Bhamani v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs
[2020] FCCA 3387
•11 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bhamani v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCCA 3387
File number(s): BRG 252 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 11 December 2020 Catchwords: CITIZENSHIP AND MIGRATION – migration - Student (Temporary) (Class TU) (subclass 500) visa – whether decision of tribunal to affirm the decision under review was affected by jurisdictional error Legislation: Migration Act 1958 (Cth), ss 359, 359A, 359C, 360(3), 363A, 379A(5), 379C(5)
Migration Regulations 1994 (Cth) reg 500.212(a)
Cases cited: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713
Number of paragraphs: 26 Date of last submission/s: 10 December 2020 Date of hearing: 10 December 2020 Place: Brisbane The First Applicant: Self-represented The Second Applicant: Self-represented Solicitors for the First Respondent: Minter Ellison The Second Respondent: Entered a submitting appearance ORDERS
BRG 252 of 2020 BETWEEN: AAFRIN BHAMANI
First Applicant
IMRAN ANWAR ALI BHAMANI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application filed on 24 April, 2020 be dismissed.
2.The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6100.
REASONS FOR JUDGMENT
JUDGE JARRETT
This an application for review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent not to grant the applicants a Student (Temporary) (Class TU) Student (subclass 500) visa.
The first respondent opposes the application and the second respondent has entered a submitting appearance.
I have written submissions from the first respondent. I have no written submissions from the first or second applicants although they made oral submissions at the hearing before me. Those submissions were directed to the merits of the second respondent’s decision, rather than to identifying any error, let alone jurisdictional error in the second respondent’s decision.
For the reasons set out below the application must be dismissed.
BACKGROUND
The background has been set out in the written submissions filed for the first respondent. The applicants confirmed that they have received those submissions and did not suggest that the background was inaccurate. My examination of the facts as set out in the Court Book reveal that they are accurate. I have drawn upon them for the purposes of these reasons.
The applicants are citizens of India, who each applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 18 May, 2017. The first applicant was the primary applicant and the second applicant applied on the basis of being a member of the family unit of the first applicant.
On 15 August, 2018 a delegate of the first respondent refused the first applicant a student visa on the basis that she did not meet the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily. Consequently, the second respondent was refused a visa as well.
On 23 August, 2018 the applicants sought review of the delegate's decision by the second respondent. On 1 August, 2019 the second respondent invited the first applicant to provide information pursuant to s 359 of the Migration Act 1958 (Cth). That correspondence was sent to the first applicant via email, at the email address provided in the review application. The letter sought information from the first applicant with respect to her course of study and entry and stay in Australia as a student. The letter notified the first applicant that she was required to meet both the enrolment and genuine temporary entry requirements for the grant of the visa. The letter also notified the first applicant that the second respondent would have regard to Direction No. 69, a copy of which was attached to the letter. The consequences of failing to provide the information by the due date, 15 August, 2019 (in the absence of an extension) were specified as follows:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments (emphasis in the original).
The first applicant did not respond to this letter.
On 3 October, 2019 the second respondent sent another letter to the first applicant. This time, pursuant to s 359A of the Act, the applicant was asked to comment on or respond to certain information that the second respondent considered may be the reason, or part of the reason for affirming the decision under review. The letter put to the applicant information obtained from the Provider Registration and International Student Management System regarding her academic history, which could support a finding that the applicant did not meet the genuine temporary requirement of the visa criteria. The letter also put the applicant on notice of the impact on her hearing entitlement if she failed to respond. However, the applicant provided no response to the s 359A letter.
On 31 March, 2020 the second respondent affirmed the decision under review. It recited the facts I have set out above. It recited that the applicant did not provide any comment within the periods prescribed in the letters, nor had she sought an extension to do so. The second respondent concluded that in these circumstances, by reason of the combined effect of ss 359C, 360(3) and 363A of the Act, the first applicant was not entitled to appear before the second respondent. Nor did it have the power to facilitate a hearing. It relied upon Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 for the view that it took of the law.
The second respondent recorded that it wrote to the first applicant on 3 October, 2019 pursuant to s 359A of the Act. It recorded that the applicant did not respond within the requested period, nor was an extension granted and accordingly, the second respondent decided to proceed to a decision on the material before it.
The second respondent identified that the determinative issue before it was whether the first applicant satisfied reg 500.212(a) of the Regulations having regard to the factors specified in Direction No. 69. The second respondent noted the requirement to turn its mind to each of those factors, though it was not required to make a finding in respect of each factor irrespective of its materiality: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16.
The second respondent outlined the evidence before it, including the delegate's decision record, the applicants' respective genuine temporary entrant statements and the applicant's PRISMS record. After doing so, the second respondent found that:
(a)the applicant's study pathway was not consistent with her current level of education, as she was enrolled in level 5 and 6 courses of the Australian Qualifications Framework, in circumstances where she had already attained qualifications at AQF levels 7 and 9;
(b)having considered the first applicant's explanation in her genuine temporary entrant statement concerning the relevance of her proposed studies to her alleged future employment prospects in her father's business, the second respondent was not satisfied that the applicant's proposed studies would assist or improve these prospects, nor that they were relevant;
(c)given the cost and duration of the applicant's proposed studies, combined with the findings concerning the applicant’s study pathway, the second respondent was "persuaded" that the applicant's primary objective was to maintain ongoing residence in Australia through the student visa program;
(d)the second respondent placed "small weight" in the applicant's favour on the lack of evidence or information concerning military service obligations, or any civil or political incidents which could create an incentive to remain in Australia;
(e)the second respondent placed "small weight" in the applicant's favour with respect to her ties to India (family and a house), and incentive to return there, which it also balanced against her decision to remain in Australia for over seven years, and her desire to extend this period;
(f)the second respondent made no adverse findings in relation to the applicant's travel or immigration history;
(g)the second respondent found the "little weight" it placed in favour of the applicant with respect to the circumstances in her home country, combined with her positive immigration history, did not outweigh the second respondent's concerns that the applicant utilised the student visa program contrary to its intention, so as to maintain ongoing residence in Australia; and
(h)in light of the above, the second respondent was not satisfied that the applicant met the GTE requirement pursuant to paragraph 500.212(a) of the Regulations and affirmed the decision under review.
By their application for judicial review, the applicants rely upon three grounds of review. However, none of them identify any jurisdictional error on the part of the second respondent.
The first ground is:
The AAT erred in its decision as it lacked procedural fairness by not affording me of the opportunity for a hearing. Thus, I believe that I was not afforded the opportunity to explain my rationale for the visa application and my genuineness in person.
The difficulty with this ground is that the first applicant was given the opportunity for a hearing. But for the reasons set out by the second respondent, correctly in my view, the first applicant lost her right to a hearing by operation of law. The first respondent’s written submissions explain the point accurately:
23. The Tribunal is relieved of the statutory obligation to invite an applicant to appear before it if paragraphs 359C(1) or (2) applies to the applicant: paragraph 360(2)(c). In the present case, the applicant failed to respond to the s.359 letter within the requisite timeframe, such that section 359C(1) applied and she lost her entitlement to appear before the Tribunal: subsection 360(3) of the Act; Haque v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 313; [2001] FCA 1077 (Haque) at [13] per Branson J (affirmed in Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 at [53] per Marshall, Mansfield and Siopis JJ). The combined effect of these provisions and critically, section 363A of the Act, meant that the Tribunal did not have the power to facilitate a hearing in circumstances where the applicant lost that entitlement: Hasran at [25]–[32].
I accept those submissions.
The second ground is:
The AAT process did not adhere to the principals of Natural justice as I believe no application should be decided without allowing the applicant proper opportunity to comment on their application. Also, I was going through very personal issues late last year whereby my foster father who raised me as a child was going through some serious health issues and as a result my foster father passed away on 16th January, 2020 of heart attack.
This ground overlaps with ground 1. The difficulty with it is that the first applicant was given a proper opportunity to comment on her application. The letters sent by the second respondent on 1 August and 3 October, 2019 were sent well before the first applicant’s father passed away in January, 2020 following serious health issues in late 2019. The way in which the second respondent dealt with the application was entirely in accordance with the requirement of the Migration Act. There is, in my view, no basis for suggesting that the applicants were not given a proper opportunity to comment on the application.
In deference to the written submissions put by the first respondent, I record that I also accept the following:
29. On the facts of this case, we consider it was open to the second respondent to proceed to a decision without taking any further action to obtain a response or information from the applicant:
(a) the applicant failed to provide a response to either invitations under sections 359 and 359A of the Act;
(b) both letters complied with the legislative requirements for written invitations under section 359B of the Act (see paragraphs [24] and [25] above);
(c) both letters clearly put the applicant on notice with respect to the consequences for failing to provide a response, that is, that the second respondent could proceed to a decision on the information before it, without taking any further action (CB 151, 164);
(d) apart from lodging the original application to the second respondent, the applicant failed to otherwise engage with the review process;
(e) having lost her entitlement to a hearing, the second respondent took positive steps to alert the applicant in the s.359A letter that the dispositive issue under review was the GTE requirement (CB 163): SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] per Gleeson CJ and Kirby, Hayne, Callinan And Heydon JJ;
(f) the pleaded grounds do not disclose a reason to believe that the second respondent's s.359 and s.359A letters were dispatched in error, nor does the applicant provide a reasonable explanation for her failure to respond in all aspects with the second respondent; and
(g) there was no obligation on the second respondent to take further steps to obtain a response or information, as it adopted a particular procedure it was authorised to do under section 359C of the Act: Haque at [13].
The question of whether the second respondent has acted reasonably is "invariably fact dependent" and therefore consideration needs to be given to the relevant facts of the matter and the evidence before the court: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42]; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [10] per Kiefel CJ.
This ground does not reveal any jurisdictional error.
Ground 3 is in the following terms:
The AAT did not apply the relevant legislation correctly as I was not contracted properly about the request for information. The tribunal did not attempt to contact me personally through more formal avenues even though I had provided my telephone and home address from the start of my review application. I believe that I should have at least received a phone call or a letter to my address.
This ground has no merit. The second respondent complied with the method of giving documents to an applicant set out in s 379A(5) of the Act. The first applicant was deemed to have received such documents at the end of the same day: s 379C(5) of the Act. I accept that the pleaded grounds do not disclose a reason to believe that the second respondent's s 359 and s 359A letters were dispatched in error, nor does the applicant provide a reasonable explanation for her failure to respond to those letters.
CONCLUSION
The present application does not reveal any jurisdictional error in the way in which the second respondent dealt with and disposed of the applicants’ review application. The present application must be dismissed with costs fixed in the amount of $6,100.00.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 11 December, 2020. Associate:
Dated: 11 December 2020
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