Shoaib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 895
•3 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shoaib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 895
File number(s): SYG 844 of 2020 Judgment of: JUDGE STREET Date of judgment: 3 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Application for a Student visa – where applicant had no current course of enrolment – whether the Tribunal was required to put certain information to the applicant – whether the Tribunal failed to properly consider the applicant’s case – no jurisdictional error made out – application dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Number of paragraphs: 8 Date of hearing: 3 May 2021 Place: Sydney Applicant: In person Solicitor for the First Applicant: Ms K Nash, Sparke Helmore ORDERS
SYG 844 of 2020 BETWEEN: SHAIK SHOAIB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3, 737.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 March 2020, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) visa (“Student visa”).
The Court adopts the background, as well as the reasons of the Tribunal, the grounds and reasoning, as identified the Minister’s submissions from paragraph 3 through to paragraph 15:
Background
(3)On 4 August 2014, the applicant, a citizen of India, arrived in Australia on a Student visa: Court Book (CB) 59. On 29 March 2018, the applicant applied for the visa: CB 1-28.
(4)On 14 June 2018, a delegate of the Minister (delegate) refused to grant the visa: CB 34-39. The delegate was not satisfied that the applicant met the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as the delegate was not satisfied that he intended to genuinely stay in Australia temporarily.
(5)5 On 5 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision: CB 40-41. On 25 November 2019, the Tribunal invited the applicant to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) that the applicant was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student (s 359 letter): CB 46-52. After being granted an extension (CB 53-55), on 24 January 2020 the applicant provided a completed ‘Request for Student Visa Information’ form in which he indicated that he consented to the Tribunal hearing the review without a hearing: CB 65.
(6)6 On 20 March 2020, the Tribunal affirmed the decision under review: CB 68-71.
Tribunal decision
(7)The Tribunal recorded that it had invited the applicant, pursuant to s 359(2) of the Act to provide information, and that in the applicant’s response, he had consented to the matter being determined by the Tribunal without a hearing (CB 69, [4]-[6]). In those circumstances, the Tribunal found that pursuant to s 360(3) of the Act, he was no longer entitled to appear before the Tribunal and that it had no power to permit the applicant to appear: citing s 363A and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 30 (CB 69, [7]-[9]).
(8)The Tribunal proceeded to make a decision having regard to all of the information before it (CB 69, [9]).
(9)The Tribunal identified that cl 500.211 required the applicant to be enrolled in a course of study (CB 70, [12]). It noted that the applicant lodged his application for a student visa on 29 March 2018, proposing to study a Diploma of Business from 16 April 2018 to 14 April 2019, and found that this time had long passed. It found that there was no evidence to suggest that he was engaged in further studies (CB 70, [16]). The Tribunal further noted that in his s 359 response, the applicant responded ‘No’ to the Tribunal’s question, “Does the main applicant have a current confirmation of enrolment [(CoE)] in a registered course of study?” (CB 70, [17]).
(10)The Tribunal found that there was no evidence before the Tribunal that the applicant was currently enrolled in a registered course of study (CB 70, [18]). Accordingly, the Tribunal was not satisfied that he was enrolled in a course of study as required by cl 500.211 and affirmed the decision under review (CB 71, [19]-[21]).
Proceedings in the Federal Circuit Court
(11)On 6 April 2020, the applicant applied for judicial review of the Tribunal’s decision and advances four grounds of review. Procedural orders were made in this matter on 6 June 2020 for the matter to be listed for a show cause hearing under rule 44.12 of the Rules on a date to be fixed. Those same orders provided the applicant with an opportunity to file any amended application and written submissions by 3 September 2020. As at the date of these submissions, no such documents have been filed by the applicant.
(12)By grounds one and three, the applicant contends that the Tribunal “failed to provide clear particulars of information under section 359A of the Migration act and failed to advise the relevance of such information in relation to my case” and “failed to give me clear particulars for affirming the delegate’s decision; and failed to ensure, as far as is reasonably practicable, that I understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate’s decision”.
(13)These contentions are without substance. There was no information the Tribunal was required to put to the applicant pursuant to s 359A of the Act. The Tribunal’s decision was based on written evidence provided by the applicant to the Department, information contained in the delegate’s decision record (provided by the applicant to the Tribunal), and the applicant’s s 359 response, all of which fell within the exceptions to information under ss 359A(4)(b) and 359A(4)(ba) of the Act. No breach of s 359A is established.
(14)Further, the 359 invitation was sufficient to put the applicant on notice that cl 500.211 would be a dispositive issue on review.[1] In particular, the invitation expressly informed the applicant that it was a requirement for the grant of the visa for him to be enrolled in a registered course of study and that he needed to provide the Tribunal with ‘sufficient information’ to satisfy that requirement (CB 54). No breach of s 360 of the Act is revealed by these grounds. Accordingly, these grounds fail to raise an arguable case for the relief claimed.
(15)By ground two the applicant contends that the Tribunal failed to properly consider his case. It is further unclear what the applicant is asserting by ground four. These grounds do not contain sufficient particulars so as to make them meaningful and should be dismissed on that basis alone.2 In any event, the Tribunal expressly considered the evidence before it. In circumstances where the applicant had consented to the Tribunal determining the review without a hearing and the applicant had expressly indicated that he did not have a current CoE and did not otherwise provide any evidence that he was enrolled at the time of the Tribunal’s decision, the decision was reasonably open to it; indeed, its decision logically followed. These grounds too fail to raise an arguable case for the relief claimed.
[1] Cf SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152,163-4, [35]-[40], [44].
BEFORE THE COURT
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing.
The applicant identified that he had had problems as a result of COVID-19 in terms of the financial ability to meet the requirement for having a current course of enrolment. The applicant accepted he did not have a current course of enrolment.
The applicant’s personal circumstances and the hardship in relation to his family do not identify any basis upon which the Tribunal, in its review and reasons for decision, can be said to be the subject of any arguable case of relevant error.
The grounds raised by the applicant do not identify any arguable case of relevant error for the reasons summarised above in the first respondent’s submissions which the Court has adopted.
The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under rule 441.2 of the Federal Circuit Court Rules 2001.
Accordingly, the application is dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 21 May 2021
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