Zahra v Minister for Immigration

[2018] FCCA 909

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAHRA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 909

Catchwords:
MIGRATION – Judicial Review – decision of Administrative Appeals Tribunal – refusal of a Student Visa – whether jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), cl.572.223(1)(a)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Applicant: ASMAT ZAHRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 628 of 2017

Judgment of: Judge Kendall

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Perth

Delivered on: 10 April 2018

REPRESENTATION

Applicant: Ms A. Zahra by telephone

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 21 November 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 628 of 2017

ASMAT ZAHRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed in this Court on 21 November 2016 the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the “Tribunal” or the “AAT”), dated 1 November 2017. 

2. The AAT affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection made on 27 October 2015 to refuse the applicant’s application for a student (Temporary) (Class TU) visa (“student visa”) dated 27 August 2015. 

3. The applicant appeared in this Court today seeking judicial review.  The applicant was legally unrepresented and a translator had not been requested.  The Tribunal was of the view that a translator was not required.  The applicant was fluent in English and was able to express herself clearly.

Factual Background

1. The Court has reviewed the factual material provided by the first respondent and adopts the facts as outlined at paragraphs 3 to 11 in the first respondent’s written submissions dated 21 March 2018 as the procedural and factual background to these proceedings.  These background facts are not in dispute and are, relevantly, as follows. 

2. The applicant is a citizen of Pakistan who arrived in Australia on 15 September 2013 on a student visa. 

3. On 27 August 2015 the applicant lodged with the Department of Immigration and Border Protection (the “Department”) a further application for a student visa. The applicant provided a Confirmation of Enrolment (“CoE”) for her intended course of study (6C9E4789).  PRISMS records suggests that this CoE relates to a Diploma of Business course and that the applicant completed the course on 13 September 2015.

4. Prior to the delegate’s decision, the applicant provided evidence to the Department showing that she had completed the following courses in Australia: 

   a)Certificate IV in Human Resources from 3 February 2014 to 20 August 2014;

   b)Certificate IV in Business from 1 September 2014 to 1 March 2015; and

   c)Diploma of Business from 6 April 2015 to 13 September 2015.

5. On 27 October 2015, a delegate of the Minister made a decision not to grant the applicant a student visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in clause 572.223(1)(a) of the Migration Regulations 1994 (the “Regulations”). The delegate noted that the applicant had been in Australia for 711 days at the time of the decision and had not been offshore since her initial arrival. The delegate further noted that the applicant had not completed six months of her original Master of Commerce course before transferring to vocational courses and further noted that the applicant had cancelled six courses that she was enrolled in to study while she had been in Australia.

6. On 10 November 2015 the applicant lodged an application for review by the AAT of the delegate’s decision. 

7. On 4 October 2017 the Tribunal wrote to the applicant by email and invited her to attend a hearing on 1 November 2017.  In the hearing invitation letter, the Tribunal asked the applicant to provide all documents on which she intended to rely to establish that she met the criteria for the visa.  The Tribunal specifically requested, amongst other things, a copy of the applicant’s current CoE and documents to confirm that she is or was currently enrolled in a course or had an offer of enrolment. The applicant did not provide these documents to the Tribunal. 

8. At the hearing on 1 November 2017, the Tribunal affirmed the decision made by the delegate and provided oral reasons for that decision. 

9. The Tribunal’s written reasons were published on 20 March 2018. 

10. The Court was provided with a copy of the written reasons and a Court Book containing the evidence that was before the Tribunal.  The Court has reviewed this evidence in detail.

The AAT’s Decision

1. The AAT’s decision provides as follows:

   1. This is an application for review of decision made by a delegate of the Minister for Immigration on 27 October 2015 to refuse to grant the visa applicant a student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 ( the Act).

   2. The applicant applied for review of that decision on 10 November 2015.  The applicant was invited to a hearing of the Tribunal by letter dated 4 October 2017 and the letter invited the applicant to provide a number of documents, including the Confirmation of Enrolment or an Offer of Enrolment.

   3. The applicant advised the Tribunal that she had not been studying as she married, had issues with her spouse and the marriage broke up.  The Tribunal discussed with the applicant her need to be enrolled or have an offer of enrolment in a course of study in order to obtain a visa.  She further advised the Tribunal that she had not made any inquiries about any course or institution to study.  The applicant sought an adjournment to find a course of study.  The Tribunal advised her it was of the view that she had had sufficient time prior to the hearing date to do so and the Tribunal would refuse the adjournment.

   4. At the hearing on 1 November 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons.  The following is the written record of those reasons:

   Statement of Decisions and Reasons

   5. The issue before the delegate was whether the applicant met the criterion in 572.223(1)(a) at the date of application, on 27 August 2015.  The issue now is whether, at the time of its decision, the applicant meets the enrolment requirements for a student visa.

   6. The applicant has advised the Tribunal that she does not have a Certificate of Enrolment or Offer of Enrolment.  She states that she had issues and got married, but the marriage broke up.  The Tribunal advised the applicant that the applicant was notified of the requirement of Confirmation or a Certificate of Enrolment in order to be issued a student visa, and the applicant was notified of that by letter inviting the applicant to the hearing on 4 October 2017.

   7. The applicant has not made any inquiries or ascertained where she in fact would study, and the Tribunal therefore does not agree to grant her an adjournment on that basis.

   8. With limited exceptions, the regulations require that at the time of the decision an applicant must be enrolled in, or be the subject of, a current offer or enrolment in a course of study that is a principal course and is of a type specified under regulation 1.4A for the subclass at the time of application.

   9. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in, any applicable course of study. 

   10. As the applicant has provided no confirmation of enrolment to the Tribunal, or offer of enrolment to the Tribunal, clause 570.232, clause 571.232, clause 572.231, clause 573.231, clause 574.231, and clause 575.231 are not met.

   11. There is no evidence that the applicant meets the criteria for either a subclass 576 or a 580 visa.

   12. The decision under review must be affirmed.

The Applicant’s Application for Judicial Review

1. In her judicial review application, the applicant relies on one ground and one ground alone.  That ground appeared in a handwritten comment on her judicial review application.  To the best of the Court’s ability, and with the assistance of counsel for the Minister, it can be said that this ground provides:

   I am not satisfied that with the decision of the Migration Tribunal.  I did provide them with all my CEOs, my attendance record, my fee slips and all the certificates of my academic achievements.  Without wasting them I did study. 

2. At first sight it is not entirely clear what the applicant means.

3. I asked the applicant today what she thought the AAT did wrong. The answer provided was not particularly helpful.  In effect, what the applicant says is that all of the documents she provided were up to date, she was enrolled as a student and intended to be a student (but not just for the purposes of staying in Australia) and, more broadly, she thinks that the AAT’s decision is unfair. 

4. It is at least arguable that what the applicant seeks today is what is referred to as merits review.  She would, it seems, like this Court to review the material that was before the Tribunal and come to a different conclusion.  In effect she would like this Tribunal to give her the student visa she requests.  This Court cannot do that.  It cannot review the merits of the applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

5. As correctly identified by the first respondent, and as outlined for the applicant, to be successful today the applicant must show that the Tribunal’s decision was affected by jurisdictional error.

6. I explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap.  For migration decisions they most commonly include the following categories: 

   a)Where the decision maker identifies the wrong issue or asks the wrong question;

   b)Where the decision maker ignores relevant material;

   c)Where the decision relies on irrelevant material;

   d)Where the decision maker fails to follow mandatory procedures;

   e)Where the decision maker fails to consider the entirety of the applicant’s claims (or integers of the claims) as made;

   f)Where the decision maker shows actual or apprehended bias; and

   g)Where the decision is illogical, irrational or unreasonable.

7. It was explained to the applicant that to be successful today she needed to prove that jurisdictional error had occurred. Unfortunately, the applicant was unable to provide any evidence to the Court to convince it that an error had occurred. 

Synopsis

1. For the reasons that follow this application for judicial review fails and is, accordingly, dismissed.  No jurisdictional error occurred.

Decision

1. The applicant seeks an order in this Court for the issue of constitutional writs. In order for these writs to be issued the applicant needs to demonstrate that the Tribunal fell into jurisdictional error in at least one of the ways stated above.  In my view the applicant has failed to show that the applicant fell into jurisdictional error.  Although not raised today by counsel for the Minister, the Court notes that it was held in the case of WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 that a Court is entitled to dismiss a case seeking judicial review by reason of generalised and non-particularised grounds of review.

2. Here the ground articulated is indeed vague.  A general, vague and insufficiently particularised application of the sort seen here provides judicial justification for the dismissal of the proceeding. 

3. In relation to jurisdictional error the respondents provided the Court with detailed written submissions.  The Court notes the following paragraphs from those written submissions:

   18. At best, the ground raised by the applicant could be viewed as alleging jurisdictional error on the basis that the Tribunal failed to take into account relevant evidence, that evidence being the CeOs, attendance records, fee slips and certificates of academic achievements that the applicant claims to have provided to the Tribunal.

   19. Viewed in this light, the first respondent makes two main points in response to this ground.

   20. First, there is no evidence before the Court to establish that the applicant provided any CeO, attendance record, fee slips or certificate to the Tribunal.  There is no evidence to this effect in the Court book (which was compiled based on the files held by the department and the Tribunal).  Nor has the applicant filed any affidavit evidence to indicate the documents that she claims to have provided to the Tribunal.

   21. The applicant did provide documents within the description in this ground to the Department in 2015, and those documents were provided by the Department to the Tribunal.  However, these documents do not show enrolments at the time of the Tribunal’s decision.

   22. Second, it is appropriate to consider what evidence or material the Tribunal is required to take into account in the context of the basis in which the Tribunal decision was made.

   23. The reasons for the Tribunal decision were effectively that the applicant was not enrolled in a course of study and did not provide confirmation of enrolment or an offer of enrolment at the time of the Tribunal’s decision in November 2017.

   24. A primary criteria to be satisfied at the time of decision for each class of student visa that existed at the time of the applicant’s visa application was that the applicant was enrolled in, or the subject of a current offer of enrolment, in a course of study: see clause 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations (point in time start date of 1 July 2015).

   25. Once the Tribunal determined that the applicant was not enrolled in an approved course of study, or the subject of an offer of enrolment in a course of study, it was open to the Tribunal to determine that the applicant did not meet the criteria for a student visa.  It was no longer necessary for the Tribunal to determine whether the applicant satisfied the other criteria for a student visa, because even if she did satisfy other criteria, she could not meet all mandatory criteria at the time of the decision.

   26. Bearing this in mind, the Tribunal was not bound to consider evidence of past enrolments in courses of study and there is no jurisdictional error in the Tribunal’s failure to expressly refer its decision to documents relating to previous study. 

   27. In the context of the Tribunal’s decision, the Tribunal might have been required to consider evidence of a current enrolment or offer of enrolment in an approved course of study, had any such evidence been provided.  However, no such evidence was provided.

   28. This ground is not established. 

4. The Court agrees with this assessment.  Further, the Tribunal was not required, as suggested by the applicant, to provide her with further time in which to find an appropriate course of study in Australia in order to satisfy the requirements of the relevant legislation.  By refusing to adjourn, the Tribunal cannot, within the context of this case, be seen to have fallen into any error.  The Tribunal was not required to adjourn given the time the applicant had already had to find and register in a suitable course of study.

5. Overall, it cannot be said on the evidence here that the reasons advanced by the Tribunal lack an evident and intelligible justification or that the approach taken was in any way unfair or biased, based on irrelevant considerations or evidence of a failure to take into account relevant information. Nor can it be said at a broad level that the reasons provided are illogical or irrational.  Nor can it be said on the evidence that the Tribunal ignored relevant material. The Tribunal’s findings were open to it on the evidence They were reached on valid grounds. 

6. The decision to affirm the delegate’s decision was perfectly sound and procedurally and legally reasonable. The Tribunal looked at the evidence it had before it, and that included all of the evidence filed by the applicant. The Tribunal reviewed that evidence and it did so exhaustively. A complete analysis was provided.  This analysis showed that, on the evidence before it, the applicant was not a student for migration purposes. The applicant was given every opportunity to present contrary evidence and did not do so.

7. No jurisdictional error occurred here. 

8. The application for judicial review is dismissed. 

9. The applicant is to pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date:  17 April 2018