Rauf v Minister for Immigration

[2020] FCCA 792

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAUF v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 792

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – where the applicant held no confirmation of enrolment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 476

Migration Regulations 1994 (Cth), cl.500.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: HAMMAD HUSSAIN RAUF

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 376 of 2019

Judgment of: Judge Kendall

Hearing date: 6 April 2020

Date of Last Submission: 6 April 2020

Delivered at: Perth

Delivered on: 9 April 2020

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 376 of 2019

HAMMAD HUSSAIN RAUF

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 20 August 2019.

2. The Tribunal affirmed a decision of the first respondent (the “Minister”) to not grant the applicant a Student (Temporary) (Class TU) visa (the “visa”).

3. This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

4. The Court had before it the applicant’s judicial review application dated 23 September 2019, a Court Book (“CB”) numbering 77 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 23 March 2020.

5. The Court confirmed with the applicant that he had a copy of the Court Book and the Minister’s written submissions.

6. The hearing of this matter on 6 April 2020 proceeded by way of teleconference. In light of the current health advice, the Court was of the view this was an appropriate manner in which to conduct the hearing. The applicant did not request nor require an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for both parties to participate and engage in the proceedings.

Background

1. The applicant is a citizen of Pakistan. He arrived in Australia as the holder of a Student (Class TU Subclass 573) visa on 5 October 2015 (CB 35).

2. On 6 September 2018, the applicant applied for the visa the subject of this application (CB 1-19). The applicant indicated that he intended to study an Advanced Diploma of Business and a Bachelor of Business.

3. On 26 October 2018, the delegate refused to grant the applicant the visa (CB 29-37). The delegate was not satisfied that the applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant was a genuine temporary entrant.

4. On 12 November 2018, the applicant applied for review of the delegate’s decision at the Tribunal (CB 38-39).

5. The applicant attended a hearing before the Tribunal on 2 August 2019 (CB 48-58 and 64-66).

6. On 20 August 2019, the Tribunal refused to grant the applicant the visa (CB 56-58).

Tribunal’s Decision

1. The Tribunal’s decision is 16 paragraphs in length.  Relevantly, it provides:

   5. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant’s response to the Tribunal’s request for information, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.

   6. In strict accordance with the procedure set out in section 359AA of the Act, the Tribunal put to the applicant enrolment records from the Provider Registration International Student Management System database. These records confirmed that the applicant was not enrolled in a course of study at the time of the Tribunal hearing and the applicant confirmed this in oral evidence to the Tribunal.

   …

   10. At the hearing the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate. No such evidence was forthcoming.

   11. The applicant confirmed in sworn evidence that no current enrolment in a course of study exists.

   12. At the conclusion of the hearing the applicant sought and was granted until close of business on 16 August 2019 to provide further information in writing to the Tribunal, concerning his enrolment status or any other matter. The applicant did not provide the information within or after the period granted and no extension of time was requested.

   13. Accordingly, there is no evidence before the Tribunal that the applicant is enrolled in any course of study.

   14. Therefore cl.500.211 is not met by the applicant.

Proceedings in this Court

1. The application for judicial review contains four grounds of review as follows:

   1. I was given the time for providing a Confirmation of Enrollment but I couldn’t, not due to my irresponsibility it was my education provider irresponsibility, they thought it was an unimportant matter so they didn’t make my thing a priority. I have evidence regarding it.

   2. Due to this decision my education which is almost halfway through will go to waste as it isn’t completed. I have also spend thousands of dollars for getting this qualification which will also go to waste.

   3. As I’m new to law and to this respectful country. I haven’t had anyone to provide me legal guidance as stated in the decision not extension of time was applied, if I had known about this I would go for it and provide them with a Confirmation of Enrollment for my case. I went to AAT on my own too as I haven’t had any extra funds to support me with a legal guidance. I’m an international student and cannot support me with a legal guidance because of the expenses they charge.

   4. All of my hard work for all these years will go for a waste. My future too.

   (Without alteration)

2. The applicant was provide an opportunity to file an amended application, any affidavit evidence and an outline of submissions in support of his application. No further materials were provided by the applicant.

3. The applicant appeared before the Court without legal representation. The Court allowed him the opportunity to elaborate on, and further particularise, his grounds of review and detail any other concerns he had with the Tribunal’s decision. This is the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

4. To assist the applicant, the Court explained to him that this Court can only turn its attention to whether the Tribunal fell into jurisdictional error.  The Court explained that for migration decisions of this sort the types of “mistakes” the Court seeks to address fall into the following categories:

   a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

   b)where the decision-maker ignores relevant material: Craig at 198;

   c)where the decision-maker relies on irrelevant material: Craig at 198;

   d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

   e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

5. It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now seeks.  Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

6. Against this background, the applicant was asked to explain what he thought the Tribunal “did wrong”.  In effect, the applicant submitted that he did “not think that the Tribunal did anything wrong”. Rather, he did not have any assistance before the Tribunal and did not know that he could request an extension of time to provide the confirmation of enrolment. The applicant explained that he was advised by the Tribunal at the hearing that he could have 14 days to provide an enrolment. He then went to his course provider, that course provider said it required upfront payment, he could not raise the funds within 14 days and did not know that he could apply for an extension of that 14 day period from the Tribunal.

7. The Court will address the applicant’s grounds of review and his oral submissions below.

Consideration

1. The applicant’s grounds of review do not appear to identify any error on the part of the Tribunal.

2. Ground 1 suggests that the reason the applicant could not provide a confirmation of enrolment was because of the actions of his course provider – not his own actions. The applicant has not provided any evidence in this regard despite having been given an opportunity to do so. At hearing, the applicant submitted that his course provider required upfront payment of his tuition fees before a confirmation of enrolment could be provided.

3. This ground stresses “irresponsibility” on the part of the relevant course provider. In this context, “irresponsibility” (to the extent that it exists – and the Court makes no comment in this regard) points to no more than negligence or incompetence on the part of an independent entity.  Any actions by that entity cannot vitiate the Tribunal’s decision: Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501.

4. Further, and importantly, there is no indication that the applicant had advised the Tribunal that he had attempted to get what was required or was waiting for the provider to provide the evidence he needed.  In the absence of the Tribunal having any knowledge of what was happening, the Tribunal is limited to the material that it has before it and it cannot be said that the Tribunal fell into error by not granting the applicant more time in these circumstances. 

5. Ground 1 is, accordingly, dismissed.

6. Grounds 2 and 4 are not grounds of review. They are pleas to the Court to consider the applicant’s personal situation should he not be given the visa he seeks.  While the Court is sympathetic to the situation the applicant finds himself in, these matters are not relevant to the Court’s task on judicial review.

7. Grounds 2 and 4 are, accordingly, dismissed.

8. Ground 3 appears to argue that the applicant was without legal guidance and did not know that he could apply for an extension of time within which to provide the confirmation of enrolment.

9. The applicant was (until 29 July 2019) represented by a migration lawyer (CB 39 and 59-62). Hence the applicant was, for a considerable period of time receiving advice and “guidance”. While this assistance may have lapsed, there is no right to legal representation in proceedings before the Tribunal or in migration proceedings in general.

10. It is most unfortunate that the applicant was not aware that he could ask for further time to provide a confirmation of enrolment that he says was forthcoming.  Regrettably, this does not amount to jurisdictional error. The applicant’s submissions at hearing were that he could not provide the enrolment within the time because he was unable to pay the course fees. Again, while unfortunate, this does not amount to jurisdictional error.

11. The Tribunal was unaware that the applicant was “raising funds” to pay for his enrolment or that evidence of enrolment would eventuate. In the absence of any request for more time in these circumstances, the Tribunal cannot be seen to have erred in determining as it did.

12. Ground 3 is, accordingly, dismissed.

Otherwise

1. Noting that the applicant has referred to a lack of legal understanding and was unrepresented, the Court has remained astute and alert to the possibility of any error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.

2. Here, the Tribunal considered the correct legislative criterion. It acted in accordance with the obligations of procedural fairness under the Act. It put information to the applicant under s.359AA of the Act and provided additional time for the applicant to respond and provide information.

3. In circumstances where the applicant conceded in his evidence before the Tribunal that he did not hold a current confirmation of enrolment and provided no further information to suggest that this would change or had changed (despite having been given extra time to provide that information), the Tribunal was obliged to refuse the visa. There was no evidence that the applicant met the criteria and without that evidence he could not be granted the visa. The Tribunal, on the materials that were before it, came to the only decision that was open to it.

4. The Court is not satisfied that there is any error in the Tribunal’s decision.

Conclusion

1. The applicant’s application for judicial review fails to identify any jurisdictional error. The Court is otherwise satisfied that there is no error in the Tribunal’s decision.

2. The application is, accordingly, dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  9 April 2020