MORANOK v Minister for Immigration

[2018] FCCA 2776

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORANOK v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2776

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in affirming decision of the delegate – whether the Tribunal erred by not recognising cl.572.223 of the Migration Regulations 1994 (Cth) had been met – whether the Tribunal erred by not accepting applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cll.572.223, 573.231 of sch.2

Applicant: MONTAKRAN MORANOK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1579 of 2017

Judgment of: Judge Smith

Hearing date: 14 August 2018

Date of Last Submission: 14 August 2018

Delivered at: Sydney

Delivered on: 14 August 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Nanson, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1579 of 2017

MONTAKRAN MORANOK

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 judicial review of a decision of the Administrative Appeals Tribunal made on 26 April 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a student visa. 

2. The applicant is a citizen of Thailand who was granted a student visa on 16 May 2014 and arrived in Australia on that visa on 31 May 2014.  On 16 December 2015, she applied for a further student visa in order to undertake certain studies in information technology.  On 29 April 2016, a delegate of the Minister made a decision to refuse to grant the applicant that visa.  The applicant then applied to the Tribunal for review of that decision. 

3. By letter dated 20 March 2017, the Tribunal wrote to the applicant to invite her to attend a hearing at the Tribunal. Amongst other things, the Tribunal requested that the applicant provide as quickly as possible a copy of her current certificate of enrolment (COE) as required for the grant of a student visa. That request related to one of the criteria for the grant of a student visa found in cl.573.231 of the Migration Regulations 1994 (Cth). That criterion meant that, in order to be granted the visa, the applicant had to be enrolled in, or subject of a current offer of enrolment in, a course of study that was a principal course. The applicant did not provide that document.

4. On 20 April 2017, the applicant attended a hearing conducted by the Tribunal.  At the hearing, the Tribunal asked her whether she was enrolled in, or subject to an offer enrolment in, a course of study.  The applicant gave evidence that she was not.  The Tribunal then drew to the applicant’s attention that it was a criterion for the grant of a student visa that she be enrolled in or subject to an offer enrolment in a course of study.  The applicant then gave certain evidence to which I will return in due course. 

5. On 26 April 2017, the Tribunal made a decision to affirm the delegate’s decision.  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.  In reaching that conclusion, the Tribunal at [11] of its reasons addressed the evidence that had been given by the applicant in respect of her enrolment and I set that passage out below:

   The applicant said she had not enrolled in any further courses after her enrolment was cancelled in January 2016. She told the Tribunal that as Strathfield College had cancelled her enrolment she did not think that she could enrol in any further courses. The Tribunal attempted several times to ascertain from the applicant who had told her that. Her responses were evasive and she referred to the letter or email she received from Strathfield College cancelling her enrolment. The applicant told the Tribunal that she thought that once an enrolment was cancelled she could not enrol in any further courses. Pursuant to the provisions of s. 359AA the Tribunal discussed with the applicant her Provider Registration and International Student Management System (PRISM) records, the applicant was also shown a copy at the hearing. The information contained within the records showed that the applicant had previously had enrolments cancelled on 9 occasions and that she had gone on to enrol in further courses, therefore the Tribunal had difficulty accepting her claim that she did not know that she could enrol in new course once her enrolment was cancelled. The applicant chose to respond immediately and provided the unsatisfactory responses that she thought that it might be different this time as her visa was actually refused and that her case was in the hands of her agent.

6. In her application to this Court for review of the Tribunal’s decision, there are three grounds.  The first is the Tribunal made jurisdictional error in making its decision.  That ground is not particularised and the applicant has neither submitted written nor made any oral submissions in support of it.  As a mere assertion, it does nothing to assist the Court to determine whether or not the Tribunal properly conducted its review.  For that reason the ground must be rejected. 

7. The second ground is that the Tribunal ignored the fact that the applicant met the requirement of cl.572.223 of sch.2 to the Regulations to be a genuine student. It is true to say that, subject to the type of study an applicant proposes to engage in, cl.572.223 is a criterion for the grant of a student visa. Indeed, the delegate had made a decision to refuse the applicant a visa because that criterion had not been satisfied. However, it was also necessary for the applicant to satisfy the criterion in cl.572.231 and it was that criterion to which the Tribunal addressed itself. As the applicant did not satisfy that criterion, it was not necessary for the Tribunal to go on to consider the requirements of cl.572.223. For that reason, leaving aside whether or not the applicant in fact did satisfy that criterion, there was no error in the Tribunal not considering it. For those reasons, the second ground is rejected.

8. The third ground in the application is that the Tribunal erred in refusing to accept the reason why the applicant did not enrol in any course after her COE was cancelled.  The Tribunal gave its reasons for not accepting the applicant’s explanation at [11] of its reasons, which is set out above.  The Tribunal noted that the applicant’s responses to its questions in this respect were evasive.  The Tribunal also noted that it had difficulty accepting her claim because she had previously had her enrolments cancelled on nine occasions and then she had gone on to enrol in further courses.  That was a rational basis for not accepting the applicant’s explanation for failing to be enrolled in, or subject of an offer of enrolment in, a principal course. In light of that, the ground appears to be nothing but an attack on the merits of the Tribunal’s reasons for decision. 

9. In any event, it is not clear to me that it would have made any difference whether the Tribunal had accepted the applicant’s explanation for not being enrolled in, or subject to an offer of enrolment.  Satisfaction of the criterion turned on the fact of enrolment in, or offer of enrolment and not whether or not there was a reasonable excuse for the absence of such matter.  For those reasons, the third ground is rejected.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Tribunal’s decision.  The application must be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     11 October 2018