Samiullah v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 April 2023
• Neutral Citation: [2023] FCA 369
• Date: 21 April 2023

Federal Court of Australia

Samiullah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 369

File number(s):	VID 232 of 2022
Judgment of:	O’CALLAGHAN J
Date of judgment:	21 April 2023
Catchwords:	MIGRATION – appeal from Federal Circuit and Family Court of Australia – where appellant did not appear at hearing of appeal – where appellant was given proper notice of hearing of appeal – where first respondent applied for order under r 36.75 of the Federal Court Rules 2011 (Cth) – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 476 Migration Regulations 1994 (Cth) sch 2, cl 572.223 Federal Court Rules 2011 (Cth) r 36.75
Cases cited:	Samiullah v Minister for Home Affairs [2022] FedCFamC2G 367
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	35
Date of last submission/s:	22 March 2023
Date of hearing:	21 April 2023
Counsel for the Appellant:	The appellant did not appear
Counsel for the First Respondent:	Mr M Daly
Solicitor for the First Respondent:	Mills Oakley

ORDERS

		VID 232 of 2022
BETWEEN:	SAMIULLAH SAMIULLAH Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	O’CALLAGHAN J
DATE OF ORDER:	21 april 2023

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to: Minister for Immigration, Citizenship and Multicultural Affairs.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

O’CALLAGHAN J:

1. By a notice filed on 29 April 2022, the appellant appeals from the orders and judgment of a judge of the Federal Circuit and Family Court of Australia dated 5 April 2022. See Samiullah v Minister for Home Affairs [2022] FedCFamC2G 367.

2. The primary judge dismissed with costs an application made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) that sought judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 January 2018, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) visa.

3. The appellant is a citizen of Pakistan. He arrived in Australia on 15 June 2013 as the holder of a Student (Subclass 572) visa. The visa was subject to condition 8202, which required him to adhere to certain course enrolment, attendance and academic progress requirements.

4. On 24 August 2015, the appellant applied for a further Student visa on the basis of his enrolment in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Management, and a Diploma of Automotive Management.

5. In order to be granted the visa, the appellant was required to satisfy, among other things, cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth).

(1) That the Minister must be satisfied that the applicant was a genuine applicant for entry and stay as a student because:

(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant meets the requirements of subclause (1A) or (2).

6. That regulation also provided:

(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

…

(2) If subclause (1A) does not apply:

(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii) any other relevant matter; and

(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

7. The appellant submitted a genuine temporary entrant statement in which he advanced the following claims: undertaking studies in Australia would improve his employment prospects in Pakistan, his parents lived in Pakistan and owned property there, his enrolments in automotive courses at Austwide Institute were cancelled because the education provider was unable to offer the courses, and he subsequently enrolled at Education Access Australia but was “not comfortable with [the] teachers and [the] environment”.

8. On 16 February 2016, following a further request for information, the appellant provided letters from Austwide Institute and Education Access Australia which confirmed his enrolments in automotive courses at those educational institutions had been cancelled due to “Provider Default” and “unsatisfactory course progress”. He also provided a statement in which he claimed it was difficult to continue his studies at Education Access Australia “because of depression”.

9. On 9 March 2016, the delegate refused to grant the appellant a student visa. The delegate extracted the appellant’s Provider Registration and International Students Management System (PRISMS) records, which recorded ten enrolments as “cancelled” and two as “finished” and also showed that the appellant was “studying” a Certificate IV in Automotive Management and his enrolment in a Diploma of Automotive Management was “approved”. The delegate found the appellant had not provided a satisfactory explanation for a gap in study between 20 December 2013 and 23 February 2015 and had not complied with condition 8202 on his last Student visa, given he was reported for unsatisfactory course progress while on that visa. The delegate was not satisfied that the appellant intended to stay in Australia temporarily or was a genuine appellant for entry and stay as a student and, accordingly, found that cl 572.223(2) was not met.

10. On 22 March 2016, the appellant applied to the Tribunal for review of the delegate’s decision and gave the Tribunal copies of the delegate's notification letter and decision record. He did not appoint a representative.

11. On 15 September 2017, the Tribunal accessed the appellant’s PRISMS records, which indicated he had “finished” his Certificate IV in Automotive Management and that his enrolment in a Diploma of Automotive Management was “Cancelled”. The PRISMS records were otherwise consistent with the PRISMS records contained in the delegate’s decision record.

12. By a letter dated 23 October 2017 and sent to the appellant’s nominated email address, the appellant was invited to appear before the Tribunal at an in-person hearing scheduled for 10 November 2017 at 10:00am. The invitation requested the appellant provided documents that showed his past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion.

13. On 9 November 2017 (the day before the scheduled hearing), the appellant requested an adjournment of the hearing. In support of his request, he provided a medical certificate which stated he was experiencing “stress/low mood” and was unfit to attend a “shceduled [sic] hearing in a court” from 9...