applicant did not satisfy the requirements of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as they were not satisfied the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.
The applicant applied to the Tribunal for review of the delegate’s decision on 22 December 2017.
The Tribunal wrote to the applicant on 26 September 2019 pursuant to s 359(2) of the Act, inviting the applicant to provide information in writing about the course(s) of study he was undertaking and information as to his entry and stay in Australia as a student. The applicant did not provide the information within the prescribed period and no extension of time was requested.
The Tribunal affirmed the decision not to grant the applicant the visa on 17 October 2019.
The applicant applied to this Court for judicial review on 25 November 2019.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal stated at [5] that in the circumstances of the matter, being that the applicant had not supplied information requested by the Tribunal, s 359C applied and pursuant to s 360(3) the applicant was not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear; (see: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40). The Tribunal decided to proceed to a decision without taking further steps to obtain information from the applicant.
The Tribunal considered the criteria for a Subclass 500 (Student) visa as set out in Part 500 of Sch 2 of the Regulations. It instructed itself as to the primary criteria in cl 500.211 to cl 500.218 which must be satisfied by at least one applicant. All criteria must be satisfied at the time a decision is made on the application per cl 500.2.
The Tribunal found at [13] it did not have recent evidence of current enrolment before it and was therefore not satisfied the applicant was presently enrolled in a course as required by cl 500.211(a).
Given the above, the Tribunal found at [14] that the criteria for the grant of a Subclass 500 (Student) visa was not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review was affirmed.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an Originating Application lodged on 25 November 2019. They are as follows:
There exists jurisdictional error.
1.Tribunal member did not consider relevant matters before making decision.
Tribunal member did not consider the fact I studied in Australia.
2.The law did not apply properly.
No particulars were provided to support the above grounds.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He 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 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 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 the Tribunal did not take account of the fact he was a genuine student.
The Court discussed the fact that in order to be granted a student visa, the applicant needed to have provided the Tribunal with a current Certificate of Enrolment. As he did not provide such a certificate, the Tribunal had no option other than to affirm the decision to refuse him the visa. He was asked if he wanted to say anything in relation to this issue. He answered ‘No’.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that the applicant applied for judicial review four days outside the 35-day time limit prescribed by s 477(1) of the Act. The applicant therefore requires an order that the time for filing the application for judicial review be extended pursuant to s 477(2) of the Act. As the making of such an order was not opposed, the Court made the order for time to be extended.
Ground one concerned whether the applicant was enrolled in a course of study at the time of the Tribunal’s decision. The Tribunal accepted the applicant had been enrolled at the time of the delegate’s decision. However, critically, the course of study in which he was enrolled ended some eight months prior to the Tribunal’s decision and there was no other evidence of continued enrolment.
As detailed at [10] and [11], the Tribunal requested information from the applicant pursuant to s 359(2) of the Act. The applicant was properly invited to provide information about any further course(s) of study in which he became enrolled. The applicant did not avail himself of this opportunity. There was no evidence before the Tribunal in support of a finding that, as at 17 October 2019, the applicant was enrolled in any course of study.
Ground two is an unparticularised assertion that fails to invite any meaningful response and is liable to be dismissed on that basis alone; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]).
CONSIDERATION
In order to be granted a student visa, the applicant needed to provide a current Certificate of Enrolment. The Court is satisfied that the Tribunal properly requested that the applicant provide this information, however he failed to do so. In these circumstances, it was open to the Tribunal to proceed to determine the matter based on the information that was before it. The Court is satisfied that the was no procedural irregularity in the manner in which the Tribunal considered the matter and it was open to the Tribunal to determine the matter on the information that was before it.
A mandatory requirement for the grant of a student visa pursuant to cl 500.211 (a) is that the applicant is, at the time of the decision, enrolled in the course of study. As there was no evidence before the Tribunal that the applicant satisfied this criteria, the Tribunal had no option other than to affirm the decision under review.
Ground one
Ground one is an assertion that the Tribunal did not consider the fact that the applicant studied in Australia. With respect to the applicant, this ground is misconceived. The applicant was required to show as at the time of the decision that he was then enrolled in a registered course of study. He did not do so. The Tribunal was not required to consider whether or not the applicant had previously studied, it was required to consider whether or not as at the time of its decision the applicant was currently enrolled. Ground one has no merit.
Ground two
Ground two is an unparticularised assertion that the Tribunal did not apply the law properly. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW at [35]).
The Court has perused the relevant Court books together with the decision record of the Tribunal and is unable to ascertain any error in the application of the law by the Tribunal. As indicated above, the finding of the Tribunal was the only option open to it based on the evidence that was before it.
As the applicant is unrepresented, the Court has considered all of the material before it, but is unable to ascertain any unarticulated jurisdictional error.
DETERMINATION
As none of the grounds of judicial review have merit, the application must be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 December 2024
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