Shah v Minster for Home Affairs

[2019] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAH v MINSTER FOR HOME AFFAIRS & ANOR [2019] FCCA 768

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Federal Circuit Court Rules 2001(Cth), r.13.03C(1)(e)

Applicant: VARUN KISHORBHAI SHAH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 803 of 2018

Judgment of: Judge Vasta

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Brisbane

Delivered on: 18 March 2019

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: CLAYTON UTZ

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 6 August 2018 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 803 of 2018

VARUN KISHORBHAI SHAH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 10 July 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate for the Minister not to grant the Applicant a student visa.  Once that decision was made, the Applicant had 35 days within which to apply to his Court.  He did so on 6 August 2018, asking this Court to review the decision. 

2. In short compass, the AAT noted that the Applicant had come to Australia on 8 March 2012 holding a student visa.  He had previously held three student visas, and the present application is for a fourth visa. That application was lodged on 28 September 2016 when the Applicant advised that he intended to study a Master of Professional Accounting. 

3. The Tribunal noted that there are a range of criteria set out in the regulations that have to be met by the Applicant.  The Applicant told the Tribunal at the hearing:

   Well, I have provided everything but they did not give time.

4. The AAT noted that the situation was that the primary decision noted that the Applicant was sent a request on 8 November 2016, and the decision of the delegate was made on 12 January 2017, so there was two months between the Applicant having been asked for information and then going before the delegate.  He had provided nothing. 

5. On 1 February 2017, he applied to the Tribunal for a review of the decision, and less than a week later, on 7 February 2017, the Tribunal wrote and asked whether the Applicant wished to provide material or written arguments to show why the visa should be granted. There was no response. 

6. There was a hearing invitation letter sent out on 14 June 2018 asking the Applicant to provide evidence to meet requirements, and there was no response.  The AAT asked for a written response at least seven days before the hearing, and the Applicant did not do that; however, he turned up at the hearing with “a bunch of documents”.  He then told the Tribunal, when they asked what he was studying:

   Well, I am not currently enrolled, I am not studying, I have not studied since mid-2015.

7. The Tribunal was correct when it said that they are there to conduct a fresh look and consider whether the Applicant was eligible for a visa. Whilst the delegate refused the visa because the Applicant did not provide evidence he had access to finance, the Tribunal, having received the information that the Applicant was not enrolled in a course, decided that the criteria of being enrolled in a course or having a certificate of enrolment was the mandatory and primary criteria that had to be met.

8. Because the Applicant could not meet that criteria, there was no need to consider whether the Applicant satisfied the financial requirements.  As such, the Tribunal then affirmed the decision under review. 

9. The Applicant, in his application, gave eight grounds, though I use the term ‘grounds’ very loosely.  They are:

   1. Errors in review of the Migration decision to be based on Migration Act and Migration Regulation 1994 under s65 and lack of consideration of PAM3.

   2. Particularly to review of jurisdiction errors made by tribunal as 10 July 2018, corresponding to a writ of mandamus directed to the AAT requiring the tribunal to re-examine the review application in accordance with the law.

   3. Review of genuine access to funds, availability and access to sufficient funds disclosed by sponsor and timely.

   4. Accessibility of the costs and expenses of the review applicant’s during the applicant’s intended stay.

   5. Consideration offerings were lacking by the AAT member thereby leading to jurisdictional errors in interpreting paragraph 500.214 (3) and 500.214 (4).

   6. Sponsor’s held combined family income of $105,832 per annum in F.Y 2016, the AAT failed to indulge into reasonable emphasis on Assets V.S. liabilities of the said sponsors and availability of the surplus income on hand to support their statutory declarations.

   7. Request for further information was an unnecessary event to have occurred when sponsors’ financial ability along with gross and net wages were declared on recent payslips.  These also attracted appropriate Notice of Assessments and statutory declarations for both sponsors to demonstrate their financial capacity and will to sponsor the applicant’s tuition fees.

   8. AAT failed in their oral hearing to review all claims made by the applicant and decided under review to affirm the decision made by DIBP, a series of jurisdictional errors were laid as the foundation of this hearing leading to its inappropriate conclusion.

10. Of course, none of those grounds make any real sense, and that was why when the Applicant appeared before Registrar Belcher on 26 September 2018, the Registrar ordered that by 4.00pm, 14 days prior to the hearing, that is 4 March 2018, the Applicant should file and serve written submissions and a list of authorities in support of the application for review. 

11. The Applicant did not do that.  The Applicant did not amend his application, even though he had been given until 14 November to do that.  The Applicant has not turned up today.

12. When one looks at the grounds and one has a look at the evidence that was before the Tribunal, and also the behaviour of the Applicant throughout the whole process, it is my view that it is appropriate for this Court to proceed pursuant to r. 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and determine the matter on the merits.

13. In looking at the merits of this matter, it seems to me that the Applicant has totally missed the point of what the AAT has said.  The AAT has said that it must conduct a hearing totally afresh, not to be seen as an appeal, per se, from the decision of the delegate of the Minister.

14. That is what the Tribunal has done here.  It has ended up looking at all of the evidence.  Suffice it to say that to meet the criteria for the student visa, one must have a certificate of enrolment to study and secondly, amongst other things, show that one has the financial means to meet the fees that are needed with regard to the study. 

15. The Applicant, despite numerous attempts by the delegate, firstly, and then by the AAT, did not provide any material as to the financial matters until the day of the hearing. However, as the Tribunal rightly pointed out, the prerequisite that he have a certificate of enrolment had not even been met.

16. Therefore, when one goes to the grounds, it would seem to me that there have been no errors in the review of the migration decision based on the Migration Act 1958 (Cth) under s.65. The Applicant has not expanded on that, and simply on that basis, I can find that ground 1 must necessarily fail.

17. Ground 2 is not a ground of appeal at all.  It really is seeking a result, and I can disregard ground 2. 

18. Grounds 3, 4, 5, 6 and 7 are really asking this Court to engage in an impermissible merits review and look at whether or not the Applicant had means by which he could meet the tuition fees and also meet the necessities of life for himself while studying.

19. That, firstly, is a request by the Applicant for the Court to go into the merits of the matter, but secondly, it could not amount to a jurisdictional error when the focus of what the Tribunal has looked at is whether the Applicant was enrolled.  I find no substance in any of those grounds. 

20. As for ground 8 that says that the AAT failed to review all claims, the AAT has to review whether or not the Applicant can meet the criteria for a student visa.  Clearly, on the evidence before it, the Applicant could not do that because he had no certificate of enrolment.

21. That being so, there is no merit in that ground. 

22. Having a look at all of the matters, I can find no jurisdictional error that has affected the Tribunal’s decision. 

23. I, therefore, dismiss the application with costs in the sum of $7,467.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  13 May 2019