Veljanovski v Minister for Home Affairs
[2019] FCCA 502
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VELJANOVSKI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 502 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a child residence visa – requirement of full time study not met – judicial review application addressing the merits of the decision – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Wake v Minister of Immigration & Anor [2010] FMCA 272 |
| Applicant: | NIKOLA VELJANOVSKI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 374 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 374 of 2018
| NIKOLA VELJANOVSKI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant, Mr Veljanovski, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 January 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Veljanovski a Child (Residence) visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 February 2019.
Mr Veljanovski is a male citizen of Macedonia, born on 7 May 1992.[1] He arrived in Australia on 25 May 2015 as the holder of a student visa, which ceased on 13 July 2016.[2]
[1] Court Book (CB) 36.
[2] CB 171.
Mr Veljanovski applied for a subclass 802 Child visa on 8 July 2016.[3] He was sponsored by his father, Dusko Veljanovski.[4]
[3] CB 3-20, 55.
[4] CB 59.
As Mr Veljanovski was over eighteen, he needed to satisfy clause 802.214 of Schedule 2 to the Migration Regulations 1994 (Cth) at the time of the application, which required as follows:
802.214
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
“Dependent child” is defined in regulation 1.03:
dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
The requirements of clause 802.214(1)(c) have been interpreted as having two separate alternatives.[5] Either:
a)the applicant has, continuously since turning eighteen, been undertaking a full time course of study leading to the award of a professional, trade or vocational qualification;[6] or
b)the applicant has, within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full time course of study.
[5] Wake v Minister of Immigration & Anor [2010] FMCA 272;
[6] Wake.
Under clause 802.221(2)(b) Mr Veljanovski was required to continue to satisfy clause 802.214 at the time of decision.
In relation to his study, on his application form Mr Veljanovski provided details of having completed high school in Macedonia between 1 September 2007 and 10 May 2011. [7] He provided evidence of having attended university in Macedonia between 2012 and 2013[8] and of having completed a one year course in game development in 2014.[9] Mr Veljanovski provided evidence that he had completed an English course in Australia between 30 November 2015 and 19 February 2016.[10] He provided no details of any current study in Australia. In a covering letter from his agent it was stated that Mr Veljanovski wanted to continue study but could not enrol due to his current visa expiry date, and that he would do so as soon as he was able.[11] He subsequently provided evidence that he had been invited to attend an interview with respect to a fine arts course.[12]
[7] CB 11.
[8] CB 88.
[9] CB 90.
[10] CB 165.
[11] CB 2.
[12] CB 92-95.
In relation to his employment, at the time of the application Mr Veljanovski provided no details of current employment, stating that he was financially supported by his father who was resident in Australia.[13]
[13] CB 11-12.
Mr Veljanovski also provided a statement from his mother stating that she relinquished all responsibility for Mr Veljanovski and could not support him emotionally or financially.[14]
[14] CB 49.
The application was refused by the delegate on 28 November 2016:[15]
a)the delegate noted inconsistencies between the dates of study claimed by Mr Veljanovski in his forms and letters and the dates of study recorded on the evidence provided from his education providers;
b)the delegate accepted that Mr Veljanovski was a full time student at university in Macedonia until June 2013. The delegate was not satisfied on the evidence provided that the subsequent games development course was a full time course or a course leading to a professional, trade or vocational qualification; and
c)therefore, Mr Veljanovski was a full time student until June 2013, and then again from 30 November 2015 to 19 February 2016 when he was studying in Australia. He was not studying at the time of the application. The delegate did not accept that clause 802.214(1)(c) was satisfied at the time the application was lodged. Similarly the delegate found that clause 802.221(2)(b) was not satisfied as Mr Veljanovski was not a full time student at the time of the decision.
[15] CB 158-163.
Mr Veljanovski applied to the Tribunal for review of the delegate’s decision on 13 December 2016.[16] With his application Mr Veljanovski provided a statement/submissions in which he stated that he could not return to Macedonia as he had no home to return to, that he needed to stay with his father in Australia, and that he was an active and contributing member of Australian society.[17]
[16] CB 137-166.
[17] CB 154.
Mr Veljanovski attended a hearing on 10 January 2018. His father and a cousin gave witness evidence.[18]
[18] CB 186.
The Tribunal made its decision on 17 January 2018, affirming the decision under review.[19]
[19] CB 194-198.
The decision of the Tribunal
The Tribunal accepted that Mr Veljanovski studied at high school between 1 September 2007 and 31 August 2011, and attended university between January 2012 and June 2013.[20] The Tribunal accepted that Mr Veljanovski completed a further course in 2014.[21] The Tribunal accepted that Mr Veljanovski studied in Australia between 30 November 2015 and 19 February 2016.[22]
[20] [15]-[16].
[21] [17].
[22] [18].
The Tribunal found that Mr Veljanovski had not undertaken any study since February 2016. The Tribunal concluded that clause 801.214(1)(c) was not met at the time of the application[23] and was not continued to be met at the time of the decision as required by clause 802.221(2)(b).[24]
[23] [21].
[24] [22].
The Tribunal noted that at the hearing Mr Veljanovski gave evidence that since February 2016 he had worked for the sponsor (his father) for about 20 hours each week, and that since November 2017 he was employed full time with an interior design company, working five days a week from 7.30am to 4pm.[25] The Tribunal concluded that at the time of the decision Mr Veljanovski was engaged in full time work, and that although clause 802.214(1)(b) was met at the time of the application, it was not continued to be met at the time of decision as required by clause 802.221(2)(b).[26]
[25] [24].
[26] [25].
The present proceedings
These proceedings began with a show cause application filed on 14 February 2018. Mr Veljanovski continues to rely upon that application. The grounds in the application are expressed in narrative form in an attachment to it:
Dear Sir/Madam
I am appealing against the tribunal's decision to affirm my initial application on the following grounds:
1.I will be a welcome addition to the Australian community
I can guarantee that I will not be a burden to the Australian government. I work hard and since arriving in Australia I have been working and paying tax like every other Australian resident and citizen. Not only will I not be a burden, but my various trade skills can benefit the Australian economy. However, while I was lucky to be successful at my current place of employment, searching for that job alerted me to the fact that it is difficult to secure a job here without a formal qualification. If I lose my job at any point in the future I know that I will have a lot more success in securing employment with a formal qualification. Therefore, I have decided to enro[l] in full-time study and return to working part-time.
2.I have no home to return to in Macedonia, and;
3.I don't want to lose the relationship I have developed with my dad
Regarding how I will support myself while studying, I will still look to work part-time. However, if I find myself in a difficult financial situation or it takes me a bit longer to find part-time work, then my dad will lend me the money. My dad has been supportive of my decision to live in Australia since I arrived here and being his only child, I don't want him to lose me again. I have a strong relationship with my dad now and I would like to retain that. My dad also has his own successful business that he hopes to pass down to me. I also have no one left in Macedonia I want to return to. My grandparents were my last relatives who I was very close to but they have all passed away, and most of my close friends have moved out of my home town into various other Macedonian cities or other countries. Moreover, since making the decision to remain in Australia I knowingly gave up any chance of returning to Macedonia as my mother has said that she is unable to care for me anymore. She is both financially unable to provide for my basic needs, as well as unwilling to do so as I am an adult now. While I still love my mother, the last thing I want to be is a burden to anyone, nor do I want to return to a place where I am not wanted.
4.I have developed many close relationships here
In addition to the relationship with my father, I have developed many other strong relationships that I cannot imagine giving up. I have been seeing a girl for over one year now who I love a lot and see a future with. While I knew I wanted to live in Australia before meeting her, meeting her has really cemented my decision. I have also developed many close friendships here and some of the people I now call my best friends are people from Australia. I have also re-connected with my family in Australia who have been nothing but supportive of me and who I have come to love. I have a girlfriend, family, and friends in Australia who love me, so I know that I can be happy here solely because of those few important people in my life. I don't want to say goodbye to any of these people.
5.I have settled into the Australian community and therefore see a future in Australia
Alongside all the close relationships I have developed, I see a future here because I like the Australian way of life and I have settled into Australian culture. Firstly, I always excelled at English in school so the language has never been a problem since arriving here, and my IELTS score will reflect this. Secondly, the country is beautiful. I have only seen New South Wales and Victoria so far but as someone who loves nature the abundance of different landscapes has really blown me away. I am looking forward to a trip to Tasmania with my girlfriend next, and hopefully one day I will be able to say I have seen every Australian state. More importantly though I think Australia has the perfect work-life balance. I found that back in Macedonia it was either that people with jobs did nothing but work every day, or on the other hand the unemployed just sat around all day doing nothing. The times I have been unemployed in my life I have been unhappy as I can't sit around all day with no purpose or action and be happy with that. Therefore, as a hard-worker, I love that Australia has a working culture, but at the same time I appreciate the laid-back lifestyle of a lot of Australians I have met who know how to work hard but also know to take a break once the working day is over. Lastly, from the Australian-born citizens I have met I feel that that there are many people who take for granted just how good they have it in terms of job and study opportunities. I come from a count[r]y where finding permanent work is extremely difficult and where even those who would like to study have limited opportunities to do so. I feel extremely lucky to have the chance to study to improve my skills, as well as to be able to find work and feel proud to be working as a member of the Australian community.
For all of the above reasons I see a future here. There are so many things I want in life; a stable and fulfilling job, a family of my own, and a healthy and happy life - to name a few. From the time I have spent here I know that Australia, the Australian way of life, and the people I have met here can provide me with that life. I have always been an honest and genuine person and I think I deserve a chance to live the life I want to live in the country I have chosen to call home. Thank you for your time and I really hope you will rethink your decision.
Kind regards,
Nikola Veljanovski
The application is supported by an affidavit filed with it. I received that affidavit as a submission, noting that it annexes several documents which were not before the Tribunal. I have before me as evidence the court book filed on 6 April 2018.
The essential problem confronting Mr Veljanovski is that he had ceased full time study after he turned eighteen years of age. This was addressed by the Tribunal in its decision at [21].[27]
[27] CB 197.
The grounds in the show cause application are essentially an appeal to the merits and might be of some utility if the Court had some discretion in relation to the matter. However, it does not. The grounds traverse much of what Mr Veljanovski put to the Tribunal but the Tribunal was also not in a position to waive the visa criteria.
It appears to me to be an insuperable problem confronting Mr Veljanovski that he was unable to comply with an essential criterion for the visa he sought, having ceased full time study after he turned eighteen years of age. An additional problem was that the Tribunal found that at the time of its decision he was working full time. He was, in the circumstances, ineligible for the visa he sought.
I otherwise agree with the Minister’s submissions concerning the grounds of review.
Although the Tribunal has not provided detailed reasoning as to why Mr Veljanovski’s study history did not satisfy clause 802.214(1)(c) at the time of the application and the time of decision, its finding was plainly correct, having regard to the interpretation of that criterion provided in authorities such as Wake v Minister of Immigration & Anor[28] and Minister for Immigration v Henschel & Anor.[29] In summary, Mr Veljanovski needed to be currently studying in order to meet the criterion and he did not satisfy this requirement.
[28] [2010] FMCA 272
[29] [2013] FCCA 584
It was open to the Tribunal to conclude that Mr Veljanovski did not meet the criteria for grant of the visa. Both before the Tribunal and in the present proceedings Mr Veljanovski seeks to rely on matters such as his inability to return to Macedonia and his general good character. These matters were not capable of overcoming his failure to satisfy the mandatory criteria for grant of the visa and are not capable of establishing any error on the part of the Tribunal.
Conclusion
I conclude that Mr Veljanovski is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. Mr Veljanovski did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 March 2019
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