Mohammed v Minister for Immigration

[2018] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1943

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in affirming the delegate’s decision when that decision was vitiated by a failure on the part of an education provider – whether the Tribunal failed to consider evidence before it – no jurisdictional error – application dismissed.

Legislation:

Education Services for Overseas Students Act2000 (Cth), s.19

Migration Act 1958 (Cth), s.363

Migration Regulations 1994 (Cth), reg.1.40A, cll.570.232, 571.232, 572.231, 573.223(1A), 573.231, 574.231, 575.231 of sch.2

Cases cited:

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99

Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22

Applicant: IQBAL HUSSAIN KHIZER MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2032 of 2017

Judgment of: Judge Smith

Hearing date: 13 June 2018

Date of Last Submission: 13 June 2018

Delivered at: Sydney

Delivered on: 13 June 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Nair, M S Nair & Co

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2032 of 2017

IQBAL HUSSAIN KHIZER MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal made on 29 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Student (Temporary) (Class TU) visa.  The applicant applied for that visa on 14 March 2016. 

2. One of the criteria for the grant of the visa, and in particular, the subclass for which the applicant sought to qualify for, was found in cl.573.231 of sch.2 to the Migration Regulations 1994 (Cth). That clause provided relevantly that:

   If subclause 573.223(1A) does not apply:

   (a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)made under regulation 1.40A; and

   (ii)in force at the time the application was made.

3. In this case, there is no issue that sub-cl.573.223(1A) did not apply. 

4. On 17 May 2016, the delegate of the Minister made a decision to refuse to grant the applicant a visa. The basis for that decision was that the delegate was not satisfied that the applicant met a criterion other than cl.573.231, being the criterion that required the applicant to be a genuine applicant for entry and stay as a student. The applicant applied to the Tribunal for review of that decision.

5. On 20 March 2017, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted on 21 April 2017.  In that letter the Tribunal asked the applicant to provide certain information so that the decision could be made as quickly as possible.  That information included a copy of the applicant’s “current Certificate of Enrolment (COE) as required for the grant of a student visa” and a document that showed the applicant was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa. 

6. That request made it relatively clear that what was in issue before the Tribunal included the question of whether the applicant satisfied the requirements of cl.573.231. That fact became pellucidly clear at the Tribunal hearing which was conducted on 21 April 2017. The transcript of that hearing is before the Court and it shows (at page 10, line 33 and following), that the issue was raised and that an opportunity was given to the applicant to obtain the relevant information and thereby to satisfy the criterion in question. The following exchange took place between the Tribunal Member and the applicant:

   Member:Because you’re not enrolled at the moment. To be granted a visa, you have to be either enrolled, or you have to have an offer of enrolment.  Do you want to provide those documents after the hearing?  Do you want to go to the college that you intend to enrol in? 

   Applicant:Yes, yes, yes.

   Member:You do?  Okay.  How long will it take you to provide that?

   Applicant:Very – in the next few – two – in the next month or - everyone...

   Member:All you need to do is to go to the college and ask them to give you ...

   Applicant:... offer ...

   Member:An offer, like - just an offer.  That’s all you need.

   Applicant:By the end of this week, I will be – I ...

7. The Tribunal then offered two weeks and the applicant said that was okay.  Finally, the Tribunal said:

   Two then.  All right.  So I will wait and give you that time to provide that document, and then I will make a decision based on all the evidence that you’ve provided, and you will receive the decision and also the reasons for the decision, and the Immigration Department is told about the outcome, as well. Okay?

8. There followed a brief discussion about where the applicant had to provide the document.  On 26 April 2017, the applicant wrote to the Tribunal by email.  In the email he wrote:

   On that interview you have requested to provide me an offer letter/CoE from any provider and as per your instruction i have contacted with few provider.  Every provider requested me show a written permission from AAT as i have no study permit/valid visa and due to this reason no one is agreeing to take me as a student.

   Can you please write an email to with your required papers which i can provide to provider to take admission?

   (Without alteration)

   The Tribunal did not reply to that email. 

9. On 29 May 2017, the Tribunal made its decision to affirm the decision of the delegate. It noted at [6] of its statement of reasons that the issue was whether at the time of the decision the applicant met the enrolment requirements for a student visa. It explained at [7] that with limited exceptions, the various clauses of the Regulations require that “at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application”.

10. The Tribunal went on at [8] to say that:

    ... At the time of the hearing, the applicant was not enrolled in a course of study and he requested a two week period post hearing to obtain either a letter of offer or Certificate of Enrolment. ...

11. It noted that it had allowed the applicant a period of two weeks after the hearing to obtain the required enrolment.  However, it went on to say:

    ... no further submissions were received by the due date of 5 May 2017.  As of today, 29 May 2017, the Tribunal has not received any further submissions from the applicant.

12. At [9] of its reasons, the Tribunal found that there was no evidence before it that the applicant was now enrolled in, or has a current offer of enrolment in any applicable course of study and therefore cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations were not met.  The Tribunal then went on to find that other requirements were not met and for those reasons the decision under review must be affirmed.

13. The applicant now seeks judicial review of the Tribunal’s decision. 

Consideration

1. In the applicant’s amended application there are four grounds.  The first three grounds rely upon an asserted failure by an education provider to discharge its obligation to the applicant under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code). 

2. The first ground asserts that there was jurisdictional error by the Tribunal because the “delegate’s decision was vitiated by the failure of the education provider to discharge its obligation” under the National Code, including its obligation to protect the interests of overseas students by ensuring that the student welfare and support services were provided and, it was added in oral submissions, to write to the applicant to inform him about his course progress.

3. The applicant’s solicitor was asked, during the course of the hearing, what evidence he relied upon to establish the asserted failure by the education provider to comply with the requirements under the National Code.  The solicitor submitted that all that was required was to point to the statutory requirement, and then to assert that there was a failure to comply with it.  That submission cannot be accepted.  It is an onus of any applicant on judicial review to establish that the Tribunal’s decision is affected by jurisdictional error. 

4. As part of that onus, it is necessary for the applicant to establish, by admissible evidence, any facts upon which it is relied to show that the asserted jurisdictional error occurred.  It is not sufficient, as asserted by the applicant in his submissions, simply to point out that there was a requirement.  What he had to show in the first place was that any such requirement was breached.  He has not done so.  For that reason, his attempt to rely upon the decision of the High Court in Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22 fails.

5. I note that the relevant obligation in that decision was under s.19 of the Education Services for Overseas Students Act2000 (Cth). Their Honours, Gageler and Keane JJ said at [9]:

   ...that is a registered provider to give to the Secretary of the Department of Education and Training specified information about each holder of a student visa who is enrolled in a course of education or training provided by that registered provider.

6. The obligations relied upon in these proceedings were of a completely different character and did not involve any notification to the Department or to the Secretary which could have been established by the production, for instance, of what are known as the PRISM records[1].

   [1] Provider Registration and International Student Management System: Wei at [10].

7. As the applicant has failed to establish an essential fact which is the basis of each of grounds 1, 2 and 3, those grounds must all fail.  I would add that there are a number of other difficulties with each of the grounds, including the fact that there does not appear to be any necessary connection between the obligation relied upon by the applicant in this case and the student visa application in question. 

8. I note, in particular, that the Tribunal’s decision turned not upon whether the applicant had continued to be a student or had met the requirements of the course in which he had previously been enrolled but, rather, that he currently held no enrolment or offer of enrolment in a registered education provider.  It is unnecessary to consider any of those further issues in detail because, as I have said, the factual basis for the argument has not been made out. 

9. The fourth ground in the amended application is that the Tribunal failed to consider the evidence before it.  The applicant relies upon the statement at [8] of the Tribunal’s reasons which I have set out above, to the effect that no further submissions were received by the Tribunal as at the date of the submission. 

10. The applicant asserts that that was, in light of the email of 26 April 2017, clearly incorrect and reveals that the Tribunal failed to consider that email.  I disagree.  It is clear from the context of what the Tribunal said at [8] that what the Tribunal was referring to was that there was no provision by the applicant of either evidence of an offer of enrolment, or confirmation of enrolment, in a registered provider.  That was the purpose for the relevant adjournment granted at the end of the hearing, and the time allowed by the Tribunal, for the applicant to obtain those relevant documents.

11. Further, it was as noted at [6] of the Tribunal’s reasons, the critical issue for decision.  Although the Tribunal uses the word “submissions” twice in [8], it would be taking an overly pernickety view of the Tribunal’s reasons to construe that paragraph simply to mean that there was no response from the applicant at all.  In those circumstances, I cannot and I do not infer, that the Tribunal overlooked the email of 26 April 2017.  In any event, even if it had overlooked that document, I do not find that there would have been jurisdictional error established.

12. The document is not something that was critical to the reasoning.  It was not something that might, if considered, have led to a different result.  There ass some argument before the Court that the Tribunal should have provided what was requested by the applicant.  This was argued in terms of unreasonableness which was clearly not adumbrated in the amended application, or in the applicant’s written submissions, and it is an argument that therefore was raised late and without notice; however, it can be dealt with fairly briefly.

13. Although the applicant’s oral argument relied upon the decision of the High Court in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and relied upon the same power that was addressed by the High Court in that case, namely, s.363(1)(b) of the Migration Act 1958 (Cth), in my view that provision had no bearing upon the issue at hand. The power in s.363(1)(b) was to “adjourn the review from time to time”.

14. That power had in fact been exercised by the Tribunal in favour of the applicant. It was exercised no doubt in appreciation of the fact that the applicant was bound to lose if he did not produce the documents which he was given an opportunity to obtain. The power however, does not, on my reading of s.363(1)(b), extend to giving what was requested by the applicant, namely a “written permission”. It is not at all clear to me what a written permission means, but even on its broadest reading, cannot fall within the power to adjourn the review from time to time.

15. That means that the request was made of the Tribunal to do something that it, in effect, had no power to do.  As a consequence, the failure by the Tribunal to have regard to that request could not have led it to a different decision.  It was not a document such as the one considered by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99, which might have supported the applicant’s claim to satisfy one of the criteria for the grant of the visa. It was a request which in effect could not have been met by the Tribunal. So even accepting the applicant’s newly raised argument, ground 4 cannot be made out.

Conclusion

1. For those reasons I am not satisfied that the Tribunal’s decision was affected by jurisdictional error and the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       20 July 2018