Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1203
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1203
File number(s): SYG 2365 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 15 December 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Application for Review of Registrars Decision – Legal unreasonableness – Whether Jurisdictional error is made out – nor error made out – Student (Class TU) (subclass 500) visa – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), cl.13.13(a), r 21.02
Migration Regulations 1994 Cth cl 500.212, cl 500.211
Cases cited: Ahmed v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 1041
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 12 December 2023 Date of hearing: 12 December 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Guihot appeared on behalf of the First Respondent. ORDERS
SYG 2365 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOGIR AHMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.Leave be granted for an extension of time for the filing of an Application for Review of a Registrar’s decision.
2.The Application for a Review of a Registrar’s decision is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the sum of $2,600.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Bangladesh. The applicant first arrived in Australia on 2 February 2011 as the holder of a Student (Class TU) (Subclass 572) visa. On 25 March 2019, the applicant applied for a further Student (Class TU) (subclass 500) visa (“visa”) to study a Bachelor of Business with course dates from 1 August 2016 to 7 March 2021. This visa application is the subject of the Administrative Appeals Tribunal (“the Tribunal”) decision.
On 9 August 2019, following an invitation by the First respondent (Minister) to comment on adverse information pertaining to the applicant’s visa, a delegate of the Minister’s Department refused the visa application because the Minister was not satisfied that the applicant was a genuine applicant for stay and entry as a student in Australia.
The applicant sought a review of the delegate’s decision. Following a hearing on 11 November 2021, the Tribunal affirmed the decision under review.
The matter came before a Registrar of this Court, and, on 15 November 2023, the Registrar dismissed the application summarily, pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), on the basis that the application had no reasonable prospects of success: Ahmed v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 1041.
The applicant now seeks a review of the Registrar’s decision. For the reasons set out below the application must be dismissed.
EXTENSION OF TIME FOR THE FILING OF THE APPLICATION
Any application for a review of a Registrar’s decision must be made within 7 days of the date of the decision: (see; r 21.02(1) of the Rules). However, the Court has the power to extend the time for the filing of an application for review (Rule 21.02(2)). The applicant is self-represented. English is his second language. The applicant told the Court that he attended the Court Registry and was given certain advice. The applicant thought that he was still in time when he lodged the application 14 days after the Registrar’s decision.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
a. the extent of the delay;
b. the explanation for the delay;
c. prejudice to the respondent due to the delay; and
d. the merits of the proposed application.
While the extension was opposed by the respondent, the Court was of the view that the delay was only a few days. While the explanation given by the applicant was plausible, it was not strong. No real prejudice would be occasioned to the respondent. The only other matter is the merits of the proposed grounds of judicial review. Notwithstanding they were not, at an impressionistic level, strong, the Court was of the view the time for the filing of the application should be extended to the date of the filing of the application. This will allow the matter to be dealt with on its merits.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs one to four of the decision record, deal with the background of the matter. The applicant applied for the Student visa on 25 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (“Student Guardian”). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. There was evidence that the applicant was enrolled in a General English course and Advanced Diploma of Leadership and Management from 2 September 2019 to 1 November 2020. There was also evidence of health insurance, financial capacity and a statement addressing the genuine temporary entrant criteria.
Paragraph four of the decision record notes that the delegate refused to grant the applicant’s visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. On 6 September 2019 the applicant applied for review of the delegate's decision.
The Tribunal noted at paragraph six of its decision that, on 18 October 2021 the Tribunal invited the applicant to attend a hearing by telephone on 11 November 2021. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he was currently enrolled in a course of study as defined in cl 500.211 of the Regulations. This is required for the grant of a Student visa as at the time of any decision. The letter also indicated that the Tribunal may assess whether the applicant intends to genuinely stay in Australia temporarily as required by cl 500.212 of the Regulations and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
At paragraph seven of the decision record, the Tribunal noted that on 20 October 2021 the applicant, via his representative requested the hearing be postponed as the applicant’s eyes were feeling watery and unwell. With the request the applicant provided evidence of a medical appointment on 17 May 2021 at the Centre for Eye Health and a medical report dated 25 May 2021, noting the applicant has no current evidence of glaucoma but requested close monitoring of his epiretinal membrane. Also attached was a medical report dated 22 September 2021 following referral to the Centre for Eye Health which noted that the applicant’s left eye was healthy, but the Doctor requested repeating the visual tests and suggested a retinal examination. There was no evidence provided that the applicant was unfit to attend a hearing.
At paragraph eight of its decision, the Tribunal carefully considered the applicant's request to postpone the hearing. No medical evidence was provided that the applicant was unfit or could not participate meaningfully in the telephone hearing. The Tribunal was of the view the evidence did not indicate the applicant was not fit or competent to attend a hearing by telephone and was of the view the applicant was able to participate meaningfully in the telephone hearing. Therefore, on 21 October 2021 the applicant was advised via his representative that the Tribunal had considered the request carefully and decided not to postpone the hearing.
At paragraph 10 of the decision record, it was noted there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl 500.211 of the Regulations. The Tribunal caused a search of the Provider Registration and International Student Management System (“PRISMS”) register, to be undertaken. The purpose of this search was to ascertain whether the applicant was enrolled in a registered course.
At paragraph 13 of the decision record, the Tribunal noted that the PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as of 29 October 2021, being the date of the search.
Paragraph 14 notes that on 9 November 2021 the applicant's representative advised they were no longer acting for the applicant.
The applicant appeared before the Tribunal by telephone on 11 November 2021. At the hearing the applicant indicated he was not currently enrolled in a course of study. Via the process outlined in s 359AA of the Migration Act 1958 (Cth) (“the Act”) the Tribunal raised with the applicant that the PRISMS record indicates that he was not currently enrolled in a course of study. It noted the applicant was enrolled in a General English and Advanced Diploma of Leadership and Management course from 2 September 2019 to 1 November 2020 but enrolment in these courses was cancelled on 13 November 2019. The Tribunal raised with the applicant information indicating enrolment in the Bachelor of Business was previously cancelled for unsatisfactory course progress. It raised with the applicant the consequence of relying on the information with regard to cl 500.211 and cl 500.212 of the Regulations.
The applicant noted that he been enrolled in a Bachelor of Business and had been trying to re-enrol. The applicant said from 2019 he had an eye condition which had prevented him from studying and it was making him blind. The Tribunal noted that the only information on file was with regard to a recent request to postpone a hearing. The Tribunal noted there is no information that indicates the applicant has been unable to study for two years on account of his eye problems. The applicant requested time to provide information and said he needed two weeks to talk with his representative. The Tribunal advised that in the circumstances it was reasonable he be given until close of business on 12 November 2021 to comment or respond.
Paragraphs 24 and onwards of the decision record considers the applicants claims and evidence.
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 of the Regulations must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue before the delegate was whether the applicant met the criterion in cl 500.212 of the Regulations, however as raised with the applicants another matter before the Tribunal is whether he meets cl 500.211 of the Regulations.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
At paragraph 27 of the decision record, the Tribunal raised with the applicant the requirement of enrolment for the grant of a Student visa and referred to cl. 500.211 of the Regulations in writing and on a number of occasions at the hearing. The applicant advised that he was not currently enrolled in a course of study.
The evidence from the applicant and the PRISMS record, raised with the applicant via s359AA of the Act, was that the applicant was not at the time of the Tribunal’s decision currently enrolled in a course of study. The applicant was given time to comment or respond to close of business on 12 November 2021 but had not done so as at the date of the Tribunal decision. While the applicant requested two weeks to respond the Tribunal was of the view that since the initial hearing letter on 18 October 2021, the applicant had been on notice as to the issue of the requirement of enrolment in a course of study. It was of the view that the applicant had been given a reasonable period to respond.
At paragraph 29 of the decision record, the Tribunal considered the reasons for the non-enrolment in a course of study including his eye conditions. No medical evidence had been provided that the eye difficulties prevented the applicant from studying or enrolling in a course of study, which the Tribunal expects would be the case if the applicant was unable to study due to this reason. Therefore, on the evidence before it, the Tribunal was not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly, cl.500.211of the Regulations was not met.
At paragraph 32 of the decision record, the Tribunal affirmed the delegates decision not to grant the applicant a Student (Temporary) (Class TU) visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds for a judicial review are contained within an Initiating Application filed with the Court on 20 December 2021. They are as follows (verbatim):
Ground 1
The Tribunal's decision is unreasonable.
Particulars
The applicant requested the Tribunal to adjourn the hearing and provided valid reason for it. It is submitted that the applicant provided the most recent medical report in September 2021 and in the medical report the doctor who is well-qualified to provide medical opinion noted that the applicant had to undertake further medical examination related to his eyesight. It is noted that the applicant is self represented and based on the medical report the AAT should have formed an opinion that the applicant would not be in a position to read or at least would be in a position to that he would face practical difficulties in reading the materials related to his case. Accordingly, it is submitted that the applicant has provided reasonable, justifiable and in fact compelling reasons and evidence for his request for adjournment. The Tribunal should have exercised its discretion reasonably and based noted in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) and for Immigration & Anor [2014] FCCA 10 (7 February 2014) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), the Tribunal should have adjourn the matter because as per the AAT the Tribunal needs to provide meaningful hearing which is fair and just . However, in the particular matter it is very clear that the AAT erred in its decision by not adjourning the hearing and failed to provide fair and just hearing.
Ground 2
The Tribunal failed to engage in genuine and realistic consideration of applicant's review application by failing to consider relevant considerations when assessing Genuine Temporary Entrance criteria.
Particulars
The Tribunal failed to consider the applicant's travel history to his home country.
Ground 3
The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.
Particulars
a. The Tribunal had in its possession the document and information related to PRISM prior to the hearing. The tribunal was aware that the applicant has eyesight issues and the Tribunal was aware that the applicant's then representative withdrew from the case. In that situation, the Tribunal should have advised the existence of PRISM and information prior to the hearing and should have invited the applicant to provide his response. It seems that the Tribunal kept the information to surprise the applicant during the hearing.
b. The Tribunal failed to provide reasonable time for the applicant to respond. The Tribunal was well aware that the applicant was suffering from eyesight issues and had seen the medical report. The Tribunal was aware that the applicant's representative withdrew from the hearing 2 days from the hearing. The Tribunal was aware that the applicant was a self-represented applicant. Therefore, considering all the above individually and cumulatively, the Tribunal should have provided a reasonable period for the applicant to respond.
c. The Tribunal failed to provide relevant information under Section 359 AA and failed to advise the relevance of that information and failed to mention the applicant can comment on or respond to it later. The Tribunal has failed to advise the applicant of his right, particularly when the applicant is a self-represented applicant, the Tribunal should have exercised more. Based on that it is submitted that the Tribunal's decision is infected by a legal error and the decision of the Tribunal should be set aside.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by a Bengali Interpreter.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book together with a copy of the first respondent’s written submissions. The Court also ensured the applicant had access to a pen and paper so that he could make notes during the course of the hearing should he so wish to.
No written or other material was provided in support of the application.
At the commencement of the hearing, the Court explained it was undertaking a review of a Registrar’s decision. That review would look at the issue of whether there was any jurisdictional error in the Tribunals decision. The Court could not undertake merits review. The Court also explained the process by which the hearing would be undertaken.
The applicant was asked if he wished to add anything by way of submissions to his grounds of judicial review. The applicant answered ‘No’. Following the respondent’s oral submissions, the applicant was again asked if he wished to say anything in reply. The applicant again answered “No’.
CONSIDERATION
Ground one is a claim that the Tribunal’s decision was unreasonable. The particulars allege that the Tribunal should have adjourned the hearing based on the medical evidence provided to it. The applicant asserts that the medical evidence provided ‘reasonable, justifiable and…compelling reasons and evidence for adjournment’.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
[11] The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The Court is satisfied that the discretion exercised by the Tribunal under s 363(1)(b) of the Act which allows the Tribunal to adjourn a review from time to time was in this matter exercised reasonably. The medical evidence was not such that the applicant was medically unfit to attend the hearing or could not actively participate in the hearing. The respondent noted that the applicant’s representative following the adjournment not been granted provided a completed “response to hearing invitation form” which confirmed the applicant would attend the hearing and there are no issues that affected the applicant’s ability to participate in the hearing including a health problem or disability (CB 100).
The first respondent noted, and the Court agrees, the applicant was provided a fair and just hearing. Although the applicant attended by telephone, he had the assistance of an interpreter to give evidence and present argument. The Court is satisfied there is nothing on the face of the decision record to suggest the applicant encountered any issues that prevented him from meaningfully engaging in the hearing. The reason why the applicant attended alone was that at the time of the hearing he was no longer represented. Ground one has no merit.
Ground two is an assertion that the Tribunal failed to engage in a genuine and realistic consideration of the applicant’s review application by failing to consider relevant considerations when assessing genuine temporary entrant criteria. The particulars assert the Tribunal failed to consider the applicants travel history to his home country. This ground is misconceived. The basis of the Tribunal’s decision was that at the time of its decision, the applicant was not currently enrolled in a registered course of study and therefore failed to meet cl 500.211 of the Regulations. This information was put to the applicant in a manner that met with the relevant requirements pursuant to s 359AA of the Act. The applicant was provided with time to comment on and respond to that material but did not do so. Given that the dispositive issue was the fact that the applicant was not currently enrolled in a registered course of study, there was no requirement for the Tribunal to go on to consider whether or not the applicant met the genuine temporary entrant criteria under cl 500.212 of the Regulations. Ground two has no merit.
Ground three is a claim the Tribunal failed to comply with s 359AA and/or s 359A of the Act. The particulars contended first, the Tribunal should have invited the applicant to provide his response to the PRISIMS records prior to the hearing. The Court agrees with the respondent, that there is no requirement for the Tribunal to put adverse information to the applicant prior to the hearing. Further, the applicant was asked to provide information prior to the hearing that included any confirmation of enrolment in any registered course of study. The Court is satisfied that the Tribunal properly put the adverse information to the applicant pursuant to s 359AA of the Act. The Tribunal also allowed the applicant a reasonable period to respond to that information. It was only when the applicant failed to respond that the Tribunal finalised its decision. Particular (a) has no merit.
Particular (b) asserts the Tribunal did not provide reasonable time for the applicant to respond as the applicant’s representatives withdrew two days prior to the hearing. The Court is satisfied the Tribunal set out its reasons for refusing a request for two weeks to respond to the adverse information under s 359AA of the Act at [28] of its decision. The Court is satisfied these reasons disclose an evident and intelligible justification for the timeframe provided to the applicant to respond. The Court is satisfied the applicant was on notice via the Tribunal’s hearing invitation that he needed to provide either a certificate of enrolment or documents that evidenced his enrolment prior to the hearing in order for him to establish he met the criteria for the visa. The Court is of the view that the applicant was on notice that this was a critical issue in the review. The Tribunal was not under an obligation to afford the applicant every opportunity to present his best possible case: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49].
Particular (c) alleges the Tribunal failed to provide relevant information under s 359AA of the Act and advise the applicant of his right to comment or respond on the information later. The Court rejects this assertion. The Tribunal’s decision record shows that it gave clear particulars of the adverse information, that being that the applicant was not currently enrolled in any registered course of study. The Tribunal’s decision record at [18] shows the applicant requested (and was granted) additional time post hearing to comment or respond to the information as required by s 359AA(1)(b)(iii) of the Act. The Court is satisfied there was no non-compliance with the requirements of the relevant section. The Court agrees with the respondent that the dispositive issue was different to that which was found by the delegate. The Court is also satisfied that the applicant was clearly on notice of the requirement to provide a current certificate of enrolment. The applicant failed to do so. In these circumstances the Tribunal had no option other than to affirm the decision under review. Ground three has no merit.
CONCLUSION
Accordingly, the application must be dismissed, and the Registrar’s decision confirmed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 15 December 2023
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