Alawdeen v Minister for Immigration
[2018] FCCA 796
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALAWDEEN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 796 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – vocational education and training sector student visa – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e) Migration Act 1958 (Cth), ss.360, 360A, 362B, 476 Migration Regulations 1994 (Cth), reg.1.40A, Sch.2, cll.570.232, 571.232, 572.221, 572.223, 572.231, 573.111, 573.231, 574.111, 574.231, 575.111, 575.231, 576.229 |
| Cases cited: AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | MOHAMADU SIRAJ ALAWDEEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 626 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 29 March 2018 |
| Date of Last Submission: | 29 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,600 by 29 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 626 of 2017
| MOHAMADU SIRAJ ALAWDEEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and later edited)
The applicant, Mr Mohamadu Siraj Alawdeen (“Mr Alawdeen”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 7 November 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Alawdeen a Student (Temporary)(Class TU) Vocational Education and Training Sector (subclass 572) visa (“Student Visa”). The Tribunal Decision appears in the Court Book (“CB”) 83-85.
Background
The background to the Judicial Review Application is as follows:
a)Mr Alawdeen, a citizen of Sri Lanka, first arrived in Australia on 7 September 2011 as the holder of a student visa, and on 30 November 2015, he applied for the Student Visa the subject of this Judicial Review Application having enrolled in a Diploma and an Advanced Diploma of Leadership and Management at the West Australian Institute of Further Studies: CB 1-8 and CB 14-17;
b)on 3 December 2015 Mr Alawdeen was requested to provide further information to the Minister in support of his Student Visa application and on 7 January 2016 Mr Alawdeen’s migration agent forwarded certain documents: CB 33-59;
c)on 13 January 2016 the Delegate’s Decision was to refuse to grant Mr Alawdeen the Student Visa on the basis he was not a genuine temporary entrant, and therefore did not satisfy cl.572.223(1)(a) of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 63- 67;
d)on 29 January 2016, Mr Alawdeen applied to the Tribunal for review of the Delegate’s Decision: CB 69;
e)on 13 October 2017, the Tribunal invited Mr Alawdeen to attend a hearing on 7 November 2017 (“Tribunal Hearing”), provided him with a copy of Ministerial Direction 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (“Direction 53”), and stated it would assess whether he intended to stay in Australia temporarily and requested that Mr Alawdeen provide all documents to be relied on to establish that he met the criteria for the Student Visa, specifically:
i)a copy of his current Certificate of Enrolment;
ii)documents evidencing his current enrolment or offer of enrolment in a registered course;
iii)documents relating to any past studies in Australia including attendance certificates, academic transcripts, and certificates of completion, and documents evidencing work relating to past or future study in Australia; and
iv)any explanation supported by evidence of any gaps in his enrolment: CB 77;
f)on 6 November 2017, Mr Alawdeen’s migration agent emailed the Tribunal and stated Mr Alawdeen could not attend the Tribunal Hearing and that he had requested a decision from the Tribunal based on Mr Alawdeen’s initial Student Visa application, and provided no further material to the Tribunal: CB 79; and
g)on 7 November 2017 the Tribunal affirmed the Delegate’s Decision under review: CB 83-85.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)referred to the background history of Mr Alawdeen’s Student Visa application, including:
i)the Delegate’s Decision;
ii)the invitation extended to attend the Tribunal Hearing;
iii)the request for further documents; and
iv)the correspondence from the migration agent requesting the Tribunal make the decision based on the initial Student Visa application: CB 83 at [1]-[7];
b)stated the issue was whether Mr Alawdeen met the enrolment criterion for a Student Visa at the time of the decision and that cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch.2 to the Migration Regulations require that at the time of decision an applicant must 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 reg.1.40A of the Migration Regulations for the subclass at the time of application: CB 84 at [9]-[10];
c)explained there was no evidence before the Tribunal that Mr Alawdeen is an eligible higher degree student as defined in cll.573.111 and 574.111 of Sch.2 to the Migration Regulations, or an eligible university exchange student or eligible non-award student for the purposes of a Subclass 575 student visa as defined in cl.575.111 of Sch.2 to the Migration Regulations: CB 84-85 at [9]-[10];
d)noted that Mr Alawdeen had declined to appear before it, and he had not provided any evidence or arguments that he was enrolled in a course that is a principle course of a type specified under reg.1.40A of the Migration Regulations as required for the grant of a Student Visa: CB 85 at [11];
e)noted there was no evidence before it that Mr Alawdeen was enrolled in, or had a current offer of enrolment in, any applicable course of study and it found cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch.2 to the Migration Regulations were not met: CB 85 at [12];
f)further added there was no evidence that Mr Alawdeen met the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU, and Mr Alawdeen was neither supported by the relevant Minister as required by cl.576.229 of the Migration Regulations, nor had he made the Student Visa application on the basis of being a student guardian: CB 85 at [13]; and
g)therefore affirmed the Delegate’s Decision not to grant Mr Alawdeen a Student Visa: CB 85 at [14]-[15].
Judicial Review Application
Mr Alawdeen’s grounds in his Judicial Review Application are as follows:
1. The grounds of application for the Federal Court are mainly based on the Refusal of my Student (TU) visa. The refusal was based whether I genuinely intended to stay in Australia temporarily.
2. However, I would like to mention that I was invited on 13 October 2017 to attend the hearing on 7 November 2017. However, due to certain unavoidable and uncontrolled circumstances, I was not able to attend the hearing, post which it was requested to Administrative Appeals Tribunal (AAT) to make a decision accordingly and the application was refused.
3. Hence, it is my humble request to consider my application for the same and do the needful.
On 15 December 2017 a Registrar of this Court provided an opportunity for Mr Alawdeen to file any amended application, supporting affidavits and a written outline of submissions prior to the hearing listed today, 29 March 2018 (“Registrar’s Orders”). Mr Alawdeen did not do so.
At the hearing today Mr Alawdeen has not appeared, and the Court has determined, having read all of the relevant material, to proceed to give judgment on the merits of the Judicial Review Application pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
In seeking the Judicial Review Application be dismissed with costs the Minister submitted in written submissions that:
a)the grounds of review are incompetent as they do not allege any jurisdictional error;
b)grounds 1 and 2 recount factual background while ground 3 requests reconsideration of the Student Visa application and the Court cannot do that;
c)the Tribunal invited Mr Alawdeen to appear before it and give evidence and present arguments and expressly notified him of the dispositive issues on review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [33] and [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, and Mr Alawdeen chose not to appear: SZOKD v Minister for Immigration & Citizenship [2010] FCA 1335 at [22] per Rares J;
d)he did not seek an adjournment, or an extension of time within which to provide further evidence to the Tribunal, and once the Tribunal had invited him it was under no further obligation to contact him, and it cannot be said that there was any jurisdictional error on behalf of the Tribunal because the applicant chose not to appear; and
e)the Tribunal did not consider whether Mr Alawdeen was a genuine temporary entrant because, as stated at CB 85 at [11], the Tribunal found the applicant could not satisfy a primary criterion for the grant of a Student Visa and, therefore, the only decision available to the Tribunal at the time was to affirm the Delegate's Decision: Mutoya v Minister for Immigration & Border Protection & Anor [2017] FCCA 2033 at [35] and [37] per Judge Lucev.
Consideration
Jurisdictional error required
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). This Court must exercise a power of judicial review, a review limited to determining the legality of the Tribunal Decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J. Where a decision is found to involve jurisdictional error, that decision lacks legal foundation and consequently may be regarded in law as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598.
The legality of the Tribunal Decision may be impugned where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL.
The grounds generally
The grounds generally invite the Court to engage in impermissible merits review contrary to long standing principle: Wu Shan Liang. Further they assert no basis for a finding of jurisdictional error, and do not in their terms assert jurisdictional error in the Tribunal Decision. The grounds of review are a simple plea for Mr Alawdeen to be given another opportunity or for the Court to grant him a Student Visa, and do not go to the issue of jurisdictional error in the Tribunal Decision.
The applicant’s grounds are misconceived, and whilst it is apparent he is dissatisfied with the Tribunal Decision, mere disagreement or unhappiness with the Tribunal Decision does not amount to jurisdictional error: Habib v Minister for Foreign Affairs & Trade [2010] FCA 1203; (2010) 192 FCR 148; 275 ALR 180 at [87] per Flick J.
The Court addresses the grounds of review below, remaining alert to the possibility of legal error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J.
Ground 1
In ground 1 the applicant claims the refusal of his Student Visa was based on whether he genuinely intended to stay in Australia temporarily. Contrary to the applicant’s ground, the Tribunal did not refuse his Student Visa based on whether he genuinely intended to stay in Australia temporarily; rather it was the Delegate who refused the Student Visa on that basis. The Tribunal Decision cannot be impugned on the basis of jurisdictional error because of a finding made in the Delegate’s Decision, as the Court’s jurisdiction is to review the Tribunal Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4), and it is well established that if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev. Ground 1 is therefore misconceived.
Where the Minister, and subsequently the Tribunal on review, is not affirmatively satisfied that an applicant meets any of the criteria required to be granted the Student Visa, the Tribunal must refuse the grant of the Student Visa: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ.
In the Tribunal Decision the Tribunal stated at CB 84-85 at [10]-[13]:
10. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must 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 at the time of application. This requirement does not apply to certain 'eligible higher degree students', 'eligible university exchange students', and 'eligible non-award students'. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.
11. As noted above, the applicant declined his invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. Nor did he provide the information requested to indicate that he was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa.
12. Therefore, there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
13. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.
Mr Alawdeen had to satisfy the relevant criteria at the time of the Tribunal Decision. Because he did not provide the Tribunal with evidence he was currently enrolled in a course or had a confirmation of enrolment in such a course meeting the specification in reg.1.40A of the Migration Regulations, the Tribunal was unable to be satisfied that at the time of the Tribunal Decision Mr Alawdeen was currently enrolled, or had an offer of enrolment, in a relevant course of study. The applicant applied for the Student Visa in November 2015 and the Delegate’s Decision was made on 13 January 2016. The two courses Mr Alawdeen applied to undertake (the second of which required his successful completion of the first), and the basis of his Student Visa application, began in November 2015 and ended in May 2017: CB 14-17. At the time of the Tribunal Decision, 7 November 2017, the course for which Mr Alawdeen provided confirmation of enrolment had finished. The Tribunal had access to Mr Alawdeen’s confirmation of enrolment submitted with his Student Visa application, for the purposes of assessment at the time of the Tribunal Decision. Without current confirmation of enrolment in another course the Tribunal could not therefore be satisfied Mr Alawdeen met the criterion for the grant of a Student Visa. The Tribunal refused Mr Alawdeen a Student Visa on the basis he did not satisfy any of the mandatory criteria in the Migration Regulations to be granted a Student Visa.
In all the circumstances, there was no error in the Tribunal’s application of the law, and no jurisdictional error in the Tribunal Decision is established by ground 1.
Ground 2
The applicant in ground 2 confirms he could not attend the Tribunal Hearing and that it was requested the Tribunal “make a decision accordingly”.
The applicant was validly invited to the Tribunal Hearing in accordance with ss.360 and 360A of the Migration Act, thereby complying with relevant procedural fairness obligations. Mr Alwadeen could not attend the Tribunal Hearing, and neither Mr Alwadeen’s migration agent nor Mr Alwadeen sought an adjournment of the Tribunal Hearing. Rather the Tribunal was asked to proceed to make a decision on the papers, which it did.
In accordance with s.360(2)(b) of the Migration Act, if an applicant gives consent for the Tribunal to make a decision without appearing before the Tribunal then the Tribunal may proceed to make its decision. It is not an invalid exercise of power for the Tribunal to have proceeded where consent is given to do so, however the consent must be informed and effective in order to be lawful: Minister for Immigration & Multicultural & Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572; (2006) 236 ALR 294 at [65] and [74] per Spender, French and Cowdroy JJ (“SZFML”). In SZFML, an applicant’s migration agent informed the Tribunal the applicant did not want to attend a hearing, however, did so without the consent of the applicant. The Full Court of the Federal Court in SZFML found an effective consent was a necessary condition to enliven the Tribunal's power to determine the application without a hearing: at [65] and [74] per Spender, French and Cowdroy JJ. The consent to proceed in this case was provided by Mr Alwadeen’s migration agent, and the Court notes the following remarks made by another Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365; (2006) 236 ALR 42 at [101] per French J (“SZFDE”):
What emerges…is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person's exercise of the right to be heard before the decision is made, is compromised or lost through no fault of that person. That circumstance does not however establish a sufficient condition for a finding of procedural unfairness. Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost.
Mr Alawdeen has made no claim that his migration agent acted fraudulently or otherwise inappropriately (and there is no evidence before the Court in that regard, as there might have been pursuant to the Registrar’s Orders). Rather, Mr Alawdeen concedes that he could not attend the Tribunal Hearing. While Mr Alawdeen could have sought an adjournment, he did not, and even if he was not advised of this option by his migration agent, mere negligence, incompetence or inadvertence of the migration agent will not establish jurisdictional error: rather, it must be proven the actions of the migration agent amounted to a fraud on the Tribunal and had the effect of stultifying the Tribunal’s decision-making process: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64 at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ.
In the Court’s view, the applicant was afforded procedural fairness where he:
a)was validly invited to attend the Tribunal Hearing;
b)had been requested to provide copies of all documents he intended to rely upon as evidence he satisfied the Student Visa criterion, at least seven days prior to the Tribunal Hearing;
c)was given notice that if he wished to seek an adjournment to change the date of the Tribunal Hearing he could request to do so and the Tribunal would consider such request;
d)was represented by a migration agent whom he has made no claims acted fraudulently or otherwise inappropriately; and
e)advised the Tribunal the day prior to the Tribunal Hearing that he could not attend, with the migration agent’s email to the Tribunal concerning the non-attendance stating at CB 79:
Unfortunately our client could not attend the hearing and client has requested Administrative Appeals Tribunal (AAT) to make a decision on the application based on initial application
It is not the role of the Tribunal to ensure that a party takes the best advantage of the opportunity to which they are entitled: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383. The Tribunal invited the applicant to attend the Tribunal Hearing, it had no further obligations particularly in circumstances where a request for an adjournment was not made, rather it was simply stated the applicant could not get to the hearing and the Tribunal was requested to make a decision on the papers. In circumstances where Mr Alawdeen has offered no explanation and has failed to avail himself of the opportunity to appear before the Tribunal, or to ensure he has provided the Tribunal with the necessary materials to evidence his satisfaction of the Student Visa requirements, and had not specifically requested an adjournment, the Tribunal was able to proceed as it did based upon the evidence before it. There was nothing unreasonable in the Tribunal doing so, and there is no basis for a finding of jurisdictional error in relation to ground 2.
Ground 3
Ground 3 quite clearly invites the Court to engage in impermissible merits review. For the reasons already expressed at [8] above, this ground can establish no jurisdictional error in the Tribunal Decision.
Conclusion and Orders
Mr Alawdeen has failed to establish any of his grounds in the Judicial Review Application. No jurisdictional error in the Tribunal Decision has been established. The Judicial Review Application must be dismissed. There will be an order accordingly.
In the circumstances, costs must follow the event, and there will be an order for Mr Alawdeen to pay the Minister’s costs in the sum sought, being $5,600, by 29 April 2018.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 29 March 2018
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