Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for leave to appeal be dismissed.
2. The applicant pay the first respondent's costs in the fixed sum of $3,000.
3. The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons for judgment concern an application for leave to appeal from orders of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 7 May 2019 including relevantly, that pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules), the application be dismissed. 2 The application to the Federal Circuit Court sought judicial review of a decision of the Administrative Appeals Tribunal (the AAT) made on 24 July 2018 in which the AAT affirmed a decision of a delegate of the Minister not to grant the applicant a temporary student visa. The orders of the Federal Circuit Court are interlocutory orders as provided for in r 44.12(2) of the Federal Circuit Court Rules. It follows that the applicant requires a grant of leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Whether leave to appeal should be granted involves two considerations. First, whether in all the circumstances the first instance decision is attended by sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, supposing the primary decision to be wrong. 3 The AAT decided that the applicant did not satisfy the criteria for the grant of a temporary student visa. In particular, cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) requires that at the time of the decision, the applicant be enrolled in a course of study. The AAT considered all of the material before it and concluded that the applicant had no current offer of enrolment in any course of study. As a result, the AAT was not satisfied that at the time of its decision the applicant was enrolled in a course of study and accordingly cl 500.211 was not met. 4 In the Federal Circuit Court's reasons for judgment, Moussa v Minister for Home Affairs & Anor [2019] FCCA 1187, the Federal Circuit Court at [11] identified five grounds of challenge on which the applicant relied. The Federal Circuit Court at [15] said that the applicant before the AAT faced an insuperable problem, that is, the applicant did not hold an enrolment or offer of enrolment in a course of study at the time of the AAT's decision. At [16], the Federal Circuit Court explained that these facts meant that the applicant did not satisfy cl 500.211 of Schedule 2 to the Migration Regulations which required that the applicant must at the time of decision be enrolled in a course of study in accordance with cl 500.211(a). 5 The Federal Circuit Court noted at [16] that the AAT has no power to grant the visa in circumstances where the applicant does not satisfy this criterion. The Federal Circuit Court continued at [16] saying: Accordingly, it was irrelevant, insofar as clause 500.211 was concerned, whether Mr Moussa genuinely intended to study, had previously studied and/or had ceased studying on account of the delegate's decision. 6 According to the Federal Circuit Court the AAT properly applied the law, in particular, cl 500.211 of Schedule 2 of the Migration Regulations, taking into account the documents the applicant provided and the oral evidence he gave at the hearing. The grounds advanced by the applicant raised no arguable jurisdictional error on the part of the AAT and otherwise sought review of the merits of the AAT's decision. The Federal Circuit Court also noted at [17] of its reasons for judgment, that cl 500.211 of the Migration Regulations does not permit consideration of why an applicant may not be enrolled in a course of study. Accordingly, the fact that the applicant's contention was that he was not so enrolled due to the refusal of his visa application was irrelevant. 7 At [18] of its reasons for judgment, the Federal Circuit Court concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the AAT. As a consequence, the Federal Circuit Court dismissed the application for judicial review of the AAT's decision. 8 The application for leave to appeal identifies a single ground. That ground is as follows: The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations. Particulars: clause 500.211 of Migration regulations requires the decision in respect of the applicant's primary application for a student visa to make determination as to whether criteria for the grant of the visa prescribed by the Act of the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant issues. 9 The Minister answered this ground by noting that the applicant had not clarified what relevant considerations had not been taken into account by the AAT and what irrelevant considerations had been taken into account by the AAT. The Minister said that he understood this ground to be to the effect that the applicant considered the AAT should have relied upon his evidence explaining why he was not enrolled in a registered course of study at the time of the AAT hearing. The Minister submitted, and I accept, that this contention is misconceived. The Federal Circuit Court was correct to conclude that the reason why the applicant was not enrolled in a course of study was irrelevant to the AAT's decision. 10 When invited to give oral submissions in support of his application for leave to appeal, the applicant said only that he did not have the "green book". As I understand it, this is a reference to the court book which was before the Federal Circuit Court. At [12] of its reasons for judgment, the Federal Circuit Court dealt with this issue. It found that the applicant had been served with a copy of the court book but, in any event, provided the applicant with the original court book from the Court's file for the purpose of the hearing. 11 I explained to the applicant today that I did not have a copy of the court book before the Federal Circuit Court but did have a bundle of documents which included: (1) the decision of the AAT; (2) the order of the Federal Circuit Court; and (3) the reasons for judgment of the Federal Circuit Court. 12 The applicant confirmed that he had that bundle of documents. 13 On my review of the material, there is not sufficient doubt about the correctness of the decision of the Federal Circuit Court such as to warrant reconsideration of its decision on appeal. Accordingly, the application for leave to appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.