Barah v Minister for Home Affairs

1. The applicant's interlocutory application filed 1 October 2019 be dismissed.
2. The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant has applied for reinstatement of his appeal, which was dismissed for non-appearance on 21 August 2019. He has supported his application with an affidavit in which he provided an explanation for his non-appearance. By orders made 8 October 2019, both the application and, if leave be granted, the hearing of the appeal were listed for hearing today. The applicant was also ordered to file and serve an outline of submissions in support of his application and of the proposed appeal. The applicant has attended today but not filed any submissions as ordered. The first respondent ("the Minister") has accepted the explanation provided by the applicant and that the explanation is reasonable. The Minister, however, has opposed the application for reinstatement on the basis that the appeal does not have sufficient prospects of success. 2 The Court's power to reinstate the appeal is found in r 36.75(2) of the Federal Court Rules 2011 (Cth) and s 25(2B)(bc) of the Federal Court Act 1976 (Cth). The power is discretionary and, in light of the Minister's acceptance of the explanation for non-attendance, the primary factor bearing upon whether the power should be exercised is whether the applicant has reasonably arguable prospects of success on the appeal, if leave be granted: Prashar v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197; [2001] FCA 1573 at [11] (Katz J); Sandhu v Minister for Immigration and Border Protection (No 2) [2015] FCA 1429 at [13] (Kenny J). 3 The appeal which the applicant seeks to prosecute is from the decision of the Federal Circuit Court of Australia ("FCC") dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal ("Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) visa. The criteria for the grant of such a visa are contained in cl 500 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly, one of the criteria is that the applicant is a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily: cl 500.212(a). The Tribunal was not satisfied that the applicant met this requirement for the following reasons. 4 First, the Provider Registration and International Student Management System records indicated that the applicant was enrolled in a general English course due to run from February 2017 to May 2017, but this enrolment was cancelled on 3 May 2017; he enrolled in a general English course which was to run from June 2017 to October 2017, but this enrolment was cancelled on 3 May 2017; he enrolled in a general English course which was to run from November 2017 to April 2018, but that enrolment was cancelled on 3 May 2017; and at the time of the hearing he had applied for enrolment in an English for general purposes course to commence in July 2018 and a Certificate IV in Leadership and Management which would run from July 2019 to January 2021. The Tribunal was not satisfied with the applicant's explanation as to why he ceased study in the first of the three general English courses, the studying of which was the stated rationale for his application for the visa in February 2017. The Tribunal noted the applicant's evidence that he only attended two to three weeks of the first course and the applicant's claim that he discontinued because his migration agent told him he was not legally permitted to continue with his studies. The Tribunal placed little weight on the claim because the applicant subsequently gave evidence that the same migration agent advised him to enrol in the further courses shortly before he attended the hearing before the Tribunal so that he could prove that he was enrolled. 5 Secondly, the Tribunal did not accept the applicant's claim that the reason as to why he did not commence study in the two further courses in which he had enrolled in 2017 was that he was not permitted to study after the Department of Immigration and Border Protection refused his application for a student visa. Although he was not granted a student visa, he was granted a Bridging visa B in August 2017. The only condition attaching to that bridging visa restricted the visa holder from working in Australia other than by engaging in a business visitor activity. As that bridging visa did not contain a "no study" condition, the Tribunal did not accept that the applicant was required to cease study because he did not have a student visa. 6 Thirdly, the Tribunal found that the applicant had given untruthful evidence when he claimed he had not undertaken paid employment at any time since he arrived in Australia and had not been able to work because of a medical condition. That finding was based in part upon bank records into which a number of deposits of funds were made designated as wages, such deposits being made between November 2016 and July 2018, as well as numerous other cash deposits and transfers from other bank accounts. The Tribunal also considered that the deductions from the bank account did not show sufficient transactions to meet the applicant's regular living expenses. The Tribunal considered that the applicant had a work or business motivation for coming to, and remaining in, Australia since November 2016, and that progressing academically so as to improve his employment or business opportunities in his home country was not his primary reason for seeking to remain in Australia. 7 As the Tribunal was not satisfied that the applicant genuinely intends to stay in Australia temporarily as a student it held that the applicant failed to meet the requirements of cl 500.212(a). 8 The applicant sought judicial review of the decision in the FCC. The applicant's sole ground of judicial review was that, contrary to the Tribunal's findings, the applicant is a genuine applicant to stay in Australia as a student. Although the applicant alleged that the Tribunal's decision was affected by error of law, the primary judge found that in substance the applicant sought to have the FCC reconsider the merits of the applicant's case. The primary judge dismissed the application, holding that it did not have the power to review the merits, and as the Tribunal had provided logical and rational reasons in support of the adverse credibility findings no jurisdictional error was disclosed. 9 There are three proposed grounds of appeal. Ground 1 is that the applicant did not receive the judgment of the primary judge. Ground 2 is that the primary judge failed to consider that the Tribunal's decision was affected by error of law "as it denied [him] the opportunity to study, and [that] as a matter of fact [he] studied and had to stop when [his] application was refused, and [he] followed the instruction of the migration agent that at the time of the refusal [he] did not have permission to study and permission to work". Ground 3 is that the applicant provided a late transcript to the Court of the Tribunal hearing and the primary judge failed to consider the contents and that he complied with the visa and is a genuine student. 10 Ground 1 does not raise a ground of appealable error, and grounds 2 and 3 in substance merely amount to an invitation to engage in impermissible merits review. The question as to whether the applicant is a genuine student was a factual matter for the Tribunal to decide, not a matter for the primary judge below or for this court to decide. The primary judge correctly held that the adverse credit findings made by the Tribunal were open to the Tribunal for the reasons given, and correctly held that the FCC below did not have the power to reconsider the facts for itself to decide whether the applicant met the requirements for the student visa. There is no arguable case that the Tribunal fell into jurisdictional error in making those adverse credit findings or that the primary judge committed any appealable error. As an appeal would have no reasonable prospects of success, the application for reinstatement is refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.