Sallam v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 499
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sallam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 499
File number(s): SYG 1293 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 June 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa – no ground of judicial review. Legislation: Migration Regulations 1994 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 16 June 2022 Date of hearing: 16 June 2022 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the First Respondent: Ms Zinn ORDERS
SYG 1293 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OSAMA MOUSTAFA SAYED AHMED SALLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5400.00.
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
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Egypt who arrived in Australia on 7 December 2006 and is the holder of a Student visa. Since the applicant’s arrival, he has either held a Student or associated Bridging visa.
On 15 November 2016 the applicant applied for a further Student (Sub-class 500) visa (“Student visa”) on the basis of his enrolment in an Advanced Diploma of Leadership and Management and a Bachelor of Commerce, to commence on 19 February 2018 and to conclude on 13 December 2020.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a further Student visa on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant for the purposes of study. The delegate found that the applicant’s student records indicated he had obtained and cancelled a number of Confirmation of Enrolments (“COE”) across several different fields of study and had also applied for, and been refused, a Protection visa. The delegate found that the applicant was not genuinely seeking the proposed courses for the reasons declared and was more likely seeking to maintain residency in Australia.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 26 April 2019, the Tribunal invited the applicant to attend the hearing scheduled for 17 May 2019. The hearing invitation requested that the applicant provide a range of information, including a current COE. The applicant attended the hearing but did not provide any further documentation as requested.
In an oral decision, delivered on the day of the hearing, the Tribunal affirmed the decision not to grant the applicant a further Student visa. It did so, however, on the basis that, as at the date of the decision, the applicant was not currently enrolled in any course and therefore could not satisfy cl 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”). This clause relevantly provides that, as at the time of a decision by the Tribunal, the applicant must be able to provide the Tribunal with the current COE. Written reasons for the decision were published on 8 July 2019.
The applicant now seeks judicial review of the Tribunal’s decision.
GROUND OF JUDICIAL REVIEW
In an Initiating Application filed with the Court on 27 May 2019, the applicant relies on a single ground of judicial review as follows:
1. The Tribunal member gave me a refusal dated 17 May 2019 headed as oral decision on the application for review. I do not have the full decision yet but I dispute her decision and I will put an Amended Application with all the grounds are soon as I received a copy of my file.
The Court notes that, as at the date of the hearing before this Court, no Amended Application has been filed.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant appeared via telephone. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the first respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that when he saw the delegate, he was undertaking study. The applicant confirmed that as at the date of the Tribunal decision, he was not then enrolled in any course of study as he was not confident after the delegate’s decision. The applicant stated that the delegate should not have made the decision that he was not a genuine temporary entrant for the purposes of study.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf of the first respondent, it was noted that some three years after the applicant was provided with the Tribunal’s reasons, no Amended Application has been filed or served by the applicant. In the absence of any proposed Amended Application, it was submitted that there was presently no ground of judicial review for the Court to consider.
Further, the applicant had failed to advance any alleged jurisdictional error in the Tribunal’s approach or decision. It was submitted the applicant was properly put on notice as to the issue in his matter and the need for him to provide a current COE. The applicant had the opportunity to give evidence and present arguments at the hearing. The Tribunal properly put information to the applicant during the course of the hearing that the applicant was not currently enrolled in an approved course of study. The applicant had provided this information himself to the Tribunal in a “Request for student visa information form”.
In the circumstances, given the applicant’s evidence of the Tribunal, both in writing and orally, that he was not currently enrolled in an approved course of study, the Tribunal could not be satisfied that the applicant met cl 500.211 of Schedule 2 to the Regulations. Accordingly, the Tribunal had no option other than to affirm the decision under review.
CONSIDERATION
This matter may be disposed of quite shortly. Firstly, the applicant has not advanced any proper ground of judicial review. During the three years between the Tribunal hearing and the Court’s hearing, the applicant has taken no steps to provide any amended ground of judicial review. For this reason alone, the matter may be dismissed.
Secondly, as confirmed by the applicant during the course of the hearing, as at the date of the Tribunal hearing, the applicant did not have a current COE. That being the case, the Tribunal had no option other than to find as it did, that the applicant did not satisfy cl 500.21 of the Regulations. The Tribunal was thus obliged to affirm the decision under review.
Nothing advanced by the applicant during the course of the hearing disputed the matters referred to above. If anything, the applicant only took issue with the delegates finding that he failed to meet the genuine temporary entrant requirement.
CONCLUSION
The Court has perused the relevant decision record and papers but is unable to find any unarticulated jurisdictional error. The application must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 June 2022
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