Bui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 924

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 924

File number:

SYG 1159 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

4 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant had no current course of enrolment – no arguable case for the relief claimed – amended application dismissed under r44.12.

Legislation:

Migration Act 1958 (Cth) s 476

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

7

Date of hearing:

4 May 2021

Place:

Sydney

Counsel for the Applicant:

Ms R Lahoud

Solicitor for the Applicant:

Andy Pham Lawyers

Solicitor for the First Respondent:

Mr J Tay, HWL Ebsworth

ORDERS

SYG 1159 of 2020

BETWEEN:

THI THAO BUI

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:	4 MAY 2021

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely upon the amended application filed on 2 October 2020.

2.The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 April 2020 affirming the decision of a delegate of the first respondent (“the Delegate”), made on 20 July 2018, not to grant the applicant a Student visa. 

2. The Court will have set out the background, grounds and argument in paragraphs 5, through to paragraph 23 of the first respondent’s submissions:

   Relevant factual background

   (5)The applicant is a female citizen of Vietnam who applied for a Student (subclass 500) visa on 8 June 2018 (Student Visa) (CB 1).

   (6)On 20 July 2018, a delegate of the Minister refused the applicant's Student Visa application on the basis that they were not satisfied that the applicant met cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations), being the Genuine Temporary Entrant Criterion (CB 53).

   (7)On 1 August 2018, the applicant applied to the Tribunal for review of the delegate's decision (CB 57). By this application, the applicant appointed Mr Brian Quang Dinh as her authorised recipient in connection with the review.

   (8)On 28 February 2020, the Tribunal invited the applicant to provide information to demonstrate that she met the primary criteria for the grant of a Student Visa pursuant to s 359 of the Migration Act 1956 (Cth) (Act) (s 359 invitation) (CB 69). The s 359 invitation stated:

   'The written information requested in the Request for Student Visa Information form should be received by 13 March 2020…

   If you cannot provide the information by 13 March 2020, you may ask us for an extension of time to provide the information. If an extension of time request is made, it must be received by us by 13 March 2020 and it must state the reason why the extension of time is required.

   …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.'

   (9)On 20 March 2020, the applicant's representative wrote to the Tribunal seeking an extension of time in which to provide information to the Tribunal, because of delays said to be caused by the COVID-19 pandemic (CB 76). On that same day, by a letter sent via email to the authorised recipient, the Tribunal denied the applicant's request (CB 82). This letter stated:

   "As you did not provide the information requested within the period allowed you appear to have lost your entitlement to a hearing… As the Tribunal may now make a decision in your case at any time, you should give us any additional information that you wish to be considered as soon as possible".

   (10)On 13 April 2020 the Tribunal affirmed the delegate's decision to refuse the applicant the Student visa without inviting her to attend a hearing (CB 97). The applicant was notified of this decision on 14 April 2020 (CB 94). The Tribunal reached its decision on the basis that the applicant did not meet the primary criteria for the Student Visa because she failed to provide any evidence of current enrolment in a registered course of study, as required by cl 500.211(a) of the Regulations.

   Application to the Federal Circuit Court of Australia

   (11)By an application to show cause filed in this Honourable Court on 14 May 2020, the applicant seeks judicial review of the Tribunal's decision and raises the following ground of review (particulars omitted):

   Ground 1

   The Tribunal denied the applicant procedural fairness and by not seeking further information and/or documents for the applicant.

   (12)By orders (made by consent) of Registrar Cridland dated 2 July 2020, the applicant was granted leave to file (inter alia) written submissions and any amended application by 24 September 2020.

   (13)The applicant filed a proposed amended application on 2 October 2020, which is outside the Registrar's grant of leave, and therefore requires leave of this Honourable Court to be relied upon. The proposed amended application raises three new proposed grounds of review which can be summarised as follows:

   Proposed Grounds 1 and 2

   The applicant was denied procedural fairness because the Tribunal unreasonably failed to accept his request for an extension to respond to a s 359 invitation in light of COVID-19 concerns.

   Proposed Ground 3

   The Tribunal's finding that the applicant was not enrolled at the time of its decision was made without any evidence

   (14)Pursuant to rule 44.13(1) of the Rules, at a hearing of an application for an order to show cause, the Applicant is technically confined to the relief sought and the grounds mentioned in the application (on foot). However, notwithstanding this and to assist in the resolution of these proceedings, the first respondent has sought to address the proposed amended grounds in addition to the original grounds of review.

   Grounds of the original application

   Ground 1

   (15)It is unclear whether the applicant intends, by the proposed amended application, to abandon her original ground of review. Accordingly, the first respondent addresses this ground below.

   (16)By this ground the applicant contends that the Tribunal denied her procedural fairness by not taking further steps to obtain information from her prior to making its decision. As observed at paragraph [9] of these submissions, the applicant responded to the s 359 invitation on 20 March 2020, being 7 days after the prescribed period to respond had ended. By doing so, the first respondent submits that the applicant enlivened s 359C(1) of the Act which expressly permitted the Tribunal to "make a decision on the review without taking any further action to obtain… information". In these circumstances, the first respondent submits that the Tribunal complied with its procedural fairness obligations and that this ground does not give rise to an arguable case for relief.

   Grounds of the proposed amended application

   Proposed grounds 1 and 2

   (17)By these proposed grounds, the applicant alleges that it was unreasonable for the Tribunal to refuse to grant her an extension of time to respond to the s 359 invitation because of COVID-19 health concerns at that time. As noted above at [9], the application for an extension of time in which to respond to the s 359 letter was made after the deadline for a response had already passed, Accordingly, the first respondent submits that it was open for the Tribunal to decide the review without taking any action to obtain further information (i.e. by refusing the extension of time request). In any event, the applicant was not prevented from providing written submissions or other evidence before the Tribunal made its decision and the Tribunal considered the additional material that the applicant did in fact provide on 30 March 2020, being after the extension of time request was denied (CB 98 at [6]).

   Proposed ground 3

   (18)By this proposed ground, the applicant contends that there was no evidence to support the Tribunal's conclusion that the applicant was not enrolled in a registered course of study at the time of its decision. The first respondent submits that it this ground cannot succeed.

   (19)The Tribunal's assessed the applicant against cl 500.211 of Schedule 2 to the Regulations at [11]-[19] of its decision. There, it is clear that the Tribunal made its finding in relation to the applicant's enrolment status by reference to the information which the applicant provided in the course of her application. Specifically, the Tribunal noted that:

   (a)the applicant's proposed course of study as stated in her review application would have elapsed as at the time of its decision (at [15]);

   (b)it explicitly requested information concerning the applicant's enrolment status (at [16]); and

   (c)the applicant had not provided any further evidence to indicate any present enrolment, including in her submission of 30 March 2020 (at [17]).

   (20)In these circumstances, the first respondent submits that it was open for the Tribunal on the evidence (or lack thereof) before it to find that the applicant was not enrolled at the time of its decision.

   Materiality

   (21)The first respondent respectfully submits that even if this Court were to find that the application raised an arguable case for relief, and subsequently that the Tribunal had erred, such an error could not go to jurisdiction. For an error to be jurisdictional it must also be material, meaning that but for that error, the applicant could have realistically been deprived of a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

   (22)In the present case, the Tribunal found the applicant did not meet the primary criteria for a Student visa because the applicant failed to provide any evidence of current enrolment in a course of study, as required by cl 500.211(a) of the Regulations.

   (23)The PRISMS records of the applicant show that the last course the applicant was enrolled in was a Diploma of Leadership and Management which was cancelled on 12 September 2019 for non-payment of fees (CB 93). Therefore, at the time of the Tribunal's decision, 13 April 2020, the applicant was not in fact enrolled in a registered course of study and could not satisfy cl 500.211(a) of the Regulations. Accordingly, the first respondent submits that even if the Tribunal did occasion error, it could only have reached the same outcome, namely, that the applicant failed to satisfy the primary criteria for the Student visa.

   BEFORE THE COURT

3. These proceedings were commenced on 14 May 2020 and the Court granted leave to the applicant to rely upon an amended application filed on 2 October 2020. Ms Lahoud, counsel on behalf of the applicant, sought to develop an argument concerning the notification given to the applicant about the requirement to provide a response, and the absence of an actual power to extend time if the applicant failed to respond. The Court does not regard the s 359 letter dated 28 February 2020, on a fair reading, as doing other than giving the applicant proper notice of the requirement to provide information. Consistent with the statutory regime, where the applicant did not do so, the applicant lost the entitlement to a hearing. The applicant was on notice of a need to provide a current course of enrolment. The request for an extension made on 20 March 2020 was made a week after the time for provision of the information and the Tribunal was correct in its communication sent on 20 March 2020 that the applicant had lost the right to a hearing. There was no discretion that the Tribunal had to exercise and accordingly no reasonably arguable jurisdictional error arises under grounds 1 and 2 of the amended application. As to ground 3 of the amended application, in the absence of evidence as to a current course of enrolment, the Tribunal drew an inference that was open that the applicant was not currently enrolled. The suggestion of no evidence to support this finding is misconceived as the failure to respond to the letter and provide evidence of enrolment was evidence that supported that inference. It was open to the Tribunal to find that the applicant was not so enrolled and no arguable case of error is disclosed by ground 3 of the amended application.

4. The applicant’s submissions, in substance, otherwise invited the Court to engage in impermissible merits review, by reference to the COVID-19 situation. None of those are matters that give rise to a basis upon which it could be said that there is an arguable case of relevant error by the Tribunal. Further, for the reasons identified by the respondent in the respondent’s submissions, including as to apparent want of materiality given that the applicant was not in fact enrolled in a current course of study, which the Court adopts, no arguable case is made out for the relief claimed.

5. For the reasons given by the first respondent, none of the three grounds in the amended application make out any arguable case for the relief claimed. 

6. For these reasons Court is not satisfied that the amended application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

7. Accordingly, the amended application is dismissed under r 44.12 of the Rules.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 4 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       19 July 2021