Sharma v Minister for Immigration and Border Protection
[2019] FCA 1931
•21 November 2019
FEDERAL COURT OF AUSTRALIA
Sharma v Minister for Immigration and Border Protection [2019] FCA 1931
Appeal from:
Sharma v Minister for Immigration [2018] FCCA 4016
File number:
NSD 87 of 2019
Judge:
ABRAHAM J
Date of judgment:
21 November 2019
Catchwords:
MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of a decision of the Tribunal affirming a decision of the Minister’s delegate to refuse the grant of a Student (Temporary) visa – alleges the Tribunal’s decision was arbitrary, illogical or irrational and fell into jurisdictional error – no particulars provided – appeal dismissed
Legislation:
Migration Regulations 1994 (Cth) Sch 2, cl 572.223, cl 573.223, Sch 5A
Date of hearing:
19 November 2019
Registry:
New South Wales
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
26
Counsel for the Appellant:
The Appellant appeared in person
Solicitor for the First Respondent:
Mr K Eskerie of Sparke Helmore
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice save as to costs
ORDERS
NSD 87 of 2019
BETWEEN:
SANDEEP SHARMA
Appellant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
21 november 2019
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant to pay the costs of the first respondent to be agreed or taxed.
3. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
The appellant is a citizen of India who applied for a student visa which was refused by the Minister’s delegate on 23 January 2013 on the basis that the appellant did not meet the English language proficiency requirements. On 26 September 2016 the Administrative Appeals Tribunal (Tribunal) affirmed that decision, and on 10 December 2018 the Federal Circuit Court dismissed an application for judicial review of that decision: Sharma v Minister for Immigration [2018] FCCA 4016. The appellant appeals that decision.
The appellant appears unrepresented and the two grounds of appeal appear the same as those agitated in the Court below. They are a general assertion that the decision is arbitrary, illogical and irrational, without any particulars. No error is pointed to in the reasons of the Federal Circuit Court.
For the reasons below, the appeal is dismissed.
Tribunal
The Federal Circuit Court noted that the respondent’s written submission as to the Tribunal’s decision accurately summarises the Tribunal’s decision, and it acted upon that.
The Tribunal noted that the delegate assessed the appellant against the criteria for a subclass 572 visa on the basis of the course in which the appellant was enrolled and had found that the appellant did not provide the evidence required to satisfy cl 572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal noted that the delegate found that the evidence provided by the appellant to satisfy the English language requirement was dated November 2008 to February 2010 which did not satisfy the Regulations as it was not obtained less than the requisite two years before the date of the application.
As the appellant provided to the Tribunal an offer of enrolment in a Bachelor of Business for his principal course, the Tribunal found that the relevant subclass of visa was subclass 573, and proceeded to assess the appellant against the criteria for that subclass of visa. The Tribunal noted that the issue was whether the appellant was a “genuine applicant for entry and stay as a student” having regard to the prescribed matters as required by cl 573.223. The Tribunal found that the appellant was not an “eligible higher degree student” with a corresponding certificate of enrolment. The Tribunal found that in order to meet cl 573.223 the appellant had to give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the appellant. The Tribunal found that as the appellant held an Indian passport, pursuant to IMMI 12/005 the highest assessment level to which the appellant was subject for the purposes of subclass 573 was assessment level 3.
In relation to the English language requirements, the Tribunal noted that the appellant provided an IELTS test result, undertaken on 21 May 2016, where he achieved an overall band score of 5.0. The Tribunal noted that the appellant also provided evidence of his having completed a Diploma of Hospitality Management. The Tribunal found that neither satisfied the English language requirements because the overall band score required in an IELTS test for an appellant who had not undertaken an ELICOS course was 6.0 which the appellant had not achieved; and the diploma was completed more than two years prior to the date of the application. Accordingly, the Tribunal found that the appellant had not given evidence in accordance with the applicable Schedule 5A requirements and therefore found that he did not satisfy cl 573.223(2)(a). The Tribunal also noted that had the appellant maintained enrolment in a subclass 572 level, he would also have failed to meet the relevant requirements.
The Tribunal further noted that the appellant had been put on notice of the requirements through both the delegate’s decision and two Tribunal hearing invitation letters and that he was also provided with additional time after the first hearing to provide evidence but failed to do so. In these circumstances, the Tribunal did not offer the appellant further time to provide evidence.
The Tribunal found that the appellant did not meet the criteria for a subclass 573 visa and that there was no other evidence before it that the appellant met the criteria for any other subclass of student visa.
Federal Circuit Court
The Court noted that the appellant provided no submission in relation to the grounds.
The Court summarised the Tribunal’s reasoning taken in large part from the respondent’s submission, and concluded that at its core the appellant was required to attain a level of language ability which could have been demonstrated by achieving an overall band level 6 score in any IELTS examination. He did undertake an IELTS test on 21 May 2016, but he only achieved an overall band score of 5.
There were two grounds of appeal.
As to the first, the Court below correctly characterised it as a bare assertion that the Tribunal’s decision is arbitrary, illogical or irrational. The primary judge noted that the applicant was unable to provide any particulars, because as he said, the lawyers wrote this for him “without explanation”.
The Court concluded:
It is clear, in the circumstances, that this is a formulaic attempt, at best, to express grievance with the Tribunal’s decision, absent any particularity, absent any explanation, let alone any explanation relevant to the actual reasoning and decision of the Tribunal. The ground, at its highest, can only be understood as being a request for impermissible merits review. It lacks merit. In any event, the Tribunal’s findings, which informed its decision, were all reasonably open to it, and probative of, the evidence, or, depending on the perspective, the lack of evidence, that is, the inability to meet the requisite requirements.
The Tribunal gave cogent, and intelligible, reasons for its decision to affirm the delegate’s decision. On the evidence that is before the Court, it is clear that there is a logical connection between the evidence before the Tribunal, and the reasons which explained its findings, and its conclusion. It is quite plain that the applicant, and perhaps his lawyers, would have preferred the Tribunal to come to a different conclusion, but that preference does not make the Tribunal’s decision unreasonable, illogical, or arbitrary.
The Court also concluded that the Tribunal’s decision was the only available conclusion open to it on the evidence. It concluded that the criteria as set out in the Regulations, are clear as to the relevant language, and educational requirements. This does not make its decision arbitrary.
The Court also noted for the sake of completeness, that the appellant had been given ample, and reasonable, notice of the requirements of the visa, and a reasonable time following the first hearing before the Tribunal to provide the necessary evidence. He provided some evidence but it was not capable of meeting the regulatory criteria for the grant of the visa.
The Court correctly described the second ground of the application as meaningless. The Court observed that if what is really meant is that it was not open to the Tribunal to find that the applicant was not a genuine student, then that misunderstands the context within which the Tribunal was required to frame its consideration within the terms of the relevant criteria.
The Court concluded that the applicant did not meet the English language requirement to the level that he was required to meet and therefore he failed to meet the relevant definition that the Tribunal was required to consider and apply. The Court concluded that the Tribunal did not fall into jurisdictional error.
Consideration
While two grounds of appeal were nominated in the notice of appeal, at the hearing the appellant did not provide any elaboration of them. He did not provide any written submission in support of his appeal despite there being an opportunity to so.
Rather, the appellant’s submission at the hearing complained that he was confused before the Court below and did not know what to say, and that he had not been given an opportunity to provide to the authorities evidence as to the IELTS test. As to the opportunity provided at the Court below, the judgment reflects that despite being provided with opportunities prior to the hearing to file written submissions and evidence, the appellant failed to do so. He did make submissions at the hearing although they were not directed to addressing legal error in the Tribunal’s reasoning. As to the opportunity to provide the Tribunal with evidence, the documents in the appeal book amply demonstrate that numerous opportunities were given to the appellant to provide such evidence and he did provide evidence of the results. The problem for the appellant is that his results were that he only achieved an overall score of 5.
The two grounds of appeal in this Court are the same as in the Court below.
The appellant has not identified any error in relation to the decision of the Federal Circuit Court. The characterisation of the grounds by the Federal Circuit Court was correct.
As was made clear from the reasons of the Court below, the issue before the Tribunal was a narrow one relating to whether evidence had been provided that the appellant satisfied the English language requirements for the purposes of cl 573.223 as set out in Schedule 5A of the Regulations.
The reasons of the Court below in dismissing these grounds is unobjectionable. As to the first ground it is plain, from the reasons provided that not only were the Tribunal’s conclusions reasonably open on the evidence before it, but that it was the only one available to it.
As the Court below concluded, ground two is meaningless. If it is contending that the Tribunal erred in finding that the applicant was not a genuine student, the primary judge was correct to hold that the ground was not made out.
Conclusion
Neither ground of appeal has been established. The appeal is dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.
Associate:
Dated: 21 November 2019
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