Uzoh v Minister for Immigration
[2020] FCCA 2637
•22 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UZOH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2637 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the applicant was not enrolled – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cls.500.211, 500.214 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | PAUL NWAKAIRE UZOH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 117 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 September 2020 |
| Date of Last Submission: | 18 September 2020 |
| Delivered at: | Perth |
| Delivered on: | 22 September 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms J Tran |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 117 of 2020
| PAUL NWAKAIRE UZOH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nigeria. He arrived in Australia on a student visa in early 2016 (Court Book (“CB”) 158).
On 20 February 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-31). The applicant was enrolled in a Masters of Project Management.
On 27 March 2018, a delegate of the first respondent refused to grant the applicant the visa (CB 36-42). The delegate was not satisfied that the applicant met cl.500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant met the financial capacity requirements for the visa.
On 5 April 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 48-50). A number of supporting documents were provided (CB 51-113).
The applicant completed his Masters Course in July 2018 (CB 118).
On 6 December 2019, the applicant was invited to attend a hearing before the Tribunal (CB 124-126). The invitation indicated that the applicant should provide evidence of a confirmation of enrolment. The applicant provided a number of additional documents, including a PRISMS record (CB 131-159).
The applicant attended a hearing on 29 January 2020 (CB 160-162). Following the hearing, the applicant provided a number of financial documents to the Tribunal (CB 165-179). No confirmation of enrolment was provided.
On 2 April 2020, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 184-187).
Tribunal’s Decision
The Tribunal’s decision is 4 pages long and spans 20 paragraphs.
The Tribunal began by setting out the background to the application. The Tribunal identified the type of visa sought, outlined why the delegate had refused the visa and confirmed that the applicant had appeared before the Tribunal at the hearing (at [1]-[4]).
The Tribunal then summarised what cl.500.211 of the Regulations requires. Specifically, it was noted that the applicant needed to be enrolled in a course of study (at [6]-[8]).
The Tribunal noted that the applicant had not provided information concerning his current enrolment. Further, at the hearing he had confirmed that he was not enrolled to study. The Tribunal noted that it explained to the applicant that he was required to be enrolled in a course of study (at [9]).
The applicant acknowledged that he understood that his application would now be decided on the basis of his enrolment (at [10]).
The Tribunal continued:
11. The applicant explained his position. He has a background in chemical engineering, and had originally been granted a student visa so that he might undertake a Master’s of Project Management degree course at Edith Cowan University. He paid the fees payable for that course of study in advance. The applicant stated that his course was originally scheduled to start on 26 February 2016 and to run for 2 years. His student visa was, accordingly, valid until 15 March 2018. However, it transpired that the number of students enrolled in one of his units was such that he University decided to offer it online rather than live, and gave the applicant the choice as to whether he would take the course online or wait until the following semester when he could take it live. The applicant decided on the latter option, and the University extended his Confirmation of Enrolment (a copy of which he provided to the Tribunal) to allow for the fact that he would finish his course on 15 July 2018. In due course, the applicant applied for (as he put it) an extension of his student visa to allow him to finish his course. It was this application that was refused by the Minister, giving rise to this review application.
12. The applicant applied to the Tribunal for a review of the Minister’s decision on 5 April 2018, and received a bridging visa. That bridging visa carried study rights and the applicant finished his course in July 2018. The degree of Master of Project Management was duly conferred upon him. The applicant told the Tribunal, in effect, that he has pursued this review application nonetheless because:
a. it was his intention to apply for a temporary graduate visa in order to gain some experience before undertaking doctoral studies, and he could not receive such a visa unless the delegate’s decision was set aside;
b.he did not wish to have the “black mark” of a visa refusal on his immigration record; and
c. it was his view that the delegate had reached the wrong decision, as he had ready access sufficient funds to meet the costs and expenses of the remainder of his stay in Australia.
13. The applicant also stated that he had not enrolled himself in any course, short or otherwise, in order to meet the enrolment requirement (that is, the requirements of cl.500.211) because he considered that it would not be honest to do so, and because it would not have assisted him in achieving his ultimate aim of undertaking doctoral studies. The Tribunal accepts that evidence.
14. The applicant provided considerable documentary evidence to the Tribunal relevant to his position generally and to the issue of his access to funds, both before and (with leave) after hearing. The Tribunal will not list that evidence because, as none of it displaces his evidence at hearing that he is not currently enrolled, it is not relevant to the determinative issue before the Tribunal. However, in view of the effort the applicant has put into assembling that evidence and making his case on the access to funds issue, the Tribunal will make some brief comments on that evidence.
The Tribunal noted that the applicant was a model student (at [15]).
The Tribunal then referred to the evidence that the applicant had provided in relation to the financial capacity criterion (at [16]).
The Tribunal concluded:
17. The Tribunal finds, on the applicant’s own evidence, that at the date of this decision, the applicant is not enrolled in a registered course of study as required by cl.500.211. In light of that finding, the Tribunal need not, and does not, make any findings as regards the applicant’s financial capacity and the issue of whether he meets the requirements of cl.500.214. Indeed, given that the applicant has finished his studies, the Tribunal could not meaningfully calculate in the manner prescribed by the Instrument an amount for the purposes of cl.500.214(3) even if it were required to do so. In fairness to the applicant, however, the Tribunal notes that on reviewing the evidence before it, it seems distinctly likely that if the applicant had provided that evidence to the Department when he made his visa application he would have been found to meet the requirements of cl.500.214. However, that does not affect the manner in which the Tribunal must dispose of this application, given that it is engaged in a merits review and given that the determinative issue is the issue of enrolment.
18. For the reasons given above, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a registered course of study and accordingly cl.500.211 is not met.
The Tribunal affirmed the delegate’s decision to refuse the visa (at [19]-[20]).
Proceedings in this Court
The applicant’s judicial review application filed 17 April 2020 contains one ground of review as follows:
I want the court to affirm that the decision of the Delegate was wrong because I had all of the finances that I needed to complete my study and all the fees paid in full.
In an affidavit sworn 16 April 2020, the applicant states:
I applied for an extension to my student visa (Subclass 500) to allow me complete a Master of Project Management and secure a post study visa (Temporary Graduate visa), it was refused by the delegate. Reason for the refusal is that I did not meet the financial requirement. I submitted an application for review of the delegate decision with Administrative Appeals Tribunal (AAT), the review took so long and by the time a decision was made I have already completed my study which prompted them to affirm the decision of the delegate. The reason for AAT decision is that I was not currently enrolled in any course of study. The delegate decision denied me the opportunity to secure a post study visa (Temporary Graduate Visa) which I’m entitled to after graduation as a result of the visa refusal and not holding a substantive visa.
The applicant was given an opportunity to file an amended application and any affidavit evidence. He did not do so. The applicant did, however, file submissions on 18 August 2020 which, relevantly, provide:
I arrived Australia in February 2016 on 2years student visa to study for a master’s degree in project management. It was a four semester full time study program.
In the 3rd semester of my study I could not enrol in one the units because on campus class was already full. My course adviser advised me to enrol for the unit in online class or defer it till next semester. I chose the latter option since I was not use to on line class. It resulted in an extra semester of study to complete my program which prompted me to apply for a visa extension to be able to complete my course. It was refused by the delegate based on not meeting the financial requirements. I felt it was a wrong decision because as at the time of the decision I had paid all my school fees and had enough money to cover for my rent, bills, feeding and upkeep throughout the reminder of my stay in Australia.
I submitted an application for review of the delegate decision with Administrative Appeals Tribunal (AAT), and included all my school fees receipt, house rent receipt and bank statement of account. They informed me through an acknowledgement letter that in conducting a review, they must consider the case afresh and make a decision that is correct in law. They went further to explain that they are required to provide a review that is fair, just, economical, informal, quick and proportionate. However, their review took so long and by the time they made a decision I had already completed my study.
They affirmed the decision of the delegate because I was not enrolled in any course. Although, they did confirm that I paid all my school fees in advance and had enough sufficient funds to meet the costs and expenses of the remainder of my stay in Australia.
At the time I submitted the application for review to AAT, I was still enrolled and I did not expect the review to take almost 24months considering that it was just one semester visa extension. They informed me earlier through my application acknowledgement letter that their review would be quick, and did not keep to their promise which had denied me the opportunity to secure a post study visa.
I was an exemplary student all through the period of my study as shown in my academic transcript. I passed all of my units on the first attempt, and achieved credits and distinctions in many of them. I also received a letter of commendation from my school for achieving a higher distinction in one of the units. I was involved in a peer mentoring programme, I volunteered my time to help other international students orient themselves in Australian society and adapt to the academic culture.
My intention was to apply for a temporary graduate visa after my graduation in order to gain some experience before undertaking doctoral studies, and I could not receive such a visa unless the delegate’s decision was set aside.
Besides, I did not wish to have the “black mark” of a visa refusal on my immigration record.
I would like this honourable court to consider setting aside the decision of AAT so that I can apply for a post study visa.
The applicant also sent an email to Chambers which attached the “Acknowledgment of Application” from the Tribunal dated 6 April 2018 with relevant attachments (Exhibit 2).
In addition to the materials described above, the Court also has referenced a Court Book numbering 187 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 4 September 2020.
At the hearing, the applicant appeared without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions filed 4 September 2020.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant provided a detailed history of why he came to Australia. He stated that he did not understand that he was required to meet all of the criteria when he applied for the visa. He explained that a friend told him he did not have to provide all of his financial documents. He also stressed that at the time of the delegate’s decision, he had paid for all of his course fees.
These submissions pertain to the delegate’s decision. The Court has no jurisdiction in relation to the delegate’s decision: Migration Act 1958 (Cth) (the “Act”), s.476(2) and (4).
The applicant did not dispute before this Court that he did not have a confirmation of enrolment at the time of the Tribunal’s decision. He did, however, highlight the requirement “to act quickly” that appears in the document marked as Exhibit 2. He stressed that that the Tribunal did not act quickly. The Court will address this issue below.
Consideration
Judicial Review Application
The sole ground of review in the judicial review application alleges error on the part of the delegate. This Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4).
Accordingly, the sole ground of review is dismissed.
Applicant’s Affidavit
The applicant’s affidavit largely explains the applicant’s circumstances and his current situation. It does not identify jurisdictional error.
To the extent that it can be said that the applicant is alleging that the Tribunal took “too long” to hear his matter and that this amounts to jurisdictional error, the Court does not agree.
The application to the Tribunal was lodged on 5 April 2018. It took two years for the Tribunal to finally determine the matter.
It is only in rare circumstances that a delay will lead to a finding of jurisdictional error on the part of the Tribunal.
The time between the Tribunal hearing and the Tribunal’s decision was a matter of days. That “delay” did not make the decision “unsafe”.
Further, the fact that it took two years for the Tribunal to process and hear the application after the application was filed does not vitiate the Tribunal’s decision. There is no statutory time period within which the Tribunal must consider an application. As the Tribunal itself advised the applicant (CB 180), a high number of applications had been filed and processing times were inflated.
The Tribunal can only work within its means and with the resources it has. Unfortunately, this can result in a delayed consideration of visa applications. This is not, however, the fault of the Tribunal. It also does not amount to jurisdictional error.
While the Court understands the applicant’s frustrations (i.e., that the process was lengthy and he felt disadvantaged), in the particular circumstances of this case, this does not amount to jurisdictional error.
No jurisdictional error arises from the applicant’s affidavit.
Applicant’s Written Submissions
To further assist the applicant, the Court will extract each discrete statement/paragraph in the applicant’s written submissions and consider whether any jurisdictional error arises.
The submissions begin as follows:
I arrived Australia in February 2016 on 2years student visa to study for a master’s degree in project management. It was a four semester full time study program.
In the 3rd semester of my study I could not enrol in one the units because on campus class was already full. My course adviser advised me to enrol for the unit in online class or defer it till next semester. I chose the latter option since I was not use to on line class. It resulted in an extra semester of study to complete my program which prompted me to apply for a visa extension to be able to complete my course. It was refused by the delegate based on not meeting the financial requirements. I felt it was a wrong decision because as at the time of the decision I had paid all my school fees and had enough money to cover for my rent, bills, feeding and upkeep throughout the reminder of my stay in Australia.
Most of what is stated immediately above is factual background. It does not identify jurisdictional error.
The applicant also outlines why he felt the delegate was “wrong”. Again, this Court has no jurisdiction to review the delegate’s decision.
The applicant continues:
I submitted an application for review of the delegate decision with Administrative Appeals Tribunal (AAT), and included all my school fees receipt, house rent receipt and bank statement of account. They informed me through an acknowledgement letter that in conducting a review, they must consider the case afresh and make a decision that is correct in law. They went further to explain that they are required to provide a review that is fair, just, economical, informal, quick and proportionate. However, their review took so long and by the time they made a decision I had already completed my study.
The applicant’s complaint here appears to reflect what the Court has considered above (i.e., that the length of time it took to hear his matter was “unfair”).
The “acknowledgment letter” that the applicant is referring to is referenced to as Exhibit 2. Relevantly, it provides:
…We are required to provide a review that is fair, just, economical, informal, quick and proportionate…
It is accepted that the Tribunal’s “objective” is to provide a “fair, just, economical, informal, quick and proportionate” review. However, this is merely aspirational and does not provide a source of enforceable rights or obligations: Doan v Minister for Home Affairs [2019] FCA 1172.
For the reasons given above, the length of time it took to get the matter to a hearing does not amount to jurisdictional error.
The applicant continues:
They affirmed the decision of the delegate because I was not enrolled in any course. Although, they did confirm that I paid all my school fees in advance and had enough sufficient funds to meet the costs and expenses of the remainder of my stay in Australia.
Again, this paragraph refers to the delegate’s decision – a decision which is irrelevant in relation to the issues before Court on judicial review.
The applicant continues:
At the time I submitted the application for review to AAT, I was still enrolled and I did not expect the review to take almost 24months considering that it was just one semester visa extension. They informed me earlier through my application acknowledgement letter that their review would be quick, and did not keep to their promise which had denied me the opportunity to secure a post study visa.
Here, the applicant raises the same complaint as above (i.e., that there was a lengthy delay in considering the application). The Court has addressed this issue above at [34]-[41] and [46]-[50].
As for the statement that the Tribunal “denied” the applicant the opportunity to secure a post-study visa, this does not amount to jurisdictional error. While the consequence of the Tribunal’s decision was that the applicant was unable to apply for a post-study visa, the Tribunal’s decision was lawful and correct. The fact that the consequence of the decision was unfavourable to the applicant does not amount to jurisdictional error.
The applicant continues:
I was an exemplary student all through the period of my study as shown in my academic transcript. I passed all of my units on the first attempt, and achieved credits and distinctions in many of them. I also received a letter of commendation from my school for achieving a higher distinction in one of the units. I was involved in a peer mentoring programme, I volunteered my time to help other international students orient themselves in Australian society and adapt to the academic culture.
This paragraph refers to the Tribunal’s statement at [15]. The Tribunal accepted that the applicant was an exemplary student and commented generally on his activities. However, none of this was relevant to the issue of whether the applicant was currently enrolled.
No jurisdictional error arises in this regard.
The applicant then states:
My intention was to apply for a temporary graduate visa after my graduation in order to gain some experience before undertaking doctoral studies, and I could not receive such a visa unless the delegate’s decision was set aside.
Besides, I did not wish to have the “black mark” of a visa refusal on my immigration record.
While not unsympathetic to the concerns raised, the applicant needed to meet the relevant visa criterion. He did not do so. In this circumstance, his intentions were irrelevant to the task at hand.
The reference to a “black mark” relates to something that the Tribunal did consider in its decision (at [12]). The Court understands the applicant’s concerns in this regard. However, as the Tribunal noted, the applicant was required to meet the visa criterion. He did not do so.
No jurisdictional error is evident in this regard.
The applicant concludes:
I would like this honourable court to consider setting aside the decision of AAT so that I can apply for a post study visa.
The Court cannot set aside the Tribunal’s decision unless it is satisfied that there is a jurisdictional error. Here, there is no error of the sort the Court can address.
On the basis of the above, no jurisdictional error arises in the Tribunal’s decision.
Conclusion
The judicial review application, the applicant’s affidavit and the applicant’s submissions have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 22 September 2020
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