Phiri v Minister for Immigration

[2019] FCCA 3299

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHIRI & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3299

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal failed to consider relevant material – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations1994, cl.572.222

First Applicant: DAVID PHIRI

Second Applicant: CAROLINE KALUBA NACHANDE

Third Applicant: LINDIWE PHIRI

Fourth Applicant:  MPHASO PHIRI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 412 of 2017

Judgment of: Judge Street

Hearing date: 15 November 2019

Date of Last Submission: 15 November 2019

Delivered at: Perth

Delivered on: 15 November 2019

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Mr M Sunits
Australian Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The first applicant is appointed as the litigation guardian of the third and fourth applicants and the Court dispenses with the need for the filing of any further document in that regard.

3. The application is dismissed.

4. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,500.00.

DATE OF ORDER: 15 NOVEMBER 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 412 of 2017

DAVID PHIRI

First Applicant

CAROLINE KALUBA NACHANDE

Second Applicant

LINDIWE PHIRI

Third Applicant

MPHASO PHIRI

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 18 July 2017 affirming the decision of a delegate not to grant the first applicant a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (“Student visa”).

2. The first applicant is a citizen of Zambia. The second applicant is the first applicant’s partner. The third and the fourth applicants are the children of the first and second applicants. The Court made an order appointing the first applicant the litigation guardian on behalf of the third and fourth applicants.

3. The delegate identified that the first applicant arrived in Australia on 14 October 2004 on a Student (TU573) visa. The delegate identified that the first applicant has since held numerous other student visas, graduate skilled and bridging E visas. The delegate identified that, of all the courses of study that the first applicant had enrolled in in support of his student visa applications, he had completed one Diploma of Commerce with a start date of 13 September 2006 and a completion date on 29 September 2006. The delegate identified that all other courses in which the first applicant had been enrolled had been cancelled after the grant of the related visa for a variety of reasons, including failure to pay course fees on multiple occasions.

4. The delegate found that the first applicant did not have a genuine intention to remain in Australia temporarily and refused to grant him a Student visa on 8 September 2015.

5. On 17 September 2015, the first applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 16 June 2017, the applicant was invited by the Tribunal to attend a hearing on 18 July 2017. That letter expressly identified that the first applicant needed to provide on the second page: “A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.”

6. The first applicant attended the hearing on 18 July 2017 to give evidence and present arguments. The first applicant informed the Tribunal that he did not hold a current offer of enrolment. The Tribunal identified that the applicant had been in Australia for almost 13 years and had completed one course of study. The Tribunal was also concerned whether the first applicant had a study history of a genuine student.

7. The first applicant referred to a course of enrolment being numbered 724B8C67 and which was for a Diploma of Project Management Practice. The Tribunal noted that that course of enrolment was cancelled on 21 July 2015. The Tribunal referred to the first applicant’s explanation for the cancellation. The Tribunal found that, because the applicant is not currently enrolled and does not have a current offer of enrolment, the first applicant does not satisfy cl 572.222 of the Migration Regulations 1994, which is a pre-requisite for the grant of a student visa. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 31 July 2017. On 18 August 2017, a Registrar made orders providing the first applicant an opportunity to file an amended application, affidavit and submissions. The first applicant filed an affidavit following that order.

2. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing and the first applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the first applicant explained that, because his student visa had been cancelled, he thought that he could not obtain another course of enrolment or certificate of enrolment. The first applicant also alleged that when he endeavoured to obtain a certificate of enrolment from the place at which he had been studying, he was told he could not. The first applicant contended that it was for this reason that he could not obtain a current course of enrolment.

4. There is no evidence before the Court to support the proposition that the first applicant was unable to obtain a course of enrolment because his student visa had been cancelled. More importantly, the letter inviting the first applicant to attend the hearing by the Tribunal expressly identified to him the need to have a current course of enrolment. The fact that the first applicant had a course of enrolment in the past which was cancelled does not meet the mandatory criteria that the first applicant had to meet at the time of hearing.

5. The Tribunal was correct to find that the first applicant did not meet the criteria for the grant of a Student visa. On the face of the Tribunal’s reasons, the first applicant had a real and meaningful hearing before the Tribunal, and the Tribunal complied with its statutory obligations. Nothing said by the first applicant from the bar table identified any jurisdictional error.

6. The applicant sought to advance the circumstances as being ones which might warrant a compassionate course if this Court had power to do so. This Court has no power to determine the matter on compassionate or discretionary grounds, nor can the Court revisit the merits of the decision by the Tribunal. Nothing said by the applicant identified any jurisdictional error.   

The ground

1. The ground in the application is as follows:

   1. The decision of the AAT was affected by jurisdictional error. While the AAT considered my CoE 727E1C78, it did not take note of my CoE 724B8C67. This failure to consider is a jurisdictional error.

2. There is nothing before the Court to suggest that the Tribunal failed to take into account the first applicant’s past enrolment record. More specifically, 724B8C67 which the first applicant referenced was a course that had been cancelled at the time of hearing or prior to the time of hearing before the Tribunal.

3. There is no basis to find that the Tribunal failed to take into account the first applicant’s academic history. Indeed, it was clear that the Tribunal took into account the first applicant’s history and expressed some concern as to whether the first applicant was a genuine student.

4. Nevertheless, the Tribunal noted that the first applicant confirmed at the hearing that he was not enrolled in a current course of enrolment. In these circumstances, the first applicant did not meet the mandatory criteria that he had to meet for the purpose of a grant of a student visa. There was no jurisdictional error by the Tribunal.

5. Accordingly, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  12 February 2020