Shaik v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1055
•20 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shaik v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1055
File number(s): SYG 2221 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 20 November 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether jurisdictional error is made out – no jurisdictional error made out. Legislation: Migration Act 1958 (Cth) s 359
Migration Regulations1994 (Cth) r 1.03 cl 500.211
Education Services for Overseas Students Act 2000 (Cth Division 3 of Part 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Hasnat v Minister for Immigration and Border Protection [2013] FCCA 1922Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 22 August 2023 Date of hearing: 22 August 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Ms Meaney appeared on behalf of the First Respondent. ORDERS
SYG 2221 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAIK SHADAB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for re-instatement is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the amount of $1000.00.
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 D HUMPHREYS
INTRODUCTION
The applicant is citizen of India. The applicant applied for a Student (Temporary) (Class TU) visa on 16 August 2017.
On 6 October 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant’s Student visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant did not intend to stay in Australia temporarily.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 31 July 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student visa. The Tribunal affirmed the decision as no evidence was provided to it that the applicant was enrolled in an approved course of study as at the time of the Tribunal’s decision.
The applicant then sought judicial review of the Tribunal’s decision. The matter was listed for final hearing before this Court on 22 August 2023. The applicant failed to appear. On the application of the First respondent, the matter was dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 202.
On 4 September 2023, the applicant filed an Application in a Proceeding seeking to have his matter reinstated. For the reasons set out below, the application for reinstatement has no merit and must be dismissed.
THE LAW IN RELATION TO REINSTATEMENT APPLICATIONS.
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], it was held that reinstatement is a discretionary matter for the Court. Three matters need to be considered in a such an application:
a.Whether there was a reasonable excuse for the parties absence when the proceedings were struck out;
b.The existence and nature of any prejudice that might flow to the other party and the extent if any to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court has the power to order; and
c.Whether the applicant has a reasonably arguable prospect of success on the substantive application. If not then there is no purpose in reinstatement.
APPLICANT’S SUBMISIONS ON REINSTATEMENT.
In an affidavit of 3 September 2023, the applicant states inter alia as follows:
I was unable to attend the hearing on that date as I am currently residing in Canberra and I was not well to get to the Court in Parramatta, Sydney. I am representing myself and don’t have much knowledge on how to deal with the matter.
No medical or other certificate is attached to the affidavit confirming the applicant was so unwell he has unable to travel or attend the hearing remotely. At the hearing the applicant confirmed this claim. He said he unable to drive from Canberra to Parramatta.
SHOULD THE MATTER BE REINSTATED?
As to the first consideration, the Court notes there is no record of any communication with the Court or the First Respondent from the applicant indicating he was unwell. Had that been the case, the Court could have arranged for the hearing to be conducted via Teams or by telephone. In the absence of any supporting material, and the lack of any communication with the Court either prior to or on the day of the hearing, the Court does not consider the explanation given as reasonable. This goes against reinstatement.
The second consideration relates to prejudice to the Minister. The Minister has properly conceded that, save as to costs, no prejudice arises. I consider this issue neutral as regards reinstatement.
This leaves the third and, in my view most important issue for consideration, being the prospects of success of the substantive application. The Court is required to consider this at an impressionistic level.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraph 4 of the decision record notes that the Tribunal wrote to the applicant on 26 April 2019, pursuant to s 359 of the Migration Act 1958 (Cth) (“the Act”), to invite the applicant to provide information in writing, about the course/s of study he was undertaking, and his entry and stay in Australia as a Student.
An application for an extension of time was made by the applicant and was granted by the Tribunal. On 24 May 2029, the applicant consented to the Tribunal deciding the review, without a hearing.
Paragraphs 8 and onwards of the Tribunal decision, deal with consideration of the applicant’s claims and evidence. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 of the Regulations must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case was whether the applicant was, at the time of the Tribunal’s decision, enrolled in a registered course of study.
Paragraph 9 of the decision record notes that cl 500.211 of the Regulations relevantly requires that at the time of the decision, the applicant must be enrolled in a course of study. The applicant did not claim to meet any of the alternative criteria in cl.500.211 of the Regulations.
Clause 500.111 of the Regulations relevantly defines 'course of study' as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
At paragraph 11 of the Tribunal decision, it notes that there was no evidence before the Tribunal that the applicant was at the time enrolled in a course of study. Therefore, the Tribunal was not satisfied that at the time of this decision, the applicant was enrolled in a course of study and accordingly, cl.500.211 of the Regulations was not met.
At paragraph 12 of the decision record, based on its findings, the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Originating Application filed with the Court on 28 August 2019. They are as follows (unchanged):
Ground One
The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to bet the reason, or part of the reason, for affirming the decision under review.
Particulars
The Tribunal noted that the applicant is currently not enrolled in a course. This is an information which the Tribunal must have obtained from the Department of Immigration and should have been put to the applicant to formerly invite him to comment or respond.
Ground Two
The Tribunal failed to fail to comply with the Direction 69.
THE APPLICANT’S SUBMISSIONS ON THE SUBSTANTIVE APPLICATION
Despite Court orders, no written submissions no material in support of the application was filed with the Court. This remains the case as at today. The applicant told the Court he was experiencing financial difficulties at the time and was unable to enrol in a registered course of study. The Court explained this was a mandatory requirement for the type of visa he sought.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one is an allegation the Tribunal failed to comply with s 359A of the Act. The particulars allege that because the Tribunal “noted that the applicant is not currently enrolled in a course”, this information must have been obtained from the Department and that the Tribunal was obliged to put such information to the applicant and “invite him to comment or respond”.
It was submitted that the ground has no proper basis. The Tribunal did not obtain any information from the Department (or anywhere else) that positively confirmed the applicant was “not currently enrolled in a course”. The Tribunal relevantly found at [11] of its decision that it was “not satisfied” that the applicant met cl 500.212 of the Regulations, as there was ‘no evidence’ that he was currently enrolled.
The First Respondent submitted that the applicant was given ample opportunity to provide a certificate of enrolment and the Tribunal was under no obligation to seek out information not presently available or not put by an applicant: (see; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [32]). The Tribunal had provided the applicant information about his enrolment and granted him an extension of time to provide a certificate of enrolment. He did not do so. Instead, the applicant submitted a request for Student visa information form on 24 May 2019 in which he claimed he was enrolled and provided an unsigned letter of offer and an agreement from an education provider for course that was supposed to have commenced on 13 May 2019.
In these circumstances, the Tribunal did not require evidence demonstrating that the applicant was “not currently enrolled in the course” to proceed to a decision. Rather it was for the applicant to provide his evidence and arguments in sufficient detail to enable the tribunal to reach the requisite state of satisfaction. The Tribunal was not required to uncritically accept that submission in the applicant’s request for student information form that he was enrolled: (see; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596).
Ground two alleges the Tribunal failed to comply with Direction No 69. This ground is misconceived as Direction No 69 was not relevant to the issue on review as to whether the applicant was or was not involved in a course of study at the time of the decision. It was not necessary for the Tribunal to consider whether or not the applicant met the genuine temporary entrant requirements as confirmation of enrolment is a “prerequisite” for obtaining a student visa: (see; Hasnat v Minister for Immigration and Border Protection [2013] FCCA 1922).
CONSIDERATION
Having a current Certificate of Enrolment as at the time of the decision by the Tribunal was an essential requirement under cl 500.211 of the Regulations for the grant of a student visa. If the Tribunal was not satisfied that the applicant was so enrolled, it had no discretion other than to affirm the decision under review. There was no obligation on the part of the Tribunal to investigate the applicant’s claims: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). The onus of proof lay with the applicant to provide such information and evidence that they wish to support in respect of the contention that they were entitled to the visa sought: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
The Court is satisfied that the applicant was clearly on notice that he needed to provide a current certificate of enrolment. The material that he did provide was not sufficient to satisfy the Tribunal that the applicant was currently enrolled. In these circumstances, there was no requirement pursuant to s359A or S359AA to put the applicant on notice as to the deficiency in his case and invite further comment. Ground one has no merit.
Ground two similarly has no merit. Direction No 69 had no relevance once the tribunal had determined that it was not satisfied the applicant was currently enrolled in a registered course of study. It only had relevance had the Tribunal then of the view that the applicant was so enrolled.
CONCLUSION
As set out above, the Court is not satisfied as to the explanation provided by the applicant as regards his failure to attend the hearing when his matter was dismissed. More importantly, on an analysis of the purported grounds of review, they have no merit, even at an impressionistic level. In these circumstances, there is no point reinstating the matter as the application overall has no merit.
The application for reinstatement must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 20 November 2023
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