Burman v Minister for Immigration
[2020] FCCA 363
•25 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURMAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 363 |
| Catchwords: MIGRATION – Student (Class TU)(Subclass 500) visa – decision of the Administrative Appeals Tribunal – where application dismissed by Court for non-appearance – whether application should be reinstated – whether there is sufficient merit in grounds of review – application for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359A Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | PUJA BURMAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 186 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 February 2020 |
| Date of Last Submission: | 21 February 2020 |
| Delivered at: | Perth |
| Delivered on: | 25 February 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application in a case filed 25 November 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 186 of 2019
| PUJA BURMAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings has filed an application in a case (dated 25 November 2019) seeking reinstatement of a substantive application filed in this Court on 20 May 2019. The substantive application sought judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 13 April 2019.
The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) to not grant the applicant a Student (Class TU)(Subclass 500) visa (the “visa”).
The substantive matter was listed for hearing on 28 October 2019. On that date, the applicant failed to appear and the Court dismissed the application for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
The Court had before it the applicant’s application in a case seeking reinstatement dated 25 November 2019, an affidavit of the applicant affirmed 25 November 2019, the substantive application for judicial review, a Court Book (“CB”) numbering 116 pages (which the Court marked as Exhibit 1) and two outlines of written submissions filed by the Minister on 21 October 2019 and 24 January 2020. At the hearing of the reinstatement application, the applicant confirmed that she had received and reviewed the content of the Court Book and both sets of written submissions from the Minister.
Background
The factual background to this matter is summarised in the Minister’s submissions dated 21 October 2019 (at [3]-[13]). The Court is satisfied that the Minister’s summary is accurate and is not argumentative. The Court adopts the summary provided as its own as follows.
The applicant is a citizen of India who first arrived in Australia on 8 February 2015 on a Student (Temporary) (Class TU)(Subclass 573) visa (CB 2, 17 and 49).
On 27 February 2017, the applicant applied to the Minister’s Department for the visa (CB 1-24).
On 31 May 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant did not satisfy cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (the “Regulations”), which sets out the genuine temporary entrant criteria (CB 47-51).
On 19 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 52-53).
On 7 February 2019, the Tribunal invited the applicant to provide information by completing a Request for Student Visa Information questionnaire under s.359A of the Migration Act 1958 (the “Act”) (CB 58-66).
On 21 February 2019, the applicant provided a completed Request for Student Visa Information questionnaire to the Tribunal together with further documentary evidence (CB 67-93).
On 12 March 2019, the Tribunal sent the applicant an invitation to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (CB 94-98).
On 3 April 2019, the applicant appeared before the Tribunal (CB 103-105).
On 13 April 2019, the Tribunal affirmed the decision of the delegate to not grant the applicant the visa (CB 110-112).
Tribunal’s decision
The Tribunal’s decision is 16 paragraphs long.
At [1]-[5], the Tribunal sets out the background to the review, identifying the visa the applicant had applied for and the reason the delegate had refused the visa.
At [7], the Tribunal noted that the issue before the delegate differed from the issue before the Tribunal. Namely, the issue before the Tribunal was whether the applicant met cl.500.211(a) of the Regulations (which required the applicant to be enrolled in a course of study).
The core of the Tribunal’s reasons is set out at [10]-[13] of its decision, as follows:
10. On 7 January 2019 a written invitation to appear before the Tribunal was sent to the applicant. In that invitation the applicant was requested to provide information about (amongst other things) the course of studies she was then undertaking to the Tribunal by 21 February 2019. The applicant provided information by means of a request for student visa information form, which she completed online. The form asked the applicant whether she had a current Confirmation of Enrolment in a registered course of study. The applicant answered that question in the negative.
11. At hearing, the applicant was referred to that answer, and was asked if it was correct. The applicant confirmed that it was. The Tribunal explained that enrolment in a registered course of study at the time a decision is being made on an application for a student visa is a prerequisite for the issue a student visa, and that this was a requirement which must be met at the time of the Tribunal’s decision. The Tribunal went on to explain that accordingly, although the delegate’s decision had addressed the genuine temporary entrant requirement in cl.500.212 of the Migration Regulations, the determinative issue before the Tribunal had now changed to the issue of whether the applicant was enrolled in a registered course of study. The applicant was asked whether she understood. She acknowledged that she did. The Tribunal then asked the applicant whether she was currently enrolled in a registered course of study. She answered that she was not. The applicant was then invited to address the Tribunal on that issue.
12. The applicant explained that she had completed her Certificate III in Early Childhood Education and Care within the specified time limits for that course, and had enrolled in and commenced her Diploma of Early Childhood Education and Care. The applicant’s written submissions to the Tribunal indicate that she finished her Certificate III course on 29 June 2016. The applicant’s student visa was due to expire, to the best of her recollection, in March 2017. She applied for a further student visa on 27 February 2017. That application was refused. The Tribunal’s file indicates that the date of the delegate’s decision to refuse the applicant’s visa application was 31 May 2017, and that the applicant lodged her application for review of that decision in 19 June 2017. The applicant completed her Diploma studies on or about 11 December 2017, whilst the review process was on foot in the Tribunal. The applicant stated, in answer to the Tribunal’s questions, that she had not been enrolled in a course of study since then.
13. The applicant gave evidence that she consulted migration agents about enrolling for a Bachelor’s degree in early childhood studies, but that she had been told that she would not be able to do so without a visa. The applicant took the view that these agents had misled her. Nonetheless, the applicant also stated that she had approached some universities about enrolling in a Bachelor’s degree course, and had been told that although they could not accept her application if she had no student visa she should come back when she had received one. The applicant evidently felt deeply aggrieved about the advice she had been given and the service she had received from migrations agents, including the agent who had prepared her student visa application and had neglected (the applicant alleged) to include various important supporting documents in that application. The applicant excepted only her current representative, [name omitted], from her allegations
Ultimately, the Tribunal determined that the applicant was not enrolled in a course of study and that it had no discretion to waive this requirement. The visa, accordingly, was refused and the delegate’s decision was affirmed.
Proceedings in this Court
As indicated, the applicant’s application for judicial review was dismissed for non-appearance on 28 October 2019.
The applicant filed an application in a case on 25 November 2019 which sought the following orders:
1. Request to approve my student visa (TU500) to get my CoE and finish my degree,
2. Request to reopen my case and be heard.
The applicant’s affidavit in support (affirmed 25 November 2019) annexed two documents. The first was an electronic ticket receipt indicating that the applicant flew to Singapore on 29 September 2019 and returned to Perth on 2 November 2019. The second document was an approval notice for the applicant’s bridging visa.
At a directions hearing on 3 December 2019, the Court made orders allowing any further affidavit evidence and written submissions to be filed in relation to the application in a case. The applicant provided no further materials. The Minister filed written submissions.
As the Minister correctly submits, the Court has no power to make the first order sought by the applicant. Even if the application is reinstated, the Court has no power to grant her the relief she seeks. The Court’s power is limited to determining if there is jurisdictional error in the Tribunal’s decision.
The second order sought by the applicant asks the Court to “reopen” the applicant’s case. The Court will treat this as an application to set aside the orders of 28 October 2019 pursuant to r.16.05(2)(a) of the Rules.
The applicant appeared before the Court without legal representation when the reinstatement application came on for hearing.
The Court explained to the applicant that the matters it generally considers in a reinstatement application include, but are not limited to:
a)whether there was a reasonable excuse for the party’s absence from the hearing in which the substantive application was dismissed;
b)the length of any delay in seeking reinstatement and the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
c)whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.
(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530)
The Minister raised no issue with the delay and conceded that there would be no prejudice that could not be mitigated by costs. The Minister did, however, oppose reinstatement on the basis that the applicant’s explanation for her non-appearance was inadequate and her substantive application lacked merit.
The Court invited the applicant to make submissions at the hearing. Those submissions are discussed below.
Consideration
Explanation
While the applicant does not expressly say so, her affidavit suggests that the explanation for her non-appearance is that she was out of the country. At the hearing, the applicant stated that she had returned to India urgently to see her grandmother at the time of the hearing. She explained, in effect, that her life at the time was chaotic.
The Minister submitted that:
a)the applicant was on notice from 29 August 2019 (prior to her departure) that the hearing was listed on 28 October 2019;
b)the applicant made no contact with the Court or the Minister’s legal representative to request that the hearing be re-listed; and
c)the applicant prioritised her travel over the Court proceedings.
It appears the applicant made her travel arrangements on 15 July 2019. Her airline ticket was non-refundable.
This matter was originally listed for 8 November 2019 but was moved forward for administrative reasons. Had the hearing date remained the same, the applicant would have been in the country for the scheduled hearing.
The applicant was advised of the change of hearing date on 29 August 2019. Had she contacted the Court or the Minister’s legal representative and explained her situation, alternative arrangements could have been made. The applicant was notified of the change of hearing date by email. Relevantly, the applicant’s bridging visa notice annexed to her affidavit indicates that it was sent to the same email address. It is clear that the applicant uses this email for correspondence.
It is evident that the applicant’s life at the relevant time was stressful. Nonetheless, the applicant was given ample opportunity to advise the Court of the difficulties she was facing and request an adjournment.
While the Court is sympathetic, unfortunately, in the circumstances of this case, the explanation provided is insufficient.
This weighs against reinstatement.
Delay and Prejudice
As noted, the Minister accepts that the delay in applying for reinstatement is short. The Minister also accepts that any prejudice can be mitigated by a costs order if necessary.
These factors weigh in favour of re-instatement.
Merits
The determinative factor here is whether there is merit in the substantive application.
In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]-[6], Justice Mortimer (in the context of considering the merits of an application for reinstatement) explained as follows:
4. … The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
To determine whether the substantive application has merit, the Court must assess whether any of the grounds of review in the judicial review application are arguable.
The application for judicial review contains three “grounds” as follows:
1. I, Puja Burman, Passport number [omitted] Date of Birth: [omitted] made an application for Student Visa subclass 500 on 27 Feb 2017. At the time of application I had provided all the necessary documents to my agent [the agent], relating to the further extension of student visa application. The officer requested for further evidences of finances, English language eligibility, genuine temporary entrant, student health cover and health examination in support of the student visa application. [The agent] failed to inform me about any requested information from the department. I found out about this when I received the notice of refusal. She requested me to provide the IELTS English test report, previous enrolment/ completion record and nothing else. I needed time to make the said arrangement as my circumstances in home country are such that the valuation of land and properties is not easy. My family had applied for education loan, however the officials made a delay in issuing a loan sanction letter. Before I could give the available evidence of funds and assets or explain the reason for delay in providing the requested evidence, on the same day I received a notice of refusal by Department of Immigration and Border Protection on 31 May 2017, which stated that I did not satisfy cl. 500 .212. According to the decision maker, I was unable to meet the requirements of clause 500.212 of the Migration Regulations and that rules and regulations do not support my claims and therefore they refused to grant me a visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.212 which describes the eligibility criteria for a genuine student who intends to study a relevant course in Australia whereas; I strongly believe that I have satisfied the same rule. I completed my Certificate III and also a Diploma in in Early Childhood Education and Care and Diploma in Early Childhood Education and Care. I intend to study further Advanced Diploma in Community Sector Management and higher degree in Social work. I withdrew the course I was first enrolled into at Edith Cowan University after the first semester as I believed that course would not give me a better career prospect of boost my chances of employment in the future with that course. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided my previously appointed migration agent who did not give me proper guidance for either course selection and enrolments or the risk of evidence of finance for student visa subclass 500. However, instead of questioning me about my eligibility on GTE criteria for subclass 500 visa, the tribunal member rather insisted me on giving them a COE. I was not given a chance to speak further and provide any explanation or make request at the Tribunal. Even at the time of AAT hearing I wasn’t provided the natural justice by the Tribunal member.
2. After the department refused my application I applied for the review of my application at the AAT with the expectation that they would understand and consider my scenario. I was invited to appear in the hearing scheduled on 03 Apr 2019. I attended the hearing and the tribunal asked me to provide evidence of satisfying course enrolment requirement. I gave an explanation about my application at the college for Advanced Diploma of Early Childhood Education, loan and family assets being valued. The Tribunal member showed more concerns over my enrolments in the past and present. The member did not ask me any further questions and did not even give me a chance to speak further and explain about my enrolment application at a college in Perth. As I had already completed my Certificate III and Diploma in Early Childhood Education and Care which I enrolled into, before student visa application, I believe that I preferred to study further at a reputed college in Perth and therefore wanted the officer to grant me an extension to provide a COE. I was completely misguided my many agents and friends that while I was waiting for the AAT hearing invitation, I could not study or remain enrol. The people that I associated with, my previous agent [agent’s name] or friends, informed me that I cannot study in colleges while waiting for AAT decision. The Tribunal member at the AAT hearing did not give me a chance to explain the issue with my previous agent’s guidance and also did not provide procedural fairness in making a decision on my appeal application.
3. The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I have been misguided by my previous agent for enrolment and genuine temporary entrant criteria and hence now suffering due to my previous agent [agent’s name] negligence. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine temporary entrant criteria, I still satisfy the subclause 500.211 & 500.212. I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine student while I was on Student visa and a genuine applicant seeking the approval of my subclass 500 student visa extension. If there is anything else required to support my claims and application, please do contact me.
Noting that the applicant was unrepresented, the Court allowed the applicant the opportunity to elaborate on, and further particularise, her grounds of review. This is the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant her the visa she now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background the applicant was asked to explain what she thought the Tribunal “did wrong”. In effect, the applicant highlighted the poor conduct on the part of her migration agent. The Court will address this issue below.
Turning to the grounds of the application, a substantive part of each of the grounds comprise a lengthy recitation of facts and evidence, or pleas to the Court for assistance.
To the extent that the applicant is referring to the delegate’s decision (see ground 1) the Court does not have jurisdiction to review the delegate’s decision: s.476(2) and (4). Here, the applicant believes she satisfied cl.500.212 and that, as such, the delegate erred. Unfortunately, that is not something the Court can address here. The Court is limited to reviewing the Tribunal’s decision. The Tribunal’s decision superseded the delegate’s decision and was a hearing de-novo: Minister for Immigration & Border Protection v SZVHC [2016] FCAFC 127 at [37]-[38].
From what the Court can discern from the grounds of review as articulated, the applicant has three “complaints” that arguably go to the issue of jurisdictional error. As identified by the Minister, these can be summarised as follows:
a)the applicant was misled or misguided by an agent and friends and the Tribunal did not take this into account (“Argument 1”);
b)the Tribunal did not give that applicant the opportunity to present arguments and evidence (“Argument 2”); and
c)the Tribunal did not allow the applicant an opportunity to provide a confirmation of enrolment (“Argument 3”).
The Court will address each of these arguments in turn.
Argument 1
Ground 1 makes reference to the applicant being misguided by the migration agent who assisted her before the delegate. The applicant also makes reference to friends providing her incorrect advice (see ground 2). In ground 3, the applicant says that the Tribunal ought to have considered the fact that she was “misguided” and that her migration agent had displayed “negligence”.
The Court makes the following observations:
a)this argument fails on a factual level. The Tribunal clearly took into account the applicant’s claims concerning the advice and guidance she had received (at [13]). It cannot be said that the Tribunal failed to consider this evidence. It referred to it in some detail;
b)the crux of the applicant’s complaint is that she was misled by a migration agent who had prepared the visa application and that the agent had neglected to include important documents and advise the applicant that further information had been requested. Critically, the applicant’s visa application indicates that the applicant completed the form herself and without assistance (CB 5). All of the documentation from the Minister’s department, including the request for further information the applicant states her agent did not advise her about, was addressed to the applicant at the email account she provided (CB 25-31). There is simply no evidence before the Court to support the assertion that the applicant was misled by a migration agent;
c)even if the Court accepts that the applicant was misled by her migration agent, this conduct cannot be seen to constitute a fraud on the Tribunal. The applicant was represented by a different migration agent at the Tribunal level (one who the applicant seemed to accept without complaint). To the extent that there was any misguidance or misleading conduct prior to the Tribunal’s decision, this does not amount to a fraud on the Tribunal’s decision-making process: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. The applicant (and her new migration agent) had the opportunity to completely re-submit all documents that the previous agent allegedly failed to submit. Further, any failures on the part of the previous agent could have been “cured” at the Tribunal level;
d)the applicant’s allegation is contradictory. In ground 2 she says that she was told by friends that she could not study or remain enrolled while her application was on review with the Tribunal. Despite this, the Tribunal records that the applicant continued in her studies (for almost six months) (at [12]). Placing this aside, the applicant was represented by a migration agent responsible for advising her of her obligations and brought to the applicant’s attention that she must be enrolled in a course of study (CB 59-66 and 95-98); and
e)while the applicant uses the phrase “misled”, on closer analysis it is clear that this allegation is one that rises no higher than an allegation of incompetence. The applicant herself characterises the agent’s actions as “negligence” (see ground 3 and [13] of the Tribunal’s decision). Negligence, inadvertence and incompetence will not amount to a fraud on the Tribunal: Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501.
Clearly, the applicant feels aggrieved by the advice she received from various sources. Should the applicant feel that her migration agent acted improperly, she is encouraged to contact the Office of the Migration Agents Registration Authority. That Authority has powers to assist the applicant that are not available to this Court. On the material here, however, there is no evidence that the applicant has been the victim of any fraud or that the Tribunal’s decision making processes have been vitiated by the conduct of the applicant’s agents.
Argument 1 has no prospects of success.
Argument 2
Argument 2 alleges that the Tribunal denied the applicant procedural fairness by failing to allow her to present evidence and arguments.
Specifically, the applicant alleges that the Tribunal:
a)did not give her an opportunity to explain why she was a genuine temporary entrant;
b)did not give the applicant “a chance to speak further and explain about my enrolment application at a college in Perth”; and
c)did not give the applicant a chance to explain the issue with “my previous agent’s guidance”.
The Tribunal invited the applicant to a hearing. The Court does not have a transcript of the hearing that took place before the Tribunal. The Court notes, however, that the hearing appeared to last approximately 15 minutes (CB 103-105).
The Court accepts that the Tribunal was largely concerned with the applicant’s ability to meet cl.500.211 of the Regulations and whether she had a current certificate of enrolment. Clause 500.211 of the Regulations is a mandatory criterion that the applicant was required to satisfy. Hence, the fact that the Tribunal focussed on this criterion (and not on the genuine temporary entrant criterion) is of no significance. In effect, the Tribunal did not need to consider or hear the applicant on the genuine temporary entrant criterion once it was satisfied that the applicant did not meet the enrolment criterion. In circumstances where the applicant had conceded that she did not have a current enrolment, there was no error in the Tribunal not giving the applicant an opportunity to discuss the genuine temporary entrant criterion.
To the extent that the applicant is saying that there was an error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, this is not accepted. The determinative issue before the delegate was whether the applicant satisfied the genuine temporary entrant criterion. However, the applicant was on notice that the determinative issue before the Tribunal related to her enrolment status. This was made clear to the applicant in letters from the Tribunal dated 7 February 2019 and 12 March 2019. The applicant was also placed on notice of this issue at the hearing, acknowledged that the determinative issue had changed and was asked to comment on the issue (CB 112 at [11]).
The applicant alleges that she was not provided an opportunity to comment on why she was not enrolled in a course. This is not the case. The Tribunal records the applicant’s response at hearing that she had not enrolled because of the advice she had received that she could not do so (at [13]). While that advice may have been incorrect, the Tribunal does record the applicant’s explanation for why she had not enrolled after December 2017. In any event, the reason why the applicant was not enrolled in a course of study was irrelevant to the Tribunal’s decision: Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149 at [9].
On the materials before the Court, there is nothing that suggests that the applicant offered the Tribunal information about an enrolment at a “college in Perth”. The Court is satisfied that if such evidence was offered, the Tribunal would have referred to it in its reasons. Further, the applicant’s evidence was that she had assumed that she could not enrol in any course while the Tribunal’s review was on foot and that she attempted to do so but was told she could not. This suggests that the applicant had not made any application to enrol in any further study.
Finally, for the reasons already discussed, the Tribunal did consider the applicant’s evidence in relation to her migration agent. The applicant did have an opportunity to raise concerns in relation to her migration agent’s conduct.
The applicant was on notice of the issues relevant to the Tribunal’s review. She was invited to attend a hearing where (as is plain from the Tribunal’s decision) she provided evidence. The applicant had ample opportunity to provide (and did in fact provide) information to the Tribunal prior to the hearing in support of her application.
Argument 2 does not disclose a reasonably arguable case.
Argument 3
Argument 3 relates to the applicant’s assertions that she wished to have more time to provide a confirmation of enrolment.
For the reasons outlined above, the Court is satisfied that the applicant was given a real and meaningful opportunity to provide evidence and arguments, including any request for an adjournment or extension of time.
There is nothing in the materials before the Court to suggest that the applicant requested an extension of time to provide a confirmation of enrolment. In these circumstances, the Tribunal was entitled to determine the application on the evidence and materials before it. That evidence (from the applicant herself) was that she was not enrolled in a course of study. On that basis, a time of decision criterion was not met and the Tribunal was required to affirm the decision.
The Court is not satisfied that the applicant did, in fact, request any extension in which to provide a confirmation of enrolment or that she was inhibited from making any such request.
For finality, the Court notes that to the extent that such a request was made or that the Tribunal ought to have considered adjourning the matter in light of the applicant’s evidence that she had been “misguided”:
a)the applicant was at all times represented by a migration agent before the Tribunal (with whom she appears to have been satisfied);
b)at the time the applicant attended the Tribunal hearing the application had been on foot for over 18 months. Hence, further delay would potentially go against the Tribunal’s objective of providing a fair, just, economical and quick review;
c)the Tribunal’s decision was made 10 days after the applicant’s hearing. Had the applicant wished to do so, she could have provided documents indicating a potential enrolment or, alternatively, consulted her migration agent and asked that the agent request an extension of time; and
d)the applicant’s evidence as recorded did not indicate that any enrolment was forthcoming.
The Court is not satisfied that, if there were a request to extend time, it was unreasonable for the Tribunal to proceed to make a determination on the application.
The Court is not satisfied that Argument 3 presents a reasonably arguable case.
Conclusion
Having considered each of the factors above, in circumstances where the applicant’s grounds of review are not reasonably arguable, the Court is not satisfied that the application should be reinstated.
The application in a case is, accordingly, dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 February 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Appeal
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Jurisdiction
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