Dakpa v Minister for Immigration
[2018] FCCA 3917
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAKPA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3917 |
| Catchwords: MIGRATION – Judicial Review – decision of Administrative Appeals Tribunal – refusal of a Student Visa – whether procedural unfairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 476(1), 476(2)(a) Migration Regulations 1994 (Cth), cl.572.223(2), Sch. 5A |
| Cases cited: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 Craig v State of South Australia (1995) 39 ALD 193 Minister for Immigration and Citizenship v Li [2013] HCA 18 |
| Applicant: | DAWA DAKPA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 143 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 1 November 2018 |
| Date of Last Submission: | 1 November 2018 |
| Delivered at: | PERTH |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr T. Lettenmaier |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application filed 14 March 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
No. PEG 143 of 2018
| DAWA DAKPA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
Introduction
By application filed in this Court on 14 March 2018 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 16 February 2018.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) Visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The applicant was self-represented before this Court. He did not have the assistance of an interpreter. The Court is satisfied that the applicant was fluent in the English language and did not require that assistance.
Factual Background
The Court has reviewed the factual material provided by the Minister and adopts the facts as outlined at paragraphs 3 to 8 in the Minister’s written submissions dated 11 October 2018. These facts were not disputed and provide as follows.
The applicant is a citizen of Bhutan and first arrived in Australia on 7 June 2014 as the holder of a student visa. On 9 December 2015, he applied for the visa the subject of the current proceedings (CB 1-9). The application was made on the basis that the applicant had enrolled in a Certificate III and IV in English and a Diploma and an Advanced Diploma of Business (CB 2; 11-15).
On 22 November 2016, the delegate refused to grant the visa (CB 38-43). The delegate found that the applicant did not satisfy cl.572.223(2) of schedule 2 of the Migration Regulations 1994 (the “Regulations”) because he had not provided evidence that he had access to sufficient funds in accordance with the criteria in schedule 5A of the Regulations.
On 14 December 2016, the applicant applied to the Tribunal for review of that decision (CB 44-54).
On 23 January 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 15 February 2018, to give evidence and present arguments (CB 58-61). The Tribunal also requested that the applicant provide:
a)all documents to be relied on to establish that he met the criteria for the Visa;
b)a copy of his current Certificate of Enrolment (COE);
c)documents evidencing his current enrolment or offer of enrolment in a registered course;
d)documents relating to any past studies in Australia including attendance certificates, academic transcripts, certificates of completion, and documents evidencing work relating to past or future study in Australia;
e)any explanation supported by evidence of any gaps in his enrolment;
f)documents that demonstrated that he had sufficient funds, or access to funds, to pay relevant costs;
g)evidence of English language proficiency; and
h)evidence he had successfully completed secondary schooling to year 12.
On 15 February 2018, the applicant appeared before the Tribunal (CB 67-69).
On 16 February 2018, the Tribunal affirmed the decision under review (CB 70-75).
The Tribunal’s Decision
The Tribunal began by explaining that it put the applicant's enrolment history from the Provider Registration and International Student Management System (PRISMS) to him pursuant to s.359AA of the Act and that there was no indication he was currently enrolled in a course (CB 73, [7]). This evidence (which was out to the applicant) showed that he had completed a Certificate III in Spoken and Written English in September 2016. Further, since that time, the applicant had enrolled in the following courses (which, relevantly, had all been cancelled):
a)Certificate IV in Spoken and Written English, cancelled in January 2016;
b)Diploma of Business, cancelled in December 2015;
c)Diploma of Business, cancelled in July 2016;
d)Diploma of Business, cancelled in September 2016;
e)Advanced Diploma of Business, cancelled in July 2016;
f)Advanced Diploma of Business, cancelled in September 2016;
g)Diploma of Business, cancelled in January 2017; and
h)Advanced Diploma of Business, cancelled in January 2017.
The Tribunal explained that this was relevant because, if the applicant was not enrolled or subject to an offer of enrolment, it would affirm the decision to refuse the visa (CB 74, [8]).
The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request (at [7]).
The applicant said he did not need time to consider his response to the Tribunal.
The applicant confirmed that he was not currently enrolled and gave evidence as to his dissatisfaction with the many courses he had started but never completed.
The Tribunal summarised the applicant’s evidence as follows ([9]):
•after his student visa was cancelled he was distraught and disheartened;
•he was not happy with the Certificate IV English course he was at the time studying and not happy with the college where he was undertaking the course. He found the content of the course was a repetition of things he had studied in previous courses and he considered it to be of no benefit to him;
•he then jumped from course to course, but found them all unsatisfactory and of no benefit to him;
•a teacher in the English course asked him why he was undertaking the course, as his English language skills are good and he told her he had only enrolled in the course for the purpose of his visa application;
•his preference is to study at university to do a law degree or a master of business administration. He would also go to TAFE so that he could get a trade. His overall goal is to get permanent residency in Australia;
•he is not trying to blame the college but he was not happy with the courses. That is why he didn't finish the courses as they were not useful too him and it was not worth being there just for the sake of being there.
The Tribunal then set out the relevant legislation (CB 74, [10]-[11]). It identified (correctly) that the issue before the delegate was whether the applicant met cl.572.223(2) of the Regulations, but considered that the issue now before it was whether the applicant met the enrolment criteria (CB 74, [10]).
The Tribunal considered the applicant's response to the information put to him pursuant to s.359AA of the Act and the material and evidence he had provided (CB 74, [12]).
Overall, the Tribunal found that there was no evidence before it that the applicant was enrolled in or had a current offer of enrolment in any applicable course of study. The Tribunal also found the applicant did not meet the criteria for other relevant visa subclasses (CB 75, [13]).
Accordingly, the Tribunal affirmed the decision under review (CB 75, [15]).
Proceedings in this Court
The applicant has filed an application for judicial review in this Court. He seeks a final order that the decision of the Tribunal be quashed.
The applicant relies on three “ground of review” as follows:
1. “I, Dawa Dakpa, Passport number G049880 Date of Birth: 21/08/1983 made an application for Student Visa subclass 572 on 09 Dec 2015. At the time of the application I had provided all the necessary documents relating to the student visa application. The officer requested for further evidences of funds in support of the student visa application. 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 Border Protection on 22 Nov 2016, which stated I did not satisfy cl.572.223(2). According to the decision maker, I was unable to meet the requirements of clause 572.223 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.572.223 was clearly satisfied. With a lack 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.572.223 whereas; I strongly believe that I have satisfied the same rule. I completed my certificate in spoken and written English studies according to the required time frame. I cancelled some of the courses I had enrolled as I believed that those courses would not give me a better career prospect of boost my chances of employment in the future with these courses. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided my 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 572. He rather insisted my on my on enrolling in various courses. 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 15 Feb 18. I attended the hearing and the Tribunal asked me to provide evidence of satisfying financial requirement. I gave an explanation about my loan and family assets being valued. The Tribunal member showed more concerns over my enrolments in the past and present. The member also asked me to explain the reason for cancelling the courses was enrolled into. I explained that genuinely I believed Certificate IV in English course was a repetition of Certificate III in English that I had successfully completed. I believe that I preferred that I preferred to study at a reputed university in Perth and therefore withdrawn the diploma and advanced diploma in business. 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, agents or friends informed me that I cannot study in colleges while waiting for the AAT decision. The Tribunal member at the AAT hearing did not give me a chance to explain the issue with my 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 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 o my particular case. I have a strong view that AAT should have considered the fact that I have been misguided by my agent for enrolment and financial criteria and hence suffering due to my agent’s 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 financial criteria, I still satisfy the subclass 572.223(2). I request the 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 approval of my subclass 572 student visa extension. If there is anything else required to support my claims and application, please do contact me.”
No written submissions were provided by the applicant. This is despite an order by a Registrar of this Court dated 25 May 2018 which allowed him to do so. This is not a criticism of the applicant. It is often the case that applicants who are not legally represented do not offer detailed submissions. In these circumstances the Court asked the applicant to detail, should he wish to do so, any information or any concerns he had in relation to what he felt the Tribunal did wrong. The applicant did so, as discussed below.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may 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 (see Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198]).
b)Where the decision maker ignores relevant material (see Craig at [198]).
c)Where the decision maker relies on irrelevant material (see Craig at [198]).
d)Where the decision maker fails to follow mandatory procedures (see 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 (see 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 611 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]).
The Court also explained that the Court could not engage in merits review of the Tribunal’s decision.
Synopsis
While the Court is sympathetic in relation to what occurred between the applicant and his migration agent, an issue I will come to in due course, for the reasons that follow, the Court cannot find evidence before it to show that the Tribunal fell into jurisdictional error. Accordingly, the application for judicial review is dismissed.
Decision
The applicant seeks an order in this Court for the issue of constitutional writs. In order for those writs to be issued, the applicant must demonstrate that the Tribunal fell into jurisdictional error. In the Court’s opinion, the applicant has not done so.
In relation to ground 1, the Minister contended in written submissions that ground 1 largely recounts the factual background and issues regarding the delegate’s decision. Further, Counsel for the Minister outlined that, to the extent that the applicant seeks review of the delegate’s decision, the Federal Circuit Court has no jurisdiction to review primary decisions by virtue of s.476(2)(a) of the Act.
The applicant was asked to comment. He said, in effect, that his agent did not file the evidence he asked the agent to file before the delegate and as a result the delegate did not have all the relevant evidence before it. What the applicant is asking the Court to do is review the decision of the delegate for error and/or look at the actions of his agent in relation to the information put before the delegate. To the extent that the applicant does so – the Court does not have jurisdiction in that regard: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 at [29].
The applicant has indicated that he was denied natural justice. Again, other than reiterating that he had concerns about the way his agent treated him, the applicant was not able to clarify what he meant within the context of the decision of the Tribunal. He further reiterates, as rightly pointed out by Counsel for the Minister, the same claims in relation to grounds 2 and 3.
In that regard, the Minister contended:
16. By grounds two and three, the applicant complains that the Tribunal committed a jurisdictional error by failing to provide him with procedural fairness. In particular, the applicant asserts that the Tribunal did not allow him to present evidence that his agent had misled him. The applicant did not appoint an authorised recipient in relation to the review and all correspondence was sent to the applicant directly, but was represented in the proceedings before the delegate. The first respondent submits that there is no evidence before the Court to support the applicant’s claim that he was misled by his agent. In any event, negligence, incompetence or inadvertence of a migration agent does not establish jurisdictional error. The Tribunal’s decision also does not record that the applicant made the claim set out in ground two regarding his agent’s conduct.
17. Otherwise, contrary to the applicant’s contention, the first respondent submits that the Tribunal did comply its procedural fairness obligations set out in Division 5 of Part 5 of the Act. The Tribunal invited the applicant to the hearing and requested documents from him specifically in relation to the enrolment criteria. The applicant was therefore on notice of the determinative issue on the review by the Tribunal's hearing invitation and it expressly stated to him at the hearing that the issue before it was whether the applicant met the enrolment criteria (CB 74, [10]).
18. Further, in compliance with s 359AA of the Act, the Tribunal put to the applicant the PRISMS information, explained why that information was relevant to the review and that he could have time to consider his response (CB 73, [6]). No breach of procedural fairness has been established.
19 The applicant’s contentions regarding the financial criteria are also misguided. The Tribunal did not consider whether the applicant met the financial capacity requirements because it found the applicant could not satisfy another primary criterion for the grant of a student visa. There being no evidence that the applicant was enrolled in, or had a current offer of enrolment in any applicable course of study, the only decision available to the Tribunal at the time was to affirm the delegate’s decision.
The Court notes the Minister’s submissions above and adopts them.
In effect, the applicant, not unlike many applicants who appear before this Court, is concerned that he was poorly treated by his migration agent. The Court is sympathetic. Unfortunately evidence of an incompetent agent does not establish jurisdictional error for the purposes of what this Court can and cannot do. The Tribunal’s decision also does not record that the applicant made the claims set out in ground 2 regarding his agent’s conduct. Had that occurred then, arguably, this might have been deemed as a request for an adjournment. But that did not occur here. No request for more time was advanced, at least not on the record before this Court. In those circumstances no jurisdictional error can be found.
In relation to the conduct of his agent the Court advised the applicant that, insofar as he is unhappy with the conduct of his agent and believes that his agent did not do what he was requested to do, applicant can and should access the services of the Office of Migration Agents’ Registration Authority. That agency has regulatory powers which allow it to investigate complaints in relation to migration agents.
As indicated correctly by the Counsel for the Minister today, the grounds that are articulated by the applicant really only outline what happened before the Tribunal. It is arguable that what the applicant wants the Court to do is review the evidence that was before the Tribunal and come to a different conclusion. It was explained to the applicant, that that is what we refer to as “merits review”. It was explained that the Court cannot engage in an impermissible merits review.
To the extent that the applicant’s grounds contend (and it is unclear) that the Tribunal acted unreasonably in considering his review application, there is nothing in the Tribunal’s decision that shows that it acted unreasonably or, indeed, that its decision was illogical. The Tribunal relied upon the applicant’s own evidence that he was not currently studying or enrolled in a registered course of study and did not hold an offer of enrolment. Overall, the Tribunal considered the facts of the case, the legislation it was required to examine and of all evidence provided by the applicant. In the circumstances of this case, the Tribunal made the only decision that was open to it.
Further, the Court is satisfied that the applicant was given every opportunity to present evidence that would dispute that finding before the Tribunal. He did not do so. The applicant himself admitted that he had not been and was not currently enrolled.
In this context, the Court does not find there to be any evidence of procedural unfairness here.
Overall, the decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal. Once it was clear to the Tribunal that there was no evidence before it that the applicant was enrolled in a course of study (as that term is defined legislatively), that was, in effect, the Tribunal (having no discretion) was left in a position where it had no choice but to deny the applicant the visa he sought.
Overall, the Tribunal’s analysis showed that on the evidence that it had before it, the applicant was not a student for migration purposes as he was not, as at the date of the hearing, enrolled in a course of study.
There is no jurisdictional error demonstrated by the three grounds of review or otherwise apparent in the Tribunal’s decision.
Accordingly, the application is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 16 January 2018
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