NEHRUPANDIYAN v Minister for Immigration

[2018] FCCA 1782

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEHRUPANDIYAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1782

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal failed to consider the applicant’s compelling circumstances – whether the Tribunal failed to perform the review – whether the Tribunal’s decision was affected with jurisdictional error –no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), cl. 500.211, 500.212

Applicant: BHARATHI NEHRUPANDIYAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3920 of 2017

Judgment of: Judge Street

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Sydney

Delivered on: 3 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3920 of 2017

BHARATHI NEHRUPANDIYAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of India and was initially granted a Visitor (Business Stream) (FA-600) visa offshore on 16 March 2016, which was valid until 10 July 2016. The applicant applied for the Student visa on 9 July 2016. That application is the subject of criteria identified under cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant's circumstances; and

   (ii) the applicant's immigration history; and

   (iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (iii) of any other relevant matter.

3. As part of the Student visa application, the applicant was contacted by a Department officer on 22 August 2016 and an interview was conducted. In that interview, the applicant claimed inter alia that he worked in quality inspection. On 14 September 2016, the delegate refused the grant of the Student visa as the delegate had concerns that the applicant claimed to be a sales executive for the grant of his subclass FA-600 visa, yet when questioned during the interview he did not mention that he was a sales executive. Instead, the applicant identified that he worked in quality control. The delegate considered this inconsistency resulted in concerns about the applicant’s veracity and, by extension, the truth of his claims to be a genuine student.

4. The delegate was not satisfied that the information provided by the applicant was sufficient to demonstrate that he was a genuine temporary entrant. The delegate found the applicant did not meet the requirements of cl 500.212 of the Regulations.

The Tribunal

1. The applicant lodged an application for review to the Tribunal on 4 October 2016. On 27 October 2017, the applicant was invited to attend a hearing. In that letter, the applicant was invited to provide a copy of a current certificate of enrolment (“COE”) as required for the grant of a student visa. No response was given to that invitation. The applicant did appear before the Tribunal to give evidence and present arguments and was assisted by a migration agent, although the migration agent did not attend the hearing.

2. At the hearing, the applicant submitted an out of date enrolment from the Australian International Language College for Certificates III and IV in Spoken and Written English. The enrolment offer was in relation to courses from 18 July 2016 to 5 February 2017 and from 6 February 2017 to 27 August 2017. The Tribunal, in delivering reasons affirming the decision under review, noted that cl 500.211 of the Regulations requires that at the time of the decision the applicant must be enrolled in a course of study.

3. The Tribunal considered the documents submitted by the applicant at the hearing were out of date. The Tribunal found there was no evidence before it to show the applicant commenced or finished either of these courses. The Tribunal noted that it had not received any evidence to demonstrate the applicant had completed any courses of study since his arrival in Australia. The Tribunal noted the applicant was asked to provide a copy of a current certificate of enrolment in its hearing invitation.

4. The Tribunal noted that during the hearing the applicant was asked whether he was currently enrolled in a course of study and that the applicant said he was consulting about it. The Tribunal noted that no COE was provided to the Tribunal. The Tribunal therefore was not satisfied at the time of decision that the applicant was enrolled in a course of study in accordance with cl 500.211 of the Regulations and found that that criteria was not met and that the applicant failed to meet the criteria for the grant of the visa.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court. On 29 January 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The grounds in the application are as follows:

   1. I am a national of India, born on 5^th June 1991.

   2. I applied for a Subclass 500 Student Visa on the 19^th of July, 2016. The delegate refused this visa on the basis that I did not satisfy cl.500.211 to cl.500.218 of the regulations. The delegate did not consider the compelling and compassionate circumstances I had for not meeting this requirement.

   3. I sought a review of the delegate’s decision as the Administrative Appeals Tribunal (AAT) but the AAT did not give a fresh look at my case but rather affirmed the decision.

   4. I believe that the AAT and DIMP made an error by not considering the compelling reasons I had for not satisfying cl.500.211 to cl.500.218 of the regulations. I also gave evidence for the reasons I could not meet this requirement but it was still not taken into consideration.

   5. The education quality in Australia is far superior to my home country, which is why I wished to commence my studies here.

   6. I need to gain skills that will lead to a successful career in India to support my family and without an Australian education I cannot do this. I am prepared to commence my studies in Australia. The injustice of the AAT and DIBP’s decision will have detrimental impacts on my life if I cannot complete my studies here.

   7. I wish to be given a fair chance to pursue my study goals and complete my academic career here in Australia.

   8. I believe the AAT has made a jurisdictional error in deciding my application and I would like the Federal Circuit Court to investigate this matter and return my application to the Administrative Appeals Tribunal for reassessment.

3. The grounds in the application, in substance, mirror the substance of the applicant’s affidavit in support of the application for review.

Grounds 1, 5, 6 and 7

1. Grounds 1, 5, 6 and 7 are statements of fact and do not reveal any jurisdictional error. Accordingly, no jurisdictional error is made out by grounds 1, 5, 6 and 7.

Grounds 2 and 4

1. Grounds 2 and 4 assert the Tribunal failed to consider the applicant’s compelling circumstances. There is no provision in Part 500 of Schedule 2 of the Regulations which allows the Tribunal to dispense with the criteria for a course of enrolment at the time of decision on the ground of compelling reasons. Nor did the Tribunal have a discretionary or compassionate power to exercise in relation to the mandatory criteria of a course of enrolment at the time of decision.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The applicant, on the face of the material before the Court, had a real and meaningful hearing and was given an opportunity by the hearing letter from the Tribunal to obtain a current course of enrolment. No jurisdictional error is made out by grounds 2 and 4.

Ground 3

1. In relation to ground 3, the applicant requests the Court to give a fresh look at the applicant’s matter. This Court has no power to engage in a merits review. The Court has no power to determine the applicant’s case on discretionary or compassionate grounds. On the face of the material before the Court, the Tribunal made findings that were open to the Tribunal for the reasons given by the Tribunal as summarised above. Those findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 3.

Ground 8

1. In relation to ground 8, this is a generalised assertion of jurisdictional error but does not provide any particulars to identify the nature of the error. As such, the ground is incapable of establishing any jurisdictional error. No jurisdictional error is made out by ground 8.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  31 August 2018