Dassanayake v Minister for Immigration
[2016] FCCA 1302
•3 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DASSANAYAKE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1302 |
| Catchwords: MIGRATION – Judicial review – temporary student visa – whether Tribunal considered applicant’s individual circumstances – whether Tribunal denied applicant procedural fairness – whether Tribunal improperly exercised power – whether jurisdictional error. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), Pt.5, Div.5, ss.91R, 347, 348, 349, 476 |
| Cases cited: Applicant M 117 of 2007 v Minister for Immigration & Citizenship [2008] FCA 1838 AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 R v Toohey; Ex parte Northern Land Council (Kenbi Land Claim Case) (1981) 151 CLR 170; (1981) 56 ALJR 164; (1981) 38 ALR 439 Re Refugee Review Tribunal & Anor; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| Applicant: | DULANJALI IMALKA DASSANAYAKE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 318 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 May 2016 |
| Date of Last Submission: | 24 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 3 June 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 318 of 2015
| DULANJALI IMALKA DASSANAYAKE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13 July 2015 the applicant filed an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking judicial review (“Judicial Review Application”) of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision was made on 16 June 2015 and is at Court Book (“CB”) 117-124. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) made on 14 January 2015 to refuse the applicant a Student (Temporary) (Class TU) visa (“Student Visa”) under the Migration Act.
Background to the Judicial Review Application
The background to this matter is as follows:
a)the applicant, a citizen of Sri Lanka, lodged an application for the Student Visa on 12 December 2014: CB 1-21;
b)the applicant’s partner applied for the Student Visa as part of the applicant’s family unit: CB 10;
c)on 24 January 2015 the Delegate refused to grant the applicant the Student Visa: CB 83-88;
d)on 4 February 2015 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 89-90;
e)the applicant and her partner had separated before the matter came before the Tribunal, and the applicant emailed the Tribunal on 16 April 2015 requesting that her former partner be removed from the application: CB 92 (the applicant’s partner did not attend the Tribunal Hearing: CB 110 and 118 at [5]);
f)by letter from the Tribunal dated 7 May 2015 the applicant was:
i)invited to appear before the Tribunal on 15 June 2015 to give evidence and present arguments relating to the issues in her case: CB 95-97;
ii)advised by the Tribunal ‘what you should do within 7 days of receipt of this letter’: CB 95-97, and in particular (at CB 95) to:
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.
iii)asked to provide at CB 96, relevantly:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
iv)told at CB 97 that:
The Tribunal may make a decision at the end of your hearing.
g)the applicant emailed the Tribunal on 11 June 2015: CB 100, attaching the following documents:
i)a certificate of balance from the Hatton National Bank: CB 101; and
ii)a conditional offer of enrolment in a Bachelor of Health Sciences at Deakin University dated 6 March 2015 to commence on 9 March 2015: CB 102-104,
however, no current certificate of enrolment was supplied;
h)the Tribunal hearing took place as scheduled and the applicant:
i)attended to give evidence and present her argument; and
ii)was unrepresented: CB 110-111 and 166 at [4]; and
i)the following documents were provided by the applicant to the Tribunal at the hearing:
i)an email dated 5 May 2015 sent by Deakin University to the Applicant indicating she had missed the start of Trimester 1 2015, but could commence the Bachelor of Health Sciences offered to her in Trimester 2 2015, commencing in July 2015, and that international students were able to defer their Deakin University offer for up to twelve months, and provided a contact email at “Deakin International Admissions” to “defer your offer”: CB 107; and
ii)a letter dated 5 June 2015 from her treating Doctor to the Tribunal: CB 105-106.
Tribunal Decision
The relevant parts of the Tribunal Decision are set out in full hereunder:
3. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of a letter of offer into a Bachelor of Business course. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. The applicant also provided a letter to the Department by email that stated that she received the offer letter for the Holmes Institute Bachelor of Business to stay in the country lawfully, but had no intention of following that course.
7. … the applicant has a letter of offer in a Bachelor of Health Science course at Deakin University. The offer was conditional on various documents being provided by the applicant, including evidence of Competent English and payment. The letter was sent on 6 March 2015. The course was due to commence on Monday 9 March 2015. The applicant provided a copy of an undated letter to the Tribunal that was the same as [that] provided to the Department as to why she wanted to study this course. This course, if accepted as her principal course, would lead to the subclass that may be granted as Subclass 573.
8. The Tribunal asked the applicant about her present studies. The applicant stated that she had received an email from the course provider on 5 May 2015 noting that she had not commenced her studies in Trimester 1, but that she could commence in July, Trimester 2. The applicant had not taken up the offer. The Tribunal asked the applicant why she had not enrolled in a course of study in the time between the application for the visa and the present day. The applicant stated that she had lost her passport, but had found it again after 3 weeks. This caused some difficulty for enrolment, which led to her seeking the letter of offer from Holmes Institute, a course the applicant admitted she had no intention studying in but was a course she could get an offer in in time for the visa application. The Tribunal noted that the visa application was lodged the day before her 485 visa was about to expire, which the applicant agreed with.
9. Asked about her study history, the applicant stated she had completed a Diploma course in 2010. She has then remained in Australia on a Bridging Visa then a 485 visa. She is returning to the student visa after this time. She has not returned to Sri Lanka since 2009.
10. The Tribunal asked why the applicant had not recommenced her study in March 2015, as the letter of offer from Deakin University stated. The applicant stated she did not start because she was unsure of what the visa outcome would be. The Tribunal noted that enrolment in a course was one of the requirements for the grant of a student visa. The applicant stated she had been working 9 - 5 Monday to Friday in an Aged Care facility, and provided evidence of her employment contract to the Tribunal. The Tribunal noted that the applicant could manage to work full time, but not do any study, despite her being able to do so, as stated in the bridging visa grant.
11. The Tribunal asked if there were any other issues. The applicant stated she had a difficult break-up with her partner in February 2015, which caused her mental anxiety. There was also an issue with funds that he may have used to establish his own business. The applicant made no claim that this caused her to be unable to enrol in the course. The applicant stated that there had been discussions in December 2014, prior to her applying for the visa, about the couple returning to Sri Lanka. The applicant decided to seek to remain in Australia. While the Tribunal acknowledges that the ending of a long-term relationship would have created some emotional difficulties for the applicant, the Tribunal notes she managed to continue her work in the aged care position she had been employed in for a significant period of time. The Tribunal is concerned by the priorities of the applicant, who has chosen to work full time instead of pursuing any studies while waiting for her student visa to be provided. The applicant did not take up any of the offers available to her, despite their repeated nature, of 6 March and 5 May 2015. The Tribunal does not consider that the applicant had any intention to enrol in these courses.
12. The applicant was refused by the delegate for not meeting the requirements of 573.223. The issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
13. The Tribunal considers that the applicant was on notice as to the issue of her enrolment. The applicant provided a letter of offer from Deakin for a course commencing on 9 March 2015. The applicant did not take up this offer. She was reminded again of the offer in May 2015, and did not take this up. She never enrolled in this course. The applicant had previously provided evidence that she had had difficulties enrolling in a course of study because she lost her passport on 28 November 2014, and evidence that she applied for a new passport on 9 December 2014. The applicant provided evidence that Deakin University had requested a copy of her passport on 8 December 2014, which as it was lost, she could not provide. The Tribunal noted that the offer Letter of 6 March 2015 did not require this information, which was explained as the applicant had found her lost passport. The lost passport is therefore not a reason for the applicant to fail to enrol in her course.
14. The Tribunal also notes the following information was included in the invitation to hearing.
Additionally, please provide this information so that a decision can be made as quickly as possible:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
15. The issue therefore before the Tribunal was whether the applicant met the criterion in 573, whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
16. 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 [sic] 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.
17. The applicant provided no evidence of enrolment to the Tribunal. The applicant confirmed to the Tribunal that she was not presently enrolled in a course of study. The Tribunal explained that enrolment in a course was an essential requirement of a student visa.
18. The applicant did not provide any evidence that [s]he was enrolled in any course to the Tribunal. There is no evidence before the Tribunal that the 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.
19. 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.
20. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.
CB 118-121 at [3] and [7]-[20] (footnotes omitted).
The Judicial Review Application
Grounds
The applicant’s grounds in her Judicial Review Application are as follows:
1. The Tribunal failed to consider the applicant’s individual circumstances.
2. That a breach of the rules of natural justice occurred in connection with the making of the Decision.
3. That the applicant was denied procedural fairness in connection with the making of the Decision.
4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed.
5. That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.
(Copied from Judicial Review Application without amendment).
Affidavit
The applicant filed an affidavit with her Judicial Review Application on 13 July 2015 (“Applicant’s Affidavit”) which attached the Tribunal Decision and further stated:
…
5. Unfortunately, the Tribunal Member failed to consider and correctly assess my situation and make a decision accordingly.
6. I believe the Tribunal Member made a Jurisdictional error by not considering the essential facts and by not giving correct weight to matters.
…
Orders made by a Registrar
On 30 September 2015 a Registrar of this Court made orders (“Registrar’s Orders”) allowing the applicant to file and serve any amended Judicial Review Application giving complete particulars of each ground of review, any affidavit containing additional evidence including any transcript of the Tribunal hearing, and any written legal submissions and list of authorities, the former by 30 October 2015, the latter by 42 days before the hearing of the Judicial Review Application, which was listed for 24 May 2016.
The applicant did not file or serve any of the documents referred to in the Registrar’s Orders.
The Registrar’s Orders entitled the Minister to file and serve written legal submissions 21 days before the hearing of the Judicial Review Application. The Minister’s submissions were filed on 3 May 2016.
Applicant’s submissions
Notwithstanding the failure to file written submissions, at the hearing of the Judicial Review Application the applicant was invited to make oral submissions in relation to the grounds of the Judicial Review Application. To try to facilitate the applicant’s oral submissions, the Court summarised its understanding of the grounds of the Judicial Review Application as being on three broad bases, namely:
a)the failure to consider the applicant’s individual circumstances;
b)a breach of the rules of natural justice or a denial of procedural fairness; and
c)an improper exercise of power.
The applicant’s oral submissions did not address the grounds of the Judicial Review Application.
The Court then read out the grounds of the Judicial Review Application, verbatim, to the applicant. The applicant still did not address the grounds of the Judicial Review Application at all.
The applicant said that:
a)she wished to continue her studies in Australia;
b)the outcome of the Tribunal Decision was not what she had wanted; and
c)she had not enrolled in a course as she was waiting for the outcome of the Tribunal Decision.
In reply to brief oral submissions made on behalf of the Minister, the applicant reiterated matters that she had put to the Tribunal, namely that:
a)she had intended to make a start on her studies, but had lost, and then found, her passport;
b)she had broken up with her then partner; and
c)she had been depressed, and had provided a doctor’s certificate (which is at CB 105-106) to the Tribunal.
Minister’s submissions
The Minister provided written, and made oral, submissions that no jurisdictional error was committed by the Tribunal, as follows:
a)the grounds of the Judicial Review Application are not particularised, and the failure to particularise a ground of review is sufficient basis for it to be dismissed: citing WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (“WZATH”), upheld on appeal in WZATH v Minister for Immigration & Border Protection [2014] FCA 969 at [17] per Siopis J (“WZATH Appeal”);
b)the material before the Court and the Tribunal Decision make it clear that the applicant was given an opportunity to give evidence and place material before the Tribunal which was considered by the Tribunal;
c)in relation to subparagraph (b) above, the Tribunal expressly noted that:
i)the applicant had a conditional letter of offer to enrol in a Bachelor of Health Science course at Deakin University: CB 118, Tribunal Decision at [7];
ii)both the Department and the Tribunal had been provided with a letter from the applicant explaining why she wanted to study the Bachelor of Health Science course: CB 118, Tribunal Decision at [7];
iii)the applicant, having failed to commence the Bachelor of Health Science course in trimester 1 of 2015, was then given the opportunity by Deakin University (in an email dated 5 May 2015) to commence her study in the Bachelor of Health Science course in trimester 2 of 2015 to commence in July 2015, but the applicant had not taken up that offer: CB 118-119, Tribunal Decision at [8];
iv)the applicant claimed that she had been unable to enrol as she had lost her passport: CB 118-119, Tribunal Decision at [8]; and
v)the applicant claimed that she had a difficult break up with her partner which caused mental anxiety: CB 119, Tribunal Decision at [11];
d)the applicant was on notice that the issue of her current enrolment would be considered as:
i)in a letter dated 16 December 2014 from the Department to the applicant: CB 56-71, it was noted that the applicant had provided a letter of offer with her application and she was requested to provide “evidence that you are currently enrolled, or will enrol, in a course of education or training by a provider registered to provide the course to overseas students. This is normally demonstrated by providing a Confirmation of Enrolment”: CB 61; and
ii)in the invitation to attend the Tribunal hearing dated 7 May 2015 the applicant was requested to provide, amongst other things, a copy of her current Certificate of Enrolment as well as documents to show that she was enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the Student Visa: CB 96;
e)the Tribunal Decision was not arbitrary, capricious or plainly unjust as it demonstrates that in refusing to grant the Student Visa the Tribunal considered the applicant's circumstances and purported reasons for not enrolling in a course;
f)the Tribunal was not required to afford the applicant every opportunity to present her best possible case; and
g)there is no evidence that the applicant requested an adjournment of the hearing in order to allow her the opportunity to provide any further information to the Tribunal.
Consideration of the Judicial Review Application
Jurisdictional error required
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
The Tribunal makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error might also arise by reason of:
a)a denial of procedural fairness of the limited kind afforded to applicants for judicial review under the provisions of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”); and
b)actual or apprehended bias: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1; Re Refugee Review Tribunal & Anor; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425.
The gist of the applicant’s grounds
The gist of the applicant’s grounds is threefold:
a)firstly, that the Tribunal failed to consider her claims properly: ground 1 and Applicant’s Affidavit at [5] and [6];
b)secondly, that the Tribunal failed to afford her procedural fairness: grounds 2, 3 and 4; and
c)thirdly, the Tribunal’s power was exercised for an improper purpose: ground 5.
Ground 1
There is no doubt that the failure to consider a clearly articulated claim is a jurisdictional error. In Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was held to be a failure to accord natural justice.
In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”) the Federal Court observed that:
… To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on….
Put differently, what is practically required of the decision-maker was described in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 where the Federal Magistrates Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims” and of “a specific consideration of the claim”: MZXIV (No. 2) at [44] and [45] per Riley FM.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”) the Full Court of the Federal Court observed that:
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
WAEE at [47] per French, Sackville and Hely JJ.
In this case the Tribunal was obliged to consider whether or not the applicant had enrolled, or had an available offer of enrolment, in a relevant course. The Tribunal expressly considered that issue referring to:
a)an offer letter from the Homes Institute for a Bachelor of Business course, which the applicant used as a device to found the Student Visa application, but which course she had no intention of undertaking: CB 118-119 at [8];
b)the letter of offer from Deakin University in relation to the Bachelor of Health Sciences, in respect of which the applicant failed to commence that course in Trimester 1 in 2015, and indicated that she had not taken up the offer to commence in Trimester 2 in July 2015: CB 119-120 at [10]-[11] and [13], and in respect of which there is no evidence of an application to defer for 12 months, such an application to defer being available to international students (see CB 107); and
c)the fact that whilst the applicant had not studied since 2010, she had been engaged in fulltime employment working every day from Monday to Friday: CB 119 at [9]-[10].
The Tribunal also had regard to the other matters which were raised by the applicant, in particular:
a)the loss of her passport, which the Tribunal noted was only for a period of three weeks (in late 2014), but which was not required in relation to the offer to enrol in the Bachelor of Health Science course at Deakin University: CB 119-120 at [13];
b)the fact that the applicant’s long-term relationship had come to an end, and that the break-up was difficult and caused her mental anxiety, but noted that the applicant did not claim at the Tribunal hearing that the break-up with her long-term partner had caused her to be unable to enrol in the Bachelor of Health Science course at Deakin University: CB 119 at [11]; and
c)observed that the applicant had chosen to prioritise fulltime work over her engagement in studies, and that the break-up of her relationship had not affected her capacity to continue in fulltime work: CB 119 at [11].
The Tribunal was obviously aware that the applicant had health issues, seemingly arising from the break-up with her partner, and, to the extent that is relevant to the criteria for the issuance of the Student Visa, it was considered. The medical records sent to the Tribunal do no more than indicate that the applicant had attended her general practitioner on 30 March 2015, 31 March 2015, 9 April 2015 and 5 June 2015, and that on each occasion she referred to her relationship break-up, and to various symptoms of emotion and stress associated therewith. There is, however, no medical certification that the applicant was unfit to study, or to work, and, as noted above, the Tribunal observed that the applicant continued to work for five days a week from “9-5” in an aged care facility: CB 119 at [10]-[11].
The applicant’s submissions as to her wish to continue studies in Australia, and the outcome of the Tribunal Decision, and that she had not enrolled in a course as she was waiting for the outcome of the Tribunal Decision, do not assist in establishing any jurisdictional error in the Tribunal Decision. In relation to the applicant waiting for the outcome of the Tribunal Decision it is plain that both before the Delegate and the Tribunal the applicant was on notice of the necessity to have either enrolled in a course, or to have a current offer of enrolment in an applicable course of study. The Tribunal concluded that there was no evidence that the applicant was enrolled in, or had a current offer of enrolment, in any applicable course of study, and that finding was open on the basis of the fact that the applicant had not taken up the offer of enrolment in the Bachelor of Health Science course at Deakin University, and had not applied to defer the enrolment offered in that course, and in any event, gave no indication of any intention to do either of those things.
In all of the above circumstances, it cannot be asserted that the Tribunal failed to consider the applicant’s individual circumstances, or as it was put slightly differently in the Applicant’s Affidavit, that the Tribunal failed to consider and correctly assess her situation, or did not consider the essential facts of the matter.
The assertion that the Tribunal did not correctly assess the applicant’s situation and make a decision accordingly also cannot be sustained having regard to the above facts, and the Tribunal’s conclusion on those facts, and for this Court to decide differently would be to impermissibly determine the merits of the Student Visa application, contrary to long-established principle: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). Likewise, this Court, because it is precluded from engaging in merits review, does not concern itself with the weight to be given to the evidence considered by the Tribunal: findings of fact made, and the weight to be given to an applicant’s claims and the evidence in support of those claims, was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In all of the above circumstances the Court is of the view that the applicant has failed to make out ground 1.
Grounds 2, 3 and 4
In Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263 (“Quin”) it was observed that:
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.
Quin CLR at 35-36 per Brennan J.
As the High Court observed in SZBEL:
… The relevant question is about the Tribunal’s processes, not its actual decision.
SZBEL at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The High Court went on to observe as follows in SZBEL at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (footnotes omitted):
In Alphaone the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
(emphasis added)
33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. … The reference to “the issues arising in relation to the decision under review” is important.
In this case the obligations of procedural fairness are exhaustively set out in Division 5 of Part 5 of the Migration Act.
No breach of the rules of procedural fairness (or natural justice) set out in Division 5 of Part 5 of the Migration Act is apparent in the Tribunal Decision or the materials brought before the Court, and no affidavit evidence was filed by the applicant to support the allegations of a denial of procedural fairness, nor was anything said at hearing before the Court by the applicant which would indicate that there was any denial of procedural fairness at the Tribunal hearing. The Tribunal invited the applicant to attend a hearing, heard her case, including putting to her various concerns it had with that case, and delivered the Tribunal Decision dealing with, as the Court has found above, all of the relevant facts and circumstances put before it by the applicant. In those circumstances, there was no denial of natural justice or want of procedural fairness in the Tribunal’s processes: SZBEL at [25] and [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 at [60]-[67] per Heerey, Conti and Jacobson JJ.
In the above circumstances, grounds 2, 3 and 4 are not made out.
Ground 5
An administrative decision-maker exercising discretionary power does so for an improper purpose if the power is used for a purpose not authorised by the relevant enactment: R v Toohey; Ex parte Northern Land Council (Kenbi Land Claim Case) (1981) 151 CLR 170; (1981) 56 ALJR 164; (1981) 38 ALR 439.
In a visa cancellation on character grounds case the Federal Court observed that:
… The cogency and weight of the material before the Minister was for the Minister to assess. Provided there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose. …
Applicant M 117 of 2007 v Minister for Immigration & Citizenship [2008] FCA 1838 at [48] per Kenny J (“Applicant M 117”).
Precisely the same considerations as applied in Applicant M 117 apply in this case. For reasons set out above, the cogency and weight of the material before the Tribunal was for the Tribunal to assess, and there was no lack of a probative basis for the Tribunal Decision, and as the reasons above make clear, the evidence provided a more than justifiable foundation for the Tribunal to exercise its power under the Migration Act to affirm the Delegate’s Decision to refuse the Student Visa: Migration Act, ss.347, 348 and 349.
In the circumstances, there was no improper purpose in the Tribunal Decision, and ground 5 is not made out.
Particularisation
The Minister, relying on WZATH and WZATH Appeal, asserts that the applicant has failed to particularise her grounds of review, and that this is a basis to dismiss the Judicial Review Application.
In WZATH this Court observed that a “failure to particularise a ground of review is sufficient basis for it to be dismissed”: at [60] per Judge Lucev. An appeal against WZATH by the applicant was dismissed in WZATH Appeal.
In AQN15 v Minister for Immigration & Anor [2016] FCCA 58 (“AQN15”), having cited WZATH and WZATH Appeal, this Court observed that:
In the case currently before the Court – despite the fact that the applicant was given many opportunities to provide particulars of the ground of review – he failed to do so. On this basis alone the application is dismissed. But there are other reasons that the application must be dismissed in any event.
AQN15 at [35] per Judge Howard.
An appeal against AQN15 by the applicant was dismissed in AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 (“AQN15 Appeal”). In AQN15 Appeal the Federal Court, having set out the grounds of appeal against AQN15, observed as follows:
5. Each of these grounds specifies a basis of challenge which was not present in the only ground of review pleaded in the judicial review application before the Federal Circuit Court. In that court, the only pleaded ground of review was “that the decision of the second respondent, the Refugee Review Tribunal, was affected by legal error.” Referring to a judgment of this Court, WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J), in respect of a similarly pleaded ground of review, his Honour reached the conclusion that this was not, because of its generality, a meaningful ground of review. Accordingly, his Honour dismissed, on that basis alone, the judicial review application: see [29] – [35] of his Honour’s reasons for judgment. Yesterday I reached a like view in respect of an identically pleaded ground of review in the context of an application for leave to appeal: see BHK15 v Minister for Immigration and Border Protection [2016] FCA 569.
6. There was no error in the dismissal of the judicial review application on the basis specified by the learned Federal Circuit Court judge.
AQN Appeal at [5]-[6] per Logan J.
In this case, the applicant has not particularised her bare assertions in each ground of the Judicial Review Application. The applicant failed to take advantage of the opportunity afforded by the Registrar’s Orders to file amended particularised grounds. At hearing, the applicant simply did not engage with the grounds of review, and thereby afforded no further particularisation of the grounds.
Finally, the Court notes that it is not evident on the face of the Tribunal Decision that there is any error of the kind alleged in the grounds, or any other kind of legal error, whether jurisdictional or otherwise.
In the above circumstances, the failure to particularise the grounds warrants the dismissal of the Judicial Review Application.
The Court has, nevertheless, otherwise dealt with above the grounds of the Judicial Review Application.
Conclusion and orders
The Court has concluded that the Judicial Review Application ought to be dismissed because:
a)none of the grounds of the Judicial Review Application are made out; and
b)none of the grounds of the Judicial Review Application are particularised either adequately or at all.
It follows that there will be an order that the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 3 June 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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