Maida v Minister for Immigration

[2019] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAIDA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3106

Catchwords:
MIGRATION – Student visa – primary criteria – course of study – applicant not enrolled in course of study at time of Tribunal decision – no error established.

Legislation:

Migration Act 1958 (Cth), ss.359, 360(1)

Migration Regulations 1999 (Cth) Sch.2 cls.500.111, 500.211, 500.212

Applicant: KIRAN KUMAR MAIDA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1064 of 2018

Judgment of: Judge Baird

Hearing date: 1 October 2019

Date of Last Submission: 23 September 2019

Delivered at: Sydney

Delivered on: 1 October 2019

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person

Solicitors for the Respondent: Ms A Zinn, Mills Oakley

ORDERS

THE COURT:

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the application filed 17 April 2018.

3. ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYG 1064 of 2018

KIRAN KUMAR MAIDA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant, Mr Maida, seeks judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 27 March 2018 affirming a decision of a Delegate of the First Respondent, then the Minister for Immigration and Border Protection, dated 12 January 2017, not to grant Mr Maida a Student (Temporary) (Class TU) Visa.  

Background

1. Mr Maida is citizen of India and was born in 1985.  He arrived in Australia as the holder of a student (subclass 572) visa on 23 October 2008.  In the ensuing years Mr Maida undertook and completed several certificate and diploma courses.  On 5 October 2016, Mr Maida applied for the present Visa on the basis of his confirmation of enrolment in an intended course of study in Australia for a Bachelor of Business with Group College Australia.  

Legislative criteria for Visa

1. The criteria for the Visa at the time are as set out in sch.2, cl.500 of the Migration Regulations 1994 (Cth). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. In the present case, Mr Maida is the only member of his family unit, and he is the applicant who must satisfy the criteria.

2. Clause 500.211 is preceded by the following note:

   Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

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

3. Clause 500.211 requires one of the following:

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

   (b)if the application is made in Australia--the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

   (c)if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;

   (d)if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa.

4. Clause 500.212 then requires that the applicant “is a genuine applicant for entry and stay as a student because”, and sets out a number of criteria.

The Delegate’s decision

1. The Delegate did not interview Mr Maida.  By decision dated 12 January 2017, the Delegate refused to grant Mr Maida the Visa on the basis that the Delegate was not satisfied that Mr Maida genuinely intended to stay in Australia temporarily.  The Delegate appears to have formed her decision based on the courses that Mr Maida had previously undertaken.  Whilst noting that the proposed study was a progression of his previous study, the Delegate stated:

   However, if permitted [it could] would enable you to remain in Australia for an additional two years in addition to an already extensive immigration history onshore which raises concerns in regards to your intentions to remain in Australia temporarily.

2. The Delegate said that she had considered the value of the course to Mr Maida’s future, but that Mr Maida had not provided any reasons why he had chosen to study this course (I interpose this is notwithstanding that the course is a bachelor level course in the same field as Mr Maida’s previous diploma courses).  The Delegate was not satisfied that Mr Maida had demonstrated the value of the proposed course to his future, and overall formed the view that Mr Maida had failed to provide a credible career plan on completion of his studies.  The Delegate took into consideration the previous immigration history, and, as I have said, refused the Visa.

The Tribunal’s decision

1. Whatever the defects in the Delegate’s decision, Mr Maida applied for review to the Tribunal on 30 January 2017.  On 13 February 2018, the Tribunal invited Mr Maida to attend a hearing before it which was listed on 13 March 2018.  That letter is included in the evidence before me, and it shows that the Tribunal invited Mr Maida to provide all documents he intended to rely on to establish that he met the criteria for the Visa.  The Tribunal also sought information relevantly as follows:

   In addition, please provide the following information so that a decision can be made as quickly as possible:

   1.A copy of your current Certificate 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 the Migration Regulations 1994, as is required for the grant of a student visa.

   2 Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

   Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.

   We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.

2. Mr Maida requested a postponement of the hearing date and the Tribunal granted that postponement, and subsequently by letter dated 12 March 2018 invited Mr Maida to attend before the Tribunal on 20 March 2018.  The Tribunal’s letter advised that all other hearing details were unchanged, and referred to the fact that the Tribunal had sent its letter of 13 February 2018.

3. I note that on 12 March 2018, Mr Maida informed the Tribunal he would be representing himself, and asked for an extension of two weeks of time (as opposed to the one week that the Tribunal had already granted).  The Tribunal member considered that request but decided not to grant a further postponement of the hearing.  I note that in his response to the Tribunal’s invitation for hearing, Mr Maida did not indicate any issue that might affect his ability to take part in the hearing, and as I have said, he indicated he would be representing himself at the hearing scheduled for 20 March 2018.

4. Accordingly, Mr Maida appeared before the Tribunal on 20 March 2018.  The Tribunal concluded that the decision under review should be affirmed, but it did so on different reasons than the Delegate.

5. As the Tribunal identified at [10], the issue before the Delegate was whether Mr Maida met the criteria in cl.500.212.  However, the issue before the Tribunal was whether, at the time of its decision (i.e. before the Tribunal), Mr Maida meets the enrolment requirements for a student visa. 

6. The Tribunal noted cl.500.211(a), and that Mr Maida did not claim to meet any of the alternative criteria in that clause. The Tribunal noted the course of study as relevantly defined in cl.500.111 of the Regulations as a “full-time registered course”. As set out in [13] and [14] of the Tribunal’s decision, Mr Maida told the Tribunal he was not currently enrolled in any course, and that he ceased study around a year ago (that is, in around March 2017). It is appropriate to set out what the Tribunal there said Mr Maida’s evidence was:

   [13]The applicant told the Tribunal that he is not currently enrolled in any course and that he ceased study around a year ago. He said the course fees in the Bachelor of Business were very expensive and beyond his capacity to pay. He said this resulted in his enrolment in the Bachelor of Business at the Holmes Institute being cancelled. He said he has, in the time since his arrival in Australia in 2008, spent over $100,000 on his education expenses and that he could just not afford to keep funding his studies.

   [14]The applicant gave evidence he was fortunate enough to secure consistent employment over the past three years with an employer who has sponsored him for a Temporary Work visa. He said he has always worked within the restrictions imposed by his visa conditions and that he has been in all ways a law abiding temporary resident in Australia. He said he has always wanted to study commerce and marketing related courses, as he is interested in this vocational area and it is in a sales and marketing division that he works with his current employer.

7. I note that at [15] the Tribunal stated that it “was satisfied that the Applicant gave his evidence in a straightforward and honest manner.  The Tribunal has, therefore, placed weight upon the Applicant’s evidence that he discontinued his study in a Bachelor of Business in around March 2017 and that he has a stable work history with an Australian employer.  There is no evidence before the Tribunal which contradicts the Applicant’s evidence in relation to his lack of current study or the lack of any current offer of enrolment in a course”. 

8. The Tribunal therefore concluded that it was not satisfied that Mr Maida was enrolled in a course of study at the time of its decision and concluded that cl.500.211 was not met. The Tribunal found the criteria for the grant of the Visa were not met and, accordingly, the decision under review must be affirmed.

9. On 17 April 2018, Mr Maida filed his application for judicial review before this Court.

Grounds of review

1. In this Court, Mr Maida’s grounds of judicial review remain as set out in his application.  They are, without alteration, as follows: 

   1.jurisdictional error and lacked jurisdiction

   2.Error in interpretation of legislation

   3.Natural Justice.

2. Mr Maida filed an affidavit in support of his application affirmed 17 April 2018.  In that affidavit Mr Maida describes himself as a “Retail Buyer” and he affirmed:   

   1.Member of Administrative Appeal Tribunal (Migration & Refugee Division) misinterpreted the applicable law or misapplied the law to the fact that they made jurisdictional error in deciding my case

The proceeding in this Court

1. Mr Maida appeared before me today on his own account and conducted his case in English.  I confirmed with Mr Maida that he was happy to do so, he indicated he was, and I observe that he has evinced a working knowledge, and good command, of English.  I confirmed with Mr Maida that he wished to proceed on the grounds set out in this application.  I informed Mr Maida that I did not have any particulars or specificity as to those grounds, and I invited him to tell me what he said the legal problems were in the Tribunal’s decision.  

2. First, however, I informed Mr Maida that the role of the Court is very different from that of the Tribunal, and that it is not for this Court to reconsider an applicant’s claims and to reach different factual findings or conclusions.  I explained to Mr Maida that the only issue before this Court is whether or not the decision of the Tribunal was made according to law, or, as I also explained to Mr Maida, whether there are legal problems with what the Tribunal did, or did not do, or how they came to their conclusions.  I explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes a mistake going to the Tribunal’s jurisdiction.  

3. I reiterated that this Court is not a place in which a party may simply reargue his case and hope that the judge will come to a different conclusion on the facts, and that this Court has no jurisdiction to consider the factual merits, or the rightness of the conclusion on the facts.  I also explained to Mr Maida the cost consequences that would flow to him if a costs order was made against him if he lost and how that may, if unpaid, limit his future re-entry into Australia seeking another visa. 

4. Ms Zinn, solicitor for the Minister, provided Mr Maida with a copy of her submissions and the Court provided him with a copy of Mr Maida’s application and his affidavit in support of his application.  Mr Maida was also in possession of a Court book of relevant documents (green book), which I accepted into evidence.  Having read the Minister’s submissions, Mr Maida indicated that he did wish to proceed today. 

5. I first would like to record that Mr Maida struck me, as he had struck the Tribunal, as a young man who has given his evidence honestly and straightforwardly.  He explained that he has been in Australia for nine years, studying for seven years, and that his last study that he wished to do was to reach a Bachelor’s degree in accounting and business management, and it would be very helpful to him.  However, the college fees proved beyond his financial limits, and whilst he had hoped he would be able to get help from his parents, he had to stop studying.  Since then, he has been employed within the limits of his Visa by a business at Flemington Markets.  The chairman of that business has helped him, and he has applied for what would formerly be a s.457 visa under his sponsorship, which application is still in process.  

6. I have been provided by Mr Maida, with details of his sponsor for the work visa, and, indeed, the Court book discloses those details of Mr Maida’s sponsor, but it is not necessary for the purposes of this decision to go into the detail of the sponsorship, save to note that the correspondence with the Tribunal regarding Mr Maida’s Visa also includes correspondence from Mr Maida’s business visa sponsor.

7. Mr Maida’s evidence to me is that he has at all times sought to work within the law. He says that a few months into his course of study he got a letter from the college that they had not seen him, and that was correct because he had had to stop studying in the middle of his course because he could not afford to pay it. Mr Maida made brief submissions regarding his home town in India, and that he had moved to Australia and lived lawfully. I explained to Mr Maida that the issue before me was whether the Tribunal in considering his Visa application had made a correct decision, and that on the face of the requirements of his course under cl.500.211, he had to be enrolled in a course of study at the time of the Tribunal decision, and that matters concerning other applications for visa were outside the role of this Court.

8. Ms Zinn’s submissions were that the Tribunal ultimately placed weight on Mr Maida’s own evidence (particularly at [13] and [14]), and in the light of the requirements under cl.500.211, the Tribunal undertook a straightforward application of the clause, and made correct findings, and there was no error in the Tribunal’s decision.

Consideration

1. The three 3 grounds of review are bare assertions and they fail meaningfully to identify any arguable case or jurisdictional error in the decision or the approach of the Tribunal.  Whilst I invited Mr Maida to identify legal problems in the decision of the Tribunal, he was not able to do so and, indeed, none are apparent to me on the face of the decision. 

2. The Tribunal had jurisdiction to review the Delegate’s decision, as the application for review lodged by Mr Maida was properly made under s.347 of the Act for review of a pt.5 reviewable decision under s.348 of the Act. 

3. Obtaining a COE is a “prerequisite” to obtaining a student visa of the kind that Mr Maida was applying for.  Mr Maida conceded at the Tribunal hearing, as he did before me, that he had ceased to study in the course a year prior to the Tribunal hearing, that he was not enrolled in a course of study, and that his employer was sponsoring him for a temporary work visa. 

4. It follows, as I find, that the Tribunal’s findings were plainly open to it on the materials available to it, and for the reasons it gave.  There is no error in the Tribunal finding that Mr Maida did not satisfy cl.500.21, and that the criteria for the grant of a Student (Temporary) (Class TU) Visa under s.65 of the Act were not met.

5. I note that Mr Maida was afforded the opportunity to attend the hearing before the Tribunal on 20 March 2018 to give evidence and present arguments as is required by s.360(1) of the Act. I have referred to the hearing invitation of 13 February 2018. That invitation properly put Mr Maida on notice that his ability to meet the enrolment requirement for the grant of a student Visa was an issue. It referred to the need for a COE and it also informed Mr Maida he had until the hearing before the Tribunal to arrange his enrolment, which Mr Maida did not do. Nothing that Mr Maida has expanded upon or made submissions to me today reveal that there was any error in the Tribunal’s findings or its conclusion it reached on those findings.

Conclusion

1. For the above reasons, I must conclude that Mr Maida’s application fails, the grounds of review are not made out.  It follows that the application must be dismissed, and that Ms Zinn, who has asked on behalf of the Minister for Mr Maida to pay the Minister’s costs in a fixed amount, is entitled to such an order.  I will so order. 

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date: 31 October 2019