Mallela v Minister for Home Affairs

[2019] FCCA 2211

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLELA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2211

Catchwords:
MIGRATION – Show Cause Hearing – Student (Temporary) (Class TU) Visa – whether the applicant satisfied clause 572 of Schedule 2 of the Migration Regulations.

Legislation:

Migration Regulations 1994 (Cth), cl.572.22, 572.223, 572.231
Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: VENKATA CHENNA REDDY MALLELA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 613 of 2018

Judgment of: Judge McNab

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Melbourne

Delivered on: 1 August 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Kowalewska

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 13 March 2018 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 613 of 2018

VENKATA CHENNA REDDY MALLELA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 13 March 2018, the applicant applied for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of the delegate (‘Delegate’) of the Minister (‘Minister’) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa.

2. Registrar Luxton, by orders made by on 20 February 2019, has listed the matter for a show cause hearing today.

3. The Court has a discretion to dismiss an application for judicial review if it is not satisfied that the application has raised an arguable case for the relief claimed.[1]

   [1] Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a).

Background

1. The applicant is a 36 year old citizen of India who arrived in Australia on 17 October 2007 on a previous student visa granted on 21 September 2007 which was due to expire on 8 December 2009. Since his arrival, he was granted a Class VC subclass 485 visa and a further subclass 572 visa which was to expire on 7 September 2015.

2. On 7 September 2015, the applicant applied for a further student visa which is the subject of the Tribunal’s review.

3. The applicant’s history of enrolling in courses in Australia is set out in an affidavit that he filed in support of his application on 13 March 2018. That history is also summarised in the decision of the Delegate which is found at page 90 of the Court Book.

Delegate’s Decision

1. The Delegate was not satisfied that the applicant was a ‘genuine applicant for entry and stay’ as a student as required by clause 572.223 of schedule 2 of the Migration Regulations 1994 (Cth) (‘Regulations’). The Delegate considered the applicant’s claim as at the date of the decision on the basis that the applicant did not meet the ‘genuine temporary entrant criterion’.

2. The Delegate also had regard to the factors in the Ministerial Direction No. 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.

The Tribunal’s decision

1. On 30 June 2016, the applicant sought review of the Delegate’s decision.

2. By a letter dated 5 January 2018, the applicant was invited to give evidence and present arguments at a hearing before the Tribunal on 8 February 2018. The letter inviting the applicant, which is set out at page 108 of the Court Book, requests that the applicant provide the following information:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of student visa.

   2. Documents that show you are current enrolled in a course or have an offer of enrolment in a registered course, as required for the grant of a visa.

   3. 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.

   4. An explanation for any gaps in your enrolments and any documentary evidence relevant to your explanation.

3. The applicant appeared before the Tribunal on 8 February 2018 and gave evidence and presented arguments.

4. At the conclusion of the hearing, the Tribunal affirmed the Delegate’s decision and gave oral reasons which were subsequently issued as written reasons on 13 April 2018.

Legislative Background

1. The legislative background against which the Tribunal made its decision is set out in clause 572.22 of Schedule 2 of the Regulations.

2. The criteria which had to be satisfied at the time of the Delegate’s decision and at the time of the Tribunal’s decision required that ‘the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course […]’.[2]

   [2] Migration Regulations 1994 (Cth), Sch 2 cl 572.231(a).

Tribunal’s decision

1. The Tribunal noted that the applicant applied for a visa on 7 September 2015 to undertake studies in Australia.

2. By [4] the Tribunal stated:

   At the time the visa application was lodged, the Student (Temporary) (Class TU) Visa contained a number of subclauses. Generally speaking, the subclause can be granted to an applicant who applies as a student, depends on the type of course in which the student is enrolled, or has an offer of enrolment, as his or her principal course.

3. At [7], the Tribunal states:

   While the issue before the delegate was whether you were a genuine temporary entrant, the issue before me now, is whether at the time of this decision, you meet the enrolment requirements for a student visa.

4. By [10], the Tribunal noted that the applicant had been requested to provide the Tribunal a copy of a certificate of enrolment, and none was forthcoming. The Tribunal was made aware, by the sworn evidence given by the applicant before the Tribunal, that:

   You confirmed that you were last enrolled in a Diploma of Management, which enrolment was cancelled, and you further confirmed that you had not meaningfully engaged in study since you completed your Certificate IV in Commercial Cookery in February last year.[3]

   [3] Tribunal’s decision record 13 April 2018, [8].

5. At [11], the Tribunal found that there was no evidence before it that the applicant was enrolled in, or had a current offer of, enrolment in any applicable course of study. The Tribunal further noted that this was (as noted above) the applicant’s own evidence.

6. The Tribunal found that the applicant did not meet the enrolment prerequisites for the visa he applied for, or any other of the remaining student visa subclasses. For those reasons, the Tribunal concluded that the decision under review should be affirmed.

Consideration

1. The applicant’s grounds of application were as follows:

   1. Application for student visa was refused on ground that I did not satisfy the requirements of 572.223(1)(a) in schedule 2 of the Regulations and ministerial direction number 53.

   2. Application was refused and decision stated that I was not a genuine applicant and the decision was not a privative clause decision.

   3. Decision to refuse the student visa application was appealed with the Administrative Appeals Tribunal and decision was affirmed while not considering the facts of the situation.

   4. I need to present my case and have evidence to prove that I am indeed a genuine student and have compelling circumstances which require to be considered.

2. The applicant appeared before the Court unrepresented today and presented no further material or arguments in support of his claim.

3. He did say that he wished to become enrolled in a management course, and also stated that he had arrived in Australia in 2007 and that he had a child in Australia.

4. I do note the applicant has been in Australia for some time. However, that does not affect the decision that I have to make as to whether it is arguable that there is any error in the decision of the Tribunal.

5. No ground has been put before the Court which would suggest or provide a basis for an arguable case that there is any error in the manner in which the Tribunal determined this matter.

Conclusion

1. In those circumstances, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. I will also order that the Applicant pay the First Respondent’s costs fixed in the sum of $3,737.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  1 August 2019