Ang v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 578
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 578
File number(s): SYG 3459 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether Tribunal failed to consider relevant information – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359, 359C, 360, 363A
Migration Regulations 1994 (Cth)
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 42
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 27 June 2023 Date of hearing: 27 June 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Gutmann appeared on behalf of the First Respondent. ORDERS
SYG 3459 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHAIK HOONG ANG
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:
7 July 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $5000.00.
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 Malaysia. She originally arrived in Australia on 18 July 2017 as the holder of a 3 month Visitor’s visa. On 17 October 2017, she applied for a Student (Temporary) class TU) Student (subclass 500) visa (“Student visa”). In her visa application form the applicant indicated that she had a letter of offer to study a Diploma of Leadership and management but did not provide a confirmation of enrolment (COE).
On 9 December 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her Student visa.
The applicant sought merits review of the delegate’s decision in the Administration Appeals Tribunal (“the Tribunal”), in an application filed 24 December 2017. In a decision dated 25 November 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant her Student visa
The applicant now seeks judicial review of the Tribunal’s decision. For the reasons set out below, none of the grounds of judicial review have any merit. The application is dismissed
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 1 to 3 of the Tribunal’s decision provide the background to the applicant’s Student visa application.
Paragraphs 4 to 12 deal with a s 359C invitation sent to the applicant. This invitation was sent on 26 September 2019 and required the applicant to respond to a request for information by 10 October 2019. The applicant was advised that failure to respond within the stipulated time limit may result in the Tribunal making a decision without taking further steps to obtain the information and the applicant would lose any entitlement they might have had to appear before the Tribunal and give evidence and present arguments.
The Tribunal was satisfied that the applicant was properly given the invitation pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”). The invitation was sent to the applicant’s nominated address, being that provided on the review application.
At paragraph 6, the Tribunal notes that the applicant did not respond to the invitation and had not made any request for an extension of time. As such, the applicant was not entitled to appear before the Tribunal pursuant to s 360(3) of the Act. The Tribunal considered that s 363A of the Act prevented the Tribunal from permitting the applicant to appear before the Tribunal where the applicant had no entitlement to a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
At paragraph 8, the Tribunal stated that a decision maker is not required to make the applicant’s case and that it is for the applicant to satisfy the Tribunal that the requirements for the grant of the visa sought are met.
At paragraph 13, the Tribunal stated that the criteria for the grant of a Student visa is set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal considered that the issue before the delegate was whether the applicant satisfied the primary criterion in cl 500.212 of Schedule 2 to the Regulations.
Paragraphs 14 to 17 consider the enrolment criterion. This requires that a Student visa application be founded on evidence of the applicant being enrolled in a course of study, defined as a full time registered course of study. The Tribunal stated that producing evidence of a current confirmation of enrolment (“COE”) is a critical first step in obtaining a Student visa. It went on to say, absent of any such evidence, a Student visa cannot sensibly be granted and there is no utility in considering any of the further primary criteria.
At paragraph 18, the Tribunal noted that the applicant responded ‘No’ to the question “Does the applicant hold a confirmation of enrolment for any intended course of study in Australia?”. In paragraph 19, the Tribunal noted that the applicant provided a letter of offer for a Diploma of Leadership at Canterbury Business College, but noted that this was not the equivalent of a COE.
Accordingly, at paragraph 20, the Tribunal was not satisfied that the applicant was enrolled in a course of study and found that cl 500.212 of Schedule 2 to the Regulations was not met. As a result, the Tribunal affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant’s single ground of judicial review is contained within an Initiating Application filed with the Court on 30 December 2019. The ground is as follows as it appears in the application:
The Tribunal’s decision was affected by judicial error in that it failed to take into consideration the relevant information that is available to the Tribunal:
This ground was followed by the following information that the Court believes to be particulars to the above ground:
The AAT found that I was not enrolled in any course at time of the decision. However I have attached as annexure A a confirmation of enrolment showing I was enrolled in the Advanced Diploma of Leadership and Management course from 15 July 2019 to 27 December 2020, and this information was available to the Tribunal from the PRISMS system.
THE APPLICANT’S SUBMISSIONS.
The applicant appeared before the Court unrepresented. She was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the first respondent’s written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she wish to do so.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of case. The applicant told the Court that she had a number of issues with her Migration Agent and this had affected her application
At the conclusion of the first respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent noted that the essential issue in the matter, was whether or not as at the time of the decision by the Tribunal, whether the applicant had a current COE. She did not. In these circumstances, the Tribunal had no option other than to refuse the applicant her visa.
It was noted that the applicant had provided evidence of the letter of offer but this was not the equivalent of a COE. Further, she had responded in the negative to the question of whether or not she held a COE to any intended course in Australia.
It was noted that the applicant had filed an Affidavit affirmed on 30 December 2019, which annexed a COE dated 12 January 2018. The COE reveals that as at 12 January 2018, the applicant was enrolled in an Advanced Diploma of Leadership and Management, commencing on 15 July 2019 and due to end on 27 December 2020. That certificate of enrolment however, does not establish that as at the date of the Tribunal’s decision on 29 November 2019, the Tribunal failed to consider the COE. The Tribunal could not consider a document that was not provided to it.
In so far as the applicant contends that the Tribunal fell into error by failing to consult the PRISMS system, an enquiry as to the applicant’s enrolment status, it was not material because the result could not have been different. The applicants PRISMS records indicate that her course of study was cancelled on 24 September 2019 due to non-commencement of studies such that she was not enrolled in the eligible course as at the date of the Tribunal’s decision on 25 November 2019. Any failure to consult the PRISMS system, would not constitute jurisdictional error as the applicant was not enrolled as at the time of the decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 42 at [48]
CONSIDERATION - DO THE GROPUNDS OF JUDICIAL REVIEW HAVE MERIT?
In the Courts view, there is no merit in the single ground of review relied upon. Firstly, the Court is reasonably satisfied that the applicant did not provide a relevant COE in terms of the Visa application to the Tribunal prior to its time of decision. In these circumstances, the applicant failed to meet one of the essential criteria for the grant of the visa she sought, that being a current COE.
The Court does not accept that there was any jurisdictional error in the Tribunal failing to consult the applicants PRISMS records. There is no general obligation on the Tribunal to investigate an applicant’s claims: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. Further, as at the date of the decision, even if the Tribunal had done so, her PRISMS record would have shown that the applicant was not currently enrolled in a registered course of study, the registration having been cancelled previously to the Tribunal decision..
The Court is satisfied that the Tribunal properly arrived at the only conclusion that was open to it in all the circumstances, that being, that the applicant did not meet the relevant statutory requirements for the grant of a student visa.
As the applicant is unrepresented, the Court has perused the relevant decision record and is unable to find any unarticulated jurisdictional error on the part of the Tribunal.
DISPOSITION
In circumstances where there is no merit in the sole ground of review relied upon, the application must be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 July 2023
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