CHISHIMBA v Minister for Immigration
[2018] FCCA 1208
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHISHIMBA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1208 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – Student Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: AZAEY v Minister For Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193. |
| Applicant: | FRANK CHISHIMBA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 649 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The applicant’s originating application filed 27 November 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 649 of 2017
| FRANK CHISHIMBA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed in this Court on 27 November 2017 the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the “AAT”), dated 6 November 2017.
The AAT affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”) made on 21 October 2015 to refuse to grant a Student (Temporary) (Class TU) visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”). That student visa was applied for on 2 September 2015.
The applicant now appears in this Court seeking judicial review of the AAT’s decision.
As a preliminary matter, the day before this hearing, the Court received a request for an adjournment of these proceedings on the basis of a medical certificate which indicated that the applicant was suffering from stress. In court, the applicant listened to counsel for the Minister in relation to why the Minister opposed that adjournment request. Counsel for the Minister indicated that the letter that had been provided by the medical doctor was insufficient as it did not detail why the applicant was unable to attend and present evidence at today’s hearing.
The applicant, after hearing the Minister’s submissions in relation to his adjournment request, indicated to the Court and to counsel for the Minister that he would proceed and withdrew his request for an adjournment.
The applicant was self-represented before this Court. The applicant did not have the assistance of a translator. Nor had one been requested. The Court is of the view that the applicant was fluent in English and did not require the assistance of an interpreter.
Synopsis
What the Court needs to consider is whether or not the AAT engaged in jurisdictional error (discussed further below).
For the reasons that follow, this application for judicial review fails and is, accordingly, dismissed. No jurisdictional error occurred on the part of the AAT.
Factual Background
The Court has reviewed the factual material provided by the Minister and adopts the facts as outlined at paragraphs 3 − 9 in his written submissions dated 9 April 2018 as the procedural and factual background to these proceedings. These background facts are not in dispute and are, relevantly, as follows:
3.The applicant is a citizen of Zambia: Court Book (“CB”) 2. He first arrived in Australia on 13 March 2007 and studied a diploma of hotel management: CB 25 and 46. He went on to study a bachelor of business and a mater (sic) of banking, and was granted a student visa on 31 August 2012 and a temporary graduate visa on 6 March 2014: CB 12, 26 and 46. On 2 September 2015, he applied for the Visa on the basis he had enrolled in a Certificate of International Trade and a Diploma of International Business at Kingston International College: CB 1-22.
4.On 21 October 2015, the delegate refused to grant the Visa because the applicant did not satisfy cl 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (“Regulations”): CB 62-65. In reaching that conclusion the delegate considered the factors set out in Ministerial Direction 53: CB 63.
5.On 9 November 2015, the applicant applied to the Tribunal for review: CB 66-76.
6.On 11 October 2017, the Tribunal wrote to the applicant inviting him to attend a hearing on 6 November 2017 to give evidence and present arguments: CB 80-83. The Tribunal requested that the applicant provide (CB 82):
6.1all documents to be relied on to establish that he met the criteria for the Visa;
6.2 a copy of his current Certificate of Enrolment;
6.3documents evidencing his current enrolment or offer of enrolment in a registered course;
6.4documents relating to any past studies in Australia including attendance certificates, academic transcripts, and certificates of completion, and documents evidencing work relating to past or future study in Australia; and
6.5any explanation supported by evidence of any gaps in his enrolment.
7.The Tribunal provided a copy of Direction 53 to the applicant and informed him it would assess whether he intended to stay in Australia temporarily: CB 82.
8.On 6 November 2017, the applicant appeared by video before the Tribunal: CB 84 and 98, [5]. The applicant provided some additional evidence, but did not provide a current confirmation of enrolment: CB 87-94. The Tribunal raised with the applicant that he was neither enrolled nor had any current offer of enrolment and he confirmed that was the case: CB 98, [6] and [10].
9.On the same day the Tribunal affirmed the decision under review: CB 97 and 99, [13].
The AAT’s Decision
The written reasons for the AAT’s decision were in evidence before this Court in a Court Book numbering 99 pages. That Court Book included all of the evidence that was relied upon by the Tribunal in assessing whether the applicant should be granted a student visa.
The AAT’s reasons provide as follows:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2015 to refuse to grant the applicant a student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (the “Act”).
2.The applicant applied for the visa on 2 September 2015 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).
3.The delegate in this case refused to grant the visas on the basis that the visa applicant (the applicant) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student.
4.On 11 October 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 6 November 2017 in Perth. The applicant was invited to provide evidence, such as a copy of a current certificate of enrolment as required for the grant of a student visa and/or documents to demonstrate he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the student visa. He was also invited to provide a written statement as to whether he is a genuine temporary entrant by referring to Direction 53 which was attached. He provided evidence of courses he successfully completed in the past and a bank statement.
5.The applicant appeared before the Tribunal by video on 6 November 2017 to give evidence and present arguments.
6.The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicate he is not currently enrolled in a course. It also noted that these records indicate he ceased being enrolled in October 2015. It raised with them the relevance of this matter and that it may lead it to find he does not meet the enrolment criteria and that it may lead it to find he is not entitled to the grant of a student visa. The applicant confirmed he was not enrolled or under a current offer of enrolment. He said he thought he could not be enrolled as the Department refused his student visa. The Tribunal asked whether he had approached the Department or anyone else to clarify the issue and he said he had not. It raised with him that it may expect a genuine student who was in Australia to study would have clarified the issue.
7.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
8.The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
9.With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.
10.Information from the Department’s electronic (PRISMS) records before the Tribunal indicates that the applicant is not currently enrolled in a course of study and he has not provided any evidence that he is subject to a current offer of enrolment. The applicant also confirmed he is not enrolled. The evidence indicates that his enrolment ceased in October 2015. The Tribunal has considered the applicant’s response as to why he is not enrolled but is of the view there is no evidence he is currently enrolled or under an offer of enrolment. On that basis, the Tribunal finds that the applicant does not satisfy cl.572.222 of Schedule 2 to the Regulations. Additionally, there is no evidence before the Tribunal that the first named applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
11.Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.
12.For these reasons, the decision under review must be affirmed.
The Applicant’s Application for Judicial Review in This Court
In his judicial review application, the applicant relies on two grounds of review:
a)Non-genuine student; and
b)Beyond reasonable time.
The applicant seeks an order from this Court that the AAT’s decision be quashed.
In addition to the judicial review application form the applicant also provided a written statement which, in effect, constitutes particulars of the grounds articulated on his application for judicial review. The written statement provides as follows:
Education history:
Your Honour, I was born in Zambia on 24th March 1977. I did my primary and secondary school education in Zambia from 1984 to 1995 and part of my tertiary education as well. Below is my education school history in Zambia;
· 1984 - 1990 Primary Certificate at Mulenga Mapesa Primary School
· 1991 - 1995 General Education Certificate at Mungwi Secondary Technical School
· 1998 - 1999 worked for Beanal Ltd as Stores Officer
· 2000 - 2001 Certificate in International Tourism at Livingstone College
· 2002 -2007 Worked as a public servant in the Department of Works and Supply for the Government of the Republic of Zambia.
Your honour, after working for 2 years and 5 years for Beanal Ltd and Government respectively, I decided that there was a need for me to further my studies - hence my coming to Australia. Whilst here, I have successfully completed all the courses I enrolled in.
I arrived in Australia on the 13th of March 2007. Below is my education timeline.
· 2007 - 2009 Diploma of Business -Perth Institute of Business and Technology
· 2009 - 2011 Bachelor of Business ( Accounting and Hospitality) - Edith Cowan University
· 2011 - 2013 Graduate Diploma in Business (Finance) - Edith Cowan University
Your honour, after completing my graduate program, I applied for a 485 visa in October 2013 and in March 2014 I was granted the visa with duration of 18 months. I started looking for work in order for me to gain the necessary experience needed but unfortunately I was not able to find any. As I continued to look for work experience, most of the responses were either I was over qualified or others need actual experience. Your Honour, it is at this moment when I decided to go back to college to go and study International Trade at Kingston International College. The College accepted me and I got enrolled. The course was scheduled to commence on 28th September 2015 and subsequently, I applied for 572 visas.
What happened?
Your Honour, when the refusal notice came from the Immigration on the 21st October 2015, I was very shocked to hear that I was being refused a visa because I was not a genuine student and that I failed to satisfy clause 572.223.This didn't feel quite right for me in sense that ever since I have been here, I have abided by the regulations and conditions that govern the temporary visa for a student studying in Australia. This is evidenced by my education history above. Your Honour, the question I have is that how can I not be a genuine student when I have been able to finish the courses I ever enrolled? Your honour because I was not satisfied with decision made by the Immigration case officer, I appealed the Immigration decision to the Administrative Appeals Tribunal (AAT). When I appealed my case to AAT for review, I was with view that the case will not take long and that I will have the answer within the reasonable time. But it was not the case. I had to wait for 21 months for decision from the Tribunal. I went to attend the Interview for the tribunal on the 6th November 2017 and my case was affirmed.
Your Honour, it is my understanding that someone who is not genuine, will not be able to even want to go back to school. When I applied for visa, I explained why I was going to study the international trade course. All the courses which I have done, they are all interrelated, there business courses.
Your Honour, my appeal to this court arises from the conviction that I am a genuine student who has paid for all courses and that I am more than able to continue doing the same given another opportunity.
As correctly identified by the Minister, to be successful the applicant must demonstrate to this Court that the AAT’s decision was affected by jurisdictional error.
The Court notes that that applicant, who appeared by telephone, was not legally represented. To ensure that the applicant understood what jurisdictional error means, the likely grounds of jurisdictional error in migration proceedings were outlined for the applicant, as follows.
The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (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 and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
Decision
The applicant seeks an order in this Court for the issue of constitutional writs. In order for these writs to be issued, the applicant is to demonstrate that the AAT has fallen into jurisdictional error in at least one of the ways outlined above.
It is the Court’s opinion that the applicant has failed to show that the AAT fell into jurisdictional error.
On one level it can be argued that what the applicant is asking the Court to undertake is a merits review of his case before the AAT in the hope that the Court will come to a different conclusion. In effect the applicant would like the Court to review the evidence that was before the AAT and ultimately give him the visa that he seeks. It was explained to the applicant that this is what is referred to as a merits review. It is not a judicial review. The Court cannot undertake a review of that sort. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shian Liang & Ors (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In relation to jurisdictional error, the Minister argued as follows in his written submissions:
14.The grounds of review do not allege any jurisdictional error. The Statement set outs the applicant's work and visa history in Zambia and Australia, and explains the background to the delegate and Tribunal decisions. The applicant essentially complains that he disagreed with the delegate's decision that he was not a genuine student, and that the Tribunal decision took too long.
15.The Court has no jurisdiction to review the delegate's decision as it is a primary decision pursuant to s 476 of the Act.
16.The Tribunal did not consider, and was not required to consider whether the applicant was a genuine temporary entrant. This was because, as stated at [10] and [11] above, the Tribunal found the applicant could not satisfy a primary criterion for the grant of a Student Visa. The applicant conceded he did not have an enrolment or offer of enrolment. The only decision available to the Tribunal at the time was to affirm the delegate's decision: Mutoya v Minister for Immigration and Border Protection & Anor [2017] FCCA 2033 (“Mutoya”) at [35] and [37] per Judge Lucev.
17.The applicant’s complaint that the Tribunal took too long to reach its decision also fails to establish jurisdictional error. Whilst there was a period of two years between the date of application to the Tribunal and the decision, the Tribunal is under no obligation to make its decision within a certain timeframe. Section 353(1) of the Act requires the Tribunal to provide a mechanism for review that is “fair, just, economical, informal and quick”, however, that provision is aspirational and there is no jurisdictional error even where a court concludes the Tribunal failed to meet that objective: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J, [108]-[109] per Gummow J and [176]- [179] per Callinan J.
18.The Tribunal invited the applicant to appear before it and give evidence and present arguments, which he did. The Tribunal expressly notified the applicant of the dispositive issues on review: SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33] and [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The applicant was given a real and meaningful opportunity to appear before the Tribunal pursuant to s 360(1) of the Act.
19.The application fails to establish jurisdictional error and must be dismissed.
In relation to the above, this Court asked the applicant to explain what he believes the AAT “did wrong”. In effect, what the applicant stated is that he was of the view that the purpose of the AAT hearing was to look at whether he had, in fact, taken courses and that the AAT would examine the courses he had taken in the past. Further, he believes that he was a genuine student and the issue of whether he was a genuine student was the only issue that would be looked at by the Tribunal.
Having reviewed the evidence before it, the Court agrees with the contentions made by the Minister. It is clear on the evidence before the Court that the applicant was asked to provide records providing his current or future courses of study. It is clear that this was an issue before the Tribunal. It is also clear on the evidence before the Tribunal that the applicant was not enrolled in a course of study.
The Court sympathises with the frustrations articulated by the applicant in relation to the quite extraordinary length of time it took the AAT to make a decision in relation to his visa application. The Court notes, in particular, that the application for merits review in the AAT was filed on 9 November 2015. The Tribunal took almost two years to provide the applicant with a hearing. Quite a lot occurred during that period. This was undoubtedly frustrating for the applicant in circumstances where he was awaiting the AAT’s decision. Despite this, for the reasons correctly outlined by Counsel for the Minister, this lengthy delay does not in any way constitute jurisdictional error.
This then leaves the Court in a position where it must review the procedures and reasoning of the AAT to determine if jurisdictional error occurred of the sort outlined above.
Unfortunately, for the applicant in these proceedings, it cannot be said on the evidence that the reasons advanced by the AAT lack an evident and intelligible justification or that the approach taken was in any way unfair or biased, based on irrelevant considerations or evidence of a failure to take into account relevant information. Nor can it be said at a broad level that the reasons provided are illogical or irrational.
The decision to affirm the delegate’s decision was perfectly sound and entirely reasonable on the evidence before the Tribunal. In effect, once it was clear to the AAT that there was no evidence before it that the applicant was enrolled in a course of study, as that term is defined legislatively for the purposes of a hearing of that sort, that was in effect the end of the analysis for the AAT. The AAT had no discretion and was left in a position where it had no choice but to deny the applicant a visa.
The AAT looked at the evidence it had before it. It seems to have done so exhaustively. A complete legislative and evidentiary analysis was provided. The analysis, which was sound, showed that, on the evidence, the applicant was not a student for migration purposes as he was not at the date of the hearing enrolled in a course of study.
The Court is also satisfied that the applicant was given every opportunity to present evidence to the AAT that would dispute that finding. He was specifically asked whether he was enrolled in a course of study. He said that he was not and he was unable to provide any written evidence which indicated that he was.
Overall, the AAT carefully considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicant. Its analysis was unimpeachable and the procedures used appropriate and fair.
No jurisdictional error occurred here.
The applicant’s application for judicial review is dismissed.
The applicant must pay the Minister’s costs fixed in the sum of $5,500.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 15 May 2018
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