Datti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 923
•4 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Datti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 923
File number: SYG 1767 of 2020 Judgment of: JUDGE STREET Date of judgment: 4 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where the applicant did not have a current course of enrolment – no arguable jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Number of paragraphs: 10 Date of hearing: 4 May 2021 Place: Sydney Applicant: In person Solicitor for the First Respondent: Mr J Tay, HWL Ebsworth ORDERS
SYG 1767 of 2020 BETWEEN: KRANTHI KUMAR DATTI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3, 737.00
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 January 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) made on 6 April 2021 refusing to grant the applicant a student visa.
The Court adopts the first respondent’s submissions from paragraph 3 through to paragraph 24:
Relevant factual background
(3)On 13 March 2018, the applicant a male citizen of India applied for a Student (subclass 500) visa (Student visa) (Court Book (CB) 1).
(4)On 6 April 2018, a delegate of the Minister refused to grant the applicant a Student visa. (CB 24) The delegate reached this decision because they were not satisfied the applicant met cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations).
(5)On 24 April 2018, the applicant applied to the Tribunal for review of the delegate's decision (CB 32).
(6)30 October 2019, the Tribunal wrote to the applicant inviting him to provide information to demonstrate that he satisfied the primary criteria for the grant of a Student visa (s 359 invitation) (CB 41).
(7)The applicant responded to the s 359 invitation by completing a 'Request for Student Visa Information form' (CB 49). By this form, the applicant was asked:
Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?
To which the applicant answered:
'No'
(8)On 10 January 2020, the applicant provided supporting documents to the Tribunal by email (CB 65), including:
(a)a letter of offer and student from Australian Harbour International College for a Diploma of Business (unsigned) (CB 68).
(9)On 24 January 2020, the applicant attended a hearing before the Tribunal to give evidence and present arguments (CB 79). At this hearing the Tribunal made an oral decision to affirm the delegate's decision (CB 85). The applicant did not request a written statement of the Tribunal's decision and reasons.
(10)On 12 August 2020, the Tribunal provided the applicant with a written statement of its decision and reasons (CB 94). The Tribunal:
(a)noted that during the course of the hearing the applicant gave evidence that he was not, at the date of the hearing, enrolled in a course of study (CB 97 at [6]);
(b)noted that although the applicant provided the letter of offer from Australian Harbour International College prior to the hearing, he confirmed at the hearing that he was not enrolled in any course of study (CB 98 at [16]);
(c)noted that the applicant did not provide a current CoE at the hearing (CB 99 at [18]);
(d)found that the applicant was not enrolled in a course of study as at the date of the decision (CB 99 at [22]);
(e)did not accept the applicant's explanation for his non-enrolment, that he did not have sufficient time to enrol himself (CB 99 at [23]); and
(f)was not satisfied that the applicant me cl 500.211 of the Regulations (CB 99 at [24]).
Application to the Federal Circuit Court of Australia
(11)By an application to show cause filed in this Honourable Court on 23 July 2020 the applicant seeks judicial review of the Tribunal's decision and raises the following ground of review:
PROCEDURAL FAIRNESS
The Department and Tribunal denied procedural fairness to Applicant.
Particulars
Department
a) Department did not consider the circumstances under which the applicant breached the visa conditions.
b) Applicant lost his grandfather on 6th March 2017. As a result of his grandfather’s death, the applicant experienced depression and anxiety issues.
c) The condition of the applicant was diagnosed by Dr Subrata Banik on 24th March 2017 and he referred applicant to psychologist Dr Jagdish Dua on 29th March 2017 at Strathfield Medical Centre, NSW.
d) Both doctors recommended that the applicant be given leave to withdraw from his studies regime and that he should resume studies in the following semester.
e) The applicant did not have the benefit of advice of a Migration Agent or an immigration lawyer to inform him of his obligation to continue the enrolment in a prescribed course at a prescribed institution.
f) The applicant inadvertently believed that he could take the medical leave without enrolling himself in a prescribed course and was not aware that he had breached his visa conditions until he received notice of refusal of his student visa application from the department.
Tribunal
a) Applicant highlighted above points in his submission to the Tribunal in his letter of 10th January 2020 for his hearing on 24th January 2020.
b) Tribunal failed to consider the fact that the applicant never had the benefit of any immigration agent advice.
c) Tribunal failed to consider that applicant was unaware of his obligation to continue enrolment in a prescribed course at a prescribed institution in Australia.
d) Tribunal failed to consider that the applicant did not know that while his application is being processed in the tribunal, the applicant could enrol and continue studies.
e) During the oral hearing, the adjudicating member stated that the applicant stated that he did not have sufficient time to enrol however, this was not the case. Applicant repeated told tribunal in hearing that he was not aware that he could enrol while his application is being considered by the tribunal
Thereby Department and Tribunal erred in their decisions by failing to afford procedural fairness to the applicant.
Threshold issue – extension of time
(12)The Court may grant an extension of time if an application for that order is made in writing and it is satisfied that it is necessary in the interests of the administration of justice to make the order: s 477(2) of the Act.
(13)There are no criteria prescribed by s 477 the satisfaction of which constitute meeting the "interests of the administration of justice": see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]. However, it is well established that the factors which should be taken into account in considering whether the interests of the administration of justice warrant time being extended include:
(a)the length of the delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: see MZZGC v Minister For Immigration and Border Protection [2015] FCA 842 at [15] per Mortimer J;
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant's substantive case for judicial review justifies the extension of time, noting that whether that standard of veracity is described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, the hurdle is low: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 (DHX17) at [76] per Collier, Rangiah and Derrington JJ. The examination should not go beyond a reasonably impressionistic level: DXH17 citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] per Mortimer J and in turn Jackamarra v Krakouer 195 CLR 516 at [7]- [9]).
see also SZRIQ (supra) at [47] and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9 per Wilcox J.
(14)The applicant's delay of 146 days is lengthy. The applicant's explanation for the delay is that he did not know he did not have legal representation at the hearing and that his previous agent gave him wrong information. The first respondent submits that this explanation is inadequate. The Tribunal notified the applicant of the timeframe by which he must apply to the Federal Circuit Court for judicial review by an information sheet sent to the applicant via his nominated email address, together with the notification of decision letter on 24 January 2020. Accordingly, the appl is taken to have received this information on that day: ss 441B(4)(b) and 441C(5) of the Act. Moreover, a lack of legal representation is not (without more) an acceptable explanation for delay and would not have prevented the applicant from filing a judicial review application: DOY19 v Minister for Immigration & Anor [2019] FCCA 246 at [26].
(15)The first respondent submits that there is no relevant prejudice to the Minister other than the significant public interest in the finality of judicial decisions, as explained in authorities such as Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495–496 [15]–[17] per McHugh J, and noting that the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion sought by the applicant: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 344 at 349 per Wilcox J. However, it is well established that a lack of prejudice is not in and of itself a sufficient reason to grant an extension.
(16)For the reasons set out below, the first respondent submits that the substantive grounds of judicial review are not sufficiently meritorious in the sense that they do not have reasonable prospects of success when viewed against the factual matrix of this case, such that it is in the interests of the administration of justice to warrant an extension of time. Accordingly, the first respondent submits that the application for an extension of time should be opposed.
Ground 1
(17)To the extent that this ground takes issue with the delegate's decision, this is a primary decision as defined in s 476(4) of the Act. The Court does not have jurisdiction to review a primary decision: s 476(2)(a) of the Act. Therefore, this ground cannot be sustained.
(18)The particulars to this ground allege that the Tribunal failed to consider the applicant's circumstances at the time of the decision. Namely, that he:
(a)did not have the benefit of immigration assistance;
(b)was unaware of his obligation to remain enrolled; and
(c)was unaware that he could be enrolled while his application before the Tribunal was on foot.
(19)A failure to consider a claim or contention may amount to jurisdictional error where that contention, if made good, would justify concluding that the applicant had made out a criterion he was required to satisfy for the grant of the visa: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45] to [48]. The dispositive issue in the instant matter was whether the applicant was, at the time of the Tribunal's decision enrolled in a registered course of study. The first respondent submits that the consideration of these allegations would not have remedied the applicant's enrolment status at the time of the Tribunal's decision. Accordingly, the first respondent submits they cannot give rise to jurisdictional error.
(20)An alternative reading of this ground may be that the Tribunal erred in the sense described in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). That is, that the Tribunal failed to put the applicant on notice of an issue which was determinative to the Tribunal affirming the delegate's decision, but was not considered dispositive by the delegate.
(21)The delegate in this matter refused the visa application on the basis that the applicant did not satisfy cl 500.212(a) of the Regulations, being whether the applicant genuinely intended to stay in Australia temporarily as a student. The Tribunal affirmed the decision under review on a different basis, being that the applicant did not meet cl 500.211(a) which requires the applicant to be enrolled in a registered course of study at the time of the Tribunal's decision.
(22)The first respondent submits that no such SZBEL error arises in the instant case. Rather, the applicant was informed of the requirement to maintain enrolment and was invited to provide information of such enrolment by the s 359 invitation. The s 359 invitation stated:
As you applied for the visa on the basis of undertaking a course of study in Australia it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient evidence to satisfy us that you meet both of these requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the applicant is undertaking and your entry and stay in Australia as a student.
(23)Moreover, the Tribunal's written reasons make it clear that the applicant was also put on notice of the requirement of cl 500.211(a) at the hearing. This is seen at [7] - [8] of the Tribunal decision where the Tribunal stated:
'Whilst the issue before the delegate was whether the applicant is a genuine temporary entrant arising from the applicant’s evidence the issue before the Tribunal became whether at the time of this decision the applicant meets the enrolment requirement in clause 500.211(a) for a student visa
The applicant acknowledged that he understood that the determinative issue before the Tribunal had changed and the applicant was given an opportunity to address the tribunal in relation to this determinative issue.'
(24)Accordingly, the first respondent submits that the Tribunal's decision is not affected by an error of the kind identified in SZBEL.
BEFORE THE COURT
These proceedings were commenced on 23 July 2020, and on 20 August 2020, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing.
The applicant made reference to an assertion that his migration agent had been negligent in not informing him about the need for a current course of enrolment. No evidence has been adduced in support of that contention, and it is apparent, on the face of the Tribunal’s reasons, that the Tribunal raised with the applicant the need for a current course of enrolment. Nothing said by the applicant identified any arguable case of jurisdictional error.
The applicant also made reference to his personal circumstances and that of his family. The Court has no power to determine the matter on compassionate or discretionary grounds. Nothing said by the applicant identified an arguable case for relevant error.
For the reasons given in the first respondent’s submissions, which the Court adopts, as set out above, the grounds in the application do not identify an arguable case of relevant error.
The Court is not satisfied that the application has raised an arguable case for the relief claimed.
The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2011 (Cth) (“the Rules”).
Accordingly, the application is dismissed under r 44.12 of the Rules.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 10 June 2021
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