Anselm v Minister for Immigration
[2014] FCCA 2379
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANSELM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA2379 |
| Catchwords: MIGRATION – Whether extension of time should be granted under s.477(2) of the Act – whether Tribunal was obliged to make enquiries with educational institution regarding confirmation of enrolment – no obligation – substantive claim has no reasonable prospects of success – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.477(2), 476, 477(1), 31, 424 Migration Regulations 1994, Reg.2.01, cls.572.223, 572.223(2)(a)(ii), 572.235, 1222, 8202 |
| Kim v Witton (1995) 59 FCR 258 |
| First Applicant: | Jolly Anselm |
| Second Applicant: | JOSEPH ALBERT FRANCIS |
| Third Applicant: | ADLER JOSEPH ALBERT |
| First Respondent: | Minister For Immigration & Border Protection |
| Second Respondent: | Migration Review Tribunal |
| File Number: | MLG 1784 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 7 July 2014 |
| Date of Last Submission: | 7 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Mr Priest |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
(1) The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) is refused.
(2) The applicants’ pay the Minister’s costs in the amount of $6,464.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 1784 of 2013
| Jolly Anselm |
First Applicant
And
| JOSEPH ALBERT FRANCIS |
Second Applicant
And
| adler joseph albert |
Third Applicant
And
| Minister For Immigration & Border Protection |
First Respondent
| Migration Review Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
1. By application dated 23 October 2013 the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 17 September 2013 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to reject the applicants’ application for a Student (Temporary) (Class TU) visa (“the visa”).
2. The second and third applicants’ seek visas as members of the first applicant’s family unit.
3. The first applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) visa on 24 June 2009 (CB 40). She enrolled in Certificate III in Hospitality and Diploma of Hospitality Management at Brighton Institute of Technology, starting on 27 July 2009. She then deferred her studies on 26 August 2009. She again deferred her studies on 14 May 2010. Between 24 June 2010 and 14 June 2011 the applicant did not study, nor was she enrolled in a registered course from 1 June 2010 to 14 October 2011 (CB 40).
4. The application for judicial review was an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”). Accordingly, pursuant to s.477(1) of the Act, it was required to be made within 35 days of the date of the migration decision which is appealed against. The application for judicial review was made on 23 October 2014, one day outside the 35 day time limit. Accordingly, the applicants’ require an extension of time under s.477(2). S.477(2) allows the Court, in its discretion, to extend the 35-day period if:
“(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
5. The applicants have satisfied the first requirement for seeking an extension of time in the application for judicial review.
6. The applicants’ grounds for an extension are as set out as follows in the application filed by Ms Anselm (the first applicant):
(1) I received the decision letter on the 19th September and has calculated from that day.
(2) My visa entitlement from shows the last date as 24 October 2013.
7. Otherwise, the applicant seeks by way of final order that the decision of the Tribunal be quashed on the basis that;
1. (1) The tribunal member did not enquire with my Institution before taking a decision against me.
2. (2) My health issues and post natal depression and stress which I explained to the Tribunal member were not considered.
3. (3) I took the deferment for two courses but the Institution considered one as non-commencement and that is the reason I did not have an enrolment at that time.
8. In relation to the second requirement for an extension of time, the non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
b.a) the extent of the delay;
c.b) the reasons for it;
d.c) any prejudice to the respondent;
e.d) the impact on the applicant if time is not extended;
f.e) the interests of the public at large;
g.f) the merits of the proposed substantive application; and
h.g) any other matter relevant to the exercise of the Court’s discretion.
Legislative Framework
a.9. Section 31 of the Act authorises the prescription of classes of visa, and the prescription of criteria for visas of a specified class. Reg.2.01 and cl.1222 of Schedule 1 to the Regulations prescribe Student (Temporary) (Class TU) visas as a class, and also prescribes a number of subclasses for that class, including subclass 572.
b.10. Pursuant to cl.572.223 of the Regulations the Minister must be satisfied at the time of the decision the visa applicant is a genuine applicant for entry and stay as a student having regard to the stated intention of the applicant to comply with the visa conditions and any other relevant matter.
c.11. Pursuant to cl.572.235 of the Regulations the applicant must also have complied substantially with the conditions that apply or applied to the last substantive visa. Clause 8202 of the relevant visa class requires that the holder is enrolled in a registered course.
d.12. Whether an applicant has substantially complied with a visa condition is a question of fact: to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 at 271.
Tribunal Proceedings and Decision
a.13. On 29 December 2011, the applicants applied to the Tribunal to review the delegate’s decision (CB43-49). The Tribunal invited the first applicant to attend a hearing on 24 July 2013 (CB64-65). The Tribunal also invited her to provide information showing she had complied substantially with the conditions of her last visa and also evidence of her academic achievements and enrolment in a registered course for the purposes of cl.572.223(2)(a)(ii).
b.14. The first applicant provided a written submission to the Tribunal on 12 August 2012 (CB77). The first applicant attached a medical certificate dated 17 November 2011 (CB79). In her written submissions, the first applicant indicated the reason for her study gap was the birth of a child and back problems.
c.15. The first applicant attended a hearing on 19 August 2013 (CB83). She told the Tribunal that she had obtained a deferral for one month in May 2010 but, after returning to Australia from India for medical treatment in June 2010, she did not study because she thought the deferment remained in place (CB93 [16]). On 21 August 2013, the first applicant made a further written submission to the Tribunal stating that her enrolment had been cancelled in error (CB87). Ms Anselm stated (CB87):
• • First deferment was on August 2009 on my medical grounds .( evidence attached no:1 – deferment granted)
• • I took course resumption on 12th October 2009.( evidence attached no:2 – course resumption)
• • I took second deferment on May 2010 for both the courses, which I had COE’s for. (evidence no:3)
•• I started the course resumption from June 2011 until date.(evidence- study letter)
Sir, kindly note that when I deferred I had two COE’s in Certificate 3 and Diploma of Hospitality Management, so I thought both were deferred, but the institution did not defer me in the second COE and I wasn’t aware of that and thought that both COE’s were deferred in May 2010. Due to this misunderstanding the Institution has cancelled my COE for non-commencement instead of deferment. They should have deferred me in the second COE too., then this problem should not have occurred.
a.16. Under the heading, “Is the applicant a genuine student having regard to her intention to comply and other factors?” And “did the applicant comply substantially with Condition 8202 of her last held substantive visa..?”, the Tribunal stated (CB93 [15] to [20]):
15. The applicant gave oral evidence and gave a brief account of her study history in Australia. She said that she first arrived in Australia on 24 June 2009 and commenced a two-year course leading to the award of an Advanced Diploma of Hospitality. She commenced the course in October 2009 and in June 2013 she completed the Certificate III in Hospitality. She added that she is currently studying for the Diploma of Hospitality.
16. The Tribunal discussed the periods during which the applicant remained in Australia as the holder of a student visa but was not undertaking any studies and was not enrolled in a registered course of study. The applicant stated that if granted the visa, she intends to comply with any conditions subject to which it is granted. Referring to the period of around one year from June 2010 to June 2011 during which the applicant was not studying and was not enrolled in a registered course, the applicant agreed that she was not studying and not enrolled during this period but added that she gave birth to two babies and she suffered from back pain. She travelled to India for a period of one month for medical treatment and the doctor advised 6-9 months’ bed rest. The Tribunal asked why she did not remain for the period advised by her doctor in India, the applicant replied that she returned because she felt well and able to resume her studies. She also stated that she sought and was granted deferment for one month from the education provider but when she returned she did not attend for one year and thought the deferment remained in place but she realised that to assume so was a mistake.
17. The Tribunal indicated to the applicant that in four years she has remained in Australia between June 2009 and June 2013 she appears to have completed only the Certificate III course of around one year. The applicant argued that she is a genuine student and wishes to complete her studies.
18. The Tribunal has considered the applicant’s evidence and arguments. The letters from Brighton Institute (other than the current letter of 14 August 2013) show the extended dates of expected completion of the course after deferments; the latest date the applicant was expected to have completed the Certificate III course was in October 2010 and the Diploma course in October 2011.
19. The Tribunal also took into account that the applicant gave birth to a child on 20 August 2009 and another on 21 August 2012. The first pregnancy was to the most part before arriving in Australia and the second was from the last month of 2011 to August 2012. The relevant period in discussion is June 2010 to June 2011. There is little to no evidence that disruption to the applicant’s studies could be attributed reasonably to her pregnancy or post natal complications as she claims.
20. The Tribunal has also considered the medical evidence the applicant provided from her doctor in India. The advice in the doctor’s letter does not seem to suggest that the applicant was to be confined to bed for 6-9 months, it stated that she should take ‘adequate bed rest’. in any event the applicant stated in oral evidence that she decided to return to Australia within days of her treatment between 5 June and 20 June 2010 as she felt well enough to resume her studies. Therefore the medical evidence is not sufficient to explain satisfactorily the period of around one year the applicant remained in Australia as the holder of a student visa and not studying or maintaining enrolment in a registered course.
a.17. The Tribunal indicated to the applicant that in the four years she has remained in Australia between June 2009 and June 2013 she appears to have completed only Certificate III course of around one year. The applicant argued that she is a genuine student and wishes to complete her studies.
Extension of Time
Extent of and reasons for delay
a.18. In this matter the delay is just one day. The delay, therefore, is not substantial.
b.19. Ms Anselm’s explanation is that she calculated the time period from which she received the decision in the post.
c.20. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay. As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay….
a.21. In the circumstances, the Court does not consider that there has been any satisfactory explanation for the delay. However the delay is only one day.
Prejudice to the respondent
a.22. The first respondent states there is no prejudice to the Minister in granting the extension in time.
Merits of the proposed substantive application
a.23. The first respondent submits that the applicants’ grounds for review have insufficient merit to warrant an extension of time.
b.24. The application for judicial review raises three grounds of review. In her affidavit filed with the application Ms Anselm attaches a hand written letter to the Court in which she writes:
Dear Sir/Madam,
I am Jolly Anselm, arrived in Australia for studies as Brighton Institute of Technology. I lost my visa because I had some gap during my study period. I produced relevant medical certificates, deferment letters and course resumption certificates from my Institution at the time of the Tribunal hearing, but the Tribunal member had made a decision against me, without enquiring at the Institution for the real cause. Actually, I applied for two deferments, but the Institution have cancelled only one and the other was cancelled for non – commencement, which is actually a mistake of the Institution and they are willing to clarify it. I also had two children during my study period and back problems as well. I also explained to the member that I was still studying but he refused to give me a chance to complete my studies. I sadly feel that he hasn’t considered any of my situations and hasn’t enquired properly or went into the depth of my case. I hope that the Federal court will do natural Justice in my case and give me an opportunity to complete my studies.
Yours faithfully,
Jolly Anselm.
a.25. Ms Anselm filed an affidavit on 12 February 2014, to which she attached various documents which were not before the Tribunal. These documents are:
• • correspondence from the Brighton Institute of Technology dated 21 January 2014;
• • correspondence from Dr Rinku Raj, Westgate Medical Centre dated 11 February 2014;
• • correspondence from Dr Anthony Swingler, MIA Radiology to Dr Rinku Raj dated 21 January 2014;
• • various results of blood tests conducted by Healthscope Pathology on 22 January 2014;
• • correspondence dated 10 February 2014 from Dr Philip Hammond; and
• • medical certificate issued by Dr N.T.T. Thai on 10 February 2014.
a.26. The documents attached to the affidavit clearly comprise new evidence which was not before the tribunal.
Ground One
a.27. The Minister submitted with respect to the applicants’ first ground of review (footnotes omitted):
22. This ground is misconceived. It is for the applicant to make out their case before the Tribunal. In the circumstances of this case, the Tribunal did not have any duty to make further inquiries or to investigate nor did it have any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate. This is not a case in which the material before the court established that the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained.
a.28. I agree with the submissions of the Minister. There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43].
b.29. Whilst s.424 of the Migration Act1958 (the “Act”) provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligations on the Tribunal to do so. As stated in SZHQG v Minister for Immigration and Anor [2006] FMCA 1275 at [33]:
“The Tribunal has the power to obtain further information… it does not have a duty to investigate the Applicant’s claims.”
a.30. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]-[26] the plurality of the High Court stated:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.”
a.31. In Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [1]:
“The function of the Refugee Review Tribunal (“the Tribunal”) in reviewing decisions under the Migration Act 1958 (Cth) (“the Migration Act”) has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review.”
At [20]:
“Section 427(1)(d) is ancillary to s.424. Those two provisions and s.415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant’s claims. But they do not impose upon the Tribunal a general duty to make such inquiries. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB:
•o whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so (footnote omitted)”.
At [22]:
“The question whether s.427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) “[b]y a parity of reasoning ... there is no legal obligation to consider whether one should exercise that power”. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s.427(1)(d).”
a.32. The applicant argues that the Tribunal fell into jurisdictional error because it failed to make inquiries with the educational institution; presumably, in relation to her assertion that the institution incorrectly cancelled one of the courses she was enrolled in rather than grant her a deferment she said she requested. This was not a case in which the material before the Tribunal revealed that there was a critical fact in existence which was easily ascertained. The inquiry the applicant sought the Tribunal to have engaged in was one involving a review of the education providers’ cancellation of the applicant’s enrolment.
b.33. In Hassan v Minister for Immigration and Citizenship [2012] FCA 816 where at [41 to 42] Cowdroy J on appeal from this Court said:
“[41]In Maan v Minister for Immigration[2009] FCAFC 150; (2009) 179 FCR 581, the Full Court of the Federal Court of Australia found at [44] that the fact of certification by the education institution that a student was not making satisfactory progress itself constitutes a breach of visa conditions.
[42]In Kumar v Minister for Immigration and Citizenship [2011] FMCA 741, Jarrett FM stated at [28]–[29]:
“28. Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a Tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the Tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the minister for the purposes of s.116(1) or 116(3) and reg 2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder’s attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers.
29. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the Tribunal is not required to go beyond the education provider’s certificate, but may do so if the facts before it warrant such a course. To the extent that the submission suggests that there is a discretion vested in the Tribunal to examine the validity of an education provider’s certificate in any given case, I think the proposition is not sustainable on the authorities.”
a.34. In my view, the circumstances in these proceedings are analogous in that the applicant seeks that the Tribunal go behind the face of the cancellation of enrolment by the institution and determine whether the cancellation was valid. In my opinion, it is not open to and the Tribunal was not obliged to investigate the facts which underlie an educational institutions decision to cancel a student’s enrolment.
b.35. Accordingly, I do not find that the Tribunal fell into jurisdictional error on this ground.
Ground two
a.36. The applicants’ submit that the evidence provided to the Tribunal regarding Ms Anselm’s postnatal depression and health issues were not considered by the Tribunal in reaching its decision and, consequently, it fell into jurisdictional error.
b.37. The Tribunal clearly did consider the applicants evidence in relation to Ms Anselm’s postnatal depression and health issues (see paragraphs 16, 19 and 20 of the Tribunal’s decision set out in [16] above). The Tribunal’s findings in relation to the evidence presented by Ms Anselm regarding her postnatal depression and health issues were reasonably open to it. I agree with the Minister’s submission that the applicants are seeking impermissible merits review of the Tribunal’s decision: Minister for Immigration and Ethnic affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
c.38. The evidence attached to the applicant’s affidavit filed on 12 February 2014 was not before the Tribunal. In any event, the medical evidence either concerns results from a CT scan and blood tests which were conducted in 2014 or are statements made by her treating medical practitioners which are too general to constitute any probative evidence.
d.39. Accordingly, I find that the Tribunal did not fall into jurisdictional error on this ground.
Ground Three
a.40. This ground is linked to the applicants’ first ground for judicial review in that they seek to explain why Ms Anselm was not enrolled in a course for a period of time. I agree with the Minister’s submission that the applicants are “seeking to take issue with whether Ms Anselm’s education institution was correct to cancel her enrolment, which is not something the Tribunal was empowered to consider.” For the reasons set out earlier (see [28] to [34]), I am satisfied that it was open to the Tribunal to accept the applicant was not enrolled and not studying during the period from June 2010 to June 2011.
b.41. The applicant has attached to her affidavit filed 12 February 2014 correspondence from the educational institution. This correspondence was not before the Tribunal. In any event, as will be seen from the extract from that correspondence set out below, the educational institution confirms that Ms Anselm did not enrol to start a course in time and the educational institution accordingly reported her as “non-commencement of studies.” Further, it can be inferred from the correspondence that it was Ms Anselm’s failure to apply for deferment for that course and failure to re-enrol which resulted in the educational institution reporting her as “non-commencement of studies.” The Brighton Institute of Technology relevantly stated:
We just want to confirm that, during her studies, Ms. JOLLY ANSELM deferred her studies twice.
1. 1. First deferred in August 2009 on medical grounds due to her pregnancy and for her first child birth.
2. 2. Second deferment on 14th May 2010, when student went overseas on medical grounds and she was expected to re-enroll and start her course in June 2010.
Kindly note, before her second deferment student had 2 CoEs. And we BIT had deferred her only on one CoE as she was expected to re-start her course in the second CoE starting from 12/10/2010. Since student didn’t re-enroll to start the course in time, we reported as “Non-Commencement of Studies”.
We could have deferred in her second CoE as well instead of “Non-Commencement of Studies”, if she had submitted her deferment form again. Later, when she re-started her course she came to known that her CoE was reported as “Non-Commencement of Studies”. She has informed us that she thought that she doesn’t require re-submitting her deferment form since she had already taken deferment.
42. Accordingly, I find that the Tribunal did not fall into jurisdictional error on this ground.
Conclusion regarding applicant’s prospects in relation to substantive application
43. It will be apparent that I am not satisfied the Tribunal’s decision is vitiated by jurisdictional error. Consequently, I am satisfied that applicants’ have no substantial prospects of success in relation to their substantive claim for judicial review.
Conclusion
44. Consequently, whilst the delay in the applicants’ application for judicial review is not substantial and there would be no prejudice to the Minister in extending the period in which you can lodge her application, I have formed the view that it would not be in the interests of the administration of Justice to allow the applicant’s an extension of time as there are no reasonable prospects of success in relation to the applicants’ substantive grounds for judicial review.
45. Therefore, I have decided not to grant an extension in time in which the applicants’ can make their application for judicial review.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 5 November 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Remedies
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