Wahab v Minister for Immigration

[2017] FCCA 2391

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAHAB v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2391

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Student (Temporary) (Class TU) visa – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.1.40A, Schedule 2, cls.570.232, 571.232, 572.223, 572.231, 573.111, 573.231, 574.111, 574.231, 575.111, 575.231

Applicant: MOHAMED ABDELNASIER SAMI ABDELGHAFAR ABDEL WAHAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1368 of 2017

Judgment of: Judge Street

Hearing date: 28 September 2017

Date of Last Submission: 28 September 2017

Delivered at: Sydney

Delivered on: 28 September 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms J Strugnell
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1368 of 2017

MOHAMED ABDELNASIER SAMI ABDELGHAFAR ABDEL WAHAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 7 April 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Jordan who arrived in Australia on 19 June 2014 with a student visa to undertake a Masters of Applied Linguistics. The purpose of that visa was for the applicant to pursue that study. That visa was valid until 15 March 2016. On 7 March 2016 the applicant applied for a further student visa. By letter dated 17 March 2016, an officer of the Department wrote to the applicant requesting that he provide more information regarding the genuine temporary entrant criterion. The letter also put the applicant on notice that his immigration and study history contained unfavourable information that did not support his application.

3. On 27 April 2016, the applicant responded to that letter in which he stated that he became distracted from his study within four weeks of commencing the course but that he was planning to correct his mistake and had decided to complete his Diploma of Marketing. The applicant stated that he had recently enrolled in the Australis Institute of Technology and Education to complete a Diploma of Marketing or and Advanced Diploma of Marketing, which would take two years to complete ending in April 2018. The applicant provided a letter of offer from that education provider.

4. On 16 May 2016, the delegate refused to grant the applicant a subclass 572 visa. The delegate was not satisfied the applicant intended to temporarily stay in Australia as required by cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

The Tribunal’s Decision

1. On 28 May 2016, the applicant applied for review of the delegate’s decision. The applicant was invited to attend a hearing on 7 April 2017, which the applicant attended to give evidence and present arguments.

2. The Tribunal’s decision identifies the applicant’s background to the application for review and the applicant’s background in relation to his enrolment in educational institutions in Australia. The Tribunal identified the requirements of cl.572.223 and the requirements of cls.570.232, 571.232, 572.231, 573.231, 574.231, and 575.231 of the Regulations that, at the time of decision, the applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principle course and is of a type specified under regulation 1.40A for the subclass at the time of application.

3. The Tribunal found that the applicant was not an eligible higher degree student as defined in cl.573.111 or cl.574.111 or an eligible university exchange student or eligible non-award student for the purpose of the relevant subclass in cl.575.111. The Tribunal identified that the applicant gave evidence that he had studied initially for 10 weeks in Australia and had three months left to commence a university course. The Tribunal identified that the applicant is working occasionally and is not studying. The Tribunal found that there is no evidence the applicant is enrolled in or has a current offer of employment in any applicable course of study. The Tribunal therefore found the applicant did not meet cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231.

4. The Tribunal found that there is no evidence that the applicant meets the other relevant criteria and that the decision under review must be affirmed.

Proceedings before this Court

Grounds in the application

1. The grounds in the application are as follows:

   1. I appeared before the Tribunal with my wife, Ayat Abulawi, and explained my circumstances and how I was cheated by the Migration Agent yet the Member refused my application without accepting the reasons beyond my control.

   2. I completed 10 weeks studies and was about to commence a university course and my migration agent and lawyer took money without providing the service they had promised and I believe that there is fraud from the migration agent and lawyer and I am a victim.

   3. The Tribunal was aware that I am married and my wife is pregnant and such was not considered.

Nature of the hearing

1. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

2. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair the decision will be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.

3. The Court explained it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.

Submissions from the bar table

1. From the bar table, the applicant indicated that he did not contend that the decision was not fair and said that he had an agent who was guiding him. The applicant complained that he had made a payment to the university prior to coming to Australia from Jordan and that he then met a person who told him he could study cheaper and that is when his misery started.

2. The applicant contended that he came here to pursue his study and that he complained as to the information given to him by an agent and a lawyer. The applicant contended that he wanted one last chance.

Consideration

1. Nothing said by the applicant from the bar table identified any jurisdictional error. In substance, the submissions of the applicant appear to invite the Court to engage in merits review. This Court has no power to review the merits. This Court has no power to decide the matter on compassionate grounds.

Ground 1

1. In relation to Ground 1, the assertions of the applicant in relation to his migration agent or a lawyer do not in any way identify any fraud upon the Tribunal. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, this, in substance, is a repetition of Ground 1. The applicant’s complaints in relation to his lawyer and migration agent do not identify any relevant fraud upon the Tribunal.

2. In the present case it is crystal clear the applicant was not enrolled in or had a current offer of employment at the time of hearing. That was an essential mandatory criterion. As the applicant was not enrolled in or had a current offer of enrolment in the applicable course of study he had no prospect of succeeding in these proceedings and no prospect of obtaining the visa. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to Ground 3, the applicant’s marital status and expecting a child does not enliven any jurisdiction to set aside the decision of the Tribunal. This Court has no power to decide the matter on compassionate grounds.

2. On the face of the material before the Court the Tribunal conducted the review in accordance with its statutory obligations. On the face of the material before the Court the Tribunal complied with its requirements of procedural fairness in the conduct of the review. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. Because the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  10 October 2017