Cooray v Minister for Immigration

[2020] FCCA 2749

FEDERAL CIRCUIT COURT OF AUSTRALIA

COORAY & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2749

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 572) visa – show cause hearing – whether the First Applicant’s son be joined as a party to the proceeding – whether the Tribunal acted unreasonably in refusing to adjourn a hearing before it – where the Applicants failed to provide further information to the Tribunal following requests to do so – no denial of procedural fairness – no arguable case – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359B, 395C(2), 360(2)(c), 360(3), 478A, 479A

Migration Regulations 1991, cll.572.222 and 572.223 of sch.2, sch.5A

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: MUTHUTHANTRIGE SURANGI NELUPA COORAY

Second Applicant: PETER SHEHAN PERERA GUNAWARDANE

Third Applicant: ANDREW SKY NIGEL PERERA GUNAWARDANE

Fourth Applicant: S M A P GUNAWARDANE

Fifth Applicant: SHENAYA APRIL WILLOW PERERA GUNAWARDANE

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIR

Second Respondent: ADMINISRATIVE APPEALS TRIBUNAL

File number: MLG 2245 of 2018

Judgment of: Judge Blake

Hearing date: 29 September 2020

Date of Last Submission: 29 September 2020

Delivered at: Melbourne

Delivered on: 29 September 2020

REPRESENTATION

Advocate for the Applicants: In person

Solicitors for the Applicant: None

Solicitor Advocate for the Respondents: Mr Orchard

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Sixth Applicant does not have standing to pursue the application filed on 31 July 2018 (‘application’).

2. Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application be dismissed and such order becomes operative from the date written reasons are published.

3. The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2245 of 2018

MUTHUTHANTRIGE SURANGI NELUPA COORAY

First Applicant

PETER SHEHAN PERERA GUNAWARDANE

Second Applicant

ANDREW SKY NIGEL PERERA GUNAWARDANE

Third Applicant

S M A P GUNAWARDANE

Fourth Applicant

SHENAYA APRIL WILLOW PERERA GUNAWARDANE

Fifth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from the transcript)

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 July 2018.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the First Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (‘visa’). 

2. The background to this matter is important and I propose to set it out in summary form in some detail. The First Applicant is a Sri Lankan national.  She applied for the visa on 17 November 2014. The First Applicant is the primary applicant for the purposes of this application.  The Second Applicant is the First Applicant’s husband, with their two children comprising the third and fourth applicants.  The Second to Fourth Applicants (collectively ‘the secondary applicants’) applied for the visa as members of the First Applicant’s family unit. I will return to the inclusion of the fifth and the sixth applicants later in these reasons. 

3. On 27 January 2015, a delegate of the First Respondent refused to grant the Applicants the visa. The delegate found that the First Applicant did not meet the genuine temporary entrant requirements contained in Clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (‘Regulations’). On this basis, the secondary applicants’ applications were also refused.

4. That refusal by the delegate led to proceedings before the Tribunal and this Court. It is unnecessary to traverse that history in detail. Relevantly, however, on 31 May 2017, the Tribunal remitted the decision back to the delegate with a direction that the First Applicant met the requirements under Clause 572.223(1)(a) of Schedule 2 to the Regulations.

5. On 15 August 2017, the delegate refused to grant the visa. The delegate found that the First Applicant did not meet the financial capacity requirements contained within Schedule 5A to the Regulations.

6. On 4 September 2017, the Applicants applied to the Tribunal for a review of this decision. 

7. By way of a letter on 12 February 2018, the Applicants were invited to attend a hearing before the Tribunal on 13 March 2018 at 9.30 am and were requested to provide further information to the Tribunal with respect to the First Applicant’s present enrolment status (see Court Book 180).  A case note reproduced at page 234 of the Court Book indicates that the First Applicant called the Tribunal at around 8.38 am on 13 March 2018 to advise that the Applicants would not be attending the hearing on that date, due to the entire family ‘suffering gastro’. The First Applicant was advised to put her request in writing. 

8. On 13 March 2018, the Tribunal rescheduled the hearing to 21 March 2018.  In the letter rescheduling the hearing, the Tribunal requested that the First Applicant provide a medical certificate specifying the nature and duration of the illness and the reason for her inability to attend the hearing, and advised that any future adjournment requests would only be considered if they are in writing and accompanied by the appropriate medical reports. The First Applicant subsequently, on

   
   

   13 March 2018, provided a medical certificate stating that she would be unfit for her normal work for the period 13 March to 14 March 2018. 

9. A case note reproduced at page 235 of the Court Book indicates that the First Applicant again called the Tribunal at 8.34am, on 21 March 2018, to advise that she was unwell and unable to attend the hearing that had been rescheduled to that date.  She was advised to put her request in writing and agreed that she would.

10. On 22 March 2018, the First Applicant’s migration agent wrote to the Tribunal, advising the First Applicant could not attend the hearing and annexing a medical certificate stating that the First Applicant would be unfit for her normal work from 21 March 2018 to 21 March 2018 inclusive. 

11. On 23 March 2018, the Tribunal responded to the email from the First Applicant’s migration agent, advising that the medical certificate provided was insufficient and that a medical report was required, which specified ‘the illness, the duration of the illness and why [the First Applicant] was unable to attend the hearing on 21 March 2018’.The Tribunal requested that this information be provided by 5pm on 3 April 2018. No response to this request was received by the Tribunal. 

12. On 6 April 2018, the Tribunal wrote to the Applicants, inviting them to comment on or respond to particular information which could form the reason or part of the reason for affirming the decision under review, by 20 April 2018.  The relevant information was particularised in a letter to the Applicants and concerned information that is contained within the Provider Registration and International Students Management System, or the ‘PRISMS’ system. That information, it was said, disclosed, amongst other things, that the First Applicant was not currently enrolled in a course of study.  As indicated, a response was requested from the Applicants by 20 April 2018. 

13. On 20 April 2018, the First Applicant’s migration agent responded to the Tribunal and sought an extension in which to provide the requested information. The Tribunal granted this request and asked for the information to be provided by 8 May 2018 (see Court Book 202). The Applicants ultimately did not respond to the request for information.

14. Also on 24 April 2018, the Tribunal wrote to the Applicants, advising that the request for an adjournment of the hearing had been refused as a result of the Applicant’s failure to provide a medical report pursuant to the Tribunal's request on 23 March 2018. 

15. On 18 May 2018, the Tribunal again wrote to the Applicants, inviting them to comment on or respond to the information obtained from the PRISMS system, to which I have referred above. The Tribunal additionally requested that the Applicants provide the required information to demonstrate financial capacity in accordance with the criterion contained within Schedule 5A of the Regulations. No response was received to this request.

16. On 30 May 2018, the First Applicant requested that her child, the Fifth Applicant, be joined as an applicant to the Tribunal proceedings.  The Tribunal granted this request.  Relevantly, the Fifth Applicant had been refused a Student (Temporary) (Class TU) (Subclass 572) visa on 10 May 2018, because she was not a member of the family unit or a person who satisfied the criteria for the grant of the visa. 

17. On 4 June 2018, the Tribunal wrote again to the Applicants, asking that they disregard the letter of 18 May 2018, because it did not adequately explain ‘the relevance or consequences of relying on the [PRISMS] information’. The letter described the PRISMS database, explained the information that was relevant to the application for review, because it was required pursuant to Clause 572.222 of the Regulations, and stated that the PRISMS information held by the Tribunal showed that the First Applicant had not been enrolled in an approved course of study since 27 July 2017 and that she did not hold a current confirmation of enrolment certificate. The letter stated that the First Applicant needed to provide a certificate of enrolment in order to meet the requirements of Clause 572.222 of the Regulations. The Tribunal advised it required any comment or response by 18 June 2018. No comment or response was received. Further, no request to extend time was made by the Applicants.

18. Subsequently on 13 July 2018, the Tribunal affirmed the decision of the delegate not to grant the Applicants the visas (‘Decision’). 

19. On 31 July 2018, the First Applicant, on behalf of all of the Applicants, filed the present application for judicial review in this Court. The application lists the First Applicant and the secondary applicants, including the Fifth Applicant. 

20. Orders were subsequently made by Registrar Carlton on 22 January 2020, which provided, among other things, for the filing of material.  The Applicants did not file any amended application or written submissions.  The Minister has filed an outline of submissions.

The Decision of the Tribunal

1. The decision of the Tribunal is dated 2 July 2018 and is contained at Court Book 238.  In the decision, the Tribunal:

   a)outlined the procedural history of the application at paragraphs [1] to [25], which I have attempted to summarise earlier in these reasons;

   b)

   noted that the Tribunal first wrote to the Applicants on

   
   

   12 February 2018 requesting the First Applicant to provide a range of information, including, among other things, a copy of the current certificate of enrolment and documents showing the First Applicant is currently enrolled in the course (see paragraph [7] of its reasons); 

   c)referenced each of the requests for information made by the Tribunal pursuant to section 359A of the Migration Act1958 (‘Act’) on 6 April 2018, 18 May 2018 and 4 June 2018 and noted that substantive responses were not received to any of these requests;

   d)found that as the Applicants had not responded to its requests for information dated 4 June 2018, the Applicants were not entitled to appear before the Tribunal, that it was not able to schedule a further hearing and moved to therefore decide the questions before it on the papers (see paragraphs [26] to [29] of its reasons);

   e)found that the issue before the delegate was whether the Applicants were able to satisfy the Schedule 5A criteria, but that the issue before the Tribunal was whether the First Applicant, among other things, was able to satisfy the enrolment requirements under Clause 572.222 (see paragraph [30] of its reasons);

   f)found that the First Applicant had not given to the Tribunal a certificate of enrolment relating to a course and therefore that the applicant had not satisfied the requirements of Clause 572.222 of the Regulations (see paragraphs [31] to [35] of its reasons);

   g)found that the remaining Applicants, being members of the same family unit as the First Applicant, did not meet the relevant criteria for the visa (see paragraphs [36] to [39] of its reasons);

   h)in light of all of the above, the Tribunal affirmed the decision under review.

The Application for Review

1. The application for review filed on 31 July 2018 (‘Application’) contains what appears to be two grounds of review, in addition to seeking an interlocutory order that the Sixth Applicant be added as a party to the proceedings. The interlocutory order is sought in the following terms:

   ‘Requesting to add the 6^th mentioned person Peter Jordan Sebastian Perera Gunawardane to this matter as he was born after the decision was made.’

2. It is appropriate to deal with the request to add the proposed Sixth Applicant first. Sections 478A and 479A of the Act make it clear that the proposed Sixth Applicant is not a person who may make an application in respect to the present matter or be a party to the review. The Applicants’ admission that he was born after the decision was made makes that clear. He therefore does not have standing to make the application. I will make an order to that effect.

3. Turning then to the grounds of review, there are two grounds of review. 

4. The first ground of review in the Application is:

   ‘1. The Administrative Appeal Tribunal erred in law when in exercising its discretion not to afford an opportunity to substantiate her default by not appearing on 13 March 2018 & 21 March 2018, in that it did not have regard to all relevant circumstances including but not limited to matters identified in the department's policy guidelines and as such the decision of the Administrative Appeal Tribunal was a denial of Procedural fairness and breach of natural justice, relevantly including but not limited to the following;

   a) The purpose of the Applicant's travel to stay in Australia. The Applicant was in Australia primarily for vocational education studies in Australia and that the Applicant had satisfied all the requirements to be granted a visa to study in Australia and had the Applicant been afforded an opportunity to make her argument and present evidence at a hearing before Administrative Appeal Tribunal she would have been successful in her application for the Subclass 572 Vocational Education and training Sector Visa The Application was denied natural justice and procedural fairness.

   b) If reasons for nonappearance is being considered and the reason for nonappearance was that due to her poor health situation and her kids health condition. The applicant provided details of their Medical condition just before the hearings the Administrative Appeals Tribunal on the 13 & 21 March 2018.

   c) The degree of hardship that may be caused to the Applicant had invested a lot of money and time in coming to Australia to further her education . she had not completed her Vocational education in Australia . she was entitled to be granted a visa to complete her education in Australia . By confirming the decision not to grant Subclass 572 Vocational Education and training Sector visa without giving her an opportunity to be heard and be allowed to make her submissions and present her evidence before Administrative Appeal Tribunal which she was entitled to do and which visa would have been granted. the Applicant suffering a grave degree of hardship . The Applicant suffered a grave degree of hardship. The Applicant was denied natural justice and procedural fairness .

   d) The circumstances in which the ground for refusal of the visa namely, different course enrolment in that initially Class TU subclass 573 and now applying for class TU Subclass 572 visa during her stay in Australia . The reason for this decision was well explained as mentioned in the delegate's decision that she has intentions to obtain a good position in the hospitality industry and these courses will increase her ability to get a job.

   The Applicant and her family underwent exceptional circumstances beyond the control of the Applicant. And not withstanding that such circumstances gave rise to a ground to refusal the visa. Had the applicant been given an opportunity to make her arguments and present evidence at a hearing before Administrative Appeal Tribunal she would have submitted her arguments and present evidence and or substantiated compassionate circumstances that outweighed the ground of refusal. The Applicant was denied natural justice and procedural fairness

   The medical certificates submitted for my son's illness Autism disorder and medical certificates of the applicant's daughter's Asthma that were sent to AAT with the application for reinstatement were not considered before the decision has been reached to refuse the applicant's application.’

   (errors in original)

5. The second ground of review in the Application is:

   ‘2. The visa holders past and present behavior towards the department. The applicant had been and was and in a model visa holder. She complied at all times with all her visa conditions that she had. She never breached any conditions of his visa deliberately or by her own acts or omissions. It was unfortunate that she and her faced this health issues which is any event was outweighed by the fact that she was in the breach of education progress. The applicant was denied natural justice and procedural fairness. The Administrative Appeal Tribunal erred in a law when there was evidence before that the applicant cannot be present on the hearing day for valid reasons and as such the applicant was denied natural justice and procedural fairness and as such the Applicants Subclass 572 Vocational Educational and Training visa should have been granted and /or the Applicant put back into the position she should have been, had she attended the hearing on 14 June 2016 and the matter progress its natural course from there on with the Applicant having the opportunity to respond to her non-appearance.’

   (errors in original)

6. The First Applicant appeared at the hearing before me today and spoke on behalf of all of the Applicants.  She relevantly referred to various difficulties she had had in attending hearings and said that she had been denied the chance to tell her story.  She pleaded for one more chance to take the matter back before the Tribunal.  It is difficult not to feel some sympathy for her and her family.

7. I have reviewed carefully the written grounds of review and the material in the Court Book.  The Applicants are unrepresented and I have therefore done my best to understand not only what is set out in the grounds, but also to review the material with an eye to identifying whether any error is present.  

8. One aspect of the grounds of review appears to be that the Applicants are asking the Court to undertake a review of the merits of the matter.  So much is apparent by, for example, the statements in ground 1 that the First Applicant will suffer hardship if she cannot complete her studies in Australia and the statements in ground 2 that the First Applicant has, at all times, been a model visa-holder. It is well established that this Court is not to engage in a review of the merits, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

9. Another aspect to the grounds of review set out above is that they contain within them assertions that are unparticularised.  Grounds that are not particularised and are not more than mere assertions may be dismissed, see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

1. There are then the claims littered throughout the grounds of review that the Applicants were denied procedural fairness or natural justice. I have endeavoured earlier in these reasons to summarise the steps that were taken by the Tribunal throughout the matter.  I rely upon that summary here.  To those matters may be added the following:

   a)the Tribunal granted a postponement of the first hearing scheduled for 13 March 2018. The Tribunal postponed the hearing for a week, notwithstanding that the relevant medical certificate only indicated that the Applicants were unwell for the period of 13 to 14 March 2018.

   b)The Tribunal provided guidance as to the evidence that the Applicants would be required to provide in the event they required an adjournment of the second hearing on 21 March 2018.  Notwithstanding the information and guidance provided, when the request for an adjournment was made, the Applicants did not follow the guidance.

   c)While the Tribunal determined the matter on a basis that was different to that determined by the delegate, this was a matter about which the Applicants were clearly on notice about.  I refer in that respect to each of the three letters of 6 April 2018; 18 May 2018 and 4 June 2018.

   d)The final letter sent by the Tribunal on 4 June 2018 to the Applicants complied with the requirements set out in sections 359A and 359B of the Act.

2. When the above matters are considered in conjunction with the summary I have set out above, in my view, the Applicants were afforded procedural fairness. In particular, they were given every opportunity not only to attend the hearing, but to comment on information that was potentially adverse to them.  They failed to do so.  They cannot be heard now to complain that there has been a denial of procedural fairness. 

3. The other aspect that emerges from the grounds of review and the Applicants' submissions appears to relate to a complaint concerning the Tribunal's refusal to postpone the second hearing.  I understand that complaint to be a complaint that the Tribunal acted unreasonably in refusing to postpone or adjourn the second hearing. 

4. A decision will not be unreasonable where the reasons of the Tribunal demonstrate an evident and intelligible justification for its decision. In this case, a review of the Tribunal's reasons discloses an evident and intelligible justification for its decision.  Among other things:

   a)the Tribunal rescheduled the first hearing at the request of the First Applicant.  It did so and also indicated to the Applicants what was required in order to obtain any further adjournment. 

   b)Notwithstanding the guidance provided by the Tribunal, the Applicants did not seek to adjourn the second hearing in the manner notified to her by the Tribunal.  That is, the Applicants did not provide the medical reports and information required by the Tribunal of which they were aware.

5. It was therefore open to the Tribunal and not unreasonable for the Tribunal to refuse to postpone or adjourn the second hearing scheduled for 21 March 2018.

6. To the extent that any complaint is made that the Tribunal failed to grant a hearing prior to issuing its reasons, that, in my view, is a complaint that cannot be sustained. The letter of 4 June 2018 was, as I have indicated, a valid letter that complies with the relevant sections of the Act. The failure by the Applicants to respond to the letter from the Tribunal of 4 June 2018 produced the result that the Applicants forfeited any outstanding entitlement they may have had to appear before the Tribunal (see sections 395C(2), 360(2)(c) and 360(3) of the Act).

7. The consequence of all of the above is that the Tribunal found that the First Applicant did not meet the mandatory enrolment criteria set out in Clause 572.222 of the Regulations. Having reached that conclusion, the Tribunal did not have any discretion in the matter. It was required to affirm the decision under review.

8. In light of the above, I am of the view that the application before the Court does not disclose an arguable case for the relief claimed.  The application ought to be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 6 October 2020