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[2023] FCA 571
Federal Court of Australia
2023-06-02
Perry J, Wheelahan JJ, Wheelahan J
Original judgment source is linked above.
Introduction 1 The applicant seeks leave to appeal orders of the Federal Circuit Court of Australia, as it was then known, made 2 July 2020. By those orders the primary judge dismissed the applicant's application to that Court for judicial review of a decision of the Administrative Appeals Tribunal pursuant to r 44.12(a) of the Federal Circuit Court Rules 2001 (Cth) on the ground that there was no arguable jurisdictional error in the Tribunal's decision. The primary judge's decision was interlocutory, hence the requirement that the applicant obtain leave to appeal: Federal Court of Australia Act 1976 (Cth), s 24(1A); SZTVU v Minister for Home Affairs [2019] FCAFC 30; 268 FCR 497 at [12] (Perry J), [13] (Derrington and Wheelahan JJ).
Background 2 The applicant was granted a Student (Class TU subclass 572) visa on 11 May 2009 and first arrived in Australia on 26 June 2009. Subsequently, the applicant was granted three further such visas, the most recent of which was valid until 5 May 2016. During that period the applicant enrolled in a number of courses in Australia as a student. 3 On 2 May 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa. The criteria for assessing the applicant's visa were those in Sch 2 of the Migration Regulations 1994 (Cth) in the form they stood prior to the amendments effected by Sch 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth), which applied to visa applications made on or after 1 July 2016. The criteria applicable to the applicant included that he give the Minister a current certificate of enrolment relating to him undertaking a course of study the provider of which is not a suspended education provider: see cl 572.222 of Sch 2 of the Migration Regulations. 4 On 26 October 2016, a delegate of the Minister refused the applicant's visa application on the ground that the applicant was not a genuine applicant for temporary entry and stay as a student. Amongst other things, the delegate considered that the applicant was using the student visa program to maintain de facto residence in Australia, having completed a succession of courses not for academic or professional development but rather only for the purposes of remaining in Australia. The applicant's partner and their child had made dependant applications that were also refused by the delegate. 5 On 17 November 2016, the applicant, his partner, and their child applied to the Administrative Appeals Tribunal for review of the delegate's decision. As the applicant's partner and child are not parties to this application, I will refer to the proceedings before the Tribunal by reference to the applicant only. 6 By letter dated 8 May 2018, the Tribunal invited the applicant to appear before the Tribunal to give evidence and to present arguments on 5 June 2018. The Tribunal also requested the applicant to provide, at least seven days before the hearing date, all documents on which he intended to rely to establish that he met the criteria for the visa, and in particular the applicant was asked to provide his current certificate of enrolment and documents that showed that he was currently enrolled in a course, or had an offer of enrolment in a registered course. 7 By letter dated 28 May 2018, the Tribunal postponed the hearing on the ground that the member was unable to conduct the hearing on the day that had been fixed. 8 By letter from the Tribunal dated 7 June 2018, the hearing was re-fixed for 3 July 2018, and the applicant was again requested to provide documents, including a current certificate of enrolment, and documents that showed that he was currently enrolled in a course, or had an offer of enrolment in a registered course, at least seven days before the hearing date. 9 On 3 July 2018, the hearing took place before the Tribunal. The Tribunal affirmed the delegate's decision and gave oral reasons. On the same day, the Tribunal sent the applicant a written record of the outcome of the review. 10 On 23 August 2018, and in response to a request, the Tribunal published a statement of reasons for its decision on the review. The Tribunal's reasons for affirming the decision under review were that the applicant had not provided to the Tribunal a current certificate of enrolment as the Tribunal had requested by letter, and again at the hearing, and that the applicant had given evidence confirming that he was last enrolled in an Advanced Diploma of Marketing in 2016, which he had completed, and that he had not secured enrolment in further study.
The application to the Federal Circuit Court 11 The applicant sought judicial review of the Tribunal's decision by the Federal Circuit Court in the exercise of that Court's jurisdiction under s 476 of the Migration Act. The burden on the applicant was to show some jurisdictional error affecting the Tribunal's decision. The applicant's grounds of review before the Federal Circuit Court were 12 in number, as follows - 1. Application for student visa was refused on grounds that I did not satisfy the requirements of 572.223(1)(a) in Schedule 2 of the Regulations and Ministerial Direction No. 53 2. Application was refused and decision stated that I was not a genuine applicant and the decision was not a privative clause decision 3. Decision to refuse the student visa application was appealed with the Administrative Appeals tribunal and decision was affirmed while not considering the facts of the situation 4. I have been a genuine student since my arrival in Australia in 2009, and have studied courses in Automotive technology and Automotive Mechanical Diagnosis, I have also studied Business and Marketing courses and do not believe any of these courses are not relevant to my career. 5. I had applied for a work visa which was refused and at this time I decided to study and enhance my qualifications further before leaving Australia 6. Having spent a considerable amount of time in this country I wish to enhance my qualifications and skills to be able to gain employment in a Managerial position in the Automotive Industry in India 7. I had applied to study Advanced Diploma in Marketing course and my visa was refused on basis of Genuine Temporary Entrant 8. I have now completed the course in May 2017 and only need a valid visa to obtain a COE to study a Management course 9. Upon completion of my Management course I wish to leave to India and pursue my employment opportunities. 10. Without a valid visa, colleges are not giving me a COE to enrol and this has made my situation very difficult. 11. Having spent considerable amount of time and money studying different courses, I do not wish to waste my efforts and go back to my home country without the relevant skills. 12. I need to present my case and have evidence to prove that I am indeed a genuine student and have compelling circumstances which require to be considered. 12 The Federal Circuit Court fixed a show cause hearing which took place before the primary judge on 23 July 2020. At that hearing the applicant was unrepresented. The primary judge held that most of the grounds were essentially a recitation of the background to the matter and what the applicant hoped to achieve, and that they did not demonstrate or point to any jurisdictional error. The primary judge gave specific attention to grounds 3 and 12, holding at J[11]-[14] - 11. Ground 3 is potentially able to amount to jurisdictional error. However, it is simply not the case that the Tribunal did not consider the facts of the situation. The Tribunal clearly considered the critical fact, which was that the applicant did not have a certificate of enrolment or an offer of enrolment in an appropriate course in Australia. Consequently, there is no merit to ground 3. 12. Ground 12 suggested that the applicant has evidence to prove that he is a genuine student. That may be so. However, as the Tribunal noted, that was no longer the issue when the matter went before the Tribunal. The issue at that point was that the applicant did not have a certificate of enrolment or an offer of enrolment. 13. Ground 12 also asserts that the applicant has compelling circumstances which need to be considered. The applicant perhaps elaborated on those circumstances in his oral submissions to the court today. He said that he wants to stay here to study because his son is studying here. His son is in Grade 7 and he does not know anything about India. The applicant would like his son to be able to finish up to at least Grade 10 or Grade 12 in Australia, particularly because the applicant's son gets skin problems when he goes back to India. 14. These may well be compassionate circumstances, but there was no scope for the Tribunal to consider them. The requirement that an applicant have a certificate of enrolment or an offer of enrolment is not subject to any discretion. It is an absolute requirement. Just as the Tribunal could not take into account any compassionate circumstances, nor can this court. 13 The primary judge concluded by stating at J[15] that her Honour had considered the material in the court book and the Tribunal's reasons for decision, and had been unable to discern anything that could amount to an arguable jurisdictional error.
The application for leave to appeal 14 The applicant's application for leave to appeal was supported by an affidavit of the applicant sworn 26 July 2018. The applicant annexed to his affidavit some background information which included a statement of his personal circumstances, aspirations, and the courses of study in Australia in which he had engaged. In the body of his affidavit the applicant claimed - 5. The decision of the Court/ Tribunal is affected by incorrect principle of law. 6. I strongly believe that I have a genuine arguable case and the Federal Circuit Court made an error by dismissing my application on 02 July 2020. 15 The applicant did not file a draft notice of appeal with the application. Nor did the applicant file a draft notice of appeal in response to an order that I made on 3 February 2023 requiring him to do so by 13 March 2023. The applicant was also ordered to file an outline of written submissions by 1 May 2023, and he did not do so. Nonetheless, the applicant set out the following grounds in his application for leave to appeal, which are reproduced verbatim - 1. The decision of honourable Court is affected by jurisdictional error. 2. The honourable Judge Riley did not adapt a fair process in making a decision and incorrectly interpreted the law. 3. The honourable Court continued the hearing knowing that the appellant did not seek any legal advise and appear in person before the Court. 4. The honourable Judge Riley failed to consider that each case has its own facts and merits and ought to consider on a case by case basis.
The applicant's submissions to this Court 16 The application for leave to appeal was listed on the basis that the parties be prepared to present full argument, as if on appeal. At the hearing of the application, the applicant addressed the Court through an interpreter, although he did speak some English. I explained to the applicant the nature of the application, and I gave guidance to him that the main consideration in addressing his application for leave to appeal was to identify some error in the primary judge's decision. When he was called upon to address oral submissions to the Court, the applicant stated through the interpreter, "I don't have anything to say", and "I did not do anything". 17 In reply submissions, the applicant spoke to his family circumstances in Australia, his work history, the good character of his family, and his son's good progress at school. At that point the applicant applied for an adjournment of the hearing of the application for five to six months so that he could seek legal advice. I refused the adjournment, giving ex tempore reasons. I held that the applicant had ample opportunity to seek legal advice and that there were otherwise no circumstances of the case that justified an adjournment.
Disposition 18 A grant of leave to appeal an interlocutory order is discretionary. Generally, the Court will take into consideration whether the decision that is impugned is attended with sufficient doubt to warrant its reconsideration on appeal, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Pty Ltd (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). 19 The applicant's claims of error by the primary judge in his affidavit are unparticularised, and I need not address them. As to the applicant's four grounds raised in his application for leave to appeal, for the following reasons they do not raise any point having merit - (1) The complaint that the decision of the primary judge is affected by jurisdictional error is not apposite to an application for leave to bring an appeal by way of rehearing. Furthermore, no claimed jurisdictional error has been identified, and this would be a sufficient basis to reject this proposed ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J). (2) The second ground on which leave to appeal is sought does not identify any way in which the applicant was not afforded a fair process, and does not identify any error of law by the primary judge. (3) As to the third ground, there was no error by the primary judge proceeding with the hearing when the applicant was unrepresented. In the circumstances of this case, the applicant had no entitlement to legal representation as an incident of the Federal Circuit Court's obligation to accord him procedural fairness: see, AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [51]-[52] (Flick, Griffiths and Perry JJ). (4) The fourth ground on which leave to appeal is sought has no merit. It is clear from the primary judge's reasons that her Honour directed her attention to the circumstances of the applicant's case. 20 The applicant has not identified any tenable error in the primary judge's decision, which was to dismiss the applicant's application for judicial review on the ground that no arguable jurisdictional error in the Tribunal's decision arose. Upon my review of the material before the primary judge, I can see no error in her Honour's decision. For these reasons, leave to appeal will be refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.
Singh
Minister for Immigration, Citizenship, Multicultural Affairs