Raza v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 377
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raza v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 377
File number(s): SYG 1159 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 May 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal affirming decision not to grant student visa because the first applicant did not satisfy criterion requiring first applicant be enrolled in a course of study – no jurisdictional error. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2, cls 500.111, 500.211, 500.212
Division: General Number of paragraphs: 15 Date of hearing: 11 May 2022 The Applicants: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Ms A Meaney of Mills Oakley Lawyers, by telephone ORDERS
SYG 1159 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED MUHAMMAD ALAM RAZA
First Applicant
SYEDA SAMINA ZAIDI
Second Applicant
SYED MUHAMMAD JAWAD RAZA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants pay the first respondent’s costs set in the amount of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).
BACKGROUND
The first applicant is male citizen of Pakistan, and the second and third applicants are his wife and son.[1]
[1] CB2-5
On 12 November 2016 the first applicant applied for a Student visa in which he included the second and third applicants as dependant visa applicants.[2] To have been entitled to the grant of a Student visa the first applicant had to satisfy cl 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2), namely, that he is “enrolled in a course of study”. The expression “course of study” is defined in cl 500.111 of Schedule 2. The first applicant claimed he was enrolled in an English language course in Australia, and he held a Confirmation of Enrolment (COE). The first applicant did not provide a copy of his COE with his Student visa application.
[2] CB1-24
On 22 December 206 the delegate refused to grant the applicants a Student visa because the delegate was not satisfied the first applicant met the “genuine applicant for entry and stay as a student” criterion prescribed by cl 500.212 of Schedule 2. The delegate found that since 30 August 1995 the first applicant had “travelled extensively to Australia”, spending a total of more than 11 years (4,219 days) of residing in Australia, and 164 days residing outside of Australia. The delegate, therefore, was concerned the first applicant had “no incentive to return” to Pakistan at the conclusion of his proposed study, and he was “using the Student visa program to maintain ongoing residence in Australia”.[3]
[3] CB48-56
BEFORE THE TRIBUNAL
By letter dated 7 February 2018 the Tribunal invited the applicants to attend a hearing before it on 6 March 2018, and requested the first applicant provide a copy of his current COE or other documents to show that he was currently enrolled in a course of study as defined in cl 500.111 of Schedule 2.[4]
[4] CB97-100
On 9 February 2017 the first applicant provided to the Tribunal a number of documents, which included a written statement dated 8 February 2017 (Statement) in which he made the following claims:[5]
(a)The delegate erroneously calculated the duration of the first applicant’s residence in Australia. He first visited Australia in 1995 as a holder of a visitor (subclass 672) visa; and between 1996 and 2001 the first applicant travelled to Australia extensively as a holder of a temporary business (subclass 456) visa.
(b)He did not visit Australia between 2002 and 2013.
(c)He visited Australia twice in 2013 before being granted a temporary skilled work (subclass 457) visa (Skilled visa) as a travel agency manager specialised in conducting pilgrimage tours in Saudi Arabia from May 2015 to November 2016. He was unable to work in Australia due to Saudi Arabia banning the pilgrim quota for Hajj and Umrah and, as a result, he only spent two months in Australia during the 18 month period of his Skilled visa.
(d)He decided to study English in Australia as he would have less responsibilities and familial distractions in this country, and because of the high quality of education in Australia.
(e)He does not wish to obtain Australian citizenship. Rather, he wishes to improve his English language skills, then commence other courses in Australia that will enable him to enhance his existing business in Pakistan or start a business in Australia.
(f)In 1995 he deposited a “handsome amount” of money into the ANZ Bank to facilitate his business and study opportunities in Australia, and to allow for his children to “acquire professional education” in Australia. He should “get some benefit” because of his deposits.
(g)The third applicant cannot commence studies in Australia unless the Student visa is granted.
[5] CB80-84
On 6 March 2018 the first applicant appeared before the Tribunal to give evidence and present arguments. According to the Tribunal’s reasons for decision, the first applicant gave evidence that he was not studying or enrolled in a course of study. The first applicant told the Tribunal he had not completed the English course he had enrolled in at the time he applied for a Student visa, and he ceased studying that course in November 2017.[6]
[6] CB130, [9]
TRIBUNAL’S REASONS
On 21 March 2018 the Tribunal affirmed the delegate’s decision not to grant the applicants a Student visa. The Tribunal was not satisfied that at the time of its decision the first applicant met the requirement of cl 500.211 because he was not enrolled in a course of study. The Tribunal relied on the first applicant having failed to provide evidence demonstrating his enrolment in a course of study; the first applicant having confirmed at the hearing that he was not enrolled in any course; and the first applicant noting that he made an informed choice not to enrol in any further course after failing to complete the initial English course he enrolled in around the time he applied for the Student visa. [7]
[7] CB131, [16]
As the Tribunal did not accept that the first applicant satisfied the primary criteria of cl 500.211 of Schedule 2, it found the second and third applicants failed to meet the criteria because they are not a member of a family unit of, and made a combined application with, a person who satisfied the primary criteria of cl 500.211.
GROUND OF APPLICATION
The applicants rely on the following ground of application stated in their application filed with the Court on 24 April 2018:
The applicant’s son . . . is a current Year 7 student of a Private college named . . . . The applicant is in the process of organising his student visa and lodging a Guardianship visa for himself and wife.
At the hearing I invited each of the applicants, who are not legally represented, to make submissions about why they believe the Tribunal’s decision should be set aside. The applicants did not wish to make any submissions in relation to the ground of application stated in their application. After Ms Meaney completed her submissions on behalf of the Minister, the first applicant requested I grant the applicants time to file written submissions. Over objection from the Minister’s solicitor, I permitted the applicants to file written submissions by 16 May 2022. I informed the parties that if the submissions were to raise any matter potentially adverse to the Minister, I would notify the Minister of the matter and invite further submissions. The applicants, however, did not file any further submissions.
That, then, leaves me only to consider the ground stated in the application. It does not disclose any jurisdictional error by the Tribunal. It goes no further than providing details about irrelevant subjects, namely, the third applicant’s schooling, and the applicants’ future visa plans.
DISPOSITION AND COSTS
I propose to make an order dismissing the applicants’ application.
The Minister applied for an order for costs against the first and second applicants set in the amount of $5,400. At the hearing the applicants did not wish to make any submissions in relation to costs. I am satisfied it is appropriate that the first and second applicants pay the Minister’s costs.
I am satisfied that $5,400 represents a fair indemnity of the costs the Minister incurred in successfully resisting the application. I will therefore also order that the first and second applicants pay the Minister’s costs set in the amount of $5,400.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 20 May 2022
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