Ullah v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 344
•19 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ullah v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 344
File number(s): MLG 2794 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 19 April 2024 Catchwords: MIGRATION – student visa – where applicant had no offer of enrolment – applicable criteria not satisfied – no error established – application dismissed. Legislation: Migration Legislation Amendment (2016 Measures No.1) Regulations 2016, Schedule 5, item 5404.
Migration Regulations 1994 (Cth) cl.573.223, cl.572.223 of Schedule 2
Cases cited: Pyaneeandee v Minister for Immigration and Border Protection [2017] FCCA 861 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 16 April 2024 The Applicant: Appearing in person Solicitor for the Respondents: Mr Anastasi – Clayton Utz ORDERS
MLG 2794 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HABIB ULLAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The application filed on 18 September 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Ullah a student visa.
For the reasons that follow, I have decided to dismiss the application.
CONTEXT
Mr Ullah is a citizen of Pakistan. Mr Ullah arrived in Australia on 6 July 2014, as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. This initial student visa was valid until 15 March 2016.
On 13 March 2016, Mr Ullah applied for a further Student (Temporary) (class TU) Higher Education visa.
On 13 July 2016, Mr Ullah was notified by the Department of Immigration and Border Protection (as it then was) that his application for a further student visa (taken to be an application for a subclass 573 visa given the applicable criteria) had been refused because the delegate was not satisfied that Mr Ullah met the genuine temporary entrant requirement at cl.573.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) as in force at that time.
On 23 August 2018, the Tribunal prepared a decision record with the reasons for its decision to affirm the decision of the delegate not to grant Mr Ullah a student visa.
In its decision record, the Tribunal identified that the issue before it was whether, at the time of the Tribunal’s decision, Mr Ullah met the enrolment requirements for a student visa: at paragraph [15] of the Tribunal’s decision record.
In its decision record the Tribunal noted that, by letters dated 9 January and 22 February 2018, Mr Ullah (via his then migration agent) was on notice of the evidence of enrolment issue and was invited to provide a current certificate of enrolment but he did not do so. Further, that it was Mr Ullah (via his then representative) who requested that the matter be determined on the papers without need for a hearing - because he did not wish to attend a hearing on account of his recovery from a medical condition and feeling uncomfortable to attend: at paragraphs [4], [5], [7] and [8] of the Tribunal’s decision record.
The Tribunal also noted that it had received a letter from a consultant psychiatrist (which confirmed that Mr Ullah had since mid-2016 been diagnosed with a medical condition but not received treatment until July 2017) as well as a written submission, diploma of business certificate issued 28 May 2016 and academic progress report for a bachelor of information technology and systems dated 29 November 2016 on behalf of Mr Ullah. The Tribunal summarised that the submission referred to Mr Ullah’s previous claims about the impact he had suffered as a result of the death of his parents as well as his study history since arrival in Australia: at paragraphs [7], [8] and [10] of the Tribunal’s decision record.
On the material before it, the Tribunal found that there was no evidence that Mr Ullah was enrolled in or had a current offer of enrolment in an applicable course of study and there was no evidence that Mr Ullah was an eligible higher degree student or an eligible non-award student or an eligible university exchange student for the purposes of any of the remaining subclasses of TU visa that might apply to him: at paragraphs [16], [17] and [19] of the Tribunal’s decision record. Further, that Mr Ullah was not supported by the Minister in his application and had not made the visa application on the basis of being a student guardian: at paragraph [19] of the Tribunal’s decision record.
Accordingly, the Tribunal found that the delegate’s decision not to grant Mr Ullah a student temporary class TU visa was to be affirmed: at paragraph [20] of the Tribunal’s decision record.
THE APPLICATION BEFORE THIS COURT
Mr Ullah applied to this Court on 18 September 2018. Accompanying the application was an affidavit in support which comprised of 10 paragraphs in support of the application and annexed a copy of the Tribunal’s decision record of 23 August 2018.
The application contained 4 grounds, as follows:
1.The Tribunal committed an error of law, fact or jurisdiction by not attributing significant weight to the information and evidence suggesting that the Applicant’s mental illness and deaths of his parents were fundamental to the assessment for genuine temporary entrant under Direction No.53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications, made under s.499 of the Migration Act 1958 (Cth).
2.The Tribunal committed an error of law or jurisdiction by not appropriately questioning the Applicant about how his relationship with his parents and his developing mental illness has affected him.
3.The Tribunal committed an error of law or jurisdiction by not giving the Applicant an adequate opportunity to inform the Tribunal about the significance of his mental illness and his parental ties.
4.The Tribunal committed an error of law as it was not procedurally fair by not questioning and assessing the actual motivations of the Applicant to study in Australia.
A response was filed on 2 November 2018 which sought that the application be dismissed and that the Applicant pay the first respondent’s costs.
By orders of the Court made by consent on 1 May 2020, Mr Ullah was invited to file an amended application, written submissions and a supplementary court book if necessary, by 28 days prior to the final hearing date. Mr Ullah did not file anything further in support of this application for review nor did he seek a further period in which to do so. The First Respondent filed a court book on 24 June 2020.
Mr Ullah was self-represented at the hearing before this Court on 16 April 2024 and had a support person to assist him. By the evidence submitted with his original student visa application Mr Ullah has attained good English language skills and my assessment was consistent with this. Mr Ullah also confirmed to the Court that, in terms of his medical condition, he is now feeling well.
Consideration
The primary criteria for a Student (Temporary) (class TU) Higher Education (subclass 573) visa at the time of Mr Ullah’s application (lodged on 13 March 2016) were set out at item 573 of Schedule 2 to the Regulations. The Regulations were subsequently amended including to repeal item 573 of Schedule 2. However, the transitional provisions made clear that the amendments apply in relation to an application for a visa made on or after 1 July 2016: Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 (Amending Regulation), Schedule 5, item 5404. The Amending Regulation, which did not have retrospective effect, operated only upon applications made from 1 July 2016 and did not apply to Mr Ullah’s application. Accordingly, Mr Ullah was required to satisfy the primary criteria at Part 573 of Schedule 2 to the Regulations: Pyaneeandee v Minister for Immigration and Border Protection [2017] FCCA 861. At the time of its decision, the issue of whether Mr Ullah held a current certificate of enrolment or offer of enrolment properly fell for consideration of the Tribunal in its decision on review.
On the materials before the Court, I am satisfied that Mr Ullah was on notice as to these specific requirements which he needed to meet in order to obtain the subclass 573 visa. Mr Ullah was represented by a migration agent at all times throughout the process up to and inclusive of the proceedings before the Tribunal. The invitation which requested the required documents was given to Mr Ullah’s migration agent some 3 weeks before a decision was made. On its face, the invitation stated that “by providing you [migration agent] with these documents, we [the Tribunal] are taken to have given the documents to the applicant”. Mr Ullah did not contend that he did not receive the Tribunal’s invitation of 1 August 2016.
Further, Mr Ullah (via his then migration agent) expressly declined the opportunity to attend a hearing before the Tribunal. It follows that Mr Ullah waived the chance to provide further explanation or evidence of any current certificate of enrolment or offer of enrolment.
In all of the circumstances, Mr Ullah was afforded reasonable opportunity but did not provide the Tribunal with the required evidence of current certificate of enrolment or offer of enrolment. It follows that the Tribunal was not in a position to reach the necessary state of satisfaction as to the enrolment requirements for the grant of the subclass 573 visa pursuant to cl.572.223 of Schedule 2 of the Regulations.
In any event, before this Court Mr Ullah accepted that he did not have a current enrolment or offer of enrolment at the relevant times and could not have met the relevant criteria as to be granted a subclass 573 visa.
To the extent that the grounds are focussed on other criterion for the remaining subclasses of a class TU, then the application is misconceived because those factors were not reasons for the Tribunal’s decision subject of this review.
DISPOSITION
For the above reasons, I discern no error in the approach of the Tribunal. Accordingly, the application should be dismissed with costs.
I certify that the preceding twenty-two (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 19 April 2024
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