Rami v Minister for Immigration - [2016] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1127

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to properly exercise its jurisdiction – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.368(2)(b), 368(2A), 476

Migration Regulations 1994, reg.1.03, Schedule 2, cls.573.222, 572.223(1)(a)

Applicant:

JAYMIN MAHENDRAKUMAR RAMI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3347 of 2014

Judgment of:

Judge Street

Hearing date:

11 May 2016

Date of Last Submission:

11 May 2016

Delivered at:

Sydney

Delivered on:

11 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent:

Ms B Griffin
Australia Government Solicitors

ORDERS

The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $4400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3347 of 2014

JAYMIN MAHENDRAKUMAR RAMI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 4 December 2014, affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa.
The applicant, who is a citizen of India, arrived in Australia on 12 April 2010 as the holder of a subclass 573 student visa. The applicant was granted a second student subclass 573 visa which ceased on 19 October 2013. On that date, the applicant applied for a third student visa. On 19 May 2014 the delegate refused the application on the basis that the applicant did not satisfy cl.572.223(1)(a) of schedule 2 to the Migration Regulations 1994.
In substance, the delegate found that he was not satisfied that the applicant genuinely intended to stay temporarily in Australia, and that the applicant did not meet the requirements of cl.573.223(1)(a)(iii). The applicant applied for a review of the delegate’s decision on 6 June 2014. On 12 June 2014 the Tribunal wrote to the applicant, acknowledging the application for review and referred to the applicant having an opportunity to provide materials or written arguments to the Tribunal for the Tribunal to consider, and that the applicant should do so as soon as possible.
On 8 October 2014 the applicant was sent a letter inviting the applicant to appear at a hearing on 3 November 2014. That covering letter included a notation exhorting the applicant to provide all documents the applicant intended to rely upon to establish that the applicant met the criteria for the visa.
Relevantly, that letter also included a specific request for specific information to be provided as quickly as possible. The first document was a copy of your current certificate of enrolment, COE, as required for the grant of the student visa. The applicant appeared at the hearing on 3 November 2014 to give evidence or present arguments. The applicant expressly told the Tribunal that he does not currently hold any certificate of enrolment.
Regulation 573.22 identifies criteria to be satisfied at the time of decision. Clause 573.222 expressly refers to the need for a certificate of enrolment relating to the applicant undertaking a course of relevant study. The term “certificate of enrolment” is also defined in reg.1.03.
The Tribunal noted that there is a PRISM record identifying the history of the applicant’s pursuit of courses and the applicant expressly told the Tribunal that the course of enrolment in which he had last been engaged was cancelled around August 2013. The applicant told the Tribunal that he had trouble finding an education provider willing to enrol him.
The applicant told the Tribunal that he would be able to provide a certificate of enrolment within a few weeks if the Tribunal gave him extra time. The Tribunal noted that the applicant’s evidence did not reveal any credible reason why he would be able to obtain a certificate of enrolment in the next weeks when he had not provided one since the cancellation of his most recent certificate of enrolment in August 2013.
The Tribunal also made reference to the letter inviting the applicant to appear before the hearing which expressly informed the applicant of the requirement as quickly as possible to provide a copy of his current certificate of enrolment. It was in those circumstances, together with the acknowledgment by the applicant, that he was not so enrolled, that the Tribunal found that the applicant did not meet the criteria under cl.573.222.
The Tribunal also went on to make findings as to whether the applicant intends, genuinely, to stay in Australia temporarily and was a genuine applicant for entry and stay as a student. The Tribunal found it was not satisfied that the applicant was a genuine applicant for entry and stay as a student, because the Tribunal is not satisfied the applicant intends, genuinely, to a stay in Australia temporarily. Accordingly, the Tribunal found the applicant did not meet the requirements of cl.573.223(1)(a).
On 18 February 2015 a Judge of the Court made orders providing the applicant with an opportunity to file an amended application affidavit and recent submission. No such documents were filed by the applicant.
The application identifies the following grounds:
1. I had asked extension of time
2. I provide document within 3 days
3. MRT took 5 months but didn’t give me 4 days.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether or not the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either a denial of procedural fairness to the applicant or an excess of statutory power by the Tribunal.
The Court explained that if satisfied there was relevant legal error, the Court would set aside the decision and remit the matter to the Tribunal and if not so satisfied, the Court would dismiss the application. The Court explained it intended to identify the evidence and then hear submissions from the applicant, then submissions from the solicitor for the first respondent and then submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.
Ground 1 refers to the applicant having asked for an extension of time from the Tribunal. Paragraph 11 of the Tribunal’s determination identifies the considerations that the Tribunal took into account at the hearing in respect of the request for further time. The decision of the Tribunal not to provide further time to the applicant cannot be said to lack an evident and intelligible justification.
The decision of the Tribunal to proceed with its determination of the review application was reasonable, and nothing said by the applicant from the bar table identified any basis upon which there could be said to be jurisdictional error in respect of the Tribunal’s decision to proceed with its determination.
Ground 2 refers to the applicant providing an offer document three days after the decision. The decision of the Tribunal was made on 4 November 2014 and expressly identifies a time of decision, being 3:50 pm. Under s.368(2)(b) of the Migration Act 1958 a decision of the Tribunal is taken to have been made on the day and at the time the decision is made.
The material subsequently provided by the applicant in the Tribunal is not capable of giving rise to any jurisdictional error by the Tribunal. I note that the material provided was not, in fact, a course of enrolment but, be that as it may, the Tribunal responded, informing the applicant that it was functus officio. That position identified by the Tribunal was entirely correct, having delivered its decision consistent with s.368(2A) of the Migration Act 1958. There is a statutory identification that the Tribunal has no power to vary or revoke its decision after the day and time on which the decision is made. In those circumstances, ground 2 is not capable of giving rise to any jurisdictional error.
The applicant said he was not able to obtain a certificate of enrolment after the decision of the Tribunal because his visa had been cancelled. The applicant also said that he had asked for more time in order to obtain a certificate of enrolment for the Tribunal. Nothing said by the applicant identified any jurisdictional error by the Tribunal.
The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 June 2016