Moussa v Minister for Home Affairs

[2019] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOUSSA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1187

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1994 (Cth)

Applicant: HANY AHMED HUSSEIN MOUSSA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2101 of 2018

Judgment of: Judge Driver

Hearing date: 7 May 2019

Delivered at: Sydney

Delivered on: 7 May 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Sanderson of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2101 of 2018

HANY AHMED HUSSEIN MOUSSA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Moussa, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 July 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Moussa a temporary student visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 30 April 2019.   

2. Mr Moussa, a citizen of Egypt, first arrived in Australia on 13 November 2006 as the holder of a student (subclass 572) visa.[1]  On 18 November 2016, Mr Moussa applied for a further student (subclass 500) visa.[2]

   [1] Court Book (CB) 52

   [2] CB 1

3. On 29 March 2017, the delegate refused to grant Mr Moussa the visa.[3] Relevantly, the delegate was not satisfied that Mr Moussa met the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required that Mr Moussa genuinely intended to remain in Australia temporarily.[4]  On 18 April 2017, Mr Moussa applied to the Tribunal for review of the delegate’s decision.[5]

   [3] CB 47

   [4] CB 50

   [5] CB 56

4. On 19 June 2018, the Tribunal wrote to Mr Moussa, inviting him to attend a hearing and attaching “Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications” (Direction No 69).[6]  The invitation requested that Mr Moussa provide evidence of his current enrolment (as “required for the grant of a student visa”), past studies and an explanation for any gaps in his studies.[7]  Mr Moussa did not respond to this invitation.

   [6] CB 63

   [7] CB 65

5. Mr Moussa appeared at a hearing before the Tribunal on 18 July 2018.[8] On 24 July 2018, the Tribunal affirmed the delegate’s decision.[9]

   [8] CB 83 at [4]

   [9] CB 82

Tribunal decision

1. The Tribunal outlined the procedural history of the matter, noting that the delegate had refused to grant the visa on the basis that Mr Moussa failed to satisfy clause 500.212 of the Regulations.[10] The Tribunal noted that while the issue before the delegate was whether Mr Moussa satisfied clause 500.212, the issue before the Tribunal was whether Mr Moussa was enrolled in a course of study in accordance with clause 500.211(a).[11] The Tribunal also considered that this was not a case where Mr Moussa claimed to meet any of the alternative criteria in clause 500.211.[12]

   [10] CB 83 at [1]-[3]

   [11] CB 85 at [20]-[22]

   [12] CB 85 at [22]

2. The Tribunal put to Mr Moussa, pursuant to s.359AA of the Migration Act 1958 (Cth) (Migration Act), information contained in the Provider of Registration and International Student Management System (PRISMS) records, which indicated that Mr Moussa was not enrolled in a “course of study”.[13]  In response, Mr Moussa told the Tribunal that he did not require any further time to consider his response and indicated that he had no comments to make in response to the information put to him at the hearing.[14]

   [13] CB 84 at [14]-[18]

   [14] CB 85 at [19]

3. The Tribunal found that Mr Moussa did not satisfy clause 500.211 and, therefore, did not meet the criteria for the grant of the visa.[15]  In so finding, the Tribunal observed that Mr Moussa:[16]

   a)had studied a number of courses since his arrival in Australia in 2006, a number of which he failed to commence or complete;

   b)had completed some courses in Australia, but noted that there was an “overall lack of academic progression” in his study history since 2006;

   c)ceased study in a Certificate IV in Bookkeeping course in or around April 2017 and his enrolment in the course was subsequently cancelled in June 2017 due to non-payment of tuition fees; and

   d)there was no evidence before the Tribunal to suggest that he had a current offer of enrolment in any course.

   [15] CB 85 at [26]

   [16] CB 85 at [25]

4. The Tribunal further noted that Mr Moussa had not provided any evidence of enrolment in an approved course in response to its request to do so in the hearing invitation.[17]  The Tribunal found there was no evidence to suggest Mr Moussa was enrolled or had a current offer of enrolment[18] and that he did not meet clause 500.211 of the Regulations.[19]

   [17] CB 83 at [8]-[9]

   [18] CB 85 at [25]

   [19] CB 85 at [26]-[27]

5. Accordingly, the Tribunal affirmed the decision under review.[20]

   [20] CB 86 at [28]

The present proceedings

1. These proceedings began with a show cause application filed on 30 July 2018.  Mr Moussa continues to rely upon that application.  The grounds are:

   1.The Tribunal admitted that I studied and completed various courses but failed to understand that the reason why I did not complete and continue my studies because the Department refused my visa.

   2.The Tribunal accepted that I had completed some of the courses but made a finding that there is an overall lack of academic progression in my study history since 2006.

   3.The Tribunal fell into error by misunderstanding the issue and progress of my study as I did study and I had the intention to start a successful business in my country of Egypt.

   4.The Tribunal failed to accept that I discontinued my studies because the Department refused to give me student visa or renew my student visa as the Department did in the past.

   5.The Member of the Tribunal misunderstood the reasons why I stopped studying which is the result of the refusal of my student visa.

2. I have before me as evidence Mr Moussa’s short affidavit filed with his application, and the court book filed on 17 September 2018.  Mr Moussa denied receipt of the court book, but I am satisfied by exhibit R1 that it was sent to him on 17 September 2018 to his address for service.  I have provided Mr Moussa with the original court book from the court file for the purposes of today’s hearing. 

3. Mr Moussa sought an adjournment of today’s hearing in order to obtain legal representation.  Mr Moussa commenced the proceedings as a litigant in person, but subsequently obtained legal representation.  His lawyer withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) by notice filed on 6 May 2019. I refused the adjournment, having regard to the amount of time the case has been on foot. I also explained to Mr Moussa that the purpose of today’s hearing was to seek to identify any arguable case of jurisdictional error. I explained to Mr Moussa that if an arguable case of error existed, he would have time to obtain legal representation for a final hearing.

4. Only the Minister prepared prehearing written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from Mr Moussa.  He declined to make any.  I took him through the grounds in his application and invited his comment on them.  He said he had no submissions to make.  I explained to Mr Moussa the basis for the Tribunal’s decision.  He appeared to understand, but still did not wish to make any submissions.

5. In my view, Mr Moussa before the Tribunal faced an insuperable problem.  Mr Moussa did not hold at the time of the Tribunal’s decision an enrolment or offer of enrolment.  The Minister’s submissions correctly address that issue.  I agree with those submissions. 

6. The grounds of review advanced by Mr Moussa misunderstand the basis for the Tribunal’s decision. As outlined above, the Tribunal made a finding that Mr Moussa did not satisfy clause 500.211 of the Regulations, which prescribes that the applicant must, at the time of decision, be enrolled in a course of study in accordance with clause 500.211(a). The Tribunal has now power to grant the visa in circumstances where the applicant does not satisfy this criterion. Accordingly, it was irrelevant, insofar clause 500.211 was concerned, whether Mr Moussa genuinely intended to study, had previously studied and/or had ceased studying on account of the delegate’s decision. The Tribunal properly applied the law, in particular clause 500.211 of Schedule 2 of the Regulations, taking into account the documents Mr Moussa provided and the oral evidence he gave at the hearing. The grounds advanced by Mr Moussa raise no arguable jurisdictional error on the part of the Tribunal and otherwise seek review of the merits of the Tribunal’s decision.

7. For the sake of completeness, Grounds 1, 4 and 5 may, on a beneficial reading, be understood to assert that Mr Moussa did not have a current offer of enrolment due to the refusal of his visa application. Even if this were so, clause 500.211 of the Regulations requires that at the time of decision, Mr Moussa be enrolled in a course of study.  On his own evidence, he was not.[21]  Clause 500.211 of the Regulations does not permit consideration of why an applicant may not be enrolled in a course of study. Therefore, the issue of why Mr Moussa was not enrolled in a course of study at the time of decision was not a relevant consideration.  Accordingly, no jurisdictional error is established.

   [21] CB 84 at [11]

8. I conclude that Mr Moussa is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

9. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules, the application is dismissed.

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Moussa did not wish to be heard on costs.

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 May 2019