THOMAS v Minister for Immigration - [2018] FCCA 1924

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMAS & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1924

Catchwords:
MIGRATION – Show cause hearing – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 572 visa – no arguable jurisdictional error identified.

Legislation:
Federal Circuit Court Rules 2001, rr.11.11, 44.12(1)(a)
Migration Regulations 1994, cls.572.222, 572.223 of Schedule 2

Cases cited:
Aulakh v Minister for Immigration and Border Protection [2017] FCCA 544
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140
QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 98 ALD 695; [2007] FCA 1918
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63

First Applicant:

NANCY THOMAS

Second Applicant

DENNIE MADATHILETHU GEORGE

Third Applicant

DIYA MADATHILETHU GEORGE

BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1275 of 2017

Judgment of:

Judge Riley

Hearing date:

18 June 2018

Date of last submission:

18 June 2018

Delivered at:

Melbourne

Delivered on:

18 June 2018

REPRESENTATION

Advocate for the first applicant:	In person
Advocate for the second applicant:	In person
Advocate for the third applicant:	By her litigation guardian, the first applicant

Solicitor for the applicants:

None

Advocate for the first respondent:	Emily Wilde
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Clayton Utz Lawyers

ORDERS

Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001 (“the Rules”), the first applicant be appointed as litigation guardian for the third applicant.
Pursuant to r.1.06 of the Rules, the requirement in r.11.11(2) of the Rules for the filing of an affidavit of consent be dispensed with.
The application filed on 16 June 2017 be dismissed pursuant to r.44.12(1)(a) of the Rules.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1275 of 2017

NANCY THOMAS

First Applicant

DENNIE MADATHILETHU GEORGE
Second Applicant

DIYA MADATHILETHU GEORGE
THIRD APPLICANT
BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

[1] Reasons for judgment were given orally on 18 June 2018. The applicant filed an application for extension of time and leave to appeal on 6 July 2018. The registry advised chambers on 9 July 2018 that the applicant had applied for an extension of time and leave to appeal. Chambers ordered a transcript of the reasons for judgment on 9 July 2018. Auscript provided the transcript of the reasons for judgment on 10 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 13 July 2018.

This is a show cause hearing in the context of an application to review a decision of the Administrative Appeals Tribunal. The first applicant is the wife of the second applicant and the mother of the third applicant. The first applicant applied for a student visa to enable her to continue studying in Australia. The date of the application was 4 June 2015. The applicants had arrived in Australia in 2009 on the basis of the first applicant’s previous student visa that was granted on 26 February 2009.
A delegate of the Minister for Immigration and Border Protection refused the application made on 4 June 2015 on the basis that the delegate considered that the first applicant was not a genuine temporary entrant for the purposes of study. The delegate looked at the first applicant’s study history and noted that she appeared to have completed five of her 12 enrolments and that her latest study proposals were unrelated to the studies that she had previously undertaken. The delegate also noted that one of the first applicant’s enrolments, being for an Advanced Diploma of Management, was cancelled on 3 May 2013 due to the non-payment of fees.
Following the delegate’s decision, the applicants sought review by the Tribunal. The Tribunal conducted a hearing during which the first applicant told the Tribunal that she was not currently enrolled and did not have a current offer of enrolment. The Tribunal noted that under cl.572.222 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) a current enrolment or current offer of enrolment was a prerequisite for the grant of the visa. As the first applicant did not have a current offer of enrolment, the Tribunal held that the first applicant was unable to meet the relevant criteria and did not deal with any of the other criteria for the visa.
The Tribunal may have been mistaken about precisely what was required. Clause 572.222(1) of Schedule 2 of the Regulations that applied at the time of the applicants’ visa application on 4 June 2015 relevantly required that, at the time of decision, except in the case of certain presently irrelevant circumstances:
the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
Consequently, cl.572.222 of Schedule 2 of the Regulations required that the first applicant have a certificate of enrolment in an acceptable course. As the Tribunal noted, the first applicant told the Tribunal that she was not currently enrolled in any course.
When the matter came on for hearing today, the first applicant told the court that she could not enrol in a course because she did not have a student visa. There was no evidence before the court that people cannot obtain a certificate of enrolment without having a student visa. That argument seems surprising. In the absence of evidence, I do not accept the first applicant’s claim in that regard.
The applicants did provide, with their visa applications, two certificates of enrolment. However, they covered courses that expired in 2015 and 2016. The Tribunal’s decision was made on 25 May 2017. Therefore, there is no reason to doubt that the first applicant did not have a certificate of enrolment at the time of the Tribunal’s decision. Consequently, as that was a mandatory criterion for the grant of the student visa, and as there was no scope for departing from that criterion, the Tribunal arrived at the only decision that it could have made.
The applicants, in their application to the court filed on 16 June 2017 (“the application”), raised two grounds. The first ground is that:
The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 572.222 Migration Regulations 1994 (Regulations)
There were five aspects to this ground. The first aspect of ground 1 is that:
The Tribunal erred in not considering and applying clause 573.223(2)(b)(ii) any other relevant matter when clearly the applicants’ circumstances and facts demands that the said clause be invoked in their favour.[2]
[2] Subclause 573 concerns Higher Education Sector visas. The applicants did not apply for these: CB7. In any event, all visa subclasses require enrolment in a course.
That clause was not strictly relevant to the Tribunal’s decision because the first applicant did not satisfy cl.572.222 of Schedule 2 of the Regulations. Consequently, it was unnecessary for the Tribunal to consider any of the other requirements for the visa. Clause 572.223 of Schedule 2 of the Regulations concerned the genuine applicant for entry as a student criterion but the Tribunal expressly decided that it was unnecessary to consider that because the first applicant did not meet the certificate of enrolment criterion.
The second aspect of ground 1 is that:
The Tribunal erred in applying and referring to clause 572.222 which is not relevant to the applicants.
However, that clause was relevant to the applicants because it was a mandatory criterion requiring that the first applicant have a current certificate of enrolment.
The third aspect of ground 1 is that the Tribunal erred in that:
Applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 the Tribunal failed to have regard to all the mandatory criteria in cl 572.223 Regulations.
However, as discussed, the Tribunal did not need to consider the genuine temporary entrant criterion once it had decided that the first applicant could not satisfy cl.572.222 of Schedule 2 of the Regulations.
The fourth aspect of ground 1 is that:
The Tribunal erred in not referring and applying cl 572.223 (1) (a) Regulations.
Again, the Tribunal did not need to refer to this clause when it had already decided that the first applicant did not meet one of the mandatory criteria.
The fifth aspect of ground 1 is that:
The Tribunal made jurisdictional error in failing to consider that the delegate made a decision on the basis of no evidence applying the case QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918
QAAA is a refugee matter and concerned a no evidence ground. QAAA has no bearing on the present matter. The Tribunal found on the first applicant’s own admission that she did not meet cl.572.222 of Schedule 2 of the Regulations. Consequently, it was not necessary for the Tribunal to consider the other criteria for the grant of the visa.
The second ground in the application is:
In the alternative, the Tribunal exceeded its jurisdiction in making its decision to affirm the delegate’s decision.
There were five aspects to this ground. The first aspect of ground 2 is that:
The issue before the delegate was the applicant’s financial capacity.
It seems that the issue for the delegate was really whether the first applicant was a genuine entrant for the purposes of study and stay as a student. In any event, the Tribunal was entitled to decide the case on different grounds to the grounds decided by the delegate. That is particularly so where the first applicant, herself, gave the Tribunal the relevant information that she was not enrolled in a course of study.
It is also the case that the application form that the applicants submitted on 4 June 2015 says in question 32:
You must provide evidence of enrolment (an electronic confirmation of enrolment) or a letter of offer of a place in a course unless you are seeking to study in Australia as a secondary school exchange student …
Clearly, the applicants were put on notice by the form that the first applicant was required to be enrolled or have an offer of enrolment.
The second aspect of ground 2 is that:
The Tribunal failed to consider the applicant had provided to the delegate on 5 July 2015 a collection of fixed deposit receipts and a letter issued from the State Bank of Travancore.
However, as discussed, the financial issues were irrelevant where the Tribunal based its decision on the first applicant’s failure to have a certificate of enrolment.
The third aspect of ground is 2 is that:
The Tribunal failed to consider the delegate’s request to provide the documents was adhered to by the applicants.
Again, even if the applicants had promptly and fully provided to the delegate the documents that he had sought, the fact remained that the applicants did not meet another mandatory criterion for the grant of the student visa, which was that the first applicant had a current certificate of enrolment.
The fourth aspect of ground 2 is that:
The Tribunal erred by saying at paragraph 13 of the decision held that the delegate refused the visa because the applicants did not meet the Genuine Temporary Entrant (GTE) criteria when the issue before the delegate was applicant’s financial capacity.
Whether or not the Tribunal was mistaken about that point is irrelevant when a mandatory criterion was not met. However, the decision of the delegate clearly shows that some consideration was given to financial aspects of the matter and then the conclusion at CB90 was that:
In summary, I am not satisfied that you genuinely intend a temporary stay in Australia.
…
On balance, I am not satisfied that you are a genuine entrant for entry and stay as a student because I am not satisfied that you intend to genuinely stay in Australia temporarily having regard to your circumstances and immigration history and other relevant matters. On this basis, I am not satisfied that you meet the requirements of clause 572.223(1)(a) [that is, the genuine temporary entrant criterion].
The fifth aspect of ground 2 is that:
The Tribunal exceeded its jurisdiction in making a finding that the applicant did not meet clause 572.222.
The applicants have not explained how this alleged error occurred. I am unable to discern any error in the Tribunal’s conclusion in that regard.
The sixth aspect of ground 2 is that:
The Tribunal failed to consider applying the case of Aulakh & Ors v Minister for Immigration & Anor (2017) FCCA 544 that inconsistencies in the evidence of the applicant before it does not go to the core of the applicants claim for the student visa.
That case has no bearing on the present matter. The Tribunal did not rely on any inconsistencies in the evidence. Rather, it relied on the applicants’ concession that the first applicant did not have a certificate of enrolment at the time of the Tribunal’s decision.
The Minister, as model litigant, has raised some other issues in his written submissions. The Minister raised SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 because the Tribunal decided the case on a different basis to the basis upon which the delegate decided the matter. However, as already noted, the visa application form sets out expressly that the first applicant must provide evidence of enrolment. In addition, in a letter dated 26 April 2017 sent to the applicants, the Tribunal specifically asked the first applicant to provide a copy of her current certificate of enrolment and asked for:
Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
In paragraph 13 of the Tribunal’s reasons for decision, the Tribunal noted that the first applicant told the Tribunal that she was not currently enrolled and did not hold a current offer of enrolment. Paragraph 14 of the Tribunal’s reasons for decision notes that:
As was explained in the letter sent with the hearing invitation, current enrolment or the offer of enrolment is a pre-requisite for the grant of a visa.
It seems to me, that in this case, there is no error of the type identified in SZBEL.
The Minister also raised the issue that it was apparent that the Tribunal had the first applicant’s PRISMS records but did not provide these to the applicants. However, the Minister submitted correctly, in my view, that the Tribunal did not need to provide those records to the applicants because the first applicant had provided the relevant information to the Tribunal, being the information that she was not enrolled in any course.
It seems to me, in all the circumstances, that there is not an arguable basis upon which it could be held that the Tribunal made a jurisdictional error in this case. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 13 July 2018