Soliman v Minister for Immigration

[2018] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOLIMAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 242

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

Minister for Immigration v SZNPG [2010] FCAFC 51
Minister for Immigration v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259

Applicant: AHMAD RABIE AHMED SOLIMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1551 of 2017

Judgment of: Judge Driver

Hearing date: 2 February 2018

Delivered at: Sydney

Delivered on: 2 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Ashworth of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1551 of 2017

AHMAD RABIE AHMED SOLIMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

1. The applicant, Mr Soliman, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Soliman a student visa.  Background facts relating to Mr Soliman’s visa application and the Tribunal decision on it are set out in the Minister’s outline of submissions filed on 25 January 2018. 

2. Mr Soliman, a citizen of Egypt, arrived in Australia on 2 May 2007 as the holder of a student (class TU) (subclass 572) visa.[1]  He applied for a further subclass 572 student visa on 8 December 2015.[2] On 18 March 2016, the delegate refused to grant Mr Soliman a student visa on the basis that they were not satisfied that Mr Soliman was a genuine applicant for entry and stay as a student for the purpose of clause 572.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]

   [1] Court Book (CB) 18

   [2] CB 53

   [3] CB 62

3. On 4 April 2016, Mr Soliman applied to the Tribunal for review of the delegate’s decision.[4] On 7 April 2017, the Tribunal wrote to Mr Soliman inviting him to a hearing.[5]  The hearing invitation requested that Mr Soliman provide, amongst other things, a copy of a current certificate of enrolment or offer of enrolment, as required for the grant of a student visa.[6]

   [4] CB 64-65

   [5] CB 72-74

   [6] CB 73

4. On 9 May 2017, Mr Soliman appeared at a hearing before the Tribunal.[7]

   [7] CB 84-86

5. On 9 May 2017, the Tribunal made an oral decision, affirming the decision under review.[8]  Written reasons were subsequently produced on 26 May 2017.[9]

   [8] CB 88-90

   [9] CB 99-101

Tribunal decision

1. The Tribunal noted that the delegate refused the visa on the basis that Mr Soliman did not meet clause 572.223.[10]  However, the issue before it was whether at the time of its decision, Mr Soliman met the enrolment requirements for the visa.[11]  The Tribunal identified that the criteria for the grant of the relevant subclasses required that at the time of the decision, an applicant be enrolled, or the subject of a current offer of enrolment, in a principal course of study of the type specified under regulation 1.40A of the Regulations for the relevant subclass of visa.[12]

   [10] CB 100 at [4] and [8]

   [11] CB 100 at [8]

   [12] CB 100 at [9]

2. The Tribunal noted Mr Soliman’s evidence that he had tried to continue to study but he had been told that he could not and that he had no current offer of enrolment.[13]  The Tribunal noted that there was no evidence before the Tribunal to indicate that Mr Soliman was enrolled in, or had a current offer of enrolment, in a principal course of study.[14]

   [13] CB 101 at [10]-[11]

   [14] CB 101 at [11]

3. The Tribunal therefore found that clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations were not met.[15]  Further, there was no evidence that Mr Soliman met the criteria for the remaining subclasses of a class TU visa.[16]  For these reasons, the Tribunal affirmed the decision under review.[17]

   [15] CB 101 at [11]

   [16] CB 101 at [12]

   [17] CB 101 at [13]

The present proceedings

1. These proceedings began with a show cause application filed on 19 May 2017.  Mr Soliman continues to rely upon that application.  There are two grounds in it:

   1.The Tribunal gave me an oral decision outcome of review via my migration agent’s email on 10 May 2017. I do not agree with the decision and I have asked the Tribunal to give me a full written decision to enable me to provide my reasons for refuting the decision of the Tribunal.

   2.I asked the Honourable Court to accept my application under the Migration Act and I will provide particulars upon receiving the full decision as well as copy of my transcript.

2. In addition to Mr Soliman’s affidavit filed with his application, I have before me as evidence the court book filed on 12 July 2017. 

3. Only the Minister prepared pre-hearing submissions in accordance with procedural orders made by a Registrar. I invite oral submissions from Mr Soliman. He confirmed that he was not enrolled in a course of study at the time of the Tribunal decision. Indeed, he is still not enrolled. He is not claiming that there is any error in the Tribunal’s decision. He is, however, still seeking the student visa in order to permit him to undertake an advanced diploma of marketing for approximately one year.  I explained to Mr Soliman that it is beyond the Court’s jurisdiction to change the Tribunal’s decision. In the absence of any jurisdictional error, the Court must dismiss his application.

4. I otherwise agree with the Minister’s submissions in relation to the grounds advanced. 

5. Neither ground articulates (or establishes) a jurisdictional error on the part of the Tribunal. 

6. The issue before the Tribunal was whether Mr Soliman was currently enrolled, or was the subject of a current offer of enrolment, in a course of study that was a principal course of study of the relevant type specified in the Regulations. Mr Soliman’s evidence, as recorded in the Tribunal’s decision, was that he was not enrolled in, and had no offer of enrolment, in any course of study at the time of the Tribunal’s decision.[18] Accordingly, the Tribunal’s decision was the only one open to it. The Tribunal applied the correct law and fulfilled its statutory obligations under Division 5 of Part 5 of the Migration Act 1958 (Cth).

   [18] CB 101 at [11]

7. Mr Soliman’s disagreement with the Tribunal’s findings is not, in itself, an assertion of jurisdictional error on the part of the Tribunal.  Mr Soliman’s grounds rise no higher than to seek impermissible merits review.  They do not reveal an arguable case for the relief claimed.[19]

   [19]Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Minister for Immigration v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ

Conclusion

1. I conclude that Mr Soliman was unable to demonstrate an arguable case of jurisdictional error by the tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  Mr Soliman told me that he has just returned from an overseas holiday and is temporarily short of funds.  I will not require payment by any particular time.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       5 February 2018