Rasheed v Minister for Immigration

[2015] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

RASHEED v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3228

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant: SADAF RASHEED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3113 of 2014

Judgment of: Judge Driver

Hearing date: 3 December 2015

Delivered at: Sydney

Delivered on: 3 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3113 of 2014

SADAF RASHEED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal),  made on 14 October 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Rasheed, a student visa.  Mr Rasheed applied for the visa on 27 February 2014 to undertake study in Australia.  At the time, the visa class contained a number of sub-classes.  Generally speaking, the relevant sub-class depends on the type of course the applicant is enrolled in.

2. The Minister’s delegate refused to grant the visa because Mr Rasheed did not satisfy the requirements of clause 572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because he was not satisfied that Mr Rasheed was a genuine applicant for entry and stay as a student. The delegate was not satisfied that Mr Rasheed was a genuine student and was not satisfied that he genuinely intended to stay in Australia temporarily. Mr Rasheed was dissatisfied with that decision and sought review before the Tribunal.

3. The Tribunal affirmed the decision, but for different reasons.  The issue before the Tribunal whether, at the time of decision, Mr Rasheed met the enrolment requirements for a student visa.  The Tribunal noted, at [7] of its reasons, that the Regulations require that at the time of decision the applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course and is of a specified type.  There are certain exceptions, but they were not considered to be relevant. 

4. Mr Rasheed appeared at a hearing before the Tribunal and provided some information about prior enrolment in courses in Australia.  These were in the fields of accounting, business, management, hairdressing and marketing.  He said he was no longer studying any of those courses and he was not currently enrolled in any registered course.  Prior to the hearing, the Tribunal had alerted Mr Rasheed to the need for him to demonstrate that he had a current enrolment.  At the hearing the Tribunal reiterated that this was a requirement for the grant of the visa.  Mr Rasheed referred to difficulties in his past studies, but could not overcome the fact that he was not then currently enrolled in any course of study.  It was for that reason that the Tribunal affirmed the decision under review. 

5. These proceedings began with a show cause application filed on 10 November 2014.  Mr Rasheed continues to rely upon that application.  The grounds are expressed in narrative form:

   My application for student visa was refused considering that I am not a genuine student.  Please note that I have genuine intentions to study and make a career.

   I was issued multiple eCoe by my institution (Unique International College) by there own choice and they pressed me to keep on changing my study path.  I could not get enough evidences during the request from the DIBP ad during my hearing with MRT and therefore my application was refused.  I wish to provide my statement to court to receive justice. (errors in original)

6. In essence, Mr Rasheed feels that he has been disadvantaged by an institution of dubious reputation and is seeking a better outcome. 

7. The application is supported by a short affidavit that I received as a submission. 

8. I received as evidence the court book filed on 20 November 2014.

9. I explained the legal issue in this proceeding to Mr Rasheed and invited submissions from him on the question of how he could overcome the difficulty of non-enrolment at the time of the Tribunal’s decision.  He referred to problems he had encountered with his education institution which he said is now subject to investigation.  It seems that he has been pushed from pillar to post by that institution which encouraged him to make multiple enrolments at different times.  That may well be so.  However, that does not say anything about the validity of the Tribunal’s decision. 

10. In my opinion, the application does not disclose any arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Rasheed said that he understood and that he would pay the costs if awarded. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  7 December 2015