Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2163

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2163

File number(s):

BRG 442 of 2020

Judgment of:

JUDGE VASTA

Date of judgment:

21 July 2021

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 359

Migration Regulations 1994 (Cth), cl 500.211

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

18

Date of last submission/s:

21 July 2021

Date of hearing:

21 July 2021

Place:

Brisbane

Counsel for the First and Second Applicants:

The Applicants appearing on their own behalf

Solicitor for the Respondents:

Ms Allen of Sparke Helmore Lawyers

ORDERS

BRG 442 of 2020

BETWEEN:

SHERRY SHARMA

First Applicant

VARUN SEKHRI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	21 JULY 2021

THE COURT ORDERS:

1.That the Application filed 11 August 2020 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2.That the First Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(EX TEMPORE)

JUDGE VASTA

1. On 9 July 2020, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the applicant, Sherry Sharma, and her husband, Varun Sekhri, student visas.  On 11 August 2020, the Applicants asked this Court to review the decision.  Given that the grounds for review were extremely general and had no particularity and the facts of the matter, the First Respondent asked the Registrar to set this matter down as a show cause hearing. 

2. The background of the matter is this; the Applicant was born in India in 1990 and arrived in Australia in October 2018 on a visitor visa with a ceasing date of 7 May 2019.  Her husband, who is the Secondary Applicant, was born in India in 1988.  He came to Australia in February 2009 on a student visa and had enrolled in courses in hospitality, management and marketing.  His last enrolment was in a diploma of leadership and management.  That course was to run from 27 January 2020 to 24 January 2021, but was cancelled in February 2020 as there had been a non-commencement of studies.  The last course that the husband had finished was an advanced diploma of management on 3 October 2014. 

3. On the material before me, Ms Sharma and Mr Sekhri married in India on 31 August 2016.  The husband made an application for a temporary work visa under subclass 457. That application was withdrawn on 24 May 2019.  The husband also made an application for a permanent migrant visa.  That application had been withdrawn on 29 August 2018.  The Primary Applicant had been a Secondary Applicant to that application by her husband. 

4. This application was made on 3 April 2019.  The husband was a Secondary Applicant as the spouse of a person with a student visa.  The matter came before the delegate, and the delegate refused to grant the visa on the basis that the Applicant was not a genuine temporary entrant.  The delegate made findings, which are not particularly relevant here, as to the intentions of the Applicant, in effect, using the visa system to maintain permanent residency in Australia. 

5. The Applicant was not satisfied with the delegate’s decision and brought the matter to the Tribunal. The Applicant was to appear before the Tribunal on 9 July 2020. The criteria that a person be a genuine temporary entrant is predicated upon a person meeting a more fundamental criteria, that of cl 500.211 of the Migration Regulations 1994 (Cth), that they are enrolled in a course of study. The best way for anyone to show that they are enrolled in a course of study is to have a confirmation of enrolment (“COE”).

6. When the Applicant brought the matter to the Tribunal, the Tribunal sent a letter requesting information demonstrating that the requirement of being enrolled in a registered course of study had been fulfilled.  On 11 December 2019, the Applicant replied to the Tribunal that she was not currently enrolled in a registered course of study and did not have a current confirmation of enrolment.  She told the Tribunal in that correspondence that she had enrolled in an MBA at the Holmes Institute.  That was supposed to commence in March 2019, but she did not complete the course.  She said that she was now enrolled in an MBA at Holmes Institute to commence in July 2020 but that this was a future enrolment.

7. The Tribunal looked at the PRISMS record of the Applicant. This showed that the Applicant had been enrolled in a Master of Business Administration from 18 March 2019 to 19 June 2020. However, that enrolment was cancelled on 12 August 2019 because of the reason of “student notifies cessation of studies”.  It also shows that she enrolled in a Master of Professional Accounting from 20 July 2020 to 31 December 2020, but that this enrolment was cancelled on 12 August 2019 for the reason of non-commencement of studies. 

8. The Tribunal advised both Applicants at the hearing that whilst the issue before the delegate was a different one, that is, whether the Applicant was a genuine temporary entrant, the issue that the Tribunal was concerned with was whether the Applicant met the enrolment requirements for a student visa.  The Applicant needed to have a current confirmation of enrolment that was valid as of 9 July 2020 when she appeared before the Tribunal. 

9. The Applicant advised that she commenced doing BA coursework, but she stopped attending classes when she suffered a miscarriage, and she subsequently suffered from depression.  She said that when she tried to resume her studies, she was advised by her course provider that her enrolment was cancelled because her visa application had been refused.  She stated that she tried to enrol with other course providers but was unable to obtain a COE because her visa application had been refused.  She confirmed to the Tribunal that she had not been enrolled in a registered course since August 2019. 

10. Because of this, the Tribunal had no choice but to find that the Applicant did not meet the criteria of cl 500.211; that is, she did not have a current enrolment. The lack of current enrolment meant that the Tribunal could never have given her the student visa.

11. The Applicant’s grounds for this application are as follows:

    1.The Second Respondent failed to provide natural justice to the Applicant which is an error of law;

    2.The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to take relevant information into consideration and;

    3.The Second Respondent failed to provide extension of time.

12. The Applicant today repeated a number of times that she had been enrolled, but because of the miscarriage, she could not continue her studies.  She stated that she was advised by doctors not to do anything that would exacerbate her mental health condition, given that she, quite naturally, was depressed because of the miscarriage.  This meant that her enrolment was cancelled, she says, because she did not go to classes anymore, and the university, in effect, unilaterally cancelled the enrolment. 

13. I understand that the above statement is what the Applicant has said, even though the records show that it was the student who advised cessation of studies rather than the university taking that course.  Whatever the true situation, it is not really anything that changes the factual matrix in this matter.

14. The Applicant says, in effect, that if it had not been for the miscarriage, if it had not been for her depression, she would have still been enrolled.  The Applicant feels hard done by because the miscarriage and subsequent depression was something that was out of her control.  This was not something that she ever planned.  It was not something that she had in any way wilfully manoeuvred so as to somehow avoid the obligations of her visa requirements.  For this reason, she says that these are the sorts of things that needed to be taken into consideration when looking at her matter and deciding whether or not she should be given the visa. 

15. Unfortunately, for the Applicant, this is not how the legislation works.  It is a very easy “yes” or “no” requirement.  Either you are enrolled, or you are not.  There is no in-between.  There is no ground for any discretionary granting of a visa if someone does not have an enrolment.  The matters that are really quite upsetting and, in some ways, tragic to the Applicant can, unfortunately for her, have no bearing upon whether she is enrolled or not. 

16. Section 359 (and following) of the Migration Act 1958 (Cth) are a complete and comprehensive statement of natural justice and procedural fairness. The Applicant cannot point to any action of the Tribunal that has breached any of those sections. The Tribunal has complied in all respects with those matters.

17. The Applicant could not have remedied this situation with any adjournment, even if she had asked for one.  As I say, she was either enrolled on 9 July 2020 or she was not.  

18. This application has no prospect of success, and therefore, the Applicant has not shown cause as to why this application should be allowed to proceed. I, therefore, find that cause has not been shown pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       21 July 2021