Arshad v Minister for Immigration
[2020] FCCA 536
•11 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARSHAD v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 536 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant enrolled at the time of the Tribunal hearing but ceasing to be enrolled before the Tribunal decision – Tribunal basing its decision on the cessation of enrolment – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 360 Administrative Appeals Tribunal Act 1975 (Cth) |
| Cases cited: Fard v Secretary, Department of Immigration [2016] FCA 417 NAIS v Minister for Immigration (2005) 223 ALR 171 Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 |
| Applicant: | MUHAMMAD JUNAID ARSHAD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2197 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 26 August 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2197 of 2019
| MUHAMMAD JUNAID ARSHAD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Background
The applicant, Mr Arshad, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Arshad a temporary student visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 26 February 2020.
Mr Arshad is a citizen of Pakistan who on 9 December 2016 applied for a student visa.
On 29 May 2017 the delegate refused to grant Mr Arshad the visa on the basis the delegate was not satisfied he was a genuine temporary entrant as required under clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Regulations).[1] Mr Arshad sought review of the delegate’s decision.
[1] Court Book (CB) 100
On 11 September 2018 the Tribunal invited Mr Arshad to appear before it to give evidence and present arguments pursuant to s.360 of the Migration Act 1958 (Cth) (Migration Act).[2] The Tribunal requested in the invitation to hearing that Mr Arshad provide particular information at least seven days before the hearing.[3] This included a copy of Mr Arshad’s confirmation of enrolment (COE) showing that he was currently enrolled in a course of study as defined in cl. 500.111 of Schedule 2 of the Regulations. The invitation also requested Mr Arshad provide documents showing his past studies in Australia, and a statement addressing the issue of whether he is a genuine applicant for entry and stay as a student.
[2] CB 117
[3] CB 118
The hearing was later rescheduled to 15 October 2018.[4] Mr Arshad responded to the hearing invitation indicating he would attend the hearing, accompanied by his representative.[5] Prior to the rescheduling of the hearing Mr Arshad provided PRISMS[6] information, movement records, a statement addressing the genuine temporary entrant criteria and a COE for the course of Diploma of Leadership and Management at the Australian Techno Management College Pty Ltd commencing 19 October 2018 and concluding on 20 October 2019.[7] Mr Arshad attended the hearing on 15 October 2018 with his representative.[8]
[4] CB 147
[5] CB 154
[6] Provider Registration and International Student Management System
[7] CB 137-144
[8] CB 157
On 8 July 2019 the Tribunal sent Mr Arshad a letter pursuant to s.359A(1) of the Migration Act inviting him to comment on information that PRISMS records made available to the Tribunal indicating that he was not currently enrolled in a course of study.[9] The Tribunal advised Mr Arshad that it appeared that his enrolment in the diploma course was cancelled due to non-commencement of studies. Mr Arshad did not respond to the invitation to comment.
[9] CB 166
On 23 July 2019 the Tribunal affirmed the decision under review.[10] The Tribunal was not satisfied on the evidence before it that Mr Arshad was enrolled in a course of study as required under clause 500.211. Accordingly the Tribunal found that he did not meet the requirements for the grant of a subclass 500 visa.
[10] CB 174
These proceedings began with a show cause application filed on 26 August 2019. Mr Arshad continues to rely upon that application. There are two grounds in it:
(1) According to the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 – SECT 2A Tribunals objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
As per (b) above, the tribunal’s decision must be “quick”.
The hearing of my application took place on the 15th October 2018. On that day my COE (Code A0246A76) was valid. The tribunal delayed its decision-making process even after the final hearing when the review application was decision-ready. The decision was made more than 9 months later on 23rd of July 2019 during which period my COE got cancelled. This led to the adverse decision made in the end. Thus, the tribunal did not make a “quick” decision as required by law.
(2) The Department refused my visa application as the delegate believed that I did not satisfy clause 500.212 in Schedule 2 of the Migration Regulations. However, the tribunal made a decision to affirm the Department’s decision as I did not satisfy cl. 500.211. Thus, the tribunal did not review whether clause 500.212 was met. The tribunal made a jurisdictional error by not reviewing the reasons for the visa refusal by the Department and made an “unfair” decision. The whole hearing was based on whether I was a genuine temporary entrant in Australia but the decision record does not even refer to that matter.
The application was supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 17 October 2019.
Procedural orders in this matter were made by a registrar on 19 September 2019. The matter was listed for a show cause hearing today. It was subsequently agreed between my chambers and the parties that the matter would be heard on a final basis. That is how the matter proceeded.
The Minister filed pre-hearing written submissions in accordance with the Registrar’s procedural orders. I invited oral submissions from Mr Arshad this afternoon. He said, in effect, that he realised that he had no case and he had no submissions to make. I nevertheless explored the issues with counsel for the Minister, in particular, relating to the passage of time between the Tribunal hearing and the Tribunal decision and the fact that the Tribunal, some months after the Tribunal hearing, checked the Department’s PRISMS database and found that Mr Arshad was no longer enrolled in a course of study.
I invited submissions in reply from Mr Arshad, but he declined to make any.
It was relevant in this matter that the delegate had found that Mr Arshad was not a genuine temporary entrant for study. That was an issue, if not the issue, before the Tribunal at the time of the Tribunal hearing. At that time, Mr Arshad was able to satisfy the Tribunal that he was enrolled in a course of study to begin shortly afterwards. That, no doubt, bore on the question of whether Mr Arshad was at the time of decision, a genuine temporary entrant.
In those circumstances, there was, in my view, no objection to the Tribunal checking after the hearing whether Mr Arshad had actually commenced his studies. It appears that he had not and that his enrolment had been cancelled.
The Tribunal invited Mr Arshad’s comment on that issue by letter under s.359A of the Migration Act. Mr Arshad sought further time and ultimately, he did not respond.
While there may be cases in which a lengthy passage of time after a hearing leads to a decision which is, for one reason or another, unsound or unsafe. This is not such a case. The passage of time was not excessive and the fact that the Tribunal checked the enrolment database after the hearing does not suggest anything untoward. It was, as I have noted, a reasonable step for the Tribunal to take in the circumstances.
I otherwise agree with the Minister’s submissions concerning the grounds of review.
Ground 1
First, Mr Arshad contends that the Tribunal made a jurisdictional error by delaying the decision-making process. He cites s.2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That section states that in carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is, among other things, quick.
Section 2A of the AAT Act is “properly [to be] regarded as aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations”.[11]
[11] Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80]; see also Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [108] (Gummow J)
Section 2A does not impose a duty on the Tribunal to make a decision within a particular time frame. Neither does the Migration Act require the Tribunal to make a decision on a review under Part 5 within any particular time frame. In that respect, however, it may be accepted that absent an express time frame on the performance of a statutory duty, it may be implied that the Tribunal’s duty to review the decision was to be performed within what, in all the circumstances, was a reasonable time.[12]
[12] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332, [102] (Gageler J); see also Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533; Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578 (Murphy J)
It is not reasonable in the circumstances of the present case to expect that the Tribunal would be in a position to make a decision on the review immediately following the hearing Mr Arshad attended, as he here appears to contend. The Tribunal is required under the Migration Act to consider Mr Arshad’s claims and information submitted in support of the review, and it did so in this case. The fact that Mr Arshad appears not to have commenced his studies, resulting in the cancellation of his course, was not a matter within the control of the Tribunal, but it was a matter relevant to its exercise of power in determining whether it was satisfied Mr Arshad was enrolled in a relevant course. In the circumstances the Tribunal committed no error, and otherwise did not engage in any conduct entitling Mr Arshad to the relief he seeks. It is to be recalled that the COE Mr Arshad had provided to the Tribunal indicated that he was enrolled in a course that was to conclude in October 2019. The evidence before the Tribunal indicated that Mr Arshad never commenced the studies he was supposed to undertake, and for which reason he had sought the student visa.
This is not a case where Mr Arshad can contend that he was denied procedural fairness by reason of any delay between the hearing conducted by the Tribunal and the making of the Tribunal’s decision.[13] Whilst noting at [5] that, “The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare”, Gleeson CJ observed at [7] of the circumstances that entitled the appellant to relief in NAIS as follows:
In the present context, which is not one of appellate scrutiny, but of judicial review of an administrative decision for jurisdictional error, the question is one of fairness of procedure. What is said to be unfair is that the Tribunal made demeanour-based findings against the appellants in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings.
[13] cf NAIS v Minister for Immigration (2005) 223 ALR 171.
By contrast, the Tribunal in the present case, which conducted a hearing attended by Mr Arshad on 15 October 2018, made no adverse credit findings against the applicant. Questions of consideration of Mr Arshad’s demeanour did not arise on the review. Rather, the decision under review was affirmed because he was not enrolled in a relevant course of study. The circumstances of this case place it quite apart from the kinds of circumstances that might entitle an applicant to relief arising out of a delay in the making of a decision.[14]
[14] cf NAIS at [88] and [105] (Kirby J)
Justice Gummow (in dissent) in NAIS at [41] described circumstances that might give rise to jurisdictional error by an administrative decision maker in light of delay as:
… to show that there has been an abdication or abandonment of the statutory function to proceed in the matter. Further, there will be a constructive failure to exercise jurisdiction where a decision has been given but what purports to be the performance of a duty to decide is vitiated because the decision-maker misconceived its role, misunderstood the nature of its jurisdiction (including the nature of the opinion which it was to form), or failed to apply itself to the questions which the relevant statute prescribed.
In the circumstances of this case, the applicant was not denied procedural fairness by reason of any delay in the making of the decision by the Tribunal. He was not denied, as was the case in NAIS, a “proper opportunity to present [his] case”.[15]
[15] [44] (Gummow J)
Ground 2
In Ground 2 Mr Arshad contends that the Tribunal made an error in affirming the decision under review because he did not satisfy clause 500.211, whereas the delegate had determined Mr Arshad did not satisfy clause 500.212. However, it was open to the Tribunal to determine the review on an issue different from the dispositive issue that resulted in the decision by the delegate to refuse to grant the visa. Further, it was unnecessary for the Tribunal to make any findings in relation to clause 500.212, as the Tribunal had determined Mr Arshad did not satisfy clause 500.211 which was a separate and independent criterion he needed to satisfy. The ground fails to identify any error by the Tribunal.
I conclude that Mr Arshad has failed to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5,600. That is significantly below scale costs in respect of a final hearing. Mr Arshad did not wish to be heard on costs.
I will order that Mr Arshad is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 March 2020
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