Dhakal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 546
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhakal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 546
File number(s): MLG 660 of 2018 Judgment of: JUDGE FORBES Date of judgment: 19 July 2022 Catchwords: MIGRATION – Application for Student visa – whether applicant met genuine temporary entrant criterion – whether applicant held confirmation of enrolment at relevant time – whether Tribunal required to give additional time – no jurisdictional error Legislation: Migration Act1958 (Cth), s 357A, 360, 476
Migration Regulations 1994 (Cth) cl 573.223, r 1.40A
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 25 May 2022 Place: Melbourne Solicitor for the Applicant: In Person Solicitor for the First Respondent: Ms Roscoe of Mills Oakley ORDERS
MLG 660 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIBESH DEEP DHAKAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.Leave be granted to the applicant to amend his application to seek an order for mandamus.
3.The application for judicial review filed on 16 March 2018 be dismissed.
4.The applicant pay the Minister’s costs fixed in the sum of $4000.
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 FORBES
INTRODUCTION
By an application filed on 16 March 2018, Mr Dibesh Deep Dhakal (the applicant) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 February 2018 which affirmed a decision of a delegate of the Minister dated 7 October 2016 to refuse to grant the applicant a Student (Subclass 573) visa (the visa).
The applicant raises 3 grounds in support of his application for judicial review. These grounds are discussed in more detail below, but in substance the applicant submits that he was not provided an adequate opportunity to present his case to the Tribunal and that he was not afforded a further opportunity to provide documents to support his application.
I have considered the applicant’s submissions and, for the reasons set out below, I have determined that the application should be dismissed.
BACKGROUND
The applicant is 36 years of age and is a citizen of Nepal. He arrived in Australia on 8 October 2007 as a holder of a Student (Subclass 573) visa which had been granted to him offshore.
Since his arrival in Australia the applicant has undertaken a series of courses of study at various educational institutions. He has studied automotive mechanical technology, automotive mechanical diagnosis, business, accounting and commerce. He has enrolled in a significant number of courses but completed fewer than half of them. During the period of those studies the applicant has held student or associated bridging visas.
On 14 March 2016 the applicant applied for another Student (subclass 573) visa based on his enrolment in a Bachelor of Professional Accounting course.
On 7 October 2016 the delegate refused to grant the visa on the basis that the applicant did not meet the relevant genuine temporary entrant (GTE) criterion. It was a requirement for the grant of the visa that the applicant satisfy cl 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which required that the Minister be satisfied that the applicant was a genuine applicant for entry and stay as a student. In determining the application, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
TRIBUNAL
By an application to the Tribunal dated 24 October 2016 the applicant sought review of the delegate’s decision. He appointed a registered migration agent to represent him and to be his authorised recipient of correspondence from the Tribunal.
On 27 October 2016 the Tribunal acknowledged receipt of the application for review. In the correspondence from the Tribunal the applicant was invited to provide material or written arguments for the Tribunal to consider.
On 19 January 2018 the Tribunal invited the applicant to attend a hearing which it had scheduled for 19 February 2018.[1] The Tribunal correspondence, which was directed to the applicant’s nominated representative, invited 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”. The Tribunal’s hearing invitation also asked the applicant to provide “all documents you intend to rely on to establish that you meet the criteria for the visa” and requested him to provide the following specific information “so that a decision can be made as quickly as possible:
[1] Court Book (“CB”), p 68-71
A copy of your current Certificate of Enrolment (COE) as required for the grant of a student Visa
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
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
An explanation of any gaps in your enrolment/s and any committee evidence relevant to your explanation”
On 19 February 2018 the applicant attended a hearing before the Tribunal. Although the headline issue before the delegate was whether the applicant met the GTE criterion, when the matter came before the Tribunal the central issue of concern was whether the applicant met the enrolment requirements for a student visa. The record of the Tribunal decision records that this issue was explained to the applicant at the hearing[2].
[2] CB, p 110
Subject to limited exceptions, the Regulations require that at the time of decision, an applicant for a student Visa 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 relevant subclass.
The record of the Tribunal decision records that this issue was explained to the applicant at the hearing[3].
[3] CB, p 110
At the hearing on 19 February 2018 the applicant gave evidence that he did not have a current Certificate of Enrolment (COE) or a letter of offer of enrolment in a relevant course of study. He informed the Tribunal that he was not studying at the time of the hearing and had not studied after the conclusion of his last semester in December 2017. The applicant explained that he did not have a current COE or a letter of offer because at the time of the hearing his education provider was unable to confirm whether the subjects the applicant needed to complete the previous semester would be offered by the institution in future.
TRIBUNAL DECISION
At the conclusion of the hearing on 19 February 2018, the Tribunal made an oral decision affirming the delegate’s decision to refuse to grant the applicant a student Visa.
On the same day, the Tribunal produced a written statement of its reasons. At [9] the Tribunal member recorded that the applicant had given evidence that he did not have a current COE or letter of offer to study any course.[4] The Tribunal noted that the applicant was not studying at the time of the hearing and had last studied in December 2017.
[4] CB, p 110
At [10] the Tribunal recorded that it had requested, in the hearing invitation dated 19 January 2018, that the applicant provide all documents upon which he intended to rely to establish that he meets the criteria for the visa, including a copy of his current COE or an offer of enrolment.[5] The Tribunal concluded that the applicant had been on notice of the enrolment requirements since the time of the hearing invitation and that it was not satisfied that the applicant had presented any convincing reason why he should be given further time to do so.
[5] Ibid
The Tribunal found at [11] that there was no evidence that the applicant was enrolled, or had a current offer of enrolment, in any applicable course of study which would meet the criteria for the grant of any subclass or student visa in Class TU.[6] For that reason the Tribunal affirmed the decision not to grant the applicant a student Visa.
[6] CB, p 111
A copy of the Tribunal’s decision and written reasons were provided to the applicant’s representative on 20 February 2018
APPLICATION FOR JUDICIAL REVIEW
On 16 March 2018 the applicant filed an application in the (then) Federal Circuit Court seeking judicial review of the Tribunal’s decision.
In his application, the applicant advanced 3 grounds in support of his contention that the Tribunal’s decision is affected by judicial error. Those grounds are stated as follows:
1.I feel that I was not provided procedural fairness as I was not provided much opportunity to comment on my situation at the Tribunal hearing and my situation was not considered properly by the member
2.I also feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to provide supporting documents on their application especially when the situation was out of my control as it was due to the administrative delay from my education provider
3.I also feel that the law was incorrectly applied as the AAT did not give proper consideration to my situation and request for 2 extra days to provide supporting documents despite my repeated request. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment for not providing one document.
The applicant also filed an affidavit dated 16 March 2018[7] in support of his application for review. In that affidavit the applicant deposes that at the Tribunal hearing he informed the Tribunal member that his inability to provide a COE was due to an administrative issue at his education provider. He contends that the Tribunal should have given him the opportunity to provide a COE and that the member was not prepared to give him 2 days to do so. He says that the decision record of the Tribunal decision only mentions that he did not have a COA but does not mention any fact in relation to his request for extra time.
[7] CB, p 118-120
On 20 February 2019 a registrar of this court made various procedural orders to ready this matter for trial, including that the applicant file and serve any amended application, supplementary court book and written submissions prior to the final hearing.
I note that while the Minister has complied with those orders by filing and serving a court book and an outline of submissions (the receipt of which was acknowledged by the applicant at the hearing), the applicant himself has not availed himself of the opportunity to file written submissions.
The matter came before me for final hearing on 25 May 2022. The applicant appeared without representation and the Minister was represented by a solicitor, Ms Roscoe.
At the commencement of the hearing the Minister’s representative informed the court that the application for judicial review failed to properly invoke the Court’s jurisdiction pursuant to s 476(1) of the Migration Act1958 (Cth) (the Act) because the applicant had not sought a writ of mandamus or prohibition or an injunction against the Tribunal. I explained the effect of this shortcoming to the applicant and informed him that if he wanted to amend his application to seek a writ of mandumus the Minister would not oppose the application. At the Court’s suggestion the applicant sought to amend in that fashion and the Minister quite properly raised no objection.
Applicant’s submissions
In support of his 3 grounds of review, the applicant explained that he had been asked by the Tribunal to present a Certificate of Enrolment. He said that his education provider at the time was not able to do so and that he had been asked by that institution to wait until it decided whether the study unit he needed to complete the previous semester would be offered in the following semester. He said that was the only reason he could not provide the COE.
Notwithstanding, the applicant conceded that at the time of the Tribunal hearing he was not enrolled in any course and that he did not have a COE or a letter of offer.
The applicant told the Court that he had asked the Tribunal for 2 extra days to go and see the institution and to ask them for a COE. He said the Tribunal did not give him that time.
Minister’s submissions
The Minister sought to rely on an outline of submissions dated 11 May 2022. Ms Roscoe also developed those submissions orally.
In summary, the Minister submits that the application for judicial review fails to identify any jurisdictional error in the Tribunal’s decision or approach. The Minister contends that it was plainly open to the Tribunal to find that the applicant did not satisfy the criteria for any subclasses of student visa, once it was conceded by the applicant at the hearing that he was not enrolled in a course of study and did not possess a Certificate of Enrolment or a letter of offer.
As to Ground 1, the Minister contends that there is no substance to the applicant’s allegation that he was “not provided much opportunity to comment on my situation at the Tribunal hearing and my situation was not considered properly by the member”.
The Minister submits that there is no evidentiary basis to support the applicant’s contention that the Tribunal did not provide him “much opportunity to comment” at the hearing. There is no transcript of the Tribunal’s hearing before the Court and the affidavit filed with the application does not address the issue. The Minister submits that the applicant has had 4 years to file any additional evidence, but he has not done so and in the absence of evidence the Court should not find jurisdictional error.
In any event, the Minister submits that the applicant was not owed common law procedural fairness as s 357A of the Act provides that Division 5 of Part 5 is to be taken as an exhaustive statement of the requirements of the natural justice rule. Furthermore, it was submitted that the Tribunal’s obligations with respect to affording the applicant an opportunity to give evidence and present arguments pursuant to s 360(1) is properly directed to “the issues arising in relation to the decision under review”. In this case the issue relevant to the decision under review was whether the applicant was enrolled in a relevant course of study. In that respect, the applicant was plainly on notice prior to the Tribunal hearing of that issue and was specifically requested in the hearing invitation dated 19 January 2018 to provide evidence of his enrolment status.
The Minister submits that on the face of the Tribunal’s decision record, it is plain that the applicant was afforded the opportunity to give evidence and present arguments on the dispositive issue on the review. Given the applicant’s own frank concession that he did not have a current COE, the Minister submits that the Tribunal had no power to grant the applicant a visa and that the Tribunal was bound to affirm the decision of the delegate.
As to Grounds 2 and 3, the Minister also submits that the applicant has failed to establish jurisdictional error in the Tribunal’s decision or its approach.
The Minister submits that there is no evidence presently before the Court, such as a transcript of the Tribunal proceedings, to indicate that the applicant sought any adjournment to provide further evidence or to obtain a COE. Nor is it clear what “supporting documents” the applicant could have provided to the Tribunal that would have assisted him in circumstances where the applicant’s own evidence was that he was not enrolled in a course of study.
It is submitted that the Tribunal was not under any obligation to afford the applicant every opportunity to present his best possible case or improve upon the evidence[8].
[8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]
The Court asked Ms Roscoe what should be made of the member’s comment at [10] of the Tribunal’s reasons which reads:
“The Tribunal considers that the applicant has been on notice of the enrolment requirements since [the hearing invitation dated 19 January 2018] and is not satisfied that the applicant has presented any convincing reason why he should be given further time to do so”.
Ms Roscoe submitted that there are 2 possible constructions of that paragraph, neither of which reveal jurisdictional error. First, the paragraph should sensibly be read as the Tribunal observing that by the date of the hearing the applicant had been on notice of the documentary evidence required to be produced and, having not obtained that evidence in the 4 weeks prior to the Tribunal hearing, there is no reason why he should be afforded further time. Alternatively, the paragraph could be read as giving rise to an inference that the applicant had in fact asked for further time but after considering that request the Tribunal had determined that there was no convincing reason to grant that request. In either case the Minister submits that it was properly open to the Tribunal to determine that no further time should be extended to the applicant.
CONSIDERATION
The Minister’s submissions, which are outlined in the foregoing paragraphs, contend that the Tribunal decision is not infected with jurisdictional error. The applicant’s submissions do not persuade me otherwise.
After filing his application for review of the delegate’s decision on 24 October 2016, the applicant received an invitation to attend a hearing before the Tribunal. He was given one month’s notice of the hearing and in the invitation dated 19 January 2018 he was put on notice that he was required to provide to the Tribunal all documents you intend to rely on to establish that you meet the criteria for the visa. Specifically, his attention was directed to the requirement to produce, inter alia, a copy of a current Certificate of Enrolment (COE) as required for the grant of a student Visa and 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.[9]
[9] CB, p 70
The hearing invitation is unambiguous and it makes clear that a current COE or an offer of enrolment in a registered course are requirements for the grant of a student visa. There does not appear to have been any misunderstanding by the applicant about this.
The Tribunal’s obligations with respect to affording the applicant an opportunity to give evidence and present arguments pursuant to s 360(1) is properly directed to “the issues arising in relation to the decision under review”. As the Minister submits, in this case a central issue relevant to the decision under review was whether the applicant was enrolled in a relevant course of study. It was a matter about which the applicant was on notice.
It is agreed that the applicant did not provide the Tribunal evidence of a COE or letter of offer of enrolment. He did not provide the requisite documentary evidence to the Tribunal before or at the hearing. At the hearing he gave oral evidence which confirmed that he was not currently enrolled in a relevant course of study, he did not have a current COE nor did he have a letter of offer of enrolment. He informed the Tribunal that he was not studying at the time of the hearing and that he had not studied after the conclusion of his last semester in December 2017.
The evidence before the Tribunal was dispositive of an issue as to whether the applicant was eligible for the grant of a student visa. It was plainly open to the Tribunal to find that the applicant did not satisfy the criteria for a student visa.
The applicant was afforded an opportunity to present evidence and arguments in relation to the central issue of his enrolment status. As stated above, he was on notice about the importance of this issue and was afforded an opportunity to provide documents. The applicant was invited to attend a hearing and on the face of the Tribunal’s decision record he gave evidence that he was not enrolled and did not possess a COE or letter of offer. On the basis of the evidence presently before the Court I see no proper basis for the submission that the applicant was denied procedural fairness.
The applicant’s evidence that he did not possess a COE or letter of offer was dispositive and the Tribunal had no power to grant the visa as he did not satisfy the enrolment criterion. Ground 1 must fail.
Grounds 2 and 3 contend in different ways that the Tribunal fell into error by not affording the applicant a further opportunity to provide “supporting documents”. There is no evidence of documents being in existence which could have assisted the applicant and no evidence of what the applicant could have sought from the educational institution which could have informed a different outcome in relation to whether he had a COE or letter of offer. It was clear on his own evidence that he did not.
Furthermore, there is no evidence before the Court to indicate that the applicant sought an adjournment to provide further evidence or to obtain a COE. Even if it can be inferred from para [10] of the reasons that further time was sought by the applicant, it would appear the Tribunal considered whatever was said by the applicant and determined that it was not a convincing reason for giving further time. There is no evidence before the Court that the applicant did seek an adjournment, but if he did it was open to the Tribunal to reject the request.
Grounds 2 and 3 fail to establish jurisdictional error in the Tribunal’s decision or approach.
DISPOSITION
I will order that the name of the second respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. I will also order that leave be granted to the applicant to amend his application to seek an order for mandamus.
However, for the reasons set out above, I have determined that the applicant has not established jurisdictional error in the decision of the Tribunal dated 19 February 2018.
It follows that the application should be dismissed and I will so order. I also order that the applicant should pay the Minister’s costs fixed at $4000.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 19 July 2022
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