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

[2021] FCCA 936

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sikder v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 936

File number:

SYG 1304 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

5 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant had no current course of enrolment – no arguable jurisdictional error made out – application dismissed under rule 44.12.  

Legislation:

Migration Act 1958 (Cth), s 476

Federal Circuit Court 2001 (Cth), r 44.12

Number of paragraphs:

7

Date of hearing:

5 May 2021

Place:

Sydney

First Applicant:

In person

Solicitor for the First Respondent:

Ms S Wright, Mills Oakley

ORDERS

SYG 1304 of 2020

BETWEEN:

MD JEWEL SIKDER

First Applicant

RIJMA AKTAR

Second 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:	5 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 applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. 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 7 May 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student visa.

2. The Court adopts the background, grounds and arguments as contained in paragraphs 3 through to paragraph 20 of the first respondent’s submissions:

   Background

   (3)The first applicant (the applicant) is a male citizen of Bangladesh who arrived in Australia on 12 June 2011 as the holder of a Student (Subclass 572) visa (CB 52). The second applicant is his wife (CB 4).

   (4)On 7 June 2018, the applicant applied for a Student (Subclass 500) visa to undertake a Certificate IV in Information Technology and a Diploma of Information Technology (CB 1-40).

   (5)On 17 July 2018, a delegate refused to grant the applicant a Student visa on the basis that he failed to meet the GTE requirements in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 44-56).

   The Tribunal proceedings

   (6)On 2 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision. He gave the Tribunal a copy of the delegate’s decision and appointed a migration agent to act as his representative (CB 57-58).

   (7)On 2 March 2020, the Tribunal invited the applicant to provide information pursuant to s 359(2) regarding his enrolment in a registered course of study and his status as a genuine applicant for entry and stay in Australia as a student by completing a Request for Student Visa Information form (CB 74-82). The applicant responded with a completed Student Visa questionnaire (CB 83-92), in which he indicated that he did not have a current Confirmation of Enrolment (CoE) (CB 88).

   (8)On 14 April 2020, the Tribunal invited the applicant to attend a hearing scheduled for 7 May 2020. (CB 93-102) and requested that he provide a CoE or other documents to show that he was enrolled in an approved course of study as required by cl 500.211(a) of the Regulations at least seven days before the hearing date (CB 96).

   (9)The applicant attended the scheduled hearing on 7 May 2020 without his migration agent (CB 107) and told the Tribunal that he had decided to stop studying because he was upset about the Department’s decision (CB 122, [16]) and conceded that he was not enrolled in a registered course of study and had not taken any steps to enrol in a registered course of study (CB 123, [21]).

   The Tribunal’s decision

   (10)On 7 May 2020, the Tribunal made an oral decision affirming the decision under review (CB 113), on a different basis to the delegate, being that the applicant failed to meet the enrolment criteria of cl 500.211 of the Regulations (CB 110-124).

   (11)The Tribunal found that although the delegate had refused the visa application on the basis the applicant did not meet the GTE criterion, the issue in the present case was whether the applicant was enrolled in a registered course of study (CB 121, [5],[8]).

   (12)The Tribunal found the applicant had answered ‘No.’ in response to the question asking “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study” in the student visa questionnaire (CB 122, [13]).

   (13)Based on the applicant’s acknowledgement during the hearing that he had received the letter from the Tribunal on 14 April 2020, which detailed that cl 500.211 required him to show he was currently enrolled in a course of study (CB 123, [18]) and that he was aware that the Department’s decision could be affirmed on the basis that he was not enrolled in a registered course of study (CB 123, [19]), the Tribunal was satisfied the applicant was aware that failure to be enrolled in a registered course of study provided grounds for the Tribunal to affirm the decision made by the Department (CB 123, [20]).

   (14)As the applicant had also conceded during the hearing that he was not enrolled in a registered course of study and had not taken any steps to enrol in a registered course of study, the Tribunal found the applicant was not enrolled in a course of study and therefore did not meet cl 500.211 at the time of the decision (CB 123, [21]).

   (15)The Tribunal was satisfied the applicant was on notice that enrolment was a determinative issue on review and it was open to the Tribunal to affirm the decision of the delegate on the failure of the applicant to be enrolled in a registered course of study (CB 123, [22]).

   (16)Accordingly, the Tribunal affirmed the decision under review (CB 123-124 [23]-[25]).

   The application for judicial review

   (17)Despite orders being made by consent on 16 July 2020, granting leave for the applicants to file and serve an amended application and written submissions by 8 October 2020. As at the date of filing these submissions, no further documents have been filed by, or on behalf of the applicants.

   (18)The applicants rely on a single ground of judicial review.

   (19)The applicants’ sole ground contends the Tribunal failed to consider “all aspects” of the applicant’s claims. The applicant does not identify what “claims” the Tribunal failed to consider and without any particulars this contention is meaningless and effectively seeks merits review.1 There is no error in the Tribunal affirming the delegate’s decision on the basis the applicant was not enrolled, given that enrolment was a mandatory requirement in cl 500.211 for the grant of the Student visa. Particularly where the applicant’s own evidence at the time of the Tribunal hearing was that he was no longer enrolled in a course of study (CB 123, [21]).

   (20)The applicant’s affidavit annexes the Tribunal decision and confirms he is the applicant in the proceedings. It does not advance his case in any meaningful way.

   BEFORE THE COURT

3. These proceedings were commenced on 29 May 2020. On 16 July 2020, a Registrar of the Courts made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions; no such documents were filed. On 3 March 2021, this matter was fixed for a show-cause hearing under r 44.12 of the Federal Circuit Rules 2001 (Cth) (“the Rules”).

4. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant accepted that the decision of the Tribunal was lawful, but considered it was unfair to him because it did not take into account his particular circumstances and the evidence he had taken in relation to his studies. Unfortunately, nothing said by the applicant identified any arguable basis on which there could be said to be relevant error by the Tribunal.

5. The applicant did not have a current course of enrolment at the time of hearing, which was an essential criteria. No arguable case of relevant error is disclosed by anything said by the applicant. For the reasons identified in the first respondent’s submissions, which the Court adopts, the ground in the application fails to identify any arguable case of relevant error. The Court is satisfied the application has not raised an arguable case for the relief claimed. 

6. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. 

7. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       9 June 2021