RAHEEMUDDIN v Minister for Immigration
[2014] FCCA 922
•26 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAHEEMUDDIN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 922 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal – student visa – no matter of principle – application dismissed. |
| Legislation: Migration Regulation 1994, cl.572.223 and 572.235 |
| Applicant: | KHAJA RAHEEMUDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 884 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 26 March 2014 |
| Date of Last Submission: | 26 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 26 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Solicitors for the Applicant: |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 20 June 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $4,700.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 884 of 2013
| KHAJA RAHEEMUDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal. The Tribunal made a decision on the 6th of June 2013 affirming a decision of the delegate made on the 10th of August 2011 refusing to grant the applicant a Student visa. Why it took from 2011 until 2013 for the review to take place was not apparent although ultimately not relevant to the decision I have to make.
The applicant is a national of India who applied onshore for a student visa on the 2nd of June 2011.
The delegate refused to grant the applicant a Student visa on the basis that the applicant failed to comply with the 2 requirements of the Regulations cl.572.223 and 572.235. Those clauses relate to whether or not he is a genuine student (the delegate found that there was at least 10 months when he was not enrolled in a registered course and/or substantially complied with the conditions of a Student visa.)
In any event, by the time the matter came to the Tribunal the core difficulty confronting the applicant was that he was no longer a student in that he was not enrolled in a course nor did he hold an offer of enrolment in any particular course of study. The Tribunal noted:
9. … that in its hearing invitation, dated 1 May 2013, the applicant had been invited to provide a number of documents, the first of which was a certificate of enrolment. Asked whether he had a current CoE (certificate of enrolment), the applicant responded that he did not. Asked why not, the applicant responded that he had not enrolled in any college. Asked why not, the applicant stated that he was thinking his review application would be refused and he would be asked to leave Australia. That was the main reason because this had been on his mind all year. The Tribunal noted that without a CoE, the application for review could not succeed. The applicant acknowledged this. Asked when he was last enrolled in a registered course, the applicant responded that it was in June 2011 and he last studied in 2010.
This refers to a letter to the applicant wherein the Tribunal squarely stated at point 1 in the letter that a certificate of enrolment was required or evidence that he was enrolled in or subject to a current offer of enrolment. That letter was sent on the 1st of May 2013.
The actual application for review was filed on the 6th of September 2011. It seems to me to be a matter that would be obvious even without looking at the Regulations that in order to obtain a Student visa one would need to either be enrolled or have an offer of enrolment to study. The applicant certainly had plenty of time to sort out his study arrangements between September 2011 and the date of the hearing before the Tribunal on the 24th of May 2013. Indeed given the types of courses he was undertaking at Certificate III or Diploma level there was a real prospect that he could have finished all of his studies just in the time it took for his visa application to be determined.
In any event there was no evidence before the Tribunal that he had an offer of enrolment or was enrolled in a course. He acknowledged this and did not seek an adjournment. The Tribunal made the formal finding at paras.11 and 12 as follows:
11. The applicant has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574, or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.321, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.
12. Additionally, there is no evidence before the Tribunal which suggests that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa.
As the Applicant did not meet an essential requirement for the visa, the Tribunal not surprisingly affirmed the decision of the delegate.
The applicant sets out 3 grounds for review in his Judicial Review Application filed 20th of June 2013. The first ground is that:
1. Decision has been made by Tribunal can be challenged at Federal court
Assuming that by this the reference is to the Federal Circuit Court the applicant is quite correct that a decision of the Migration Review Tribunal can be challenged by way of judicial review in the Federal Circuit Court of Australia. I accept that this Court has jurisdiction.
The second ground that the applicant sets out is:
2. Applying for Judicial review application in 35 days Time frame
In this case again I accept that the Court has jurisdiction and the application was brought within time. The Minister does not challenge either of these propositions.
The third ground is:
3. Section 476. My Tribunal decision comes under Jurisdiction of the Federal Circuit Court
Again this is accepted.
None of these grounds show a basis for overturning the Migration Review Tribunal decision. The applicant made submissions, on the assumption it seems to me, that I had some form of general discretion to allow him to have another hearing before the Tribunal or another opportunity to present material. Under the legislative scheme government has determined that the courts do not have any general discretion in migration matters. My powers with respect to migration matters are limited to strict judicial review of decisions of the Tribunal. On the question of strict judicial review the applicant has not set out any grounds that would form the basis for a decision in his favour.
The Counsel for the Minister quite properly identified some common grounds that are raised and addressed them in her written submissions. She addressed the possibility that the argument may have been that there was a failure to take account of relevant considerations but notes in her written submissions, as I have noted above in this judgment, that the Tribunal did not have a discretion in circumstances where there was no current enrolment or offer of enrolment given the way in which the Regulations are structured.
Counsel also addressed the possibility of a failure to afford procedural fairness on the basis that the applicant contends that he did not receive the letter from the Tribunal informing him either of the hearing date or perhaps the requirements. The reality is that the applicant did in fact appear before the Tribunal to give evidence and present arguments. He acknowledged that he was not enrolled nor had an offer of enrolment. There was nothing to indicate that he sought an adjournment. In these circumstances it seems to me that he was clearly on notice of the difficulties that he confronted and that there has not been a breach of the Rules relating to procedural fairness.
In the circumstances I therefore have no choice but to dismiss the current application.
[Further argument ensued]
The applicant has been entirely unsuccessful in this application. It appears to me that the application was misconceived in that it was apparent from the decision record that he could not have succeeded in his application to the Migration Review Tribunal in any event.
Costs ordinarily follow the event and there was nothing in this case that indicates a different outcome should flow.
In the circumstances I will order the applicant pay the Respondent’s costs. The scale fee is over $6,000. The Respondent quite properly identifies that the actual costs in this case, being a relatively simple case, are somewhat less than the scale fee and seeks the sum of $4,700. I find that this is a reasonable sum having regard to the scale fee being in excess of $6,000.
I therefore order that the applicant pay the respondent’s costs fixed at $4,700.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 7 May 2014
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