Mahfooz v Minister for Immigration

[2013] FCCA 1825

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHFOOZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1825

Catchwords:
MIGRATION – Decision of the delegate not to grant a further
Student (Temporary) Visa – failure to comply with conditions of previous visa – no course completed in four years – Tribunal not satisfied a genuine applicant for stay as a student – no jurisdictional error by Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.41(3)

Migration Regulations 1994 (Cth), Sch.2, Regs.2.05; 572.223, 572.235, 572.661A, condition 8202, Sch.8

Kim v Witton (1995) 59 FCR 258
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578
Minister for Immigration and Multicultural Affairs v Modi (2001) 67 ALD 330

Applicant: SALEEM BIN MAHFOOZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 675 of 2013

Judgment of: Judge Whelan

Hearing date: 22 October 2013

Date of Last Submission: 22 October 2013

Delivered at: Melbourne

Delivered on: 22 October 2013

REPRESENTATION

Counsel for the Applicant: Applicant appearing in person

Counsel for the First Respondent: Ms Burchell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The Application filed by the Applicant on 17 May 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 675 of 2013

SALEEM BIN MAHFOOZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW  TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) which was made on

   
   

   26 April 2013. The Tribunal decision affirmed the decision of a delegate of the Minister to refuse to grant the Applicant,

   
   

   Mr SALEEM BIN MAHFOOZ (“the Applicant”), a Class TU

   
   

   Student (Temporary) Visa. The Applicant seeks an order that that decision be quashed.

Background

1. The Applicant is a citizen of India. On 2 March 2009, the Applicant was granted a Student (Temporary) Visa and he was enrolled to complete a Certificate III course. The Applicant’s enrolment, however, was cancelled on 16 July 2009 due to non-payment of fees.

2. On 24 May 2011, the Applicant made an application for a further Student (Temporary) Visa. On 1 June 2011, the delegate requested more information with respect to the application and on 28 June 2011, the Applicant provided supporting documents as requested by the delegate. The Applicant also provided letters from family members and an explanation that he had attended his course for four months regularly but then had to discontinue his studies and left for India for a time.

3. On 15 August 2011, the delegate refused to grant the visa to the Applicant on the grounds that the delegate was not satisfied that the Applicant had complied with the conditions of his previous visa as, despite the delegate’s request, no evidence was provided of any study undertaken since his arrival in Australia, apart from the short period in 2009. On 19 August 2011, the Applicant applied to the Tribunal for review of the delegate’s decision and the Tribunal subsequently affirmed that decision on 26 April 2013. On 19 May 2013, the Applicant made this application.

The Tribunal’s decision

1. The Tribunal was required to address the criteria in Reg.572.235 in Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) and noted that that provision required the Applicant to substantially comply with conditions of the visa which he last held at the time of the application. The Tribunal set out the relevant conditions in condition 8202 of the Regulations.

2. In its reasons for decision, the Tribunal summarised the evidence given by the Applicant to the hearing and referred to his evidence that he had been regularly attending college for the first four months.

   
   

   The Applicant stated:

   ·There were attacks against students in Melbourne;

   ·He was worried and so were his parents;

   ·He went back to India for three months;

   ·When he returned to Australia, his mother was unwell; and

   ·He could not concentrate on his studies.

3. The Applicant had not completed any qualifications during the four years in Australia. He told the Tribunal that he had enrolled in a Hospitality Management (Commercial Cookery) course in the week before the hearing but he brought no evidence that he had, in fact, enrolled in that course.

4. The Tribunal queried whether the Applicant had, in fact, complied with the requirements, and found that the Applicant did not satisfy the provisions of Reg.572.235 in Sch.2 of the Regulations because the Applicant had ceased to be enrolled in a registered course on

   
   

   16 July 2009. The Tribunal was not satisfied, on the evidence before it, that the Applicant, in fact, maintained his enrolment in a registered course after 16 July 2009, apart from a brief period of enrolment in May 2011 which had been cancelled by August 2011.

5. Accordingly, the Tribunal found that the Applicant had not complied substantially with the conditions of his last visa. It was therefore satisfied that the Applicant had breached condition 8202 which required him to maintain enrolment, and the Tribunal could, therefore, not be satisfied that the Applicant met the requirements of Reg.572.235 in Sch.2 of the Regulations.

6. On the basis of the evidence before it, the Tribunal found the Applicant had not achieved one academic qualification in the four years since he first arrived in Australia as the holder of a student visa, and that it had little confidence that the Applicant would pursue academic studies if he was granted such a visa. As such, the Tribunal was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student, given the terms of the Regulations.

The grounds of review

1. The Applicant provides no grounds for review in the application but in his affidavit in support, the Applicant states:

   I came to Australia on student VISA (sic) and attended my course regularly but then there were attacks taking place on Indian student every now and then media represent to my parents in most dangerious (sic) way which left me depressed as I was new to this place away from my family[1]

   [1] Affidavit of Saleem Bin Mahfooz sworn 17 May 2013, at p.1.

2. The Applicant, before the Court today, has said that he did not wish to return to India without any qualifications. The Applicant sought one more chance to prove himself and he was aware that he had made a mistake.

The First Respondent’s submissions

1. The First Respondent, in its submissions today, submitted that the Tribunal correctly identified the three issues before it, being whether:

   ·

   The Applicant had substantially complied with the conditions that applied to the last visa held, as required by Reg.572.235 in

   
   

   Sch.2 of the Regulations;

   ·At the time of the Tribunal’s decision, the Applicant was enrolled in, or was the subject of, a current offer of enrolment in a course of study that meets the requirements of the Regulations; and

   ·The Applicant was a genuine Applicant for entry and stay of Australia, in accordance with Reg.572.223 in Sch.2 of the Regulations.

   The First Respondent contended that the Tribunal correctly considered the requirements of condition 8202 and Regs.572.235 and 572.223 in Sch.2 of the Regulations.

2. The First Respondent submits that the Tribunal correctly applied the law to the facts of the present case in terms of its factual findings that the Applicant had:

   ·Ceased to be enrolled in a registered course on 16 July 2009;

   ·Not maintained his enrolment in a registered course after that date; and

   ·Not achieved any academic qualification in the four years since he had arrived in Australia,

   and that all of those findings were open to the Tribunal on the evidence before it.

3. On that basis, given that the Applicant had not complied with condition 8202(2) of his last visa, the Applicant was unable to satisfy the provisions of Reg.572.235 in Sch.2 of the Regulations and the application should therefore be dismissed.

Conclusions

1. The First Respondent has identified correctly the legislative framework that applies to the granting of the kind of visa which the Applicant sought. Regulation 572 in Sch.2 of the Regulations prescribes the criteria which must be satisfied at the time of the application, and at the time of the decision, in order for the visa to be granted.

2. Regulation 572.235 in Sch.2 of the Regulations states:

   If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant...[2]

   The Applicant’s most recent visa was a subclass 572 visa granted on

   
   

   2 March 2009, subject to condition 8202 and to Reg.572.661A of the Regulations. Schedule 8 of the Regulations contains the provisions which are prescribed for the purposes of s.41(3) of the

   
   Migration Act 1958

   (Cth) (“the Act”).

   [2] Regulation 572.235 in Sch.2 of the Migration Regulations 1994 (Cth).

3. Section 41(3) of the Act provides that the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations, and Reg.2.05(1) provides that the conditions to which a visa is subject are those as set out, or referred to, in Sch.2 of the Regulations. The relevant condition with respect to this case is that, when the application has been made in Australia, the applicant has complied substantially with the condition that applies, and the substantial condition that applies in this case is that the holder is enrolled in a registered course and has met the requirements of the previous visa.

4. The Applicant’s grounds for review appear to suggest that there were exceptional circumstances which caused the Applicant to fail to comply with the legislative requirements. This, however, is not a case where exceptional circumstances are relevant to the Tribunal’s decision making. The Tribunal was required to consider three things:

Has the Applicant substantially complied with the conditions that applied to the last of the visas held?

1. The Tribunal correctly referred to the criteria for whether an applicant has substantially complied with a visa condition, and referred to the particular cases that dealt with this issue.[3] The Tribunal accepted that there was no rigid test,[4] but the Tribunal needed to be satisfied that the Applicant had substantially complied with the visa conditions.

   
   

   The Tribunal found, on the evidence, that the Applicant’s enrolment in a Certificate III course was cancelled on 16 July 2009, and that the Applicant, since that time, had not successfully completed any course.

   [3] Kim v Witton (1995) 59 FCR 258; Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436.

   [4] Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578; Minister for Immigration and Multicultural Affairs v Modi (2001) 67 ALD 330.

2. The only evidence of any further enrolment were two confirmations of enrolment on 24 May 2011, both of which had been cancelled by August 2011. The Applicant had, therefore, not substantially complied with the conditions of his last visa, which required him to maintain enrolment.

The Applicant was required to be enrolled in or the subject of a current offer of enrolment in a course of study at the time of the delegate’s decision.

1. Despite the Applicant providing the confirmations of enrolment from May 2011, his enrolment in those courses had been cancelled by August 2011. There was, therefore, no evidence that the Applicant was enrolled in a course of study or the subject of a current enrolment offer.

The Tribunal was required to be satisfied that the Applicant was a genuine Applicant for entry and stay as a student, having regard to the stated intention of the Applicant to comply with any conditions, subject to which the visa was granted, and any other relevant matters.

1. The Tribunal referred to the Applicant’s track record of

   
   

   non-compliance with his previous visa and his failure to achieve any academic qualifications in the four years since he first arrived in Australia as the holder of a student visa. The Tribunal was, therefore, not satisfied that the Applicant would successfully pursue academic studies if he were granted a visa.

2. The Tribunal correctly applied the requirements of the Regulations and of condition 8202 to the evidence before it. The decision of the Tribunal was open to it on that evidence and the application is therefore dismissed.

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

Associate:

Date: 6 November 2013