Bangar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 420
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bangar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 420
File number(s):
MLG 1019 of 2018
Judgment of:
JUDICIAL REGISTRAR CUMMINGS
Date of judgment:
29 May 2023
Catchwords:
MIGRATION – judicial review – application for summary dismissal of judicial review application – subclass 572 visa – where the Tribunal affirmed the delegate’s decision because the applicant was not enrolled in a course of study – whether the Minister has satisfied the Court that the applicant has no reasonable prospects of successfully prosecuting his application.
Legislation:
Migration Regulations 1994 (Cth), sch 2 cl 572.222
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 13.13(a)
Cases cited:
An v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 281, followed.
BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990, followed.
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640, applied.
Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92; (2018) 263 FCR 310, applied.
Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322, followed.
Division:
Division 2 General Federal Law
Number of paragraphs:
15
Date of last submission/s:
5 May 2023
Date of hearing:
26 May 2023
Place:
Adelaide
Applicant:
In person by Microsoft Teams
First Respondent:
Ms A Meaney of Mills Oakley by Microsoft Teams
ORDERS
MLG 1019 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOGINDER PAL SINGH BANGAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDICIAL REGISTRAR CUMMINGS
DATE OF ORDER:
29 MAY 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 18 April 2018 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2.The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR DECISION
JUDICIAL REGISTRAR CUMMINGS
On 18 April 2018, the applicant applied to this Court for judicial review of a decision of the second respondent (the Tribunal) dated 15 March 2018. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) dated 5 January 2017. The decisions concern the application for a student visa that the applicant lodged on 11 March 2015. Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) imposed mandatory criteria for the grant of such a visa. The criteria that was determinative of the outcome of the Tribunal’s decision was cl 572.222 (the enrolment criterion). The enrolment criteria provided as follows:
572.222
(1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
(2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.
(3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.
The reasons the Tribunal gave in support of its conclusion that it was not satisfied that the applicant met the enrolment criteria relevantly included the following:
By invitation dated 14 February 2018 you were invited to attend the Hearing today. In that invitation you were requested to provide a copy of your current COE and other documentation. That COE was to be provided at least seven days before the scheduled date of the Hearing. A copy of the certificate has not been provided. At the Hearing today you were again requested to provide to the Tribunal a copy of your current certificate of enrolment. You have not done so.
In your sworn evidence before the Tribunal you confirmed that you were last enrolled in Advanced Diploma of Marketing. You further confirmed that your sworn evidence that you were not currently enrolled nor do you have an offer of enrolment in any course of study in Australia. However, you have been making inquiries and attempts to obtain enrolment. However, there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any applicable course of study. Therefore, the current enrolment prerequisite for all student visa sub-classes is not met.
The applicant relies on these grounds in support of his contention that the Tribunal’s decision was unlawful (original reproduced):
While making decision on student visa applications, both DIBP and AAT have failed to consider all my circumstances and my medical condition which I am suffering from long time, I was mentally and physically not capable to concentrate on my study slightly.
I was very stress at that point of time and as I was alone at home I could able to share my condition and problems with anyone. At that time, I came to know my father’s medical condition. He was suffering with congenital heart disease and his kidney was also damaged. So, continue of affliction.
Kidney was damaged. I did not want to trouble him with my visa conditions because if I could share my problems with my father, maybe I could lose my father and I did not want this to happen.
My father’s only dream is to see me graduate with international level study. So I want to get graduate with higher study here and utilise this study back at home for wellbeing of my community.
I enrolled in diploma of marketing, but due to my sickness I could not able to complete 1 unit from that course, and I tried to convince my college authority regarding my situation. But they did not help me a lot. Instead of that my college was saying to me – enrol in that particular same course again, by paying whole tuition fees again. So I did not want to continue with that course.
I decided to take higher level course in medical/social worker field. Because I want to help society with my knowledge. Because I enrol in medical/social worker field, I can make some efforts to resolve community problems which I cannot do with the study of marketing.
So, I tried to get admission in university for the nursing and social worker course. But due to my refusal visa not even single university/college convinced to give me admission. All were requiring valid visa. So I failed to get admission in any course.
I tried a lot to tell whole scenario to case officer in my hearing on 15th March 2018 in AAT (Melbourne). But he mentioned that you should have COE of current study at the time of hearing.
As I have mentioned my case officer in AAT that why I could not able to take admission but he could not able to understand my problem.
I just request to give me one chance to continue my study, and grant me student visa, while considering all my hurdles and conditions.
So, that after completing my study, I can go back to my country with proud and happiness.
I assure you that I will not repeat my past mistakes in future and with good health and positive attitude I will try my best to continue and complete my study.
I am not blaming anybody for refusal of my visa but I just request you to see – consider my case and grant me visa.
If you need any further information and supporting documents, I am always there to provide that. Thank you.
The Minister contends that I should be satisfied that the applicant does not have reasonable prospects of successfully prosecuting his judicial review application, and that I should therefore summarily dismiss the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (the Rules).
The documents I was asked to consider in determining the Minister’s summary dismissal application were as follows:
(1)The applicant’s application for review filed 18 April 2018;
(2)The affidavit filed by the applicant on 18 April 2018;
(3)The Court Book filed by the Minister on 8 May 2019;
(4)The Minister’s amended response, by which he sought summary dismissal, as filed on 3 May 2023;
(5)The Minister’s submissions filed on 5 May 2023; and
(6)The applicant’s affidavit filed on 24 May 2023.
I admitted into evidence the documents referred to at (2) and (3) of the above list and part of the document referred to at (6). I declined to admit annexures A1, F1 and G1 as contained in the document referred to at (6) as I was not satisfied that those annexures were relevant to any issue before me. Those annexures comprise medical documents that post-date the Tribunal’s decision, and a copy of the death certificate of a family member of the applicant who died earlier this year.
The Minister, as the moving party in respect of the summary dismissal application, must satisfy me that the applicant’s application for judicial review has no reasonable prospects of success (AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [37] per Deputy Chief Judge Mercuri).
I am satisfied that the applicant has no reasonable prospects of successfully prosecuting his application insofar as he seeks to have the Court engage in a judicial review of the delegate’s decision. This Court has no jurisdiction to undertake that task (s 476(2)(a) and s 476(4)(a) of the Migration Act 1958 (Cth)).
The central theme of the applicant’s grounds insofar as they concern the Tribunal’s decision is that the Tribunal did not “consider all [his] circumstances” and could not able to understand [the applicant’s] problem”. I am satisfied that the applicant does not have reasonable prospects of establishing that the Tribunal’s decision is vitiated by jurisdictional error because the Tribunal overlooked the evidence the applicant gave as to the difficulties he faced in gaining enrolment in a course of study. Clause 572.222 (like the analogous visa criterion provided for by cl 500.211) imposes an objective criteria for the grant of the visa that cannot be “waived by reference to [an] applicant’s previous study or personal circumstances (Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24]). In those circumstances it is unsurprising that the Tribunal was not more fulsome in summarising the evidence the applicant gave as to why he was not enrolled: what mattered for the purposes of the Tribunal’s decision was the mere fact that the applicant was not enrolled. The applicant’s own evidence to the Tribunal supported the Tribunal’s finding to that effect.
During the hearing before me the applicant submitted that his migration agent had failed to obtain a confirmation of enrolment for the applicant prior to the Tribunal hearing despite the applicant’s request for assistance with that task. The applicant was critical of his agent’s conduct in this regard. Given the nature of the application before me I will assume in the applicant’s favour that he would be able to establish the relevant factual assertion at a final hearing, namely, that the applicant asked his agent to assist him in obtaining a confirmation of enrolment and no such document was obtained. Although the applicant has not directly raised such an argument, I am satisfied that the applicant would have no reasonable prospects of successfully contending at a final hearing that the Tribunal’s decision was vitiated by third party fraud by the migration agent. There is no evidence before me that suggests that the agent’s actions or inaction amounted to a fraud on the Tribunal, and a mere failure by the agent to obtain a confirmation of enrolment in response to the applicant’s request that he do so could not amount to fraud (BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990 at [88]-[90] per Judge Kendall citing SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 and Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17). I am satisfied that the applicant’s submissions concerning his agent do not raise an issue that could realistically result in a conclusion of jurisdictional error were the judicial review application to proceed to trial.
In circumstances where the applicant is self-represented, I considered it appropriate to engage in my own assessment of the material before the Court in an attempt to ascertain whether there are any reasons to doubt the validity of the Tribunal’s decision beyond those raised by the applicant’s grounds, evidence, and oral submissions.
I am satisfied that the applicant has no reasonable prospects of establishing that it was not open to the Tribunal to conclude that there was no evidence that the applicant was enrolled in or had a current offer of enrolment in any applicable course of. The applicant’s sworn evidence to the Tribunal at the hearing was that he was not currently enrolled. The applicant also provided a document to the Tribunal prior to the hearing in which he stated that he was not enrolled.
I am satisfied that the applicant has no reasonable prospects of establishing that it was legally unreasonable for the Tribunal not to delay making a decision on the review until after the hearing to give the applicant more time to satisfy the enrolment criteria. The test of legal unreasonableness has been described as “stringent” (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [113]). Although I accept that other decision-makers may have delayed making a decision on the review until some point after the hearing to give the applicant further time to obtain an enrolment, a decision cannot be validly impugned as legally unreasonable simply because it is one about which different minds might form different views (Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92; (2018) 263 FCR 310 at [66]). The Tribunal is not under “an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence” (Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J). I am satisfied that the Tribunal’s decision in the matter at hand was within the “range of possible, acceptable outcomes which are defensible in respect of fact and law” (Li at [105]), and that the applicant has no reasonable prospects of establishing the contrary position. The applicant’s own evidence to the Tribunal was that he was not enrolled, and I was not taken to any evidence to support the proposition that the applicant said anything at the Tribunal hearing to suggest that he would be able to obtain an enrolment if he were given further time to do so. I was also not taken to any evidence to suggest that the applicant actually asked the Tribunal to adjourn the hearing so that he could obtain an enrolment. The failure of an applicant to seek an adjournment does not provide a definitive answer to the question of whether the Tribunal’s failure to adjourn a review was legally unreasonable (Li at [102] per Gageler J), however, the lack of such a request can be relevant to the determination of that issue (see, for example, An v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 281 at [21] per Judge Laing). It is also relevant that the Tribunal’s hearing invitation put the applicant on notice that it was necessary for him to have a confirmation of enrolment, that he should provide all documents he intended to rely on to establish that he met the criteria for the visa within seven days of receipt of the hearing invitation, and that the Tribunal could make a decision on the review at the conclusion of the hearing. By deciding the review at the hearing and on the basis of the enrolment criterion, the Tribunal did what it had foreshadowed it may do when it invited the applicant to the hearing in the first place. In summary, I do not accept that it would be reasonably arguable for the applicant to contend that the only legally reasonable course the Tribunal could have taken in this matter was to delay determining the review beyond the hearing date so as to provide the applicant with more time to satisfy the enrolment criteria.
As a result of the forgoing analysis I am affirmatively satisfied that the applicant does not have reasonable prospects of successfully prosecuting his judicial review application. In those circumstances, I have decided to summarily dismiss the judicial review application pursuant to r 13.13(a) of the Rules.
The Minister sought an order requiring the applicant to pay the Minister’s costs fixed in the amount of $4,189.38. I am satisfied that costs should follow the event. The amount sought by the Minister reflects the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules, and I therefore consider that the claimed amount is appropriate.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Cummings.
Legal Case Manager:
Dated: 29 May 2023
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