Cai v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 483

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Cai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 483    

File number(s):

SYG 1547 of 2020

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

9 June 2023 

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Student visa – procedural fairness – whether jurisdictional error is made out – the application is dismissed.

Legislation:

 Migration Act 1958 (Cth) s 353, 357A

Migration Regulations 1994 (Cth) cl 500.211

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

DPI17 v Minister for Home Affairs [2019] FCAFC 43

Dranichnikov v Minister for Immigration and Indigenous Affairs (2003) 197 ALR 389

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Multicultural Affairs v Eshtu (1999) 197 CLR   

Division:

Division 2 General Federal Law

Number of paragraphs:

34

Date of last submission/s:

5 June 2023

Date of hearing:

5 June 2023

Place:

Parramatta

Solicitor for the Applicants:

Mr S. Hodges, Hodges Legal

Solicitor for the Respondents:

Ms G. Gutmann, Minter Ellison Lawyers

ORDERS

SYG 1547 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS NANA CAI

First Applicant

MR SINFENG SU

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE D HUMPHREYS
DATE OF ORDER:	9 June 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The First Applicant is to pay the First Respondents costs, fixed in the sum of $7,000.00.

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 JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. The first applicant is a 34 year old female citizen of the People’s Republic of China.  On 31 July 2018, the first applicant applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa.  The second applicant is her spouse, and was included in the first applicant’s application for a visa as her dependent.

2. At the time of the visa application, the applicant claims that she wished to complete two courses of study which would take 14 months: first, a five-week English course and secondly, a one-year Advanced Diploma of Leadership and Management, both at the Wentworth Institute.

3. On 22 August 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their visas.  The delegate was not satisfied that the first applicant was genuinely intending to stay in Australia temporarily for the purpose of the Student visa.

4. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).  In a decision dated 24 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants their visas.

5. The applicants now seek judicial review of the Tribunal decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

6. The Tribunal decision is relatively short.  Prior to the hearing taking place, the first applicant filed with the Tribunal a completed “Request for Student visa information”, an updated Genuine Temporary Entrant (“GTE”) statement, a confirmation of health cover and Confirmation of Enrolment (“COE”) issued to the first applicant from the La Lingua language school, for an English course a start date of 22 March 2020 with the course to end on 22 May 2020.

7. At paragraph 6 of its decision, The Tribunal noted that in the request for Student visa information, in the section heading “hearing information”, the applicant consented to the Tribunal deciding the review without a hearing.

8. The Tribunal determined that the primary applicant did not meet cl 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”), as at the time of the decision being, 24 May 2020. That is, there was no evidence before the Tribunal that the applicant was enrolled in an approved course of study. 

9. The Tribunal noted that the applicants had not filed any further evidence or an updated COE, extending the primary applicant’s current course beyond the end date of 22 May 2020.  The completed request for student visa information did not list any future enrolment. 

10. The Tribunal noted that the primary applicant raised the prospect of studying a Master of Business Administration in her updated GTE statement but that no evidence of further study was provided. 

11. As the applicant was not currently enrolled in an approved course of study, as at the date of the decision, Tribunal determined to affirm the decision under review.

    GROUNDS OF JUDICIAL REVIEW

12. Leave was sought, and granted, for the applicant to rely upon an amended grounds of judicial review attached as annexed to submissions filed with the Court on 27 October 2020.  The grounds are as follows:

    Ground One:

    The Tribunal committed legal error acted legally unreasonably in the manner in which it conducted the review, causing significant unfairness and injustice to the applicants.

    Particulars:

    a.The Minister's delegate refused the visa on the basis that the applicants did not meet cl 500.212 of Schedule 2 of the Migration Regulations.

    b.        The minister's decision to refuse to grant a visa was dated 22 August 2018.

    c.At the time of the Minister's delegate's decision, the primary applicant was enrolled in a General English Course and an Advanced Diploma in Leadership and Management course.

    d.The applicants lodged an application for review to the Tribunal, apparently within time and so in about September 2018.

    e.On 18 March 2020 the Tribunal wrote to the applicants inviting them "to provide further information to the Tribunal including information as to the primary applicant's enrolment and being a genuine applicant to stay as a student."

    f.The applicants filed information with the Tribunal on 31 March 2020, including proof of enrolment in a course identified as Real World General English 4 Skills at La Lingua Language School that ended on 22 May 2020, a Friday.

    g.        The applicants consented to a hearing in their absence;

    h.The Tribunal's decision is dated 24 May 2020, a Sunday and two days after the primary applicant's course finished on 22 May 2020.

    The delay by the Tribunal in makings its decision by waiting until the applicant's enrolment expired was capricious.

    No notice was given to the applicant's that:

    i.        The review would be deferred until after the course was complete;

    ii.That the issue of enrolment, other than the one completed on 22 May 2020 was likely to be relevant;

    iii.The above in circumstances where the primary applicant made it quite clear that the course completed on 22 May 2020 (English) was intended to further her ability to engage in further study (possibly an MBA).

    k.The Tribunal thereby failed to meet its obligations to act according to substantial justice (s353 of the Act) and to act in a way that is fair and just (s 357(3)).

    THE APPLICANT’S SUBMISSIONS

13. On behalf the applicants, it was submitted that legal unreasonableness in the manner of making a decision can create reviewable error even where procedural fairness obligations have otherwise been met or excluded: (see; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [18] – [20] and [29]).

14. The legal unreasonableness in the current case can be framed in two ways.  The first way, is the process of making the decision was manifestly unjust, as the Tribunal should have alerted the applicant to the fact that it proposed to rely upon a completely different basis to the delegate and, it should not have waited for the enrolment in the English course to expire.  This is a failure of the Tribunal to meet its obligations to act according to substantial justice:

    
    

    (see; s 353 of the Act) and to act in a way that is fair and just: (see; s 357A (3) of the Act).

15. The second way of arguing legal unreasonableness is that the Tribunal failed to make its decision within a reasonable period of time.  In not making a decision until the enrolment had expired, the Tribunal acted capriciously. It was submitted that it was important to take into account the likely prejudicial impact upon interest of applicants of any delay in the making of a judgement.

16. During oral submissions, the legal representative for the applicant drew the Courts attention to DPI17 v Minister for Home Affairs [2019] FCAFC 43 (“DPI17”) at [45] and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) at [67] . Both of these cases involved the Immigration Assessment Authority deciding a matter on a different basis as the delegate. In each case it was found to have been legally unreasonable to have not sought further information from the applicant.

17. The applicant made a final submission couched in the terms as follows “there remains the issue of materiality”. This submission was not further developed.

    THE FIRST RESPONDENT’S SUBMISSIONS

18. The first respondent noted that the application for review by the Tribunal was lodged on 7 September 2018.  It was not until 18 March 2020 that the Tribunal wrote to the first applicant and invited her to provide further information.  It was submitted that at this point of time, the applicants had benefited from the delay in processing the first applicant’s application for review.

19. It was submitted that the Tribunal’s letter of 18 March 2020 made clear that one of the requirements for the grant of the visa that the first applicant sought, was that she had to be enrolled in an approved course of study.  The first applicant provided information that she had completed her General English course in August 2018. Further, the first applicant had not completed her Advanced Diploma of Leadership and Management that was due to end in August 2019.  The first applicant only identified that she was enrolled in a second, very short General English course, due to end of May 2020.  The first applicant stated that her future plan was further study in a course of Business Administration.

20. At all times, the first applicant was represented by a Migration Agent and was aware of her evidence that her current enrolment would end on 22 May 2020. She would have been aware that the Tribunal’s decision could take many months, given at that point of time was well over 1½ years since she had applied to the Tribunal. The first applicant was aware that of the time of decision criteria referable to the grant of the visa was that she had to be currently enrolled in an approved course of study.

21. As it was a de novo hearing, it was open to the Tribunal to decide the matter on a different basis to the delegate.  There was no dispute that, as at the time the decision, being

    
    

    24 May 2020, did not meet did not meet the visa requirements, in that, she was not enrolled in an approved course of study.

22. The reliance on DPI17 and CRY16 is misplaced, as there was no new information that was necessary to seek from the first applicant in order to make the decision the Tribunal arrived at.

23. In terms of the submission that the decision not to make a decision until 24 May 2020, is capricious. No explanation has been given, noting that the applicant was represented by migration agent before the Tribunal, and no evidence of any enrolment beyond May 2020 was provided.

24. It was submitted that on the available evidence before the Court, the first applicant knew she was required to provide further evidence to the Tribunal and deliberately decided not to do so.  The first applicant had completed the study in which she was enrolled and there is no evidence of any other study that she had been prevented from undertaking.

25. As to the submission that there remains the issue of materiality, this has not been developed further and is incapable of response.

    CONSIDERATION

26. The function of the Tribunal is to respond to the case that the applicant advances:

    
    

    (see;  Dranichnikov v Minister for Immigration and Indigenous Affairs (2003) 197 ALR 389 at [405]). The onus of proof is on the applicant to show that they meet the criteria for the grant of the visa sought: (see; Minister for Immigration and Multicultural Affairs v Eshtu (1999) 197 CLR at [195]; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

27. Clause 500.211 of the Regulations, relevantly requires that, as at the time of the decision the primary applicant must be enrolled in an approved course of study.  There was no material before the Tribunal that, as at the time of the decision, being 24 May 2020, the first applicant was so enrolled.  The only evidence before the Tribunal was that by that stage, she had completed a basic English course and had aspirations for further study.

28. It was submitted by the first applicant that the Tribunal was “capricious” in not making a decision until 24 May 2020.  Capricious is defined as “changing mood or behaviour suddenly and unexpectedly” (Cambridge Dictionary).  Whilst it is regrettable as regards to the length of time it took for the Tribunal to commence work on conducting the review, by March 2020, the applicant was clearly on notice as to the requirements for the grant of the Visa, including that she possessed a current COE.

29. The fact that it then took some time for the Tribunal to actually conduct the review, noting that the applicant consented to the matter being considered in her absence, is not of itself evidence as to the Tribunal being capricious.  There is no evidence that the Tribunal deliberately went about making its decision at a time beyond the expiration of the applicant’s then current COE.  Such a serious allegation would require clear evidence. The fact that the matter was decided on a Sunday, two days after the COE relied upon by the applicant expired, is not to the Courts mind, a sufficient to ground jurisdictional error based on legal unreasonableness

30. At all times the applicant was represented by migration agent.  The need for a current COE in seeking a review of a decision relating to the refusal of a Student visa, is a matter that was explicitly pointed out to the applicant in the correspondence sent to her in March by the Tribunal.

31. CRY16 involved the Authority determining a Protection visa application based on relocation within the country of origin. DPI17 involved again a Protection visa application where a delegate had indicated they placed little weight on inconsistencies in the versions of events given the applicant. The Authority determined that was a significant matter and did not seek further information from the applicant. The Court does not accept that there are parallels between those two cases and the current one. In the current case no new information was needed.

32. Whilst the application of cl 500.212 of the Regulations may be considered harsh, the Court does not consider that the Tribunal acted in an unreasonable manner such that it involves jurisdictional error.  It is not for the Tribunal to point out the difficulties in an applicant’s case so as to allow them to re-present their case in the best possible matter.  As indicated above, the onus of proof is on the applicant to show that they meet each of the relevant criteria for the grant of the visa sought. The first applicant clearly did not in this case.  No jurisdictional error has been made out.  The application must be dismissed in respect of the first applicant.

33. As the second applicant relies solely upon the first applicant being granted a visa, his case must also fail.

    CONCLUSION

34. Accordingly, the application is dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       9 June 2023