An v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 281
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
An v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 281
File number(s): MLG 1990 of 2021 Judgment of: JUDGE LAING Date of judgment: 21 April 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal failed to consider that enrolment could be extended – whether the Tribunal failed to consider evidence – whether the Tribunal erred by not adjourning the hearing – whether the Tribunal misled the applicant – application dismissed. Legislation: Migration Act 1958 (Cth) ss 360, 363, 425
Migration Regulations 1994 (Cth) Schedule 2, cl 500.212, 500.311
Cases cited: ESX21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 58
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326. In WZARH
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 12 April 2023 Place: Sydney Solicitor for the First Applicant: The First Applicant appeared in-person Solicitor for the Second Applicant: No appearance Counsel for the First Respondent: Mr J Barrington appeared via video-link Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1990 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DI AN
First Applicant
LANYUNQI LIU
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
21 April 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas (student visas).
BACKGROUND
The applicants are citizens of China. On 9 October 2019, the applicants applied for student visas. The first applicant (Applicant) sought to meet the primary criteria for the visas. The second applicant, his wife, applied as a member of the family unit.
The Delegate refused the application on 18 November 2019. The Delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 5 December 2019, the applicants sought review of the Delegate’s decision by the Tribunal. The applicants attended a hearing before the Tribunal on 22 July 2021, assisted by an interpreter.
On 22 July 2021, the Tribunal affirmed the Delegate’s decision orally. Written reasons were produced on 3 August 2021.
RELEVANT CRITERION
The criterion in issue before the Tribunal was cl 500.211 of Schedule 2 to the Regulations, which provided:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
TRIBUNAL’S DECISION
The Tribunal acknowledged that the issue before the Delegate was whether the Applicant was a genuine temporary entrant. However, the Tribunal identified that the issue before it was whether the Applicant met the enrolment requirements for the student visa under cl 500.211 of Schedule 2 to the Regulations (at [7]-[9]).
At [10]-[13], the Tribunal stated:
10. On 6 July 2021, a written invitation to attend today's hearing was sent to the applicant. In that invitation, the applicant was requested to provide evidence of enrolment in a full-time registered course to the tribunal at least seven days before today's hearing. The Confirmation of Enrolment in a Diploma of Hospitality and Management that was provided to the tribunal by the applicant demonstrates that this course had well expired prior to the commencement of this hearing on 22 July 2021.
11.At the hearing, the tribunal asked the applicant whether he is currently enrolled in a registered course of study.
12.The applicant candidly informed the tribunal that he is not currently enrolled in a registered course. The applicant informed the tribunal that he had some difficulty with the online learning of his Diploma of Hospitality and Management due to the COVID pandemic.
13.The tribunal informed the applicant that it is a requirement of the legislation that he be enrolled in a current course of study at the time of the hearing before the Tribunal.
The Tribunal concluded that the Applicant was not enrolled in a course of study at the time of its decision, and therefore found that he did not meet the criteria for the grant of a student visa (at [14]-[15]).
As the Applicant did not meet cl 500.211, the second applicant could not meet cl 500.311 (at [16]).
The Tribunal therefore affirmed the Delegate’s decision (at [17]-[19]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings by an application filed on 8 August 2021, relying upon the following grounds:
1.The Tribunal failed to consider that the Confirmation of Enrolment in a Diploma of Hospitality and Manager can be extended.
Particulars
Paragraph 10 of decision record
2.The Tribunal failed to consider the applicant’s difficulty with the online learning and failed to adjourn the hearing so that the applicant can recommence his enrolment.
Particulars
Paragraph 12 of decision record
Ground 1
Ground 1 contended that the Tribunal failed to consider that the Confirmation of Enrolment in a Diploma of Hospitality and Management could be extended.
However, as the Minister submitted, the Applicant did not suggest to the Tribunal that his Certificate of Enrolment in that particular course could be extended. The Tribunal was not obliged to consider a claim that was not made and did not clearly arise on the materials that were before it.
In any event, the issue before the Tribunal was not whether the Applicant’s previous enrolment was capable of being extended, but whether the Applicant was enrolled in a relevant course of study at the time of its decision. If the Applicant were not enrolled in such a course, then he was unable to meet the requirements for the visa even if some form of enrolment (extended or otherwise) were possible in the future.
For these reasons, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal failed to consider the Applicant’s difficulty with online learning. However, the Tribunal considered what the Applicant said in this regard at [12] of its decision where it stated:
12.The applicant candidly informed the tribunal that he is not currently enrolled in a registered course. The applicant informed the tribunal that he had some difficulty with the online learning of his Diploma of Hospitality and Management due to the COVID pandemic.
In any event, the requirement that the Applicant be enrolled was an objective criterion for the grant of the student visa. The Tribunal was not able to waive it, notwithstanding the difficulties that the Applicant had experienced with online learning.
Ground 2 also contended that the Tribunal failed to adjourn the hearing so that the Applicant could recommence his enrolment.
The Tribunal had the power to adjourn the review: s 363(1)(b) of the Migration Act 1958 (Cth) (Act). The discretion in relation to this power had to be exercised reasonably. Its exercise or non-exercise therefore needed to have “an evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] and [76] per Hayne J, Kiefel J (as her Honour was) and Bell J.
I am unable to conclude that the Tribunal’s exercise of discretion to proceed to a decision in the present case without granting an adjournment lacked such a justification, in circumstances where no adjournment appears to have been sought by the Applicant and the Applicant does not appear to have represented to the Tribunal that he would be able to meet the criterion if an adjournment were granted.
In accordance with the Minister’s model litigant obligations, however, the Minister raised a related issue concerning [13] of the Tribunal’s decision, in which the Tribunal stated:
13.The tribunal informed the applicant that it is a requirement of the legislation that he be enrolled in a current course of study at the time of the hearing before the Tribunal.
The requirement that the Applicant be enrolled related to the time of the Tribunal’s decision, rather than the time of its hearing. This, therefore, raised for consideration whether the Tribunal’s statement at the hearing denied the applicants procedural fairness in the manner considered in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (WZARH). In WZARH, Gageler and Gordon JJ observed (at [59]) that (footnotes omitted):
59.There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair67…
Within the context of Part 5 and Part 7 of the Act, departure from a representation by the Tribunal as to the procedure to be adopted can, in some cases, amount to a breach of s 360 or 425 of the Act: see ESX21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 58 at [59].
Ultimately, however, I accept the Minister’s submission that no jurisdictional error is able to be demonstrated on this basis in the present case.
There is no transcript in evidence establishing what was or was not precisely said to the applicants and in what context at the Tribunal hearing. It may well be that the reference to the hearing at [13] of the Tribunal’s reasons was no more than a typographical error.
In any event, the time of the hearing and the time of the Tribunal’s decision in this case coincided, with the Tribunal making an oral decision and providing reasons at the conclusion of the hearing. The applicants had been forewarned, in the invitation to attend a hearing, that the Tribunal may make a decision at the end of the hearing. They were forewarned that in coming to a decision, the Tribunal may assess whether the Applicant was enrolled in a relevant course of study. With that correspondence, the Tribunal had also notified the applicants that they could seek adjournment of the hearing (which would only occur with good reason), and that if they sought “more time to present information after the hearing [they] should advise the Member at the hearing and provide strong reasons”.
Having regard to the above, I am not satisfied that there is sufficient basis for finding that the applicants were relevantly misled in the present case. The applicants were on notice that the Applicant may need to demonstrate enrolment by the conclusion of the hearing, at which time the Tribunal contemplated making a decision. However, they was also on notice that it may be possible to seek adjournment of the hearing and/or further opportunity to provide evidence.
I accept that the applicants may nonetheless have possessed limited knowledge of the Tribunal’s procedures at the time of the hearing before the Tribunal. I accept that it may have been difficult for the applicants to have attended the Tribunal hearing, by telephone, in circumstances where their migration agent had elected not to attend. However, without more, this does not establish that the applicants were misled by the Tribunal or denied a meaningful hearing in accordance with s 360 of the Act.
The applicants did not contend that they were misled on account of any suggestion by the Tribunal that the Applicant needed to demonstrate enrolment at the hearing. When asked at the hearing before the Court about his reasons for not asking the Tribunal for more time to demonstrate enrolment, the Applicant stated that he had not known with whom he should speak to apply for any extension, and that he “had no funding available to support the enrolment”.
Ultimately, I accept the Minister’s submission that there is insufficient basis for finding that the applicants were relevantly denied procedural fairness in this case.
It follows that ground 2 is unable to succeed.
CONCLUSION
For the above reasons, no jurisdictional error has been demonstrated by the grounds relied upon by the applicants. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 21 April 2023
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