BAE v Minister for Immigration

[2017] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 625

Catchwords:

MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) not to grant the applicants a Student (Temporary) (Class TU) visa – whether Tribunal complied with s.359AA of the Migration Act 1958 (Cth) –whether Tribunal failed to take into account relevant evidence – whether Tribunal misconstrued “a current offer of enrolment in any applicable course of study” – no jurisdictional error.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s.19
Education Services for Overseas Students Regulations 2001 (Cth), reg.103
Migration Act 1958 (Cth), ss.359AA, 359AA(1), 424AA

Migration Regulations 1994 (Cth), Schedule 2, cls.570.232, 571.232, 572.223, 572.231, 573.231, 575.231
Migration Regulations 1994 (Cth), reg.1.40A

Cases cited:

Chen v Minister for Immigration and Citizenship [2013] FCA 1137; (2013) 218 FCR 561

SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505

Applicant: MIJU BAE

Applicant: SEOP KIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3148 of 2014

Judgment of: Judge Manousaridis

Hearing date: 17 March 2016

Delivered at: Sydney

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicant: Mr J Cohen

Solicitors for the Applicant: Cambridge Lawyers

Counsel for the Respondents: Mr J Kay-Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for leave to rely as an additional ground the matters set out in paragraphs 9-12 of the Applicants’ Written Submissions dated 8 March 2016 is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

3. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3148 of 2014

MIJU BAE

First Applicant

SEOP KIM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are nationals of Korea, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Student (Temporary) (Class TU) visa (Student Visa).

Background

1. The first applicant (applicant) applied for a Student Visa on 23 December 2013. The second applicant, the applicant’s husband, applied as a member of the applicant’s family unit.

2. At the time the applicant applied for the Student visa, there were a number of subclasses of Student visa. The delegate treated the applicant’s application to be for a subclass 572 Student visa because the application “satisfied the validity requirement for that subclass”.[1] The delegate, therefore, assessed the applicant’s application for a Student visa against the criteria specified in subclass 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2]

   [1] CB74

   [2] The Regulations that are relevant to this proceeding are those that applied at the time the applicant applied for the Student Visa, namely, 23 December 2013. These are the Regulations that were in force before SLI No. 280, 2013.

3. The delegate refused to grant the applicant a Student visa because the delegate found the applicant did not satisfy cl.572.223 of Schedule 2 to the Regulations. That clause required the Minister be satisfied an applicant is a “genuine applicant for entry and stay as a student” in the sense set out in the clause.

4. At the hearing before the Tribunal, after it asked the applicant questions about whether she was enrolled in any course, the Tribunal said the following:[3]

   Now I’m going to raise information with you that I consider would be the reason or part of the reason subject to your response for affirming the decision under review. I’m going to explain as far as reasonably practicable why this information is relevant to the review and the consequences of the information being relied upon in affirming the decision under review. And then I’m going to invite you to comment on or respond to this information in any way that you wish. This may be immediately, at an adjourned session of the hearing or in writing.

   [3] T4.165. The transcript of the hearing before the Tribunal is annexed to the affidavit of L A Jacobs filed on 10 March 2016.

5. The Tribunal then referred to the “Prism system”.[4] “PRISM” is an acronym for “Provider Registration and International Student Management System”, being the “electronic system of that name used to process information given under” s.19 of the Education Services for Overseas Students Act 2000 (Cth).[5] The Tribunal said:[6]

   The information that I’m referring to is . . . called Prism system so the Prism system stands for the provider registration and international student management system and it records all courses that overseas enrol in. The Prism system records that your Certificate III in business, your Certificate IV in business, and your Diploma of business enrolments were all cancelled due to non-commencement of studies.

   [4] T4.165.

   [5] Reg.1.03 Education Services for Overseas Students Regulations 2001 (Cth)

   [6] T4.165

6. The Tribunal further said the information was relevant “because it indicates to the Tribunal that you are not currently studying or subject to an offer of enrolment”. The Tribunal also stated that evidence the applicant had given earlier to the Tribunal indicated the applicant was not aware whether the applicant was enrolled or not. The Tribunal said that the “consequence of this information being relied upon is that the Tribunal will affirm the decision under review because you must be subject to an offer of enrolment or currently studying in order to be granted a student visa”. The following was then said:

   TRIBUNAL:. . . Would you like to comment on or respond to the information in any way that you wish?

   APPLICANT:     Why [sic] going through these procedures when I had many a business that has been quite hard on me and then also I didn’t have many people who could offer some help with relation to this matter. Since my student has been cancelled then I didn’t know how to handle the situation.

   TRIBUNAL:Would you like to make any other comment or response to this information?

   APPLICANT:     All I can hoping is that I can finish the study for about 1½ years so that I can get the visa granted and I can only complete the Certificate IV course so I can go back to my country and show my family what I’ve achieved here and also could be some help for my career.

   TRIBUNAL:Would you like to make any comment?

   MALE:[No].

   TRIBUNAL:I’ve invited your agent, I’ve given you the opportunity. Is there anything further that you’d like to say before I end the hearing?

   APPLICANT:     No further comment.

Tribunal’s decision

1. The Tribunal noted that the issue before the delegate was whether the applicant met the criterion prescribed by cl.572.223 of Schedule 2 to the Regulations. The Tribunal, however, said “the issue is now whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa”.[7]

   [7] CB101, [6]

2. The Tribunal referred to each of cl.570.232, cl.571.232, cl.572.231, cl.573.231, and cl.575.231 of Schedule 2 to the Regulations requiring that, “at the time of decision”, the applicant be enrolled in, or be the subject of a current offer of enrolment in a course of study that is a principal course, and is of a type specified under reg.1.40A of the Regulations for the particular subclass. The Tribunal observed this requirement did not apply to certain classes of student visa, but found there was no evidence to suggest the applicant fell within any of these classes of students.

3. The Tribunal then referred to its having raised with the applicant during the hearing that her enrolment in all previous courses had been cancelled due to “non-commencement of studies”, and the applicant’s response. The Tribunal then observed there was “no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study”. The Tribunal concluded, therefore, that clauses of cl.570.232, cl.571.232, cl.572.231, cl.573.231, and cl.575.231 of Schedule 2 to the Regulations had not been met.[8] The Tribunal, therefore, affirmed the delegate’s decision not to grant the applicant a Student visa.

   [8] CB102, [8]

Grounds of application – failure to comply with s.359AA of Act

1. The amended application contains two grounds of application. The first is:

   The Tribunal denied the applicants procedural fairness as mandated by section 359A and section 359AA of the Migration Act.

   Particulars:

   i)The Tribunal relied on adverse information that “indicated that the (first) applicant’s enrolment in all previous courses had been cancelled due to non-commencement of studies”.

   ii)The Tribunal failed to put this information to the first applicant in accordance with section 359A of the Migration Act. The Tribunal failed to put this information to the first applicant in accordance with 359AA of the Migration Act. The Tribunal failed to ensure, as far as is reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review. The Tribunal failed to advise the applicant that she could seek additional time to comment or respond to the information. The Tribunal failed and considers [sic] if the applicant reasonably needed additional time to comment on or respond to the information.

2. The applicants do not address this ground in their written submissions. Counsel for the applicants, however, did address the ground in submissions. Counsel submitted the Tribunal’s identification and explanation of the relevance of the information was only a “cursory attempt to comply with the legislation”.[9] Counsel further submitted the Tribunal’s explanation “lumped together” all of the factors identified by s.359AA of the Migration Act 1958 (Cth) (Act). Counsel also submitted the Tribunal’s explanation was confusing.

   [9] T10.25

3. The starting point in assessing this ground is the text of s.359AA(1) of the Act, which provides:

   If an applicant is appearing before the Tribunal because of an invitation under section 360:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)orally invite the applicant to comment on or respond to the information; and

   (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

4. The Minister referred to SZNKO v Minister for Immigration and Citizenship,[10] where Flick J considered s.424AA of the Act, which is equivalent to s.359AA. His Honour said:[11]

   Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or “parrot-like recantation”. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.

   [10] [2010] FCA 297; (2010) 184 FCR 505

   [11] [2010] FCA 297; (2010) 184 FCR 505 at [29]

5. The Minister also referred to Chen v Minister for Immigration and Citizenship where Logan J said:[12]

   What is necessary to engage the dispensation for which s 359A(3) provides is that, on a fair reading of the record of the whole of the proceedings at the hearing conducted by the Tribunal, it can be seen that, in substance, the requirements of s 359AA were observed. That is this case.

   [12] [2013] FCA 1137; (2013) 218 FCR 561 at [21]

6. In my opinion, the Tribunal did convey, and conveyed clearly, to the applicant and her representative the matters s.359AA of the Act required the Tribunal to convey to the applicant. The evidence shows the Tribunal:

   a)informed the applicant it was going to raise information the Tribunal considered would be the reason for affirming the decision under review (subject to the applicant’s response) and gave the applicant an opportunity to comment or respond;

   b)gave particulars of the relevant information, namely, the PRISM database  recording that the applicant’s Certificate III in business, Certificate IV in business, and Diploma of business enrolments were all cancelled due to non-commencement of studies;

   c)informed the applicant of the relevance and significance of the information, namely, it indicated to the Tribunal that the applicant was not then studying or subject to an offer of enrolment;

   d)informed the applicant that the consequence of the Tribunal relying on the information would be the Tribunal affirming the decision under review because the applicant had to be subject to an offer of enrolment or currently studying for the applicant to be granted a Student visa; and

   e)invited the applicant and her representative to make comments.

7. Counsel for the applicants submitted the applicant’s comments on the Tribunal’s invitation were not responsive, and that this indicates the Tribunal did not sufficiently communicate to the applicant the matters the Tribunal was required to communicate under s.359AA of the Act. That inference is not reasonably available in the circumstances of this case.

8. First, as I have already concluded, the Tribunal clearly conveyed to the applicant and her representative the matters s.359AA of the Act required the Tribunal to convey to the applicant. That the applicant’s comments were not responsive cannot alter the clarity of what the Tribunal conveyed. Second, the applicant did not indicate to the Tribunal she did not understand what the Tribunal communicated to her; and the applicant submitted no evidence to this Court that she did not understand what the Tribunal had communicated to her. Third, given the applicant was not enrolled in a course, and the applicant had not provided to the Tribunal any evidence of any current offer in any applicable course of study, the only responsive comment the applicant could have made was to agree with what the Tribunal had put to the applicant. The applicant’s not responding to the Tribunal’s invitation by not directly addressing what had been put to her, therefore, is best explained, not by her not understanding what the Tribunal had put to her, but by the applicant’s recognising she had nothing to say against the incontrovertible fact that the applicant was not enrolled in, and had no current offer of enrolment in any applicable course of study.

9. Ground 1, therefore, fails.

Grounds of application – failure to take account relevant evidence

1. The second ground of application is as follows:

   The Tribunal failed to conduct the review and did not take into account relevant evidence.

   Particulars:

   i)The first applicant gave the Tribunal evidence that she had been and was enrolled in relevant courses and had successfully completed those courses.

   ii)The Tribunal failed to have regard to evidence that the applicant did not enrol at the time of the interview because she had her student visa cancelled and understood that she was not able to enrol in studies, or in the alternative, was given advice to that effect.

   iii)The Tribunal failed to have regard to the evidence the applicant intended to study in Australia and would have done so had her student visa been granted.

2. The applicants do not address this ground in their written submissions. Nor did counsel for the applicants address this ground in his oral submissions.

3. In my opinion, the ground fails. Whether or not the applicant intended to study but, for the reasons she gave, she did not study, was not a matter that was relevant to the reason for which the Tribunal affirmed the delegate’s decision. That reason was the Tribunal was not satisfied the applicant had satisfied the criterion that required that she be enrolled in, or have a current offer of enrolment in any applicable course of study. Whether or not the applicant intended to study in Australia was not relevant to whether the applicant was enrolled in, or had a current offer of enrolment in any applicable course of study.

Ground raised in written submissions

1. In their written submissions the applicants raise a ground not included in their application. The applicants there submit the Tribunal “erred in determining the meaning of “ … subject of a current offer of enrolment” as defined in the aforementioned clauses”, these being “cl 572-575.231 or 570-571.232”.[13] The applicants submit the applicant was enrolled in the Diploma for Business “from 24 February [2014]  until 8 August 2015, and this  “clearly covers the timeframe that the review before the Tribunal took place”.[14] The applicants further submit that, although the applicant was not actively studying at the time the Tribunal made its decision, she was “nonetheless as subject to an offer of enrolment as the first applicant as the offer [of] enrolment had not been withdrawn by the relevant college”.

   [13] Applicant’s Written Submissions, 10.03.2016, [9], [7]

   [14] Applicant’s Written Submissions, [10]

2. In support of that submission, the applicants rely on a letter from Bridge Business College headed “Letter of Withdrawal” which stated:[15]

   This letter serves to verify that [the applicant] . . . has completed her studies as a full time international student. [The applicant] was enrolled in the Diploma in Business from 24/2/2014 until the 08/08/2015. [The applicant] withdrew from the college on 05/04/2014.

   [15] Affidavit of M Song, 13.11.2014; annexure C13

3. The applicants submit the applicant had an “ongoing right to re-enrol in the course”.[16]

   [16] Applicant’s Written Submissions, [12]

4. The Minister objected to the applicants relying on this ground without further amending their application. Given the Minister was in a position to make submissions on the additional ground, I indicated to the parties that I would consider the parties’ submissions and, if I found the submission not to be reasonably arguable, I would simply note my conclusion in my reasons for judgment. If, on the other hand, I found the ground reasonably arguable, I would make orders granting the applicants leave to file a further amended application that would include the ground the applicant raises.

5. There are two difficulties with the applicants’ submission. First, it relies on a proposition – that the applicant had an ongoing right to re-enrol – whose truth depends on evidence; yet the applicant has adduced no such evidence. There is no evidence of the terms that regulated the applicant’s enrolment with Bridge Business College. There is no evidence, for example, about whether the course from which the applicant withdrew contained a minimum period of attendance (presumably it did), or the minimum attendance the College required; or whether the College imposed additional conditions to making an offer of enrolment because the applicant had previously withdrawn from the course. Second, even in the absence of evidence, the likelihood is that at the time the Tribunal made its decision – 9 October 2014 – the applicant would have had no right to re-enrol in the course, given the course was for the period from 24 February 2014 until 8 August 2015, but the applicant had withdrawn on 5 April 2014. It is unlikely the applicant would have had any right to re-enrol on 9 October 2014 in light of her not having attended any part of the course for some six months.

1. For these reasons, the ground based on the contention the applicant had the right to re-enrol in the Diploma in Business is not reasonably arguable. It is, therefore, unnecessary for me to grant the applicants leave to file a further amended application to include this ground.

Other matters

1. Counsel for the applicants submitted the criterion the Tribunal was not satisfied had been met by the applicant, namely that the applicant was enrolled in, or had a current offer of enrolment in any applicable course of study, had to be satisfied only at the time the applicant applied for the Student visa. I disagree. The criteria in each of cl.570.232, cl.571.232, cl.572.231, cl.573.231, and cl.575.231 of Schedule 2 to the Regulations are time of decision criteria; and that means that, where an applicant had made an application for review, the relevant time of decision was the time the Tribunal made its decision.

Disposition

1. I propose to treat the applicants’ reliance on the ground not raised in the amended application as an application for leave to further amend the application to include it as an additional ground, but order that that application be dismissed. I will also order that the application be dismissed and that the Administrative Appeals Tribunal be substituted for the Migration Review Tribunal as the second respondent.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 March 2017