Babu v Minister for Immigration

[2018] FCCA 1734

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1734

Catchwords:

MIGRATION – Application to review decision of the Administrative Appeals Tribunal affirming a decision not to grant the Applicant a student visa – whether Tribunal failed to comply with s.359A and/or s.357A of the Migration Act 1958 (Cth), failed to take into account relevant considerations or failed to put certain matters to the Applicant in a manner constituting jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.357A, 359A
Migration Regulations 1994 (Cth), Sch.2, cl.573.223

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant: NOMAN CHOWDHURY BABU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1835 of 2016

Judgment of: Judge Barnes

Hearing date: 19 June 2018

Delivered at: Sydney

Delivered on: 19 June 2018

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1835 of 2016

NOMAN CHOWDHURY BABU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for a review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 17 June 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant is a citizen of Bangladesh who arrived in Australia as the holder of a student visa in March 2007.  Relevantly, on 21 September 2015, he applied for the student visa that is the subject of the Tribunal’s decision on the basis of enrolment in a Bachelor of Professional Accounting and a proposed Masters of Professional Accounting course. 

3. The departmental delegate requested certain information and put to the Applicant in writing some information (including the record of his past enrolments) and sought his comment and explanation for periods in which he was not studying and also his reasons for undertaking the proposed course of study.  The Applicant sought an extension of time to respond.  This was granted. 

4. At the time the delegate made a decision on 5 December 2015 no further response had been provided. 

5. The application was refused.  The delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student who intended to stay in Australia temporarily.  Included in the delegate’s decision (given to the Tribunal) was information from PRISMS (Provider Registration and International Student Management System) records as to the Applicant’s previous enrolments and the fate of those enrolments. 

6. The Applicant sought review by the Tribunal. The Applicant was invited to a Tribunal hearing through his migration agent. In the hearing invitation he was also asked to provide further information, including about his current enrolment and past studies and an explanation for gaps in his enrolment. The invitation advised him that the Tribunal would assess whether he intended genuinely to stay in Australia temporarily as required by the (then applicable) criterion in cl.573.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth). He was also provided with a copy of Ministerial Direction No. 53 and asked to provide a written statement addressing whether he was a genuine temporary entrant by referring to the Direction.

7. The Applicant did not provide any written information or statement as requested.  He attended the Tribunal hearing although it appears that no response to the hearing invitation had been provided.  The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons for decision. 

8. In these reasons the Tribunal referred to the applicable criteria for a Subclass 573 student visa, in particular, the criterion in cl.573.223(1)(a) that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the Minister is satisfied that, relevantly, the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances, immigration history and any other relevant matter.

9. The Tribunal referred to its obligation to have regard to Direction No. 53.  It summarised the impact of that Direction, observing that it was not a checklist, but was intended to guide decision-makers to weigh up the applicant’s circumstances as a whole. 

10. In considering the Applicant’s claims and evidence the Tribunal first referred to the evidence and discussion at the Tribunal hearing. 

11. The Tribunal recorded that it had raised with the Applicant why he had not responded to the hearing invitation and that he said he did not know and had probably changed his address.  The Tribunal suggested to him that this seemed to be a cavalier approach to what could be a potentially important aspect of his life, but he did not respond. 

12. The Tribunal discussed with the Applicant the fact that although he had been in Australia for approximately nine years, he had completed only one course at the higher education level (between 2009 and 2011) and another Bachelor’s course for slightly under a year in 2014.  It recorded the Applicant’s explanation that he had to face his father’s death in 2013.  It put to him that it appeared that this had had no great impact on his studies, given that he was able to complete a Bachelor’s degree in 2013/2014.  The Tribunal also raised with the Applicant the fact that he had not submitted any deferment, leave or extension of time application and had not travelled home to be with his family at this time.  It recorded that he agreed, but gave no further information. 

13. The Tribunal also recorded that it raised with the Applicant the fact that he had completed only approximately four years of study in the nine years he had lived in Australia and had not been involved in any study at all for approximately two years before the Tribunal hearing.  It pointed out that he was in breach of a number of visa conditions, including conditions 8202 and 8516, which it described.  The Applicant was said to have agreed, but provided no further information. 

14. In response to the Tribunal raising with the Applicant the fact that he was not “currently” studying or enrolled in courses, the Applicant was recorded as stating that he intended to change his ways.  He provided no further information in this respect. 

15. Similarly, the Tribunal raised with the Applicant the fact that he had enrolled in some fourteen courses in the years he had been in Australia and he never undertook twelve courses (for a variety of reasons, but mainly for non-commencement of studies).  It recorded that he provided no further information. 

16. Finally, the Tribunal recorded that it raised its concerns that it appeared that the Applicant had lost interest “in undertaking any study at all”.  He replied that that was the case and he hoped the Tribunal would give him another chance. 

17. The Tribunal asked the Applicant if he had further information to support his application, to which he was recorded as replying that he intended to enrol in a course later and hoped the Tribunal would give him another opportunity.  He agreed when the Tribunal raised with him the fact that he had resided largely in Australia in the last nine years and not for any length of time in his home country, but gave no further information. 

18. The Tribunal found that overall (which clearly referred to the evidence at the hearing) and taking into account the consideration of all factors in Direction No. 53, the Applicant had “not displayed or illustrated any effort to undertake or continue his studies at the appropriate higher level” and that, by his own admission, the Applicant had not studied anything for over two years before the Tribunal hearing.  It found that his entreaties that the Tribunal give him another chance were, at best, half-hearted and at worst not a genuine plea to continue his studies in Australia on a temporary basis. 

19. The Tribunal was of the view that the Applicant’s cavalier attitude in not responding to the hearing invitation and in providing no basis for not complying with the Tribunal’s requests for supporting information, the fact that he was not currently studying and was not enrolled in any course at all and his almost permanent residence in Australia since 2007 did not reflect a genuine intention to continue study at any level or in any temporary capacity. 

20. The Tribunal found, on the basis of “the above” and having considered the Applicant’s circumstances, immigration history and other matters it considered relevant, that it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly it found that he did not meet the requirements of the criterion in cl.573.223(1)(a), which it described as an essential requirement of cl.573.223.

21. The Tribunal also found that the Applicant did not meet the same requirement in relation to other subclasses of student visas.  In respect of the Student Guardian subclass it found that there was no material suggesting that the Applicant met the prescribed criteria for that visa. 

22. The Tribunal affirmed the decision not to grant the Applicant a student visa. 

23. The Applicant sought review by application filed in this court in July 2016.  At that time he was legally represented.  He did not file any amended application or affidavit evidence beyond the affidavit accompanying the application which attached a copy of the Tribunal decision.  He did not file written submissions. 

24. At the hearing today the Applicant (who was self-represented) suggested that he had not had time to file any documents.  When I asked him what information he would have put before the Court, he talked about the possibility of starting study again and producing documents in that respect.  As I endeavoured to explain to him, such material would not show jurisdictional error on the part of the Tribunal.  I am satisfied that the Applicant has had more than adequate time to provide any relevant information that he wished to put before the Court.

25. The Applicant was given the opportunity to make oral submissions.  He had very little to say, beyond indicating that he would like another chance to go back to the Tribunal to be granted a visa.  Insofar as he asked the Court to grant him a visa, I explained that the Court had no power to make such an order in these proceedings and that his remarks about his intention to study again did not assist the Court in considering whether there was jurisdictional error on the part of the Tribunal.  He did not identify any other concerns about the Tribunal decision or procedures.

26. I took the Applicant through the grounds in his application.  He did not add to or in any way clarify any of the grounds.  Nonetheless, I have considered the grounds having regard to the material before the Court and in light of the First Respondent’s submissions. 

27. The first ground is that the Tribunal made a jurisdictional error in that it denied the Applicant procedural fairness under s.359A of the Migration Act 1958 (Cth) (the Act) and/or failed to take into account relevant considerations.

28. The particulars to this ground refer to the “matters mentioned as being required to be considered in Direction 53… including, inter-alia: paragraphs 6 to 14 and/or paragraph 16” of that Direction.  Insofar as this is an assertion that the Tribunal failed to have regard to Direction No. 53 there is no evidence to suggest that the Tribunal failed to have regard to the matters in Direction No. 53 to the extent that they were relevant.  The Applicant did not elaborate on this concern.   

29. The Tribunal referred to the Direction and stated that it must have regard to specified factors in weighing up the Applicant’s circumstances as a whole.  I note that the Tribunal provided the Applicant with a copy of Direction No. 53 and sought a supporting statement in light of the matters in that Direction.  None was provided. 

30. Insofar as this ground takes particular issue with paragraphs 6 to 14 of the Direction, the Tribunal addressed relevant issues in light of the limited responses to its questions about the Applicant’s circumstances and other matters referred to in Direction No. 53. 

31. Paragraph 16 of the Direction requires a decision-maker to have regard to any other relevant information provided by the Applicant or available to the decision-maker.  The Applicant failed to provide requested information to the delegate or to the Tribunal.  The Tribunal had regard to his enrolment and study history (as revealed in the delegate’s decision).  It appears on the material before the Court that the Tribunal had regard to the information that was before it.  It has not been established that the Tribunal failed to take into account relevant considerations, or critical information, in a manner that gave rise to jurisdictional error. 

32. The basis for the contention that there was a failure to comply with s.359A of the Act is not clear. The Applicant has not identified any information that would be the reason or part of the reason for affirming the decision under review. There is nothing in the material before the Court to suggest that the Tribunal failed to put information within s.359A(1) to the Applicant. Insofar as this ground may relate to the PRISMS record, the Applicant provided such information to the Tribunal by providing a copy of the delegate’s decision to the Tribunal when seeking review such that it would be within the exception to s.359A(1) in s.359A(4)(b) of the Act.

33. Ground 1 is not made out. 

34. Ground 2 refers to the delegate’s decision.  It is contended that the delegate failed to comply with s.54 of the Act.  The Court has no jurisdiction to review such decision (see s.476(2) of the Act).

35. However the particulars to ground 2 are in terms that suggest that the Applicant intended to refer to the Tribunal.  Reference is made to what is said to be a failure to take into account the Applicant’s evidence at the Tribunal hearing and to take into account his father’s death and its impact on his studies. 

36. There is no basis in the evidence before the Court for an assertion that the Tribunal did not take into account the Applicant’s evidence at the hearing.  In the absence of a transcript, there is nothing to support this contention.  Further, the Tribunal specifically considered the Applicant’s evidence about the fact and impact of his father’s death.  Whether expressed in terms of the delegate’s or the Tribunal’s decision, this ground is not made out. 

37. The third ground is that the Tribunal failed to comply with s.54 and/or s.359A and/or s.357A of the Act “in that the applicant was denied procedural fairness and/or failed (sic) to act in a way that was fair and just, and/or failed to take into account relevant considerations”.  First, s.54 relates to the delegate’s decision and is of no assistance to the Applicant in establishing error on the part of the Tribunal. 

38. The particulars to this ground are as follows:

    (a) Failure to provide the Applicant a reasonable opportunity to reply and/or give any further evidence/explanation prior to the Tribunal proceeding to a decision in relation to:

    (i) The reasons why the Applicant was not currently studying or enrolled in a course.

    (ii) The Tribunal’s claims that the Applicant had breached visa conditions 8202 and 8516.

    (iii) The Applicant’s father’s death having an impact of (sic) his studies/inability to complete further studies.

    (iv) Reasons why the Applicant had not informed it of any change of address as a reason for not responding to the Hearing invitation.

39. Insofar as there is a reference to s.357A of the Act, it appears from the suggestion of a failure by the Tribunal to act in a way that was “fair and just” that this may be intended to be a reference to s.357A(3) which requires that in applying Division 5 of Part 5 of the Act the Tribunal act in a way that is fair and just.

40. It is unnecessary in the circumstances of this case to address whether s.357A(3) is merely exhortative or whether a failure to comply with its terms may give rise to a jurisdictional error. Whether s.357A creates substantive obligations or merely refers to the manner in which the Tribunal performs its obligations under Division 5 of Part 5 of the Act, no failure to act in a way that is fair or just (either in general terms or in the specific terms required under the provisions in Division 5 of Part 5 of the Act) has been established.

41. In particular, the Tribunal did not have to give the Applicant notice of its thought-processes, whether under s.359A or otherwise (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]). The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. This account suggests that it raised dispositive issues and matters of concern with the Applicant and gave him the opportunity to respond or comment.

42. As indicated, the Applicant did not elaborate in any way on his concerns in this respect beyond indicating that he wished to have a further opportunity to seek a student visa. 

43. Further, the Tribunal clearly raised with the Applicant the fact that he was not studying or enrolled in courses.  It addressed his reply that he intended to change his ways, but provided no further information. 

44. The Tribunal also raised with the Applicant the fact that it appeared that he was in breach of a number of visa conditions.  It gave him the opportunity to comment.  He agreed, but provided no further information.

45. The Tribunal expressly considered the Applicant’s claim that his father’s death had an impact on his studies and had led to an inability to complete further studies, but had regard to all of the circumstances of which it was aware in that respect on the evidence before it and (as far as can be seen on the Tribunal reasons for decision) what occurred at the Tribunal hearing.

46. The Tribunal also considered the Applicant’s explanation for not replying to the hearing invitation (that he did not know and “probably” had changed address).  The Tribunal indicated its view that this seemed to be a somewhat cavalier approach to the importance of the Tribunal hearing and that the Applicant did not respond to that concern.  Had he wished to provide an explanation in that respect he had the opportunity. 

47. The Tribunal gave the Applicant an opportunity to provide further evidence and explanation in the hearing invitation as well as asking him at the hearing if he had any further information to support his application.  He was also invited to address the issue of whether he was a genuine temporary entrant by reference to the provisions of Direction No. 53 as well as to provide documents in support of his application.  He did not avail himself of this opportunity.  There is no evidence that he sought a further opportunity to put evidence or submissions to the Tribunal.  The Tribunal was not under an obligation to give the Applicant an opportunity after the hearing “to reply” or to give any further evidence or explanation.

48. It may have been intended to be suggested that there was information that would fall within s.359A such that the Tribunal could comply with s.359AA and give the Applicant an opportunity to reply at the hearing or at a later stage. There is nothing in the material before the Court to suggest that there was information subject to the obligation in s.359A(1) such as to give rise to those circumstances and no transcript in evidence to support any claim in relation to s.359AA of the Act.

1. No basis for jurisdictional error has been established in the manner contended for in ground 3 of the application. 

2. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed. 

3. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $5,400.  This is less than the amount provided for as an indicative amount in the Schedule to the Federal Circuit Court Rules 2001 (Cth). The Applicant stated that this amount was a bit high for him and asked whether anything could be done to help him out. I take this to be a claim, in very general terms, of a lack of readily available funds. However, an applicant’s impecuniosity is not in itself a basis for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. Nor, in the present case, am I satisfied that it is a basis for departing from the amount sought, which is reasonable and appropriate in the light of the nature of this and other similar matters.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  29 June 2018