Oad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] FCA 91

FEDERAL COURT OF AUSTRALIA

Oad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 91   

Appeal from:	Application for leave to appeal from: Oad v Minister for Immigration [2020] FCCA 1129
File number:	NSD 562 of 2020
Judgment of:	PERRAM J
Date of judgment:	14 February 2023
Catchwords:	MIGRATION – application for leave to appeal interlocutory judgment – where Federal Circuit Court dismissed appeal application in show cause hearing – where student (subclass 573) visa application
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Migration Regulations 1994 (Cth) Sch 2 cl 573.223
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	8
Date of last submission:	16 January 2023
Date of hearing:	14 February 2023
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms K Evans
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

NSD 562 of 2020

BETWEEN:

AKASH CHANDER OAD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	14 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The Applicant is to pay the First Respondent’s costs in the sum of $4000.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

PERRAM J:

1. This is an application for leave to appeal from interlocutory orders made by the then Federal Circuit Court of Australia on 11 May 2020 dismissing the Applicant’s application for judicial review in that court.  These orders were made following a show cause hearing under the Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) which permit that court to dismiss an application if the court is satisfied that an applicant for relief does not have an arguable case for the relief.

2. The application for judicial review in the Federal Circuit Court related to the Applicant’s endeavours to secure the grant to him of a student visa, more particularly, a subclass 573 (Higher Education Sector) visa. The qualifying requirements for the visa are set out in cl 573.223 of Sch 2 of the Migration Regulations 1994 (Cth). Relevantly these requirements include that the visa applicant should be a genuine applicant for entry and stay as a student having regard to the stated intentions of the applicant to comply with any condition subject to which the visa is granted and any other relevant matter. The decision maker was the Administrative Appeals Tribunal (‘the Tribunal’). It was not satisfied that this requirement was met and affirmed an earlier decision of a delegate of the Minister to refuse the visa application.

3. Judge Driver set out in his reasons for judgment the Tribunal’s adverse conclusions about the Applicant’s visa history.  These included relevantly at [14]:

   The Tribunal formed the view that Mr Oad was using the student visa programme to circumvent the purpose of that programme by maintaining ongoing residence, given that he had completed no courses other than a brief introductory English course despite living in the country for seven years. The Tribunal considered Mr Oad’s evidence that he chose to not enrol in a course because his bridging visa did not require him to and concluded that he had sought to maintain his residency for reasons other than progressing academically.

4. His Honour then examined each of the Applicant’s proposed grounds of review in the Federal Circuit Court and concluded that each was without merit.  In this Court, the Applicant does not seek to cavil with Judge Driver’s conclusions.  The application and proposed draft notice of appeal in substance discloses seven grounds of appeal as follows (without alteration):

   (1)His Honour Judge Driver dismissed my application under rule 44.12(1)(a) of the Federal Circuit Court.

   (2)His Honour told me that I have certain limited time to appeal against his decision.

   (3)I have accepted what His Honour said but I want the honourable Federal Court to consider this review on the basis that since my arrival in Australia I was enrolled in approximately 22 courses which appear in Court Book page 163 and then courses were cancelled for reasons beyond my control and I believe that the fact that I was enrolled in so many courses should lead that I have intention indeed genuine intention to study. 

   (4)After speaking with His Honour Judge Driver I agree that His Honour could not find that the Administrative Appeals Tribunal decision is affected by an error of law.

   (5)I found that His Honour as well as the Minister's arguments are correct and that the Tribunal, based on the evidence before it, did not have strong evidence to support my claim that I am a genuine student and I have a genuine intention to return back home.

   (6)As a result of the current COVID-19 virus and my inability to depart Australia I now wish to appeal His Honour's decision with the view that the Federal Court may be capable of finding jurisdictional error. 

   (7)I have at all times maintained that I am a genuine student and I continue to believe so but my circumstances were beyond my control. 

5. The first five of these grounds do not allege any error on the part of the court below and, indeed, would appear to accept the correctness of Judge Driver’s conclusion that his Honour could detect no error in the reasoning of the Tribunal. 

6. The sixth ground is framed as an invitation to this Court to find jurisdictional error where the Federal Circuit Court had been unable to do so.  Given that the Applicant accepts that the Federal Circuit Court was correct to find that the Tribunal did not make any errors of law (which I will take to be a statement about jurisdictional error), the invitation is inconsistent with what the Applicant now accepts.  If this is what the proposed ground means, I reject it on that basis.  An alternative reading of the ground is that the Applicant agrees with the analysis of the court below but now invites this Court to see whether it can formulate for itself an argument which was not put to Judge Driver and then to find that that argument is correct.  Framed that way, I would reject the argument because: (a) it is not the role of this Court to go on a search for error; (b) even if it were, I am satisfied that Judge Driver was correct to conclude that the Tribunal had made no jurisdictional error; (c) even if I were to conclude that there was such a jurisdictional error (leaving aside materiality), such an argument was not put to the court below; and (d) even if all of those problems could be overcome it is difficult to see how, given the Applicant’s visa history, there could be any realistic chance of a different outcome. 

7. The final ground of appeal is inconsistent with the Tribunal’s conclusion that the opposite was the case.  On judicial review this Court does not consider the correctness of the Tribunal’s conclusion that the Applicant was not a genuine applicant for entry and stay as a student.  Rather, it considers whether the process of reasoning which led the Tribunal to this conclusion on the facts is marred in some way by an error of a jurisdictional kind.  As such, this ground does not disclose a proposition upon which this Court could act.  I therefore reject it.

8. In those circumstances, the proposed appeal has no prospects of success and leave will be dismissed with costs.  The Minister seeks costs in the fixed amount of $4,000 which I will order.  The orders of the Court will be:

   (1)the application for leave to appeal be dismissed; and

   (2)the Applicant is to pay the First Respondent’s costs in the sum of $4,000.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       14 February 2023