FEDERAL COURT OF AUSTRALIA Dakpa v Minister for Home Affairs [2019] FCA 806 Appeal from: Dakpa v Minister for Immigration & Anor [2018] FCCA 3917 File number(s): WAD 513 of 2018 Judge(s): DERRINGTON J Date of judgment: 30 May 2019 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – refusal of student visa – failure of applicant to satisfy relevant criteria for visa – no jurisdictional error – application dismissed – appeal dismissed Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Cases cited: APZ15 v Minister for Immigration [2017] FCCA 1473 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZVBT v Minister for Immigration and Border Protection (2017) 72 AAR 1 Date of hearing: 30 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms E Tattersall Solicitor for the First Respondent: Sparke Helmore ORDERS WAD 513 of 2018 BETWEEN: DAWA DAKPA Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DERRINGTON J DATE OF ORDER: 30 MAY 2019 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: Introduction 1 This is an appeal from the Federal Circuit Court of Australia (FCC) which, on 1 November 2018, dismissed an application for the issue of Constitutional writs to the Administrative Appeals Tribunals (the Tribunal) in respect of a decision dated 16 February 2018. By that decision the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) Visa (the visa). 2 The insurmountable difficulty for the appellant in this matter is that he did not, at the time of the review before the Tribunal, satisfy an essential requirement for the grant of the visa sought. That requirement was that he was enrolled in, or was the subject of a current offer of enrolment in, a course of study that is a principal course and is of the type specified under the regulations for the relevant subclass of visa. The consequence of his failing to satisfy that criteria is that neither the delegate nor the Tribunal was entitled to grant him the visa he sought. Although he raised a number of peripheral complaints generally relating to the merits of his application, the reality was that the Tribunal was not lawfully entitled to take any other course than it did. Background facts 3 On 9 December 2015, the appellant applied for the grant of a Student (Temporary) (Class TU) visa pursuant to s 65 of the Migration Act 1958 (Cth) (the Act) for the purposes of undertaking a course of study in Australia. The requirements for the several types of visa available differed in the criteria which needed to be satisfied depending upon the type of course in which the applicant was enrolled or had an offer of enrolment. 4 The delegate determined not to grant the visa sought by the appellant because he did not satisfy the requirement of cl 572.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because, at the time of the delegate's decision, the appellant had not provided evidence that he had access to funds which were sufficient to meet expenses to cover his total course fees, living costs and travel costs for the first 12 months of his proposed course of study. Although somewhat irrelevant, the appellant blames that evidential failure on the migration agents who were advising him at that time. The appellant sought review of the delegate's decision by the Tribunal. 5 In its reasons the Tribunal noted the appellant had appeared before it on 15 February 2018 to give evidence and to present arguments. The central issue raised at the hearing was that a Provider Registration and International Student Management System (PRISMS) check had revealed the appellant had completed a Certificate III in Spoken and Written English in September 2016 but, since then, had enrolled in numerous courses all of which had been cancelled. The Tribunal identified eight different courses, the last one being cancelled in January 2017. As at 12 February 2018, there was no indication on the PRISMS records that the appellant was currently enrolled in any course of study. It should be noted that the appellant was provided notice prior to the hearing that he ought to provide to the Tribunal evidence of his current enrolments or offers of enrolment. None were provided. At the hearing he was informed of the effect of the PRISMS records and that it was information that it may cause the Tribunal to conclude that he does not meet the threshold requirement for the grant of a student visa. He was further informed that if the Tribunal found that he was not studying and did not have an offer of enrolment, it would affirm the decision to refuse the student visa. In response the appellant confirmed he was not then currently enrolled in any course and did not have any offer of enrolment and he gave several reasons as to why that was so. 6 The Tribunal noted that whilst the issue before the delegate was whether the appellant met the criterion in cl 572.223(2), being whether he had adduced evidence of having sufficient funds to complete his courses, the issue before it was whether he met the enrolment requirements for a student visa. The Tribunal determined that an essential requirement of the visa sought by the appellant was that he be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course and is of a type specified under r 1.40A for the subclass of visa at the time of application. That requirement was imposed by cl 571.231. It concluded that he was not so enrolled such that cl 571.231was not satisfied. It determined that he had not satisfied the criteria for any other student visa and the decision under review was affirmed. Proceedings in the FCC 7 The appellant sought review of the Tribunal's decision before the FCC. The purported grounds of review set out in the application were of a discursive kind and some of the comments referred to the appellant's non-satisfaction of the funding requirement which was in issue before the delegate. In relation to his non-compliance with the requirement to be enrolled in or have an offer of enrolment in a suitable course, the appellant blamed his migration agent for giving him incorrect advice. The appellant alleged that he was not accorded natural justice because the Tribunal did not consider his claim to have been misled by his migration agent as to appropriate enrolment and the financial criteria. Decision of the FCC 8 On 1 November 2018 the appellant's application for review was heard in the FCC. On that day the learned primary judge delivered ex tempore reasons and refused the application. The primary judge's reasons set out at length the history of the matter and the proceedings before the Tribunal and before that Court. Whilst the primary judge expressed sympathy for the appellant's position, his Honour could detect no jurisdictional error in the Tribunal's reasons. 9 The appellant had complained that his agent had not filed evidence relating to this financial circumstances with the Department so that it might be considered by the delegate and, as a result, the delegate did not have all relevant information. As the learned primary judge correctly pointed out, the FCC had no jurisdiction to determine the correctness of the delegate's decision: APZ15 v Minister for Immigration [2017] FCCA 1473, [29]. 10 In relation to the claim that he was denied natural justice because he was not able to present evidence that his agent misled him, the primary judge observed that the appellant had not appointed an agent to send or receive material to the delegate. The agent only appeared before the delegate. There was, further, no evidence before the Tribunal to establish the alleged negligence, incompetence or inadvertence of the agent. Moreover, the Tribunal raised the issue of the appellant's non-enrolment in any relevant course with him and invited him to provide documents in relation to that issue. He was on notice of that issue prior to the Tribunal's hearing and he did not produce any relevant documents. Further, it was recognised that the Tribunal had complied with s 359AA of the Act and put to the appellant the relevant PRISMS information and explained why it was relevant to the review and that he could have time to consider his response. The primary judge accepted that no breach of procedural fairness arose. 11 Further, the primary judge accepted that the incompetence, negligence and lack of ability of a migration agent does not give rise to a jurisdictional error. He also found that, to the extent to which the ground of unreasonableness was raised, there was nothing in the conduct of the Tribunal hearing or in its reasons for decision that might be regarded as unreasonable in the legal sense. Its decision was logical and intelligible. 12 Consequently, the primary judge held that no breach of procedural fairness had occurred, that no unreasonableness existed in the decision and, importantly, that the Tribunal could not have reached any other decision on the material before it. Accordingly, the application was dismissed. Proceedings before this Court 13 As best as can be ascertained from the Notice of Appeal the appellant relies on the following grounds: 1. To relook at the Department of Immigration and AAT's decision of refusal of visa and kindly order department to reconsider. 2. To overturn the decisions of both Department of Immigration and AAT and direct the Department to reconsider again. Consideration 14 The grounds of appeal are defective and obviously so. They do not identify any alleged jurisdictional error which the Court below erred in failing to detect. 15 To the extent to which the appellant invites this Court to examine the decision of the delegate, the grounds are misguided. This Court has no jurisdiction to review in any way the decision of the delegate. Indeed, this Court has no jurisdiction to review the decision of the Tribunal and it ought not embark on any such consideration: SZVBT v Minister for Immigration and Border Protection (2017) 72 AAR 1, [10]. Its role in the Court hierarchy is to examine whether any appealable error occurred in the decision of the FCC: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129, [11]. Unfortunately, the appellant does not understand this distinction and has not sought to identify any error in the decision of the primary judge. The grounds of appeal are more properly described as an invitation to this Court to engage in merits review. That it cannot do. An insurmountable hurdle 16 Unfortunately for the appellant, he faces the insurmountable hurdle that, at the time of the Tribunal's decision, he did not satisfy cl 571.231 as he was not enrolled in or had any offer of enrolment in any course which satisfied the visa for which he had applied. He was aware of that requirement prior to and at the Tribunal hearing and, indeed, he acknowledged that he was not then enrolled in any course. The requirement to be so enrolled is mandatory. Without it neither a delegate nor the Tribunal on review might reach a decision that the appellant is entitled to a student visa. The requirement cannot be waived by the delegate, the Tribunal or any court and the Tribunal was bound to affirm the delegate's decision. 17 The appellant appeared for himself at the hearing of the appeal despite failing to file any written submissions. In his oral address he said that at the time of the hearing before the Tribunal he was suffering distress as a result of not being satisfied with his courses and the conduct of his migration agent. He sought an order that the Department allow him to make a fresh visa application rather than being required to leave Australia to do so. This Court is not entitled to make such an order. It has no jurisdiction to direct the Department in that manner in the circumstances of this case. 18 It follows that the primary judge was correct to dismiss the application for review of the Tribunal's decision. Nothing has been shown to entitle the appellant to relief from this Court. It also follows that the appeal to this Court must fail. 19 There is no reason why the appellant ought not pay the first respondent's costs of the appeal and none has been shown. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate: Dated: 30 May 2019