Marina v Minister for Home Affairs

[2018] FCCA 3895

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINA v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3895

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: MURALIDHAR CHOUDARY MARINA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 408 of 2018

Judgment of: Judge Vasta

Hearing date: 14 December 2018

Date of Last Submission: 14 December 2018

Delivered at: Brisbane

Delivered on: 14 December 2018

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the First Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 27 April 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1113 of 2017

MURALIDHAR CHOUDARY MARINA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant, Muralidhar Choudary Marina, has come to this Court seeking a review of a decision made by the Administrative Appeals Tribunal (“the AAT”) on 29 March 2018 which affirmed an earlier decision not to grant him a student visa. 

2. The background to this, in short compass, is that the Applicant made his application on 26 July 2016.  The department wrote to him, about two months later, asking for more information and especially asking for evidence of his financial capacity.  The Applicant provided a number of documents in response to the request, but the department still wanted more information. 

3. On 29 November 2016, the delegate refused to grant the student visa, concluding that the Applicant did not satisfy the criteria that, in effect, meant that he would have genuine access to funds to meet the costs and expenses during his intended stay in Australia. 

4. The Applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.  The Tribunal did not get around to contacting the Applicant for, it would seem, about 15 months.  On 7 March 2018 the Tribunal sent the Applicant a written invitation to attend a hearing. 

5. The Applicant’s representative requested a postponement of the original hearing, which was to be on 26 March.  That request for postponing the hearing was made on 23 March.  There was a medical certificate that was given.  Of course, the medical certificate just simply said that he was not able to attend his work, but the Tribunal was of the view that he could attend this hearing by phone if needed.   The adjournment was not granted and there was not any additional information that was sent.  So the Tribunal gave SMS reminders to the Applicant’s mobile phone on the 19^th and 23^rd March. 

6. On the day of the hearing, the Applicant, through his representative, informed the Tribunal that he would be attending.  He did attend, however, it was by video link; he being in Perth and the member appearing in Sydney.  The Applicant said that he had other documents that he wanted to provide to the Tribunal.  The Tribunal then, on the 26^th , said that he would be given until 5 pm Wednesday, 28 March to provide those documents.  He did so and they were considered. 

7. The criteria that the AAT was really looking at was whether the Applicant met the criteria that he was enrolled in a course of study.  The regulation has that the Applicant must be enrolled in a course of study and, if the application is made in Australia, that the Applicant is seeking to remain in Australia because the relevant education institution required the Applicant to do so during the marking of the Applicant’s postgraduate thesis.  The Applicant needed to show that he was enrolled in a course of study which is a full-time registered course. 

8. The evidence before the Tribunal that the Applicant gave, were documents talking of a certificate of enrolment from 24 February 2014 to 4 July 2016 and then two other certificates – the first one for 5 July 2016 to 5 December 2016 and then from 5 July 2016 to 3 July 2017.  Both those certificates indicated that enrolment was cancelled.  He also gave a ledger showing student fee transactions.  The Tribunal had an email that the Applicant provided from James Cook University saying that the Master of Information Technology extended or Master of Business Administration program that the Applicant was previously enrolled in, and has part-completed, is no longer available and the university was unable to proceed with his request.

9. The Applicant claimed, in the written submission which was given to the Tribunal with all this other information, that a certificate of enrolment is under process.  The AAT found that there was no other evidence, other than what the Applicant said, to show that this was actually the case. 

10. The fact is that the Tribunal considered all the relevant evidence and, not surprisingly, was not satisfied at the time of that decision that the Applicant was enrolled in a course of study or that he had an offer of enrolment. 

11. Therefore, the criteria for the student visa was not met.  Given that that was the finding the decision had to be affirmed. 

12. The Applicant filed this application on 27 April 2018.  His ground of the application reads as follows – and I will read it totally into the record:

    I am writing in relation to my student visa refusal.  I would like to challenge decision made by Department of Home Affairs and Administrative Appeals Tribunal as I believe that my visa was refused due to error of law.  Firstly, I applied my student visa in July 2016, case officer requested for additional funds.  I provided funds documents as requested, but case officer did not accept my funds letter and refused my student visa application.  My parents passed away long back and I only have my uncle and brother in overseas to support me.  My uncle and brother provided funds letter to support my studies but, unfortunately case officer refused my application.  I approached AAT for review of my refusal decision.  I attended hearing and Tribunal member requested additional information which I provided I spent my life in Australia to complete my studies.  I am not happy with the AAT decision so I decided to challenge the decision made by the department and Tribunal.  I am confident enough that I have genuine access to funds and I can also support my living expenses in Australia.  I would like to request you to look at this matter for further consideration.

13. The standard orders were made on 6 June by Registrar Belcher who set the matter down today.  The Applicant did not file any submissions, however, did file a short affidavit which annexed a statement that said:

    My student visa has been refused on 29^th November 2016 due to issues with my funds and relationship issue with my supporter.  I applied for AAT review on 8^th December 2018.  I received email from tribunal to attend hearing.  I attended hearing on 26^th March 2018.  Tribunal member requested me few documents in support of my application.  I sent documents to tribunal but unfortunately, tribunal refused to grant my student visa.  I approached federal court on date to provide me justice in my situation.  This document will explain my situation and will provide evidence in support of my application.

    FACTS:

    When I attended tribunal hearing on 26^th March 2018 the following documents were requested by tribunal member…

    He has listed those matters and he has listed what he provided.  He has talked about his financial proofs, and with regard to proof of studies he said:

    I have submitted student fee transactions copy as a proof of study, I have been studying continuously with James Cook University, Townsville up until end of 2017.  I spent nearly $85000 towards my course.

    Regarding COE Cancellations mentioned by Honorable Member

    In 2016, I requested for COE extension with the University.  Then they have cancelled my COE-1 and gave me COE-2. To which by mistakenly they have provided a wrong COE (COE-2). So, they have to cancel (COE-2) and issues me a new COE, (COE-3).  I have attached my initial COE-1 and wrong COE-2 and extended COE-3 with respective names. 

    Regarding current COE and email from university

    As mentioned to honorable member, I contacted Admissions department.  They have requested for some documents from me to access new COE.  I received an Email from admissions department on 23/03/2018 stating that Masters of information technology (extended) course is not available.  Tribunal member misunderstood that Information Technology course is no more available, but the situation is that information technology (extended) degree is not available but similar course masters of information Technology, is still available. I requested admissions department to issue COE for information technology course.  I received COE for this course from university to continue my course.

    Supporting Evidence

    I am providing the following document to federal court in support of my application,

    Current “COE 20 -06-18”

    “Fees Statement Latest”.

    And then he has a part that talks about his appeal, and then his ties to Australia, and he has appended the documents. 

    As I explained to the Applicant, he has mistakenly believed that today’s matter is an appeal and he is looking at new evidence on the appeal to show that the grounds of his appeal are made out.  The problem, as I explained to him at the beginning of this hearing, is that this is not an appeal.  This is a review.  This is a privative clause decision which means that, as far as his appeal rights are concerned, once he got to the AAT that was the end of it.

14. All it is that this Court can do is to review the decision to ensure that there has been no jurisdictional error.  The Applicant concedes that at the date of the Tribunal decision, being 29 March 2018, he did not have a certificate of enrolment and was not enrolled in a course of study.  That left the Tribunal with little choice. 

15. What he is saying here is that he now has a certificate of enrolment and would be able to meet the criteria, but that is not the point here.  He expanded in his submissions to me today saying that his situation is that he has been here for four years, that he has spent $150,000 on his course and on living expenses in Australia.

16. He believed that today’s matter was an appeal and not a review. He said that he gave all the material that he could have given to the AAT; he was not being dishonest or hiding anything, and he said that he only has four subjects left to do for his degree and that if he had an extension of six months he would be able to complete those course subjects, and that would give him a degree for him to go back to his country of origin.

17. All of those submissions may make some sense to the Applicant and probably to most bystanders who might be listening in on these proceedings, but they are arguments that, in a case such as this, simply go to matters of sympathy and such are simply inviting an impermissible merits review. 

18. I accept the situation has changed since 29 March 2018, but that is not the position that the Court can look at.  What the Court must look at is the decision that was made on 29 March and whether or not there had been a jurisdictional error. 

19. As all the Tribunal had before it was those documents that the Applicant has admitted he gave, those documents were insufficient to support any conclusion that the criteria for the student visa had been met.  Notwithstanding that it may be able to be met now, it was not able to be met on 29 March. 

20. Therefore, the Tribunal has made the only decision that it could possibly have made.  Given that this is the conclusion that I have reached I find that there is no jurisdictional error and I must, therefore, with great sympathy towards the Applicant, dismiss his application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 January 2019