Marina v Minister for Home Affairs
[2019] FCA 1371
•27 August 2019
FEDERAL COURT OF AUSTRALIA
Marina v Minister for Home Affairs [2019] FCA 1371
Appeal from: Marina v Minister for Home Affairs & Anor [2018] FCCA 3895 File number(s): QUD 935 of 2018 Judge(s): COLLIER J Date of judgment: 27 August 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court - application for a Student (Temporary)(Class TU) visa – appellant did not satisfy cl 500.211 of Pt 500 of Sch 2 of the Migration Regulations – Tribunal concluded appellant had not enrolled in approved course – no jurisdictional error in Tribunal finding – no appellable error in decision of primary Judge Legislation: Education Services for Overseas Students Act 2000 (Cth) pt 2 div 3
Migration Act 1958 (Cth) s 65
Federal Court Rules 2011 (Cth) r 36.03
Migration Regulations 1994 (Cth) reg 1.03, sch 2 cls 500.211 - 500.218
Cases cited: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Date of hearing: 23 August 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr A James of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 935 of 2018 BETWEEN: MURALIDHAR CHOUDARY MARINA
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
27 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an appeal from a decision of the Federal Circuit Court of Australia, which in turn dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration on 29 November 2016 to refuse to grant the appellant a Student (Temporary)(Class TU) visa (visa) under s 65 of the Migration Act 1958 (Cth).
BACKGROUND FACTS
The appellant is a citizen of India. He was studying at James Cook University, in the Master of Information Technology (Extended) – Master of Business Administration program (50514A). At the hearing before me the appellant stated that he had completed a number of subjects in that program.
Materially, the appellant applied for the visa on 26 July 2016. Approximately two months later the department wrote to him, asking for more information including evidence of his financial capacity. On 29 November 2016 the delegate refused to grant the appellant the visa, concluding that the appellant did not satisfy the criteria, namely that he would have access to funds to meet the costs and expenses of his intended stay in Australia.
PROCEEDINGS BEFORE THE TRIBUNAL
On 7 March 2018 the Tribunal sent the appellant a written invitation to attend a hearing scheduled on 26 March 2018, and to provide the Tribunal with any additional documents or information that he sought to rely on during the hearing. On 23 March 2018 the appellant’s representative requested a postponement of the hearing on medical grounds relating to the appellant, however the Tribunal was not satisfied that the information in the certificate reliably indicated that the appellant could not attend the Tribunal hearing. The Tribunal informed the appellant that he could attend the hearing by telephone, and he appeared by video from Perth. The appellant stated at the hearing that he could provide further documentation within two days, and the Tribunal allowed the appellant until 5 pm on 28 March 2018 to do so. The appellant provided further documents on 28 March 2018, which the Tribunal stated it considered.
The Tribunal noted that the criteria for a Subclass 500 (Student) visa are set out in Pt 500 of Sch 2 to the Migration Regulations 1994 (Cth), and that the primary criteria in cls 500.211 to 500.218 must be satisfied by at least one applicant. In particular, cl 500.211(a) requires a visa applicant to be enrolled in a course of study. “Course of study” is defined in cl 500.111 of the Migration Regulations as a “full-time registered course”, and “registered course” is defined in reg 1.03 of the Migration Regulations as a course of education or training provided by an institution, body or person that is registered, under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
The Tribunal noted that it had invited the appellant to provide it with evidence that he was enrolled in a course of study or that he had a genuine offer of enrolment. After the hearing, the appellant provided evidence to the Tribunal, including copies of the following documents relating to his enrolment, study and payments made to James Cook University for a Masters degree by coursework:
(a)COE 24/02/2014 to 04/07/2016.
(b)COE 05/07/2016 to 05/12/2016 indicating enrolment was cancelled.
(c)COE05/07/2016 to 03/07/2017 indicating enrolment was cancelled.
(d)Ledger entitled “Student Fee Transactions” – in the name of the applicant… showing payments from January 2014 to January 2018 totalling $85,535.82.
The appellant also provided the Tribunal with a copy of an email from International Admissions at James Cook University, dated 23 March 2018. I note that the appellant relied on this email at the hearing before me. This email read relevantly:
We are contacting you regarding your return to JCU application.
Please note that the Master of Information Technology (Extended) – Master of Business Administration program (50514A) is no longer available and we are unable to proceed with your request to further study at JCU to complete the program.
If you wish to be considered for some alternative program, such as the Master of Information Technology – Master of Business Administration program (112404), please let us know.
We also require the following information/documents before we can assess your return to JCU application further;
*Your Bachelor degree certificate/academic transcripts
*Advanced standing application form (please find attached)
*Your current visa /a letter from the Department of Home Affairs regarding your previous visa application (your student visa extension) outcome
If you have any questions, please feel free to contact us.
The Tribunal said:
16.The applicant claims in his written submission that was provided to the Tribunal on 28 March 2018, but is not dated, that a COE “…is under process.” He has provided no reliable or documentary information that indicates this is the case.
17.The Tribunal has considered all relevant evidence and is not satisfied that at the time of this decision the applicant is enrolled in a course of study or that he has an offer of enrolment and accordingly cl. 500.211 is not met.
18.Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
19.As the applicant does not meet this threshold criterion, the Tribunal has no made [sic] findings against the remaining criteria, as all primary criteria in cl.500.211 to cl.500.218 must be satisfied at the time a decision is made on the application.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
The primary Judge observed:
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 29th November 2016 due to issues with my funds and relationship issue with my supporter. I applied for AAT review on 8th December 2018. I received email from tribunal to attend hearing. I attended hearing on 26th 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 26th 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”.
His Honour said further:
13.… 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.
His Honour considered that the application before him invited impermissible merits review, and observed that while the situation may have changed since 29 March 2018 for the appellant that was not a position the Court could examine. His Honour continued:
18.…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.
THIS APPEAL
The notice of appeal filed by the appellant on 20 December 2018 is lengthy. The “grounds of appeal” are more in the nature of submissions than a ground or grounds. The ground of appeal as articulated by the appellant is, in full, as follows:
The appellant is a citizen of India, who first arrived to Australia on a student visa for his higher education. Following his arrival in Australia, the appellant has enrolled and studied his education. Due to his last student visa wasn't enough to complete his Masters program in Australia he had applied for student visa extension to finish his left over education, but that application was unsuccessful because of no financial documents with the application. The appellant has sponsor (parent) from India to support his studies and cost of living in Australia, still delegate had refused his visa under s.65 against the cl 500.212 criterion of schedule 2, on 29th November 2016.
On 8th of December 2016, the appellant applied for the review, on the hearing and before the hearing tribunal had given importance on my enrolment which is E-coe (admission for Masters). Tribunal did not express or inquired about my genuine access of the funds. Tribunal assessed the review against the primary criterion which is 500.211, it was so confusion as by the timeof the hearing the course appellant came to asutsralia for studies at James cook university has been changed. Despite of James cook university (JCU) course/program supersede JCU did not offer me the same course and cancel the existing the coe. Further JCU offered me different program. Same information I had brought that in to tribunal attention which wasn't considered and straight away my case was affirmed not to grant the student visa. It was unjust and jurisdictionally wrong. That is the reason I went to Federal Circuit of court of Australia (FCCA), FCCA judge did not notice and did not analyse appellant outcry. that there was no indication on the hearing day that the FCCA judge had tried to assist the appellant. In particular, his Honour noted that appellant did not have E-coe which is to be met as it is one of the criterion of cl 500.
the appellant had submitted to the tribunal seeking to "he needs time to get the e-coe and he had showed the evidence to tribunal". The e-mail correspondence from JCU has been submitted Migration Review Tribunal/Administrative appeal tribunal ("AAT") for review of the refusal of the further student visa application. It stated that, at this time, the appellant's e-mail has sensible information that he is organising the E- coe where he was eligible for hearing adjournment, but the appellant hearing hasn't been adjourned.
Respondent (Clayton UTZ) behalf of the Minister should have let the discussion happen in regarding compelling reasons for not organising the E-coe with education provider (JCU). The appellant did not meet criterion 500.211, because his last e-coe was ceased, but tribunal and respondent (Clayton UTZ) did not discuss the reasons behind the E-coe cancellation.
The appellant therefore sought the Judicial Review at Brisbane Registry. The appellant noted that, the Tribunal was unable to understood and also tribunal wasn't able to exercise its jurisdiction, tribunal has not understood appellant situation. But the FCCA judge did not discuss relevant facts leading up to the Tribunal's decisions. At hearing, his Honour identified the grounds of review, some procedural matters and summarised the appellant's complaint, but the FCCA judge did not considered the relevant statutory framework and did not identify the appellant's issue with his education provider (JCU).On hearing date, His Honour concluded case is dismissed.
But, appellant hasn't received the full decision from honour. the appellant was not unaware of the whether decision would be made or not, the appellant was told on two occasions by the court staff and respondent that he could receive the full decision by email. at last after appellant has some knowledge by meeting the legal representatives, and also appellant has spoken with FCCA registrar, he came to know properly how to go- a- head that is the reason he is bringing the review application (Leave to appeal) with JUDGE VASTA decision.. Also he wishes to submit the further submissions according to Judicial Review Outcome, as he is still waiting for the FCCA decision.
Arguments which were to be discussed at FCCA have not been discussed, these arguments can be heard at higher court possibly. Does the Court below have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?
Federal circuit court has court hasn't even looked at applicant claims and he lost the opportunity at tribunal hearing to submit the evidence, as there was miscommunication caused by respondents, applicant has felt unjust and he feels that it is not natural justice. And also he has exceptional circumstance beyond his control, reasons he has submitted and also documents can be submitted to the Federal Court of Australia at later stage.
(Errors in original.)
From this material it seems the appellant believes he requires leave to appeal the decision of the primary Judge. This is not the case, the notice of appeal against the primary decision was lodged well within time required by r 36.03 of the Federal Court Rules 2011 (Cth). It follows that the application before me is properly an appeal rather than an application for leave to appeal.
Second, the appellant complains that he did not receive the written reasons of the primary Judge expeditiously. I note however that the decision of his Honour was delivered ex tempore, and further that the appellant appeared to have little difficulty formulating a basis for his appeal notwithstanding the absence of written reasons.
Third, the appellant complained that the Tribunal did not consider his access to funds. However the Tribunal found that the appellant did not meet the primary criterion in cl 500.211 of Pt 500 of Sch 2 to the Migration Regulations because the appellant was not enrolled in a course of study at the time of the Tribunal’s decision, and it was for that reason that the Tribunal affirmed the delegate’s decision.
Fourth, while the appellant now complains about the decision of the Tribunal to refuse an adjournment, he did not raise this as an issue before the primary Judge. I further note that:
·The appellant had submitted a medical certificate claiming inability to appear before the Tribunal, however the grounds on which the appellant so claimed were vague, and in any event the appellant was able to appear, by video from Perth, at the hearing. In this respect the view of the Tribunal concerning the ability of the appellant to be present at the hearing appeared to be vindicated.
·To the extent that the appellant had claimed before the Tribunal that there was progress in respect of a course in which he sought to be enrolled at James Cook University, the Tribunal found that the email of 23 March 2018 from International Admissions did not provide any support for such progress. The reasoning of the Tribunal in this respect is sound.
·The appellant claimed before the Tribunal that he sought a further opportunity to file documents in support of his case. The Tribunal allowed the appellant extra days beyond the hearing to do so, the appellant filed further material and the Tribunal took that material into account. The Tribunal formed the view that none of that material demonstrated that the appellant was enrolled in a course of study as required by the visa criteria.
I am satisfied that the decision of the Tribunal to refuse any adjournment of the hearing was not unreasonable in the circumstances.
Fifth, I reject the appellant’s criticisms of the primary Judge. His Honour correctly identified the relevant criteria for the visa, and considered the appellant’s submissions in relation to the steps he took to obtain a course in which to enrol at James Cook University. Further, his Honour accurately pointed out that the proceeding before him was not an appeal, and that the Court was limited in respect of privative clause decisions (such as the decision of the Tribunal in this case) to identifying jurisdictional errors; see for example Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [38], [92], [98] and [161]. His Honour indicated sympathy with the circumstances of the appellant, but found that there was no power in the Federal Circuit Court to quash the Tribunal’s decision on the basis sought by the appellant. In this respect his Honour was correct. The fact that the appellant disagrees with his Honour’s conclusions, or would have preferred his Honour to have had regard to other material, is not material.
Ultimately, as the primary Judge observed, the Tribunal concluded that the appellant had not enrolled in an approved course, and was not entitled to a visa.
No appellable error in the decision of the primary Judge has been demonstrated. The appropriate order is to dismiss the appeal, with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 27 August 2019
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