Mohammed v Minister for Immigration

[2013] FCCA 1684

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1684

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Student (Temporary) (Class TU) visa – Applicant provided no evidence of current enrolment criteria in accordance with cl.572.231 of Schedule 2 to the Regulations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Sch.2 cl.570.232, 571.232, 572.222, 572.223, 572.223(2)(a)(ii), 572.225, 572.231, 573.231, 574.231, 575.231, Sch.5A

Esber v Commonwealth (1992) 174 CLR 430
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: TAJ UDDIN MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 674 of 2013

Judgment of: Judge Hartnett

Hearing date: 16 October 2013

Delivered at: Melbourne

Delivered on: 16 October 2013

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz Lawyers

THE COURT ORDERS THAT:

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

2. The Application filed 17 May 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 674 of 2013

TAJ UDDIN MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court this day is an Application filed 17 May 2013 by the Applicant seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 24 April 2013.  The Tribunal in that decision affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. In the Application filed 17 May 2013, the Applicant set out no grounds and sought an order that the decision of the Tribunal or Minister for Immigration and Citizenship (as he then was) (‘the Minister’) be quashed.  In the absence of any grounds stated in the Application, it was impossible to address any matter, given none were stated, with any degree of particularity.  The best that could be done was to look to the Affidavit filed contemporaneously by the Applicant and sworn by him on 17 May 2013.  That Affidavit said as follows:-  

   “I came to Australia on a student visa. And I was doing the studies and I changed course because that time I was new to Australia, some people misguided me and I was not able to take any decision.  I was being homesick, confused, and my girlfriend marrying someone else who I love so much.”

3. Annexed to that Affidavit filed 17 May 2013 was the Tribunal Decision Record dated 24 April 2013 (‘the Decision Record’).  Other than those two documents, which do not set out in any way why it is that the Applicant asserts the decision of the Tribunal dated 24 April 2013 is attended by any jurisdictional error, there are no other documents filed by the Applicant. 

4. The First Respondent filed a Response to the application on 3 June 2013 claiming the Tribunal’s decision not to be affected by jurisdictional error and essentially seeking dismissal of the application of the Applicant.  The matter came before Registrar Allaway on 24 July 2013.  It was listed for final hearing to this date.  Included in the Orders made that day was order 4, which provided that on or before 23 October 2013, the Applicant shall file and serve:-

   a)an amended application, if any;

   b)a supplementary court book, if any; and

   c)written submissions. 

   The Applicant has filed no amended application, nor any written submissions. 

5. The First Respondent filed a Court Book on 20 September 2013 in the proceedings, and the documents contained therein are evidence in the proceedings.  The First Respondent also filed Submissions on 9 October 2013, and relies upon them. 

6. The Applicant is not legally represented in the proceedings, and on the hearing of the matter this day made no effective submissions.  His case was not to submit that there was jurisdictional error attending the decision of the Tribunal, but rather that he desired to remain in Australia for a further period of time and complete a course he had commenced or in the future enrol in other courses.  His submissions this day highlighted how completely unmeritorious this application without grounds was. 

History

1. The Applicant is a citizen of India. On 22 June 2011, he applied to the Department of Immigration and Citizenship (as it then was) for a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The delegate refused the grant of the visa on 2 August 2011 on the basis that the Applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. On 17 August 2011, the Applicant applied to the Tribunal for merits review.  On 18 August 2011, the Tribunal sent a facsimile to the Applicant via the Applicant’s authorised representative’s nominated facsimile number, in which it noted, amongst other things, that if the Applicant wished to provide material or written arguments in support of his application for review, he should do so as soon as possible. 

3. On 21 March 2013, the Tribunal accessed the Provider Registration and International Student Management System (‘PRISMS’) which indicated that the Applicant had:-

   a)cancelled his enrolment in the Diploma of Information Technology- Networking course with the Melbourne Institute of Tourism and Hospitality (‘MITH’) that was due to commence on 8 April 2013 and conclude on 23 February 2014;

   b)completed a Diploma of Management on 3 February 2013, being a Diploma of Management with the MITH that commenced on 6 July 2012 and concluded on 3 February 2013; and

   c)completed the Certificate III in Automotive Mechanical Technology on 25 July 2012 that he had commenced on 25 July 2011. 

4. On 8 April 2013, the Applicant was invited to appear before the Tribunal on 24 April 2013 to give evidence and present arguments.  The invitation was sent to the facsimile number for the Applicant’s authorised recipient.  The Tribunal also invited the Applicant, amongst other things, to provide evidence:-

   a)of a certificate of enrolment as required by cl.572.222 of Schedule 2 to the Regulations;

   b)that he was enrolled in or was the subject of a current offer of enrolment in a registered course as required by cl.572.231 of Schedule 2 to the Regulations;

   c)of his academic achievements and enrolment in a registered course for the purposes of cl.572.223(2)(a)(ii) of Schedule 2 to the Regulations;

   d)of adequate arrangements for health insurance during the period that the Applicant intended to stay in Australia as required by cl.572.225 of Schedule 2 to the Regulations;

   e)that he met the English language requirements for Schedule 5A to the Regulations for the purposes of cl.572.223 of Schedule 2 to the Regulations; and

   f)that he met the financial capacity requirements of Schedule 5A to the Regulations for the purposes of cl.572.223 of Schedule 2 to the Regulations.

5. The Tribunal also provided the Applicant with extracts from the Regulations.

6. On 23 April 2013, the Applicant’s representative sent a facsimile to the Tribunal notifying the Tribunal that he did not have instructions from the Applicant to appear at the Tribunal hearing and would not be acting for the Applicant in the matter. 

7. On 24 April 2013, the Tribunal sent a letter to the Applicant via his authorised recipient confirming that the Tribunal was required to continue sending correspondence to the authorised recipient unless and until the Applicant advised the Tribunal otherwise.  The Tribunal asked the Applicant to either appoint another person as his authorised recipient or change his contact details.  The Tribunal informed the Applicant that it would continue to send correspondence to the Applicant’s authorised recipient if the Applicant did not return one of the attached forms. 

8. On 24 April 2013, the Applicant attended the scheduled hearing and gave oral and documentary evidence in support of his application for review. 

9. The Applicant told the Tribunal that he completed a Bachelor of Commerce degree in India prior to coming to Australia.  He arrived in Australia in February 2008 as the holder of a Student (Temporary) (Class TU) visa.  At that time, he was enrolled in a Diploma of Business Management which he did not then complete.  The Applicant said he changed to a Certificate III in Hospitality (Commercial Cooking) course, but did not pass that. In response to questions as to why he changed courses, the Applicant said that somebody misguided him.  He then said he wanted to do the course and that he wanted to be a cook.  As to why then he didn’t complete that course, the Applicant explained that his father is a panel beater and owned an automotive business.  His father told him to complete automotive studies.  He did not, however, complete the automotive studies course.  The Tribunal attempted a number of times to clarify with the Applicant why he did not complete that course.  The Applicant referred to being homesick, confused, and to his girlfriend marrying someone else.

10. In response to questions asked of him, the Applicant told the Tribunal that he was not currently enrolled anywhere but that he wished to complete automotive studies.  He said that he had a confirmation of enrolment, which he submitted to the Tribunal. However, as was pointed out to the Applicant at the hearing, the confirmation of enrolment was in respect of a course which was due to finish some time in 2012.  The Tribunal asked the Applicant why he did not then complete that course in 2012 if he was enrolled in it and wished to qualify in that field.  The Applicant referred to being confused, not knowing what to do and being homesick when he found out his Student (Temporary) (Class TU) visa application was rejected.

11. The Tribunal indicated to the Applicant that it was proposing to orally affirm the decision.  The Applicant said that he could enrol after the hearing.  The Tribunal pointed out that he had a significant time to have done so, and that he had not shown that he was enrolled, or demonstrated sufficient financial capacity in respect of a course or proposed course as he had been invited to do in the hearing invitation letter.  The Tribunal then orally affirmed the decision.

The Tribunal’s decision

1. On 26 April 2013, the Tribunal sent a copy of the Decision Record to the Applicant via his authorised recipient.

2. The Tribunal noted in its Findings and Reasons of the Decision Record that the Applicant had applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. The Tribunal found there was no evidence before it that the Applicant was currently enrolled in, or the subject of a current offer of enrolment, in any course of study. The Tribunal was therefore not satisfied that the Applicant was enrolled in or the subject of a current offer of enrolment in a course of study that was a principal course and of a type specified for any of the subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal found that the Applicant did not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations. Additionally, the Tribunal found no evidence to suggest that the Applicant met the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa.

Consideration

1. In its Submissions filed 9 October 2013 the First Respondent noted, as a model litigant, that the Tribunal in its letter of 8 April 2013 to the Applicant stated that:-

   “… Please note, the Tribunal will make its decision under the Regulations as they stood on the date of your visa application.”

2. As the First Respondent submitted, the Tribunal was in error to state that the applicable law was that which applied at the time the visa application was lodged.  Rather, the general rule is that the law to be applied is that which is in force at the date the decision is reviewed (in this case, namely, 24 April 2013), unless there are transitional provisions that state the law to be applied is the law in force at the time of the application, or if the Applicant had accrued any rights under the repealed legislation, the law in force immediately before the repeal (Esber v Commonwealth (1992) 174 CLR 430 at 583).

3. Notwithstanding the above, as submitted by counsel for the First Respondent, the Tribunal’s error did not cause it to fall into error because the current enrolment criteria in cl.572.231 of Schedule 2 to the Regulations as at the date on which the visa application was lodged and at the date of the Tribunal’s decision consistently required the Applicant to give evidence that he was enrolled in, or the subject of a current offer of enrolment in a course of study that was a “principal course” and of a type that was specified by the Second Respondent for the particular subclass. Accordingly, the Tribunal did have regard in its decision to the applicable law.

4. It is clear that the Tribunal’s decision was the only one open to it on the evidence before it. The Applicant provided no evidence of the current enrolment criteria in accordance with cl.572.231 of Schedule 2 to the Regulations. The Applicant thus failed to meet an essential precondition to the grant of the visa. As Wilcox J held in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155:-

   “…It is no part of the duty of the decision-maker to make the applicant's case for him...”

5. The failure of the Applicant to give evidence in support of the current enrolment criteria was dispositive of the application for review.  The Tribunal was not required to make any further inquiry, and it is clear in its Decision Record that it gave proper, genuine and realistic consideration to the application for review.  It committed no jurisdictional error of law. The application shall be dismissed with costs. 

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

Associate: 

Date:  23 October 2013