FEDERAL COURT OF AUSTRALIA

Nehrupandiyan v Minister for Immigration and Border Protection [2019] FCA 123

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 3 July 2018, which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Student (Temporary) (Class TU) visa.

2    The appellant applied for the visa on 9 July 2016. At the time of his application, Class TU comprised two subclasses—Subclass 500 (Student) and Subclass 590 (Student Guardian). The appellant did not claim to meet the requirements for a Subclass 590 (Student Guardian) visa.

3    The requirements for a Subclass 500 (Student) visa are set out in Pt 500 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria, as applicable to the appellant, are set out in cl 500.211 to 500.218 of the schedule. All the criteria must be satisfied at the time a decision is made on the application.

4    A delegate of the Minister refused the appellant’s application on the basis that she was not satisfied that the appellant intended genuinely to stay temporarily in Australia. Thus, the appellant did not satisfy the genuine temporary entrant criterion of cl 500.212.

5    On review, the Tribunal was not satisfied that the appellant met the criterion of cl 500.211(a) which required the appellant to be enrolled in a course of study. I note that, at the relevant time, the appellant did not claim to meet any of the alternative criteria in cl 500.211.

6    As to cl 500.211(a), the Tribunal found:

The Tribunal has not received any evidence to demonstrate that the applicant has completed any courses of study since his arrival in Australia. In the invitation to attend a hearing dated 27 October 2017, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. During the hearing the applicant was asked whether he was currently enrolled in a course of study and the applicant said he was consulting about it. However, no COE has been provided. 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.

7    As the appellant did not meet the criteria for the grant of a Subclass 500 (Student) visa, the Tribunal affirmed the decision under review, albeit on a different ground to the ground relied on by the delegate.

The Circuit Court

8    The grounds of the appellant’s application for judicial review in the Circuit Court were expressed in terms which went beyond identifying what was said to be errors on the part of the Tribunal. Apart from asserted statements of fact, and a bare allegation that the Tribunal had made a jurisdictional error, the appellant’s grounds asserted that:

    the delegate did not consider the appellant’s “compelling and compassionate circumstances” for not meeting the requirements of cll 500.211 to 500.218;

    the Tribunal made an error by not considering the appellant’s “compelling reasons” for not satisfying these requirements; and

    the Tribunal “did not give a fresh look” at the appellant’s case.

9    The primary judge rejected these grounds and dismissed the appellant’s application, with costs. In doing so, the primary judge noted that there was no provision in Pt 500 of Sch 2 to the Regulations which allowed the Tribunal to dispense with the criterion of cl 500.211(a) on the ground of “compelling reasons”. Further, the Tribunal did not have a discretionary or compassionate power to exercise in relation to (in the appellant’s case) the mandatory criterion that the appellant be enrolled in a course of study.

The Appeal

10    The notice of appeal filed in this Court is uninformative. It does not identify any error in the judgment of the Circuit Court. The appellant states, as grounds of appeal, that he had not received a copy of the primary judge’s reasons for judgment, and was “unable to write … detailed grounds of appeal at this stage”. The notice of appeal was filed on 23 July 2018. In an affidavit filed on the same day, the appellant stated that he needed an opportunity to amend his grounds of appeal once the primary judge’s reasons for judgment were made available. The primary judge’s reasons for judgment appear to have been available since 31 August 2018. It is unfortunate that his Honour’s reasons were not published sooner. Nevertheless, they have been published for some months now and the appellant has made no application to file, and has not sought to file, an amended notice of appeal. Further, on 5 September 2018 orders were made to facilitate the preparation of the appeal for hearing. The appellant was ordered to file and serve a written outline of his submissions by no later than 10 business days before the hearing of the appeal. He has not done so. The Minister has filed and served a written outline of his submissions.

11    The appellant appeared in person at the hearing of the appeal, assisted by an interpreter. I invited him to address me on what he claims to be the appealable errors in the Circuit Court judgment. His response was to the effect that a Certificate of Enrolment was produced to the Circuit Court but the primary judge did not peruse it. On further questioning, it appeared that this certificate is the certificate referred to in [5] of the Tribunal’s Decision Record:

5.    At the hearing, the applicant submitted an out of date enrolment offer from Australian International Language College for Certificates III and IV in Spoken and Written English. The enrolment offer was in relation to courses from 18 July 2016 to 5 February 2017 and from 06 February 2017 to 27 August 2017. There is no evidence before the Tribunal to show that the applicant commenced or finished either of these courses.

12    This certificate is referred to in [6] of the primary judge’s reasons, where his Honour said:

6.    At the hearing, the applicant submitted an out of date enrolment from the Australian International Language College for Certificates III and IV in Spoken and Written English. The enrolment offer was in relation to courses from 18 July 2016 to 5 February 2017 and from 6 February 2017 to 27 August 2017. The Tribunal, in delivering reasons affirming the decision under review, noted that cl 500.211 of the Regulations requires that at the time of the decision the applicant must be enrolled in a course of study.

13    I cannot tell from the material before me whether the certificate was produced to the Circuit Court or whether the primary judge did, or did not, peruse the certificate. Either way, the appellant’s submissions do not reveal any appealable error on the part of the primary judge whose concern was with the proceeding before the Tribunal and whether the Tribunal’s decision was attended by jurisdictional error on the grounds contained in the appellant’s application for judicial review.

Analysis

14    The appellant’s submissions do not make out any ground of appealable error. The primary judge correctly held that the criteria applicable to an application for a Subclass 500 (Student) visa are mandatory and that no power, discretionary or otherwise, is reposed in the Tribunal to dispense with those requirements. The plain fact is that, at the time of the Tribunal’s decision, the appellant did not satisfy the requirements for the visa he had applied for. There was no jurisdictional error on the part of the Tribunal in affirming the decision under review. The primary judge did not err in dismissing the appellant’s application for judicial review.

Disposition

15    For these reasons, the appeal must be dismissed. The appellant must pay the first respondent’s costs.

Associate:    

Dated:    21 February 2019