Da Silva Ii v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 238
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Da Silva II v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 238
File number(s): SYG 1239 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal - Student (Temporary) (Class TU) visa - whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – legal unreasonableness – temporal restriction – the application is dismissed. Legislation:
Migration Act 1958 (Cth) ss 477(2), 359(2), 360(1)(2)(b)
Migration Regulations 1994 (Cth) cls 500.211(a), 500.212
Cases cited:
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZFDE v Minister for Immigration and Border Protection and Citizenship (2007) 232 CLR 189
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 9
SZSDZ v Minister for Immigration and Citizenship (2012) 135 ALD 17
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 7 March 2024 Date of hearing: 7 March 2024 Place: Parramatta Counsel for the Applicants: Mr Rebetzke Solicitor for the Applicants: Taylor Rose Solicitor for the Respondents: Clayton Utz ORDERS
SYG 1239 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TUPINAMBA FERREIRA DA SILVA II
First Applicant
LENA CARVALHO RIBEIRO
Second Applicant
DAVI RIBEIRO SILVA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.Leave is granted to file the application out of time pursuant to s 477(2) of the Migration Act 1958 ( Cth).
2.The application is dismissed.
3.The applicant is to pay the first respondent’s legal costs fixed in the sum of $8371.30.
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
The primary applicant (the applicant) is a citizen of Brazil. The secondary applicants are his wife and son and were included in the application as part of a family unit. On 30 April 2018, the applicant applied for a Student (Temporary) (Class TU) visa (“the visa”) .
On 5 June 2018, a delegate of the Minister refused to grant the applicant his visa on the basis that the applicant did not meet the requirements of cl 500.212 of the Migration Regulations 1994( Cth) (“the Regulations”). The delegate was not satisfied that the applicant met the temporary entrant requirements, noting the first applicant had arrived in Australia in 2010 and had not left Australia since his arrival. The delegate determined the applicants were using the Student visa program to secure ongoing residence in Australia.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 9 April 2020, the Tribunal affirmed the decision to refuse to grant the applicant his visa. The Tribunal was not satisfied that, at the time of the Tribunal’s decision, the applicant had a current Confirmation of Enrolment (“COE”) as required by cl 500.211 of the Regulations.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision is relatively short. After setting out the background of the matter the Tribunal noted at [4]-[5] that it wrote to the applicant on 19 November 2019 requesting further information in writing. That request for information included the requirement to provide that information, pursuant to s 359(2) of the Migration Act 1958 (“the Act”) prior to 3 December 2019.
The applicant provided the information sought prior to 3 December 2019. This included a current COE for an Advanced Diploma of Program management valid until 5 April 2020. Further, the applicant consented to the Tribunal determining the application without a hearing based on the papers before it (CB 68). The Court notes that information provided to the applicant regarding a matter being heard without a hearing included the following:
If you consent to us deciding the review without a hearing:
You will not be invited to appear at the hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker. (Emphasis as contained in the original document).
The Tribunal considered the matter on 9 April 2020, some 4 days after the COE provided had expired. The Tribunal did not seek any further information from the applicants pursuant to s 359 of the Act. The Tribunal noted that cl 500.211 required the applicant be enrolled, as at the time of its decision, in a course of study. The information provided by the applicant indicated that his Advanced Diploma of program management expired on 5 April 2020. As the applicant was not enrolled in a registered course of study as at the date of the decision (9 April 2020) the requirements for the visa sought were not met. Accordingly, the Tribunal affirmed the decision not to grant the first applicant his visa.
Given that the first applicant did not meet the criteria for the grant of a visa, the secondary applicants were unable to satisfy the secondary criteria and were the decision under review as it related to them was also affirmed.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an initiating application filed with the Court on 22 May 2020, some 8 days outside the time limit prescribed by s 477(2) of the Act. They are as follows:
(1)The decision was affected by jurisdictional error by reason of the Tribunal’s failure to exercise, or to consider the exercise of, within the bounds of reasonableness, the power conferred on it by section 359 of the Migration Act 1958 ( Cth) to invite the applicants to give information, namely whether the primary applicant continued to be enrolled in a course of study after 05 April 2020.
(2)The decision was affected by jurisdictional error by reason of the failure of the tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review as required by section 360 of the Migration Act 1958 ( Cth) in the absence of a continuing, valid, consent from the applicants to decide the review open quote on the papers” on 09 April 2020.
(3)The decision was affected by jurisdictional error by misconstruing or misapplying the phrase “is involved in a course of study” in clause 500.211(a) of Schedule 2 of the Migration Regulations 1994(Cth).
PRELIMINARY QUESTION – EXTENSION OF TIME
As noted above, the initiating application was filed eight days outside the prescribed 35-day time period prescribed by s 477(2) of the Act. The applicant relied on the following grounds for an extension of time:
(1)The applicants were incorrectly advised by their previous migration agent and further that the confusion of the notification date and the decision date were different, the earlier was dated 14 April 2020 and the letter dated 9 April 2020. Accordingly, the notification was extended almost a week after the decision date, however the applicant’s previous migration agent provided incorrect advice in respect to their cause of action.
(2)The above-mentioned difficulties encountered were beyond the applicants’ control.
(3)The respondents are not prejudiced by this delay as the applicants have reasonable grounds for appeal.
(4)The applicants ground for appeal outweighs the issues of time because the second respondent failed to take into account the contextual issues of my matter pursuant to the Migration Act 1958.
Section 477(2) of the Act provides that the Court may extend the time for the filing of an application if satisfied that it is “necessary in the interests of the administration of justice” to do so. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)prejudice to the respondent due to the delay; and
(d)the merits of the proposed application.
The Minister properly conceded that the delay of eight days is not lengthy. The Minister accepts that no specific identifiable prejudice would be suffered if the applicants were granted an extension of time. The Minister notes however that it is well established that mere absence of prejudice to respondent is insufficient to justify an extension of time being granted; (see: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]).
The Minister submitted that the explanation for the delay, being the applicant was provided with incorrect advice, is unsatisfactory. The applicant deposes to learning the correct filing deadline “through (his) current legal representatives sometime on 13 and 14 May 2020”, being before the filing deadline. It is not apparent why the application was thus not filed until 22 May 2020. In any event, claimed ignorance of Court processes or time limits (without more) is not a satisfactory explanation for delay in seeking review;(see: SZSDZ v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38]).
Moreover, the Minister submits that the substantive application is lacking in merit such that it is not in the interests of justice to grant the extension of time (noting that “it will seldom be in the interests of the administration of justice to grant leave where an appeal has little to no prospects of success;(see: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] – [63]).
In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 (“DHX17”) at [45], [76], the Full Court of the Federal Court held that the appropriate approach to the exercise of the power in s 477(2) requires the Court to consider, at a “reasonably impressionistic level” by reference only to the grounds “on their face”, whether the proposed application is “plainly hopeless”, “reasonably (or sufficiently) arguable”, or has “reasonable prospects of success”.
If the Court goes beyond this “threshold assessment of merit” and undertakes a “substantive analysis of the merits” of the proposed application, “as if they were being determined at a hearing”, it will misconceive its function of power and act in excess of its jurisdiction; (see; DHX17 at [44], [68], [76]).
The applicant submits that an adequate explanation for the delay has been provided. They can be no prejudice to the Minister and extending the time limit by eight days. The subject matter of the proposed application is of great significance to the applicants being a continued right to reside in Australia as a family. This submitted the merits of the proposed application for judicial review are strong.
In terms of the matters required to be considered, firstly, the Court is satisfied that the delay in the filing of the application is not significant. This weighs in favour of an extension of time being granted.
In terms of the explanation for the delay, while noting the reasons given, it is clear that the applicants were on notice that they had to file the application within the required time period prior to it expiring. No explanation has been given as to why an application was not filed immediately, even on the basis that it could be amended later after proper consideration. The Court considers this ground to be neutral or slightly against the applicants in terms of an extension of time being granted.
The Court notes the proper concession by the Minister that there is no prejudice to them by the granting of an extension. This favours an extension of time being granted.
This then leaves an assessment of the merits of the proposed application. For the reasons set out below, the Court is of the view that there is some merit in the applicant’s proposed grounds of review such that leave should be granted for the extension of time sought. This will allow a proper exploration of the grounds.
GROUND ONE
Ground one is a complaint that the Tribunal unreasonably failed to exercise or consider the exercising of the power conferred on it, to invite the applicants to give information, being whether the primary applicant continued to be enrolled in a course of study after 5 April 2020.
The applicant first submits that it was his intention to enrol in a Bachelor of Engineering Science and he was studying his Advanced Diploma to meet entry requirements into the Bachelor’s degree program. He needed, however, a positive outcome on his visa application prior to submitting any enrolment application.
The ’Request for Student Visa Information’ form the applicants completed presented the applicants with two choices in the section headed “Hearing Information”. The applicants selected the option of a review without a hearing.
It was submitted that the other available option was to not consent to the Tribunal determining the matter without a hearing. The form would have asked the applicants if they required an interpreter and to advise availability to attend a hearing ‘in the next three months’. A note to the form states, inter alia, “Your hearing will be scheduled as soon as possible after the period for responding to this information has passed”.
It was submitted that an applicant faced with making an informed choice as to whether or not to consent to the Tribunal determining the matter without a hearing would not anticipate that the Tribunal would ‘hear’ the matter in a time frame greater that that indicated for a hearing where the applicants appeared, being no more than three months.
It was submitted that it was unreasonable to fail to exercise or consider the exercise of the power in s 359 to invite the applicants to provide further information as regards whether the first applicant would continue to be enrolled after 5 April 2020. Any consent given for the matter to be heard ‘on the papers’ was not a valid continuing consent after three months had passed from the time the applicants submitted their information, including a valid COE.
The respondent submitted that ground one lacks merit, as it cannot be said that the Tribunal’s decision not to issue a further request for information under s 359 of the Act was unreasonable in circumstances where the Tribunal had already invited the applicant to provide information under s 359(2) of the Act and the applicant had already provided information response to that letter. It was submitted that the Tribunal was entitled under the statutory scheme to proceed to make its decision.
The Court notes that the applicants consented to the matter being dealt with by the Tribunal on the papers without the necessity for a hearing. The applicant submitted that in the circumstances of the case, where the applicant reasonably understood that the Tribunal hearing (albeit without the necessity for them to appear) would take place within three months of the provision of the information requested, that the COE provided would still be valid. The information was provided on 3 December 2019.
The Tribunal hearing took place on 9 April 2020, outside the three-month timeframe the applicants understood the matter would be heard by the Tribunal.
Firstly, the Court notes that that the form the applicants filled in [CB 68] at no point stated that if they consent to a review without a hearing, it will occur within three months. This information only appears if the applicants had opted for a hearing. The Court does not accept that there is any basis for a legitimate expectation by the applicants that a review without a hearing would take place while the first applicant’s COE was still valid, or within three months.
The requirement under cl 500.211 is a time of decision requirement. The applicant was advised in the request for information that should his circumstances change, he should contact the Tribunal. The applicant did not do so.
Further in a letter of 27 June 2018 [CB 62], the applicants were advised that they should “tell us (the Tribunal) if your personal circumstances change and this is relevant to the review of your decision”. At no point did the applicants advise the Tribunal of any change of circumstances, or even ask to update information about any new COE. The Court noted that the first applicant does not suggest he was in possession of a valid COE as at 9 April 2020.
The applicant stated that their Migration Agent completed the form without their instructions. The Court does not consider this to be a matter that can impact on the outcome of the matter. There was no fraud on the Tribunal which disabled the Tribunal from the due discharge of its functions with respect to the conduct of the review; (see: SZFDE v Minister for Immigration and Border Protection and Citizenship (2007) 232 CLR 189).
The applicant complains that the failure to seek additional information and decide the matter on a basis different to that of the delegate takes the overall circumstances into the ‘realm of the extraordinary’; (see: Minister for Immigration and Border Protection v SZVFW 2018) 264 CLR 541 (“SZVFW”) at [70] per Gageler J (as he was then)). The discretion to seek information and decide the matter on the papers are discretions that must be exercised reasonably.
The Court is satisfied that ground lacks one lacks merit. The applicants had consented for the matter to be dealt with on the papers. There is no statutory requirement for the Tribunal to issue a further invitation to provide information once information has already been provided under s 359 of the Act.
The Court is not satisfied that the decision by the Tribunal not to seek further information reaches the stringent level required for jurisdictional error based on legal unreasonableness. There was no obligation on the Tribunal to make a decision which is advantageous to the applicants: SZVFW at [15] per Keifel CJ.
GROUND TWO
Ground two is a complaint that the Tribunal failed to invite the applicants to appear before it to give evidence and present arguments as required by s 360 of the Act in the absence of a ‘continuing, valid consent’ from the applicants to decide the review “on the papers” on 9 April 2020.
The respondent submitted that there is no temporal restriction in s 360(2)(b) of the Act (which provides that the requirement in s 360(1) of the Act for the Tribunal to invite the applicant to appear does not apply if the applicant consents to the Tribunal deciding review without the applicant appearing before it). Having made an election for the matter to be determined’ on the papers’, the applicants were made aware that there would be no hearing [see CB 68]. The Court is satisfied that the election to a hearing or for the matter to be determined on the papers is a ‘once off’ election and is not subject to any requirement for continuing valid consent.
Given that the applicants had been invited to provide information and had done so and had then consented for the matter to be dealt with on the papers, without the necessity for hearing, this gave freedom to the Tribunal to proceed in the manner that it did. The Court is again not satisfied that the applicants Migration Agent committed a fraud such that the Tribunal could not conduct its review. It did so on the material that was provided to it. It gave no guarantee as to any time frame for the review. There is no evidence that even if the Tribunal had invited the applicants to attend a hearing on 9 April, the first applicant would have been able to produce a valid current COE.
The Court agrees with the submission of the respondent that there was no temporal restriction in s 360(2)(b). Ground two has no merit.
GROUND THREE
Ground three is a complaint of jurisdictional error by misconstruing or misapplying the phrase “is enrolled in a course of study” in cl 500.211(a) of Schedule 2 to the Regulations. This ground was not pressed at the hearing.
DISPOSITION
As none of the grounds of judicial review have merit, the application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:H
Dated: 14 March 2024
SCHEDULE OF PARTIES
SYG 1239 of 2020 Applicants
Fourth Applicant:
ENZO RIBEIRO SILVA
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