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

[2021] FCCA 940

FEDERAL CIRCUIT COURT OF AUSTRALIA

Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 940

File number:

SYG 1426 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

5 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant did not have a current course of enrolment – no arguable jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s 476

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

9

Date of hearing:

5 May 2021

Place:

Sydney

Applicant:

In person

Solicitor for the First Respondent:

Ms S Balakrishnan, Australian Government Solicitor

ORDERS

SYG 1426 of 2020

BETWEEN:

BIBEK TIWARI

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 applicant 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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 May 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student visa. 

2. The Court adopts the background in paragraphs 4 together with the grounds of argument through to paragraph 25 of the first respondent’s submissions:

   Part II           Chronology

   (4)The applicant, born in 1982, is a citizen of Nepal.[1]

   [1] Court Book (CB) 11.

   (5)On 1 February 2018, the applicant made an application for a student visa (subclass 500).[2] The application included the applicant’s wife as a dependent applicant.[3]

   [2] CB 10-38.

   [3] CB 13.

   (6)The delegate refused the application on 15 March 2018.[4] The delegate was not satisfied the applicant met the genuine temporary entrant criterion under cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations).

   [4] CB 65-72.

   (7)The applicant and his wife lodged an application for review with the Tribunal on 26 March 2018 assisted by their representative, Mr Mathew.[5]

   [5] CB 73-75.

   (8)On 22 October 2019, pursuant to s 359(2) of the Act the Tribunal invited the applicant (via the applicant’s representative Mr Mathew) to provide information showing that the applicant was enrolled in a registered course of study, and was a genuine applicant for entry and stay as a student.[6] The applicant completed the Request for Student Visa Information form, stating that he did not have a current Certificate of Enrolment in a registered course of study,[7] but that he wished to enrol in a Master Degree.[8]

   [6] CB 86-95.

   [7] CB 100.

   [8] CB 101.

   (9)On 30 January 2020, the Tribunal invited the applicant (again via Mr Mathew) to attend a hearing on 17 February 2020.[9] The applicant did not respond to the invite, and did not attend the hearing.[10]

   [9] CB 106-118.

   [10] CB 119-120.

   (10)On 19 February 2020, the Tribunal dismissed the application under s 362B(1A)(b) of the Act without further consideration of the application or information before the Tribunal. The dismissal decision was emailed to the applicant’s representative.[11]

   [11] CB 121-127.

   (11)On 28 February 2020, the applicant applied to the Tribunal to reinstate his application for review, providing evidence in the form of a medical certificate and confirmation of a medical appointment on the day of the hearing.[12] On 10 March 2020, the Tribunal reinstated the application.[13]

   [12] CB 128-131.

   [13] CB 132-135.

   (12)On 4 May 2020, the Tribunal invited the applicant (via Mr Mathew) to attend a hearing on 19 May 2020, and invited the applicant to provide evidence that he was currently enrolled in a course of study at least 7 days before the hearing date.[14] On 12 May 2020, the applicant filed the Response to hearing invitation form which indicated that his wife and representative would not be attending.[15] No evidence was provided showing that the applicant was enrolled in a course of study.

   [14] CB 136-141.

   [15] CB 142-147.

   (13)On 18 May 2020, the Tribunal provided the applicant (again via Mr Mathew) with his Provider Registration and International Student Management System (PRISMS) record, showing that the applicant was not enrolled in a registered course of study at that time.[16]

   [16] CB 148-154.

   (14)The applicant attended the hearing on 19 May 2020.[17] The applicant confirmed at the hearing that he was no longer represented by his representative. The applicant also confirmed that he had separated from his wife, and she had returned to her home country of Thailand.[18]

   [17] CB 157-160.

   [18] CB 168 at [6].

   (15)On 20 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.[19]

   [19] CB 161-169.

   Part III          Tribunal Decision

   (16)The Tribunal considered that while the issue before the delegate was whether the applicant was a genuine temporary entrant as required by cl 500.212, the issue before the Tribunal was whether the applicant was enrolled in a course of study for the purpose of cl 500.211(a).[20] The applicant acknowledged he understood that the issue before the Tribunal had changed.[21]

   [20] CB 168 at [5].

   [21] Ibid.

   (17)The applicant provided no evidence of his enrolment in a course and confirmed in sworn evidence that he had not been enrolled in a course since 2018.[22] The Tribunal found that the applicant was not enrolled in any approved course of study and therefore did not meet cl 500.211.[23]

   [22] CB 169 at [11]-[13].

   [23] CB 169 at [14].

   (18)The Tribunal found that the applicant did not meet the requirements of the visa and affirmed the delegate’s decision.[24]

   [24] CB 169 at [17]-[18].

   Part IV          Application for Judicial Review

   (19)The application was lodged on 10 June 2020,[25] within the prescribed time frame under s 477(1) of the Act. The applicant’s wife was not included in the application.

   [25] CB 1-9.

   (20)The application contains 3 grounds (errors in the original):

   1. Clause 500.211 doesn’t apply as I am a genuine temporary entrant.

   2. Clause 500.212 is not applicable as I am primary applicant

   3. AAT neglected psychological condition in regards to making a decision

   Part V            Submissions

   (21)For the reasons which follow, the applicant’s grounds of review should fail.

   Ground 1

   (22)Ground 1 is misconceived. Pursuant to cl 500.2 of the Regulations, the requirement in cl 500.211 is a primary criteria of the visa that the applicant was required to satisfy at the time of the Tribunal decision. Clause 500.2 provides:

   500.2—Primary criteria

   Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

   All criteria must be satisfied at the time a decision is made on the application.

   (23)Clause 500.211(a) requires that the applicant is enrolled in a course of study at the time of the Tribunal decision. The Tribunal was correct to find that the applicant did not satisfy the criteria in cl 500.211 because the applicant did not provide any evidence of enrolment at the time of the decision, he expressly confirmed at the Tribunal hearing that he was not enrolled in any courses at that time, and there is no evidence that he met any of the alternative criteria in cl 500.211(b) to (d). Indeed, in circumstances where the Tribunal had no discretion to waive the enrolment requirement, the only decision available to the Tribunal was to find that cl 500.211 was not satisfied. Therefore, ground 1 must fail.

   Ground 2

   (24)Ground 2 alleges that cl 500.212 of the Regulations was not applicable to the applicant as he is the primary applicant. This ground is misconceived because the genuine temporary entrant requirement in cl 500.212 was not relevant to the issues on the review.26 As the Tribunal had explained to the applicant at the hearing, the determinative issue before the Tribunal had changed since the delegate’s decision and the issue was whether the applicant met the criterion in cl 500.211 and not the genuine temporary entrant requirement in cl 500.212. That the applicant’s enrolment was an issue had also been brought to his attention in the Tribunal’s s 359(2) request dated 22 October 2019. For this reason ground 2 misunderstands the premise of the Tribunal's reasons and does not identify any jurisdictional error in the Tribunal decision.

   Ground 3

   (25)Ground 3 is flawed for 3 reasons. Firstly, the applicant’s psychological condition was not a relevant consideration for determining whether the applicant met the requirement under cl 500.211 (being whether he was enrolled). Secondly, the applicant did not provide evidence of any psychological to the delegate or to the Tribunal. In support of his application for reinstatement, the applicant merely provided a medical certificate certifying that he was unable to work for a period of 1 day due to a physical condition, namely a ‘severe pain in [his] chest’.27 The Tribunal did not fail to consider any claim of psychological condition, nor did such a claim squarely arise on the material. Thirdly, it is difficult to see how any claimed psychological conditions would have affected the applicant’s ability to understand the visa requirements or to participate in the Tribunal review proceeding given that he was represented for the review up until some time just before the Tribunal hearing. Ground 3 does not identify any jurisdictional error and should be rejected.

   BEFORE THE COURT

3. These proceedings were commenced on 10 June 2020. On 23 July 2020, a Registrar of the Court 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 Court fixed the matter today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

4. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant sought to explain his personal circumstances in relation to why he had not been able to continue his studies. Nothing said by the applicant identified any reasonable argument as to why the Tribunal’s decision or review is the subject of relevant error. 

5. In the review before the Tribunal, the applicant was on notice that he needed to have a current course of enrolment. The applicant did not provide a current course of enrolment to the Tribunal and in those circumstances, he could not be granted a Student visa. Nothing said by the applicant identified an arguable case of relevant error. 

6. For the reasons set out in the first respondent’s submissions, which the Court adopts, set out above, none of the grounds in the applicant’s application raise an arguable case for the relief claimed. 

7. The Court is not satisfied that the application has raised an arguable case for the relief claimed. 

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

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

I certify that the preceding nine (9) 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:       11 June 2021