Syed v Minister for Immigration

[2020] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION  & ANOR [2020] FCCA 1173

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), s.359AA

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: MUKRAMUDDIN SYED

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2675 of 2019

Judgment of: Judge Driver

Hearing date: 13 May 2020

Delivered at: Sydney

Delivered on: 13 May 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms J Strugnell of Minter Ellison by telephone

INTERLOCUTORY ORDERS

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

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2675 of 2019

MUKRAMUDDIN SYED

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Syed, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 17 September 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Syed a student visa.  Background facts relating to Mr Syed’s application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 30 April 2020. 

2. Mr Syed is a citizen of India, who arrived in Australia on 10 July 2008 on a student visa.

3. On 14 March 2016, Mr Syed applied for another student visa.[1]

   [1] court book (CB) 1–7

4. Mr Syed was enrolled in a Diploma of Marketing and an Advanced Diploma of Marketing with a completion date of 7 January 2018. However, his enrolment in the Diploma of Marketing was cancelled due to unsatisfactory attendance with the last day for attendance reported as 14 February 2016.[2]

   [2] CB 70

5. On 27 July 2016 the delegate refused to grant the visa on the basis that Mr Syed did not meet the criterion in clause 572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), that he was a genuine applicant for entry and stay as a student.[3]

   [3] CB 65–73

6. Mr Syed sought review of the delegate's decision before the Tribunal by application dated 12 August 2016.[4]  Mr Syed appeared at a hearing before the Tribunal on 11 July 2017.[5]  The Tribunal made an oral decision affirming the decision to refuse to grant Mr Syed a subclass 572 visa.[6]

   [4] CB 74–75

   [5] CB 122–124

   [6] CB 132

7. Mr Syed requested written reasons on 13 July 2017[7] and the Tribunal provided written reasons on 28 August 2017.[8]

   [7] CB 133

   [8] CB 137–142

8. On 11 May 2018, this Court made orders remitting the matter to the Tribunal.[9]

   [9] CB 143–144

9. By letter dated 26 August 2019, Mr Syed was invited to attend a hearing before the Tribunal to give evidence and present arguments.[10] The letter also requested that Mr Syed provide a copy of his current Confirmation of Enrolment, documents to show that he was enrolled in a course or had an offer of enrolment, documents in relation to his past studied including certificates of completion and any explanation for the gaps in his enrolment.[11]

   [10] CB 149–155

   [11] CB 151

10. On 5 September 2019, Mr Syed requested a postponement of the hearing.[12]

    [12] CB 156

11. By letter dated 6 September 2019, the Tribunal granted the postponement[13] and requested the same documents as those described at [9] above be provided.[14]

    [13] CB 157–163

    [14] CB 159

12. On 17 September 2019, Mr Syed appeared at a hearing before a reconstituted Tribunal.[15]

    [15] CB 164–166

13. Also on 17 September 2019, the Tribunal affirmed the delegate's decision to refuse to grant Mr Syed a student visa.[16]

    [16] CB 172–177

Tribunal decision

1. The Tribunal set out the background.[17] The Tribunal then set out, pursuant to s.359AA of the Migration Act 1958 (Cth) (Migration Act), information that it considered may be the reason or part of the reason for affirming the decision, including PRISMS[18] records.[19]

   [17] CB 173–174: [8]–[13]

   [18] Provider Registration and International Student Management System

   [19] CB 174–175: [14]–[17]

2. The Tribunal identified that Mr Syed was required to meet the enrolment criteria in clauses 570.232, 571.232, 572.232, 573.232, 574.232 or 575.232 of the Regulations.[20]  Further, it noted that Mr Syed was provided an opportunity to comment on or to respond to adverse information stemming from records from PRISMS, but that he elected not to do so.[21]

   [20] CB 175: [19]–[20]

   [21] CB 175: [21]

3. The Tribunal accepted Mr Syed’s evidence that he was not enrolled in any course of study and had not studied since 2016.[22]

   [22] CB 176: [22]

4. The Tribunal then set out Mr Syed’s evidence in relation to his ties to India and Australia, and set out his evidence that he wishes to remain in Australia and bring his wife and children here.[23]

   [23] CB 176–177: [23]–[28]

5. The Tribunal found that there was no evidence that Mr Syed was enrolled in, or had any current offer of enrolment for, any course of study.[24] Accordingly it found that clauses 570.232, 571.232, 572.232, 573.232, 574.232 and 575.232 of the Regulations were not met and affirmed the decision under review.[25]

   [24] CB 177: [31]

   [25] CB 177: [30], [32]–[33]

The present proceedings

1. These proceedings began with a show cause application filed on 16 October 2019.  Mr Syed continues to rely upon that application.  There are four grounds in it:

   1. The Tribunal failed to grant me the student visa as the Minister wrongly assumed that I have not completed the course.

   2. As a student I have always honoured my visa conditions and I have chosen courses which will help me in the future when I go back to my country.

   3. The Tribunal had made a decision contrary to the evidence provided and failed to accept that I am genuine student even through the Tribunal had evidence that I completed good courses.

   4. The Tribunal decision does not seem to be reasonable.

2. The application was supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 9 December 2019.  A further affidavit by Mr Valliappan, a solicitor employed by the Minister’s solicitors, was not read, as it dealt with Mr Syed’s departure from Australia and his visa status, which was not disputed.

3. The hearing today was conducted in the knowledge that Mr Syed had departed Australia and had not returned.  Mr Syed, nevertheless, requested a hearing on his application on the basis that he intended to return to Australia.  As was noted today by the Minister’s solicitors, Mr Syed does not currently hold a visa entitling him to return to Australia and, hence, there might have been an issue of futility had some error been identified in the decision of the Tribunal. 

4. For the following reasons, however, I have come to the view that there is no arguable case of jurisdictional error.  I invited submissions from Mr Syed orally today, as he had attended by telephone from India.  He told me that the Tribunal required brief responses from him and that he was dissatisfied with the Tribunal decision.  He told me that he had acted upon advice that he could apply for a visa and undertake studies later. 

5. As I pointed out to, Mr Syed, however, it was a necessary criterion for the grant of the visa he sought that he be enrolled in a course of study.  And at the time of the Tribunal’s decision he was not so enrolled.  He did not dispute that fact, but asserted that he had acted on poor advice.  That may well be so, but it does not suggest any error by the Tribunal. 

6. The Minister’s submissions deal adequately with the grounds of review advanced.  I agree to those submissions. 

Ground 1

1. The first ground contends that the Tribunal failed to grant Mr Syed a student visa because it wrongly assumed that he did not complete “the course”.

2. This ground is misconceived. While the PRISMS information did indicate that Mr Syed had failed to complete some 16 courses, the Tribunal affirmed the decision to refuse to grant him a student visa on the sole basis that he was not enrolled in a course of study, nor did he have an offer of enrolment at the time of the Tribunal's decision. As Mr Syed was not enrolled and did not have a current offer of enrolment, he could not meet the requirements of clauses 570.232, 571.232, 572.232, 573.232, 574.232 or 575.232 of the Regulations. This finding was the only finding open to the Tribunal on the evidence before it.

Ground 2

1. The second ground contends that Mr Syed has always honoured his visa conditions and has chosen courses that will assist him when he returns to his home country.

2. This ground does not identify or articulate any error on the part of the Tribunal and would be dismissed. As set out in relation to Ground 1, the Tribunal affirmed the decision not to grant Mr Syed a student visa on the sole basis that he could not meet the enrolment criteria. This conclusion was plainly open to it on the material before it.

Ground 3

1. The third ground contends that the Tribunal made a decision “contrary to the evidence provided and failed to accept that I am a genuine student even though the Tribunal accepted that I completed good courses”.

2. This ground misrepresents the Tribunal's findings. The Tribunal noted that PRISMS indicated that Mr Syed had completed only four of the twenty courses he had been enrolled in. When this information was put to Mr Syed pursuant to s.359AA of the Migration Act, he elected not to respond or to seek further time to respond, and he provided no evidence such as certificates of completion as requested by the Tribunal when it invited him to a hearing. Accordingly, the contention that the Tribunal accepted that Mr Syed had completed good courses is incorrect.

3. Moreover, the Tribunal did not find that Mr Syed was not a genuine student. Rather, as set out in relation to Grounds 1 and 2, it found that he did not meet the enrolment criteria and affirmed the decision on this sole basis.[26]

   [26] CB 177: [30]–[32]

Ground 4

1. The fourth ground contends that “the decision does not appear to be reasonable”.  This ground merely expresses Mr Syed’s disagreement with the Tribunal's decision. The Tribunal’s findings cannot be said to be illogical, irrational or unreasonable.[27] Further, the Tribunal's decision clearly has an evident and intelligible justification.[28] That is, Mr Syed was required to be enrolled in a course of study, and he was not. It follows that it was reasonable for the Tribunal to find that Mr Syed did not meet the requirements of clauses 570.232, 571.232, 572.232, 573.232, 574.232 or 575.232 of the Regulations.

   [27] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ

   [28] Minister for Immigration v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ

2. I conclude that Mr Syed is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. I am going to order that there be no order as to costs.  I am unwilling to make a costs order against a person who is not within the jurisdiction, particularly in circumstances where he has not been heard on the issue.[29]

   [29] Mr Syed disconnected from the call in the latter stage of my delivery of oral reasons

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date:  19 May 2020