Wu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 108

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 108

File number(s):

PEG 289 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

28 January 2021

Catchwords:

MIGRATION – Student (subclass 500) visa – where the applicant was not enrolled in registered course of study – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 359A, 476

Migration Regulations 1994 (Cth), cll 500.211, 500.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 60

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Moussa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 149

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

46

Date of hearing:

27 January 2021

Place:

Perth

Applicant:

Appeared in person

Counsel for the First Respondent:

Mr A Gerrard

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

PEG 289 of 2020

BETWEEN:

CHIH-LUNG WU

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	28 JANUARY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. The applicant is a citizen of Taiwan. He arrived in Australia on 28 August 2014 on a working holiday visa (Court Book (“CB”) 64). He was subsequently granted a number of student visas.

2. On 1 May 2019, the applicant applied for a Student (subclass 500) visa (the “visa”) (CB 10-47). The applicant indicated that he was enrolled to study an Advanced Diploma of Leadership & Management.

3. On 19 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB58-68). The delegate was not satisfied that the applicant was a genuine temporary entrant. Accordingly, the applicant did not meet cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”).

4. On 8 August 2019, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 69-70).

5. On 1 April 2020, the Tribunal invited the applicant to provide further information in relation to his current enrolment status and the genuine temporary entrant criterion (CB 74-81).

6. The applicant obtained assistance from a migration agent on 14 April 2020 (CB 82-85). The Tribunal granted the applicant an extension of time to provide a response to the invitation sent on 1 April 2020 (CB 87-88).

7. On 28 April 2020, the applicant sent a number of documents to the Tribunal. These documents included academic documents, various confirmation of enrolments, tasks the applicant had submitted in his studies, bank records and a ticket to return to Taiwan for 7 February 2021 (CB 93-147). In a statement included in those documents, the applicant stated:

   I have made the decision to finish Advanced diploma of Leadership and management by Feb.2021…

8. On 28 April 2020, the applicant’s migration agent withdrew from representing the applicant (CB 148).

9. The applicant attended a hearing before the Tribunal on 17 August 2020 (CB 166-169).

10. Following the hearing on 17 August 2020, the Tribunal invited the applicant to comment or respond to the following information (CB 171-176):

    The particulars of the information are:

    •Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.

    This information is relevant to the review because you have applied for a Student visa and the PRISMS record indicates that you are not currently studying and do not have an enrolment to study in the future.

11. The applicant did not respond to the invitation.

12. On 1 September 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 179-181).

13. On 5 October 2020, the applicant applied for judicial review of the Tribunal’s decision in this Court pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

    TRIBUNAL’S DECISION

14. The Tribunal’s decision is 3 pages long and spans 17 paragraphs.

15. The Tribunal began by identifying the type of visa the applicant had applied for (at [1]-[2]). It explained that the delegate had refused the visa as the applicant did not meet cl 500.212 of the Regulations (at [3]). The Tribunal also noted that the applicant had attended a hearing before the Tribunal and had responded to an invitation to provide information (at [5]-[6]).

16. The Tribunal continued:

    7. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant’s evidence, the issue before the Tribunal became whether at the time of the decision, the applicant meets the enrolment requirement in cl 500.211(a) for a student visa. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.

    8. In strict accordance with the procedure set out in Section 359AA of the Act, the Tribunal put to the applicant enrolment records from the Provider Registration International Student Management System Database. The applicant received a letter in writing enclosing the records after the hearing and was given 14 days to respond from the 17 August 2020.These records confirmed that the applicant was not enrolled in an approved course of study at the time of the Tribunal hearing.

17. The Tribunal then identified the relevant visa criterion (at [10]). The Tribunal specifically referred to the requirements of cl 500.211 of the Regulations (at [11]-[12]).

18. The Tribunal then stated:

    13. At the hearing the applicant was given an opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current confirmation of enrolment certificate. No such evidence was forthcoming even after the 14 days extension that the Tribunal provided to the applicant after the hearing.

    14. The applicant confirmed in sworn evidence that no current enrolment certificate in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.

    15. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

19. The Tribunal affirmed the decision not to grant the applicant the visa (at [17]).

    PROCEEDINGS IN THIS COURT

20. In his judicial review application filed 5 October 2020, the applicant provides three “ground of review” which state (without alteration):

    The applicant was not enrolling in any course because the applicant had a plan to go back Taiwan so the applicant applied for suspension of schooling but the applicant’s country government just made a policy to force everyone comes from oversea to Taiwan has to do self-isolation for at least 14 days and the policy makes the applicant is not able to meet family in the limit time, so the applicant had to cancel the travel.

    The decision maker did not consider COVID viru causes many students to change their studying plans and travel plans and enrolment plans.

    The decision maker just pick one of disadvantage factor in the special COVID situation for the applicant to deny the applicant’s more good performance for being a full time student.

21. The applicant also filed an affidavit affirmed 2 October 2020 which provides:

    I was not enrolling any course because I had a plan to go back Taiwan so I applied for suspension of schooling but we met serious COVID then, and it made us need to do self-isolation for 14 days.

22. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were provided to the Court.

23. The materials before the Court thus include those referred to above, a Court Book numbering 181 pages (marked as Exhibit 1), confirmation that the applicant had been served the written submissions (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 19 January 2021.

24. At the hearing, the applicant appeared before the Court without legal representation. The Court confirmed that he had received a copy of the Court Book and the Minister’s submissions.

25. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

26. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, 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]; 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].

27. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. 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.

28. Against this background, the applicant explained that in 2020, because of the COVID-19 pandemic, “a number of students changed their study plans”. He “decided to postpone” his studies for a while”.  He also stated that the Tribunal “only looked at the time when he postponed his study plan. They did not look at why his plan was interrupted (which was because of COVID-19)”.

29. In response to oral submissions from Counsel for the Minister, the applicant explained that the “natural disaster of COVID-19 means that the normal or usual circumstances should not apply”.

30. Unfortunately for the applicant, the relevant legislation requires that he meet certain criterion in order to be granted the visa. There is no discretion in this regard. The Court cannot disregard the statute. Nor can the Tribunal.

31. The applicant’s other oral submissions are addressed in the context of ground 2 below.

    CONSIDERATION

    Ground 1 and the Applicant’s Affidavit

32. Ground 1 and the applicant’s affidavit appear to address why the applicant was not enrolled in a course of study – i.e., because he had “suspended” his schooling so that he could return to Taiwan.

33. The Court does not doubt the applicant’s explanation for why he was not enrolled. However, the reason why the applicant was not enrolled is irrelevant to this task on judicial review: Moussa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 149. It is also irrelevant to the Tribunal’s task.

34. For finality, the Court notes that it is not the case that the applicant had only “suspended” his studies. The PRISMS records indicate that the applicant had cancelled his enrolment. Accordingly, no enrolment existed at the time of the Tribunal hearing. The Tribunal was correct to find as it did notwithstanding the reason why the applicant was unenrolled.

35. Ground 1 and the applicant’s affidavit do not identify any jurisdictional error.

    Grounds 2 and 3

36. Grounds 2 and 3 argue that the Tribunal failed to consider the impact of COVID-19. The applicant repeated this assertion in his oral submissions before the Court. He contends that the Tribunal did not consider that students were required to change or amend their study and travel plans in light of the virus.

37. The applicant argues that the Tribunal should have looked at the applicant’s performance as a “good student”.

38. The only issue for the Tribunal was whether the applicant was enrolled in a course of study. As stated above, the reason why he was not enrolled (because of COVID-19 or a change in travel plans) was not relevant. Further, whether or not he was a “good student” was also not relevant.

39. The invitation to attend the hearing clearly stated that the applicant would be required to provide:

    1. A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

40. The applicant did not provide anything of this nature to the Tribunal. At the Tribunal hearing, the applicant confirmed to the Tribunal that he was not enrolled.

41. The Tribunal also wrote to the applicant pursuant to s 359A of the Act advising him that it had obtained information that he was not enrolled in a course of study and that this might be a reason for affirming the delegate’s decision. The applicant was given an opportunity to comment and respond to that information. He could, for example, have asked for an adjournment so that he could enrol – noting his changed travel plans. He did not do so.

42. The applicant was clearly on notice that he had to provide a current confirmation of enrolment.

43. Clause 500.211 of the Regulations requires an applicant to be enrolled in a course of study. This is the case notwithstanding that there is a pandemic and notwithstanding that the applicant is a “good student”.

44. Grounds 2 and 3 are, accordingly, dismissed. The applicant’s oral submissions also fail to identify any jurisdictional error

    CONCLUSION

45. The application for judicial review and the applicant’s oral submissions have failed to identify any jurisdictional error. The Court has otherwise examined the Tribunal’s decision for error (and notes and agrees with the Minister’s written submissions at [25] in this regard) and is unable to identify any error of the sort this Court can address.

46. The application is, accordingly, dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       28 January 2021