Asif v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 930
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Asif v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 930
File number(s): SYG 1927 of 2020 Judgment of: JUDGE STREET Date of judgment: 5 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - application for a Student visa – where the applicant had no course of enrolment – no jurisdictional error made out – application dismissed. Legislation: Migration Act1958 (Cth) ss 357A(3), 359(3)(a), 359A, 359B(1)(a), 359B(2), 359(2), 359C, 359C(1), 359C(1)(a), 359C(1)(b), 359(2), 359(3)(a), 360, 360(1), 360(2)(c), 360(3), 361, 363A, 379A, 379C(5), 425, 476.
Migration Regulations 1994 (Cth) rr 4.17(4)(b)(i), 500.211, 500.212(a).
Federal Circuit Court Rules 2001 (Cth) r 44.12.
Cases cited: Shah v Minister for Immigration [2014] FCCA 624 Number of paragraphs: 9 Date of hearing: 5 May 2021 Place: Sydney Applicant: In Person Solicitor for the First Respondent: Ms S Wright, Mills Oakley ORDERS
SYG 1927 of 2020 BETWEEN: MUHAMMAD ASIF
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 July 2020 affirming decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student Visa (“the Visa”).
The Court adopts the first respondent’s submissions from paragraph 3 up to paragraph 26 as follows:
Background
(3)The applicant is a male national of Pakistan who, on 16 March 2019, applied for a Student (Subclass 500) visa on the basis that he proposed to study a Master of Business (Research) at Excelsia College Sydney (CB 1-17). In support of his visa application the applicant provided a letter from Excelsia College enclosing an offer of enrolment (CB 29- 41).
(4)On 31 May 2019, the delegate refused to grant the applicant a Student visa on the basis that she not satisfied that the applicant met the Genuine Temporary Entrant criteria in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 47-51).
The Tribunal
(5)On 21 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 52-53) and provided a copy of the delegate’s decision record and refusal notification with his application (CB 53).
(6)On 7 May 2020, the Tribunal invited the applicant pursuant to s 359(2) of the Act to provide further information in relation to his enrolment in a registered course of study and status as a genuine applicant for entry and stay as a student (CB 62-63).
(7)On 21 May 2020, the applicant wrote to the Tribunal and requested an extension of time in which to provide the requested information (CB 70-71). The applicant informed the Tribunal that he was having difficulty obtaining a passport due to COVID-19 restrictions in Pakistan, which he required “to apply for confirmation of enrollment letter from the Institution I intended to enroll in at the time of my Student (Temporary) (Class TU) visa application” and that he was presently unable to provide “sufficient information” to satisfy the Tribunal that he met the requirements for the visa (CB 70).
(8)The Tribunal granted the applicant’s request and provided him with an extension of time to provide the request information until 18 June 2020 (CB 73). The applicant did not provide the requested information and did not request a further extension of time.
The Tribunal’s decision
(9)On 9 July 2020, the Tribunal proceeded to make a decision pursuant to s 359C(1) and affirmed the delegate’s decision not to grant the applicant a Student visa on the basis that it was not satisfied the applicant was enrolled in a registered course of study as required by cl 500.211 of Schedule 2 to the Regulations (CB 79-82).
(10)The Tribunal set out the relevant background to the matter (CB 80, [1]-[6]). It found that the s 359(2) invitation indicated to the applicant that if he did not provide the requested information the Tribunal may make a decision on the review without taking further steps to obtain the information, and that the decision maker was not required to make the applicant’s case (CB 80, [4], [8]). The Tribunal also found that it had received no further correspondence from the applicant following the request for an extension of time to respond to the Tribunal, and that the applicant had not provided the requested information within the prescribed period, as extended (CB 80, [6]-[7]). In these circumstances, the Tribunal decided to proceed to a decision without taking further steps to obtain the information (CB 81, [9]).
(11)The Tribunal was not satisfied that the applicant was enrolled in a registered course of study, noting that he had never provided the Department with a Confirmation of Enrolment (CoE) for his proposed Master of Business (Research) course commencing in July 2019. The Tribunal found that the Offer of Enrolment dated 18 March 2019 from Excelsia College merely indicated that the applicant could “accept or decline” the offer before 29 April 2019, and there was no evidence to suggest that the applicant accepted the offer and enrolled in the course (CB 81, [16]). The Tribunal found that no cogent evidence of the applicant’s enrolment had been provided (at CB 82, [17]) and given these findings the applicant did not satisfy the criteria for the grant of the visa in cl 500.211 (CB 82, [18]).
The application for judicial review
(12)By orders made by consent on 3 September 2020, the applicant was ordered to file written submissions and granted leave to file and serve any amended application or supplementary court book by 26 November 2020. As at the date of these submissions, no further documents have been filed by the applicant in support of his case.
(13)The application for judicial review filed on 13 August 2020 is set out in the form of submissions and contains twenty “grounds”. These grounds are numerous, lengthy and somewhat overlapping, however the balance of the applicant’s core complaints are addressed below.
Ground one
(14)The first ground contends that the Tribunal’s exercise of discretion to proceed to make a decision on the review pursuant to s 359C(1) was unreasonable. The particulars to this ground simply contend that the applicant had informed the Tribunal that his passport had not been renewed and was required to get an “enrolment letter”.
(15)Contrary to the applicant’s allegation, the Tribunal provided an evident and intelligible justification for its decision to proceed to make a decision on the review. It found that the applicant was validly invited to provide the requested information, and that this invitation informed the applicant that it may make a decision on the review if he did not respond within the prescribed period, or within any extended time as requested and granted. The Tribunal found the applicant been granted an extension of time to provide the requested information – but did not so (CB 80, [6]-[7]). In these circumstances the Tribunal found it was appropriate to make a decision on the review, as it had received no further correspondence from the applicant and was not required to make his case for him.
(16)Given that the Tribunal provided an “evident and intelligible justification” for its decision to proceed under s 359C, there was nothing legally unreasonable in the Tribunal’s exercise of discretion. The Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his best possible case and to improve upon the evidence, particularly in circumstances where it had previously given the applicant numerous opportunities to provide the requested information. Although the applicant had previously informed the Tribunal that he needed further time to obtain the requested information (CB 70-71), the Tribunal had granted this extension of time (CB 73), and no further extension was requested by the applicant. This was not a situation in which the Tribunal’s exercise of direction “upon the facts” resulted in a decision which was “unreasonable or plainly unjust”. Accordingly, this ground fails to identify any jurisdictional error in the Tribunal’s exercise of discretion.
Grounds two, six to twelve, nineteen and twenty
(17)All nine of the abovementioned grounds variously allege that the Tribunal erred by failing to invite the applicant to attend a hearing and breached its obligations under s 360(1) of the Act. There is no merit to this contention. Section 360(3) makes clear that an applicant is disentitled from their right to appear at a hearing if, under s 359C(1)(a) the applicant has been both invited in writing under s 359 to give information; and under s 359C(1)(b) the information was not given before the time for giving them had passed.
(18)The applicant’s request for an extension of time was did not constitute a valid response to the s 359(2) invitation. Unlike an invitation under s 359A, an invitation under s 359(2) required the applicant to give information, rather than simply to “respond”. As the applicant did not provide information directed to what the invitation sought, s 360(3) applied and the applicant was not entitled to a hearing before the Tribunal. The combined effect of ss 360(3) and 363A was that the Tribunal did not have power to permit the applicant to appear at an oral hearing.
Ground three
(19)Ground three alleges that the Tribunal erred by not providing the applicant with a further extension of time to provide the requested information. This ground is misconceived, as the Tribunal granted the applicant’s only request for an extension of time (CB 73). There is no evidence before the Court indicating that the applicant made any further request for an extension of time. If the applicant was still having difficulty obtaining this evidence, it was open to him to request a further extension of time to provide the Tribunal with the requested information.
Ground four
(20)Ground four alleges that the Tribunal failed to consider a number of “relevant factors” being the reasons given by the applicant as to why he could not provide the Tribunal with the relevant information. These were not relevant factors for the Tribunal to consider. The question for the Tribunal was not whether the applicant could, at some point in the future upon receipt of his new passport, enrol in a registered course of study. Rather, the Tribunal was required to consider whether the applicant met the criteria for the grant of the visa at the time of its decision. Accordingly, this ground must fail.
Ground five
(21)Ground five alleges that the Tribunal’s decision lacked an intelligible justification. Contrary to the applicant’s allegation, the Tribunal provided an evident and intelligible justification7 for finding it could not be satisfied that he was enrolled in a registered course of study. As the applicant had never provided evidence of a Confirmation of Enrolment (CoE) for his proposed Master of Business, the offer of enrolment merely indicated that the applicant could “accept or decline” the offer, and there was no evidence to suggest that the applicant had accepted the offer and enrolled in the course, the Tribunal found that no cogent evidence of the applicant’s enrolment had been provided (at CB 81-82, [16]-[17]). On this basis, it could not be satisfied that he was enrolled in a registered course of study. As the Tribunal provided clear, cogent and logical reasons in support of its findings regarding the applicant’s enrolment, this ground cannot succeed.
Grounds thirteen, fourteen and fifteen
(22)Grounds thirteen, fourteen and fifteen all allege a breach of s 360(1) by the Tribunal, contending that the Tribunal erred by failing to notify the applicant of the dispositive issue on the review, being his enrolment in a registered course of study. The grounds cannot succeed. The Tribunal had no obligation under s 360(1) because s 359C(1) applied: s 360(2)(c).
Grounds sixteen and seventeen
(23)Grounds sixteen and seventeen allege that the Tribunal erred by failing to make further inquiries into a critical fact, being his enrolment in a registered course of study, in circumstances where he had not provided information in response to the Tribunal’s s 359(2) invitation.
(24)This was not a circumstance in which the Tribunal was required to make “an obvious inquiry about a critical fact, the existence of which is easily ascertained”. Such an obligation may only arise in “rare or exceptional circumstances” and the mere fact that it may have been reasonable to make such an inquiry does not necessarily mean that the lack of such an inquiry amounts to jurisdictional error. In support of his contention, the applicant relies on Shah v Minister for Immigration [2014] FCCA 624. This matter is distinguishable from the facts of that case, as there is no evidence the Tribunal had ever previously accessed PRISMS and therefore there was no obligation to “renew the inquiry” before coming to its decision. In this case, the applicant failed to provide the relevant information despite being requested to do so by the Tribunal, and it was within the Tribunal’s area of decisional freedom to proceed to make a determination without accessing the PRISMS database
(25)Furthermore, and critically, the applicant never claimed to be enrolled in a registered course of study – he stated in his request for an extension of time that he needed to “apply for updated confirmation of enrollment from the Institution I intended to enrol in (sic)” (CB 70). This admission that he had not enrolled in his proposed course, and implication that he did not hold a confirmation of enrolment, plainly obviated any requirement for the Tribunal to conduct further inquiries into his enrolment status.
Ground eighteen
(26)The applicant’s eighteenth ground alleges that the Tribunal’s s 359(2) invitation was invalid because it failed to comply with the “formal procedure”, and accordingly that the Tribunal erred by failing to invite him to a hearing. This ground fails to identify how the Tribunal’s s 359(2) invitation failed to comply with the “formal procedure” and cannot succeed. The Tribunal’s invitation complied with the requirements of the Act because it:
(a)Contained an invitation to the applicant to provide further information as provided for by s 359(2) of the Act;
(b)Specified the way in which the information could be given to the Tribunal as was required by s 359B(1)(a);
(c)Was given by one of the methods specified in s 379A namely, by email to the applicant’s nominated email address: [email protected] in accordance with s 359(3)(a);
(d)Was taken to have been received by the applicant at the end of the day on which the document was transmitted in accordance with s 379C(5), namely, 7 May 2020; and
(e)Complied with s 359B(2) by providing the applicant with the prescribed period of 14 days to provide the information as specified by reg 4.17(4)(b)(i) of the Regulations, namely, by 21 May 2020.
THE GROUNDS:
The grounds in the application are as follows:
(1)An essential element in lawful decision making is that a statutory power of discretion must be exercised reasonably. 1n my extension of time request, I informed the administrative appeals tribunal that my expired passport hasn't been renewed yet and I am unable to provide the requested information considering getting an enrolment letter without active passport is not possible. MlAC v Li (2013) 249 CLR 332
(2)Section 357A (3) provides the Tribunal's objective to act in a way which is fair among other things. The Tribunal’s decision, to decide on my case without inviting me for oral arguments in favour of my case, had an arbitrariness about it and rendered its decision unreasonable. MIAC v Li (2012) 202 FCR 3 87
(3)The Tribunal erred by not giving me further extension of time until I could receive my Passport and supply its copy to my education provider so that I can get the documents requested by the Tribunal. The tribunal erred by not giving my case any independent, active consideration and by not asking itself how long it will take for me to receive my Passport in current global climate. MIBP v Singh (2014) 308 ALR 280
(4)The tribunal should have given active considerations to my case, having regard to all the relevant factors including the reasons for my inability to provide the Tribunal its required information.
(5)There is lack of intelligible justification in the reasons given by the tribunal for its decision to affirm the DIBP's decision and not invite me to give arguments in favour of my case. Intelligible justification must lie within the reasons listed by the Tribunal for its decision-making process. The tribunal's decision is at odds with the High Court's reasoning in MIAC v Li (2013) 249 CLR 332.
(6)The Discretionary power of Tribunal, to decide on my appeal without a hearing, must be exercised reasonably. What is reasonable depends on the facts and totality of the circumstances in my case, including the statutory context. Some of the issues that must be considered and are relevant in determining legal reasonableness include:
(a)The whole history of proceedings
(b)Whether I have been given fair opportunity to present my case, for example opportunity to give evidence and make submissions, where the evidence in question is critical to the outcome
(c)What reasons have been put forward by the applicant for delay in submitting documents and whether the tribunal have actively engaged with those reasons:
Kaurv MIBP (2014) FCA 915
MZAHC v MIBP (2016) FCCA 340
MIAC v Li (2013) 249 CLR 332
MIBP v Singh (2014) 308 ALR 280
MI.AC v Singh (2014) 308 ALR 280
(7)Procedural fairness requires relevantly that a person whose interests may be affected by a decision has the opportunity of being heard and it is the obligation of the Tribunal to provide the applicant with a hearing that is procedurally fair. Kioa v West (1985) 159 CLR 550 and SZNFW v MlAC (2009) FMCA 950
(8)The Tribunal's refusal for my entitlement to appear before the Tribunal was unreasonable and lacked an evident and intelligible justification. Siddique v MlBP (2014) FCA 1352.
(9)The exercise of the Tribunal's discretion, to decide my case with allowing me to appear before it, miscarried because it did not give weight to the statutory code of procedures of which the hearing opportunity is a critical part. Rathor v MIBP (2014) FCCA 10
(10)The applicant had provided the Tribunal with reasons for requesting extension of time and his failure to supply the Tribunal with requested documentation. In a reasonable and fair view, the Tribunal should have assumed that failure to provide the Tribunal with requested documentation is due to similar reasons as listed in first extension request and should have waited for my documents or should have invited me for a hearing to present my case and failure to submit documents. The Tribunal acted unreasonably by failing to contact me before proceeding to decision without inviting me to appear before the Tribunal. Kaur v MIBP (2014) FCA 915, AZAFB v MIBP (2015) FCA 1383 and WZAVH v MIBP (2016) FCCA 1020.
(11)The failure by the Tribunal to provide the applicant with an opportunity to present their case at an Oral hearing gave rise to a breach of the common law rules of procedural fairness, or be construed as a breach of requirements of ss. 360 and 425 of Migration Act 1958. Applicant NAHF of2002 v MIMlA (2003) 128 FCR 359, NAOV v MIMIA (2003) FMCA 70
(12)The Tribunal did not weigh the importance of the applicant's evidence to the case and thus denied the applicant a hearing and breached its obligations under s. 361 of Migration Act 1958. The tribunal had imposed an arbitrary time limit for applicant to present his evidence, and in his failure to adhere to that strict time limit and subsequently denied the applicant any opportunity to present evidence. Therefore, the invitation under s.360 had not been extended to the applicant. MIMIA v Maltsin (2005) 88 ALD 304 and Antipova v MIMIA (2006) 151 FCR 480
(13)The applicant's right to know the case against him involves a duty on the Tribunal to plainly and unambiguously raise critical issues on which his application might depend so that he or she have 'an opportunity to be heard'. Procedural fairness requires the decision maker to identify for the applicant any critical issues apparent from the nature of the decision or the terms of statutory power. MIAC v SZGUR (2011) 241 CLR 594. Whether an applicant is on notice of the relevant issues depends on the entirety of the circumstances, including the applicant's ability to comprehend the matter and whether they are represented. CPW16 v MIBP (2017) FCA 1210 and CPW 16 v MIBP (2018) HCASL.
(14)Applicant is entitled to assume that the reasons given in the delegate's decision for refusing his visa will identify the issues for the related review unless the Tribunal informs the applicant otherwise. Sections 425 and 360 require that review applicants be given an opportunity to be heard on 'issues arising in relation to the decision under review. SZBEL v MIAC (2006) 228 CLR 152, SZJfil v MTAC (2007) FCA 1713 and SZNW A v MIAC (20 I 0) FCA 4 70.
(15)The decision record provided with Visa Refusal Notification identified that visa was refused because the applicant failed to meet the criteria set in ' clause 500.212 in schedule 2 of the Migration Regulations' . The applicant was entitled to believe that the tribunal review will only deal with conditions set in clause 500.212 and applicant will be given an opportunity to be heard on how he satisfies criteria set in clause 500.212 in schedule 2 of the Migration Regulations. The tribunal did not discuss the merits of clause 500.212 in applicant's case. The decision record lists applicant's inability to meet criteria set in cl.500.211 . The applicant wasn't notified properly that the tribunal is not reviewing the reasons listed in delegate's decision for refusing visa but rather Tribunal has decided to focus on reasons not mentioned in decision record of Visa refusal notification. MZXPO v MIAC (2007) FMCA 1484
(16)The Tribunal failed to make further inquiries about a critical fact in circumstances where the Tribunal proceeded to decision in the absence of a reply from the applicant to a s.359A and s.359(2) letter. The tribunal could have easily made such an inquiry, the paucity of facts on the issue critical to the eventual finding of the Tribunal (being whether the Tribunal was positively satisfied that there were no exceptional circumstances). Khant v MIAC (2009) 112 ALD 241. The tribunal was made aware in my extension of time request that there are exceptional circumstances in the applicant's case. The rapid spread of COVID-19 in the applicant's home country and in Australia had affected the applicant's ability to submit required documents to the Tribunal in timely manner. The Tribunal failed to consider these exceptional circumstances and proceeded to make its decision without contacting the applicant further or inviting him to an oral hearing. MZXPI v MIAC (2008) FCA 635
(17)The tribunal constructively failed to conduct a review by failing to undertake further inquiry from applicant at or near the date of its decision to ascertain the applicant's enrolment in an approved course. The obligation to inquire arose because whether applicant was enrolled was a time of decision criterion and a critical fact in Tribunal's decision. Shah v MIBP (2014) FCCA 624. The tribunal bound itself to information_ received from the delegate and prevented itself: from addressing the question whether the applicant was able to give the information requested at the time of request.
(18)The failure to respond in time to a written invitation to make a decision on the review without inviting the applicant to a hearing, in circumstances where the invitation did not strictly comply with the formal procedure, is jurisdictional error that can be characterised as a breach of the hearing obligation in ss.360. Shrestha v MIBP (2014) FCCA 34.
(19)The Tribunal was in jurisdictional error when the review was conducted by the Tribunal without any participation from the applicant. The applicant had informed the Tribunal in his extension of time request that the applicant is facing delays in obtaining the requested information and he needs extension of time until he can receive the documents from Pakistan and submit them in his review. The tribunal was made aware that the delay is due to rise in COVID-19 cases in Pakistan and there are significant delays in getting the required documents from issuing authorities. There were also significant delays in delivering these documents to Australia through courier services. The Tribunal ignored these circumstances and decided to affirm the delegate's decision without inviting the applicant for oral hearing.
(20)Without Passport and financial documents from Pakistan, the applicant was unable to provide the documents to the Tribunal. The disregard of the tribunal for applicant's circumstances and his inability to produce the requested documents at the time of request constitutes to procedural unfairness. The tribunal was aware applicant cannot produce the required documents until such time that he receives his passport from Pakistan, yet the Tribunal went ahead to decide on his review without any further correspondence and without inviting the applicant for oral hearing.
BEFORE THE COURT:
These proceedings were commenced on 13 August 2020.
On 3 September 2020, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. On 3 March 2021, this matter was fixed for a show cause hearing for today. The Court explained to the applicant the nature of the hearing. The applicant has explained that he had an expired passport and was trying to renew this passport.
Unfortunately, the applicant’s submissions do not identify any arguable case of relevant error. This is a case where the applicant failed to provide the Tribunal with a current course of enrolment which was an essential criteria. The circumstances surrounding the applicant’s difficulties in obtaining the same do not give rise to an arguable case of jurisdictional error. It is apparent that the Tribunal did give the applicant an opportunity for an extension of time to provide a current course enrolment and the applicant was unable to do so.
In those circumstances nothing said by the applicant identified an arguable case of jurisdictional error. For the reasons given in the Minister’s submissions above, which the Court has adopted, the grounds of the application failed to raise an arguable case of relevant error.
The court is not satisfied the application has raised an arguable case for the leave claim. The court is satisfied this is an appropriate matter in which to exercise the court’s powers under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth)
Accordingly, the application is dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding nine (9) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 05 May 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 8 June 2021
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