Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 935
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 935
File number: SYG 461 of 2019 Judgment of: JUDGE STREET Date of judgment: 5 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Application for Student visa – where applicant did not have a current course of enrolment – no arguable jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court of Australia 2001 (Cth), r 44.12
Number of paragraphs: 9 Date of hearing: 5 May 2021 Place: Sydney First Applicant: In person Solicitor for the First Respondent: Ms S Wright, Mills Oakley ORDERS
SYG 461 of 2019 BETWEEN: SANJU BHANDARI
First Applicant
ANIL CHHETRI
Second 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 name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
3.The applicants pay the first respondent’s costs fixed in the amount of $3,737.00.
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), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 February 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) to refuse to grant the applicant a Student visa.
The Court adopts the background that appears in paragraphs 3 together with the grounds and argument through to paragraph 35 of the first respondent’s submissions:
Background
(3)The first applicant (the applicant) is a female citizen of Nepal who arrived in Australia on 16 October 2013 as the holder of a Student (Subclass 573) visa to undertake a Diploma of Science (Computing/IT) and a Bachelor of Information Technology at Edith Cowan University (CB 132), however her enrolment in the Bachelor course was cancelled on 10 March 2015 (CB 57-58). The second applicant is the applicant’s husband who applied as a member of her family unit (CB 3-4).
(4)On 8 September 2016, the applicant applied for a further Student (Subclass 500) visa (CB 1-18) proposing to study a Diploma of Business at American College and a Bachelor of Business at Holmes Institute (CB 25). The applicants appointed a registered migration agent as their representative (CB 6-7, CB 19-24). The applicants submitted documents in support of the application which included a statement which sought to attribute the applicant’s failure to commence her bachelor’s degree to health difficulties and enrolment difficulties when she moved from Western Australia to Queensland (CB 25).
(5)On 20 October 2016, the Department sent the applicants a request for more information, including evidence to satisfy the genuine temporary entrant criterion (CB 46-56).
(6)On 16 November 2016, the applicants responded to the Department’s request (CB 57-91). The applicant provided various documents including medical evidence, communication with her college and a letter of offer for a Bachelor of Professional Accounting for the period commencing 3 August 2015 to 31 July 2017. In a further statement, she reiterated her earlier reasons for failing to complete her bachelor’s degree and stated that she decided to change to a Bachelor of Accounting because she would “not physically be able to sit in front of computers for a long time” (CB 77). She stated that upon completion of her “education”, she would return to Nepal to help her father with his transportation business (CB 78).
(7)On 24 April 2017, the applicant wrote to the Department and indicated that she had difficulty concentrating on her studies because of her pending visa application and was thinking of studying a Diploma of Hospitality (CB 100). The Department responded on the same day and requested that the applicant provide additional information to support the genuine temporary entrant criterion reflecting the reasons for her change in course (CB 99).
(8)On 28 April 2017, the applicant responded and confirmed that she wrote to Holmes Institute to cancel her enrolment for her bachelor’s degree and that “because of not receiving the visa’s decisions on time, I am not being able to concentrate on my studies. I having huge mental stress because of student visa’s decisions” (sic) (CB 99).
(9)On 11 July 2017, a delegate refused to grant the applicants Student visas (CB 108-121). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate noted that during the processing of the visa application, the applicant had completed a Diploma of Business and had subsequently enrolled in a Diploma of Hospitality Management which was a “further low value course within the Vocational Education and Training Sector” that was unrelated to the applicant’s previous education intentions. The delegate was concerned by the applicant’s various periods of non-enrolment while she remained in Australia (CB 117). The delegate also found that the applicant had been in Australia for a period of more than nine years with limited academic progress suggested her potential circumstances in Australia outweighed any incentive to return. The delegate concluded that the applicant appeared to be using the student visa program as a means of maintaining ongoing residence in Australia and was not satisfied that she genuinely intended to stay in Australia temporarily. The secondary applicant’s visa was refused as the applicant did not meet the primary criteria for the grant of the visa (CB 119).
The Tribunal
(10)On 31 July 2017, the applicants applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal (CB 122-148).
(11)By letter dated 11 January 2019, the applicant was invited to attend a hearing scheduled for 6 February 2019 (CB 152-160). Relevantly, the Tribunal’s hearing invitation requested the applicant provide: “A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2… as is required for the grant of a student visa” and a written statement addressing the issue of whether she was a genuine applicant for entry and stay as a student (CB 154).
(12)On 17 January 2019, the applicant responded to the Tribunal and confirmed that she intended to provide the further documents requested by the Tribunal. She also completed a “Response to hearing invitation form” confirming the applicants’ attendance at the scheduled hearing (CB 161-164).
(13)On 31 January 2019, the applicant provided various documents to the Tribunal in support of the genuine temporary entrant criterion including copies of her Diploma of Science (Computing/IT), Diploma of Business, Advanced Diploma of Business and various medical documents (CB 167-219). In a further written statement, the applicant indicated that she planned to study a Bachelor of Business majoring in Accounting (CB 177) but did not provide any documents to show that she was enrolled in a course of study.
(14)On 5 February 2019, the applicant wrote to the Tribunal and requested a postponement of the scheduled hearing for two weeks on the basis that her husband had obtained an injury and was required to rest for a period of two weeks. She provided medical evidence in support of her request that indicated her husband had lacerated his finger and sustained a minor head injury after he fainted at the Sunshine Coast Hospital while receiving treatment on 27 January 2019 (CB 220-222). On the same day, the Tribunal informed the applicant that it had decided not to postpone the hearing on the basis that the second applicant was not required to attend the hearing (CB 223-231).
(15)On 6 February 2019, the applicant confirmed that she would attend the hearing with her husband, the second applicant (CB 232-233). The applicant also provided a letter of offer for a Bachelor of Business at the University of the Sunshine Coast dated 5 February 2019. The letter of offer relevantly stated that, “Student visa holders must hold a valid Confirmation of Enrolment from USC. Upon receipt of your acceptance and payment of the fees outlined in the Acceptance of Offer, we will issue you with your CoE which you need to apply for your Student visa” (CB 238).
(16)On 6 February 2019 the applicant attended her scheduled hearing before the Tribunal with her husband (CB 248-251).
(17)On 6 February 2019, the Tribunal delivered an oral decision affirming the decision under review (CB 252-254).
(18)On 18 February 2019 and 19 February 2019, the applicant wrote to the Tribunal and stated that she requested a Confirmation of Enrolment certificate (CoE) as early as possible but “because of long holidays and application of credit transfer they couldn’t provide me the COE on time” (CB 275). She stated that after the hearing, she contacted her education provider and requested “a full offer letter” until her credit transfers were finalised and they provided her with a further letter of offer dated 19 February 2019 and CoE for a Bachelor of Business at the University of the Sunshine Coast dated 13 February 2019 (CB 283-291).
(19)On 20 February 2019, the Tribunal wrote to the applicants and confirmed that the applicant’s submissions were carefully considered but the Tribunal decided not to reopen her case. The Tribunal confirmed that once a decision was made, it had no power to take any further action on the review (CB 292-293).
The Tribunal’s decision
(20)On 25 March 2019, the Tribunal provided the applicants with written reasons for its decision (CB 294-297).
(21)The Tribunal found that although the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal was whether the applicant met the enrolment requirement for a student visa (CB 296, [7]). The Tribunal set out the requirements of cl 500.211 which relevantly required that at the time of decision, the applicant was enrolled in a course of study (CB 296, [9]).
(22)The Tribunal found that although the applicant was sent a letter requesting evidence of enrolment on 11 January 2019, no such evidence was provided (CB 297, [10]). The Tribunal also noted that the applicant had conceded in her oral evidence that she had not been enrolled in any course of study since she completed her Diploma of Business on 9 November 2018 (CB 297, [12]).
(23)The Tribunal concluded there was no evidence before it that the applicant was enrolled in any course of study and therefore was not satisfied that at the time of decision that the applicant was enrolled in a course of study as required by cl 500.111 of Schedule 2 to the Regulations (CB 297, [13]). The Tribunal also found that the second applicant could not meet the criteria for the grant of a Subclass 500 visa as the applicant was unable to satisfy the primary criteria for the grant of the visa (CB 297, [13]). The Tribunal affirmed the decision under review (CB 297, [14]).
The application for judicial review
(24)Pursuant to orders made by Registrar Cho by consent on 19 March 2019, the applicants had leave to file an amended application and any affidavit evidence by 13 June 2019. Pursuant to orders made by the Honourable Judge Street on 3 March 2021, the applicants were afforded a further opportunity to file an amended application and submissions by 2 April 2020. At the time of filing these submissions, no further documents have been filed by the applicants.
(25)The application for judicial review filed on 27 February 2019 pleads four grounds of review which appear misconceived and fail to establish an arguable case of jurisdictional error.
Ground one
(26)Ground one contends the Tribunal unreasonably refused to exercise its discretion pursuant to s 363(1) of the Act to allow the applicant additional time to “submit crucial information”. The particulars contend that: (a) the applicant’s request for additional time due to exceptional circumstances was declined during the hearing; and (b) “further particulars will be provided upon receiving the transcripts of the Tribunal hearing”. However, no transcript was filed in accordance with the orders of Registrar Cho made by consent on 19 March 2019.
(27)It is the applicant who bears the onus of proving jurisdictional error,[1] but there is no evidence before the Court to establish that the applicants requested an adjournment for further time to provide a CoE. The Tribunal’s decision record also does not indicate that such a request was made. Critically, the applicant was on notice from the Tribunal’s letter dated 11 January 2019 that she was required to provide a copy of her current CoE or documents to show that she was enrolled in a course of study as required for the grant of a student visa but the applicants failed to provide any evidence capable of satisfying this mandatory requirement (CB 154). The Tribunal was not under an obligation to afford every opportunity to the applicant for review to present his best possible case and to improve upon the evidence.[2] Accordingly, this ground is not made out.
[1] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67].
[2] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [81].
Ground two
(28)Ground two contends that the Tribunal erred by failing to provide the applicants with written reasons “within 14 days after making an oral decision during the hearing”.
(29)This ground is misconceived as there is no requirement under the Act for the Tribunal to provide written reasons within 14 days after making an oral decision. Relevantly, s 368D(4) of the Act states that if the Tribunal makes an oral statement, and within the period prescribed by the Regulations,[3] the applicant makes a written request for a statement to be provided in writing, the Tribunal must within 14 days after the day the request is received by the Tribunal, provide a copy of the written statement: s 368D(4) of the Act (underline added).
[3] Reg 4.27B that the prescribed period for requesting a written statement starts when the Tribunal makes the oral statement and ends at the end of 14 days after the day on which the Tribunal makes the oral statement.
(30)The Tribunal’s letter dated 25 March 2019 records that on 18 March 2019, the Tribunal received a request for a written statement of the oral decision (CB 294). This request was therefore outside the prescribed period for requesting written reasons and the Tribunal. Nevertheless, the Tribunal complied with the applicants’ request within 7 days of receiving the request. In any event, even if the Tribunal had failed to give the applicant a written statement of reasons in accordance with s 368D(4) (which is not conceded), that would not have affected the validity of the oral decision: s 368D(7). No error is revealed by this ground.
Ground 3
(31)Ground three is a bland assertion that the Tribunal made a decision which was “legally unreasonable” and that “further particulars will be provided upon receiving the transcripts of the Tribunal hearing”.
(32)Failure to particularise a ground is sufficient basis for its dismissal.[4] Absent particulars to make it meaningful, this ground does not advance a meaningful argument of jurisdictional error and cannot succeed.
Ground four
(33)Ground four alleges that the Tribunal failed to consider “relevant and crucial information” provided by the applicant. The particulars in support contend that the applicant provided “an offer letter to the Tribunal… indicating that the Confirmation of Enrolment would be forthcoming”.
(34)This ground is also misconceived. The Tribunal expressly considered the letter of offer but was not satisfied that evidence of enrolment had been provided (CB 297, [11]). The letter of offer relevantly stated that, “Student visa holders must hold a valid Confirmation of Enrolment from USC. Upon receipt of your acceptance and payment of the fees outlined in the Acceptance of Offer, we will issue you with your CoE which you need to apply for your Student visa” (CB 234-239). There was no evidence before the Tribunal that the applicant had accepted the offer or provided payment of the necessary fees. It was a criterion for the grant of any of the subclasses of Student visa that the applicant be enrolled in a course of study at the time of the Tribunal’s decision. The Tribunal did not have any discretion to waive this requirement or to grant the visa in circumstances where the criteria in Schedule 2 of the Regulations were not satisfied.[5] Accordingly, this ground fails.
(35)The applicant’s supporting affidavit annexes a copy of the Tribunal’s decision and does not advance her case in any meaningful way.
[4] WZAVW v Minister for Immigration [2016] FCA 760 at [35].
[5] Kiran & Anor v Minister for Immigration & Anor [2016] FCCA 2021 at [29]; Dakpa v Minister for Immigration & Anor [2018] FCCA 3917 at [40]; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [47].
BEFORE THE COURT
These proceedings were commenced on 27 February 2019. On 19 March 2019, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. On 3 March 2021, this Court made orders fixing the matter for a show cause hearing today under r 44.12 of the Federal Circuit Court Rules (“Rules”).
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant explained that she had had difficulties with her university in obtaining a copy of the course of enrolment and continued that she would provide the course of enrolment to the Tribunal after it had delivered its oral decision. The critical date for the applicant to have relied on her course of enrolment was prior to the oral decision, which the applicant did not do.
None of the grounds identified in the applicant’s application identified an arguable case of relevant error for the reasons identified in the first respondent’s submissions set out above which the Court adopts.
Nothing said by the applicant identified any arguable case of relevant error.
The Court is satisfied that the application has not raised an arguable case for the relief claimed.
Accordingly, the Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under rule 44.12 of the Rules.
Accordingly, the application is dismissed under r 44.12 of the Rules.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 11 June 2021
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