Dhaliwal v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 21
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhaliwal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 21
File number(s): MLG 1674 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 28 January 2025 Catchwords: MIGRATION – Refusal to grant student visa – application for judicial review - Tribunal request for information-failure to supply information requested- Tribunal affirmed delegate’s decision without hearing -denial of natural justice and procedural fairness – unreasonable decision – application dismissed with costs. Legislation: Migration Act 1958 (Cth) Div 5 Part 5, ss 357A, 359, 379C(5), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth) Sch 2 Part 500, cls 4.17(4), 500.211(a), 500.212, 500.311
Cases cited: Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li [2013] HCA 18
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 17 December 2024 Date of hearing: 17 December 2024 Place: Melbourne Solicitor for the Applicants The first applicant appeared on behalf of the second applicant Solicitor for the Respondents Ms S Thompson, HWL Ebsworth Lawyers ORDERS
MLG 1674 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH DHALIWAL
First Applicant
JAGROOP DAMI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent is amended to Administrative Review Tribunal.
3.The application for judicial review dated 20 May 2020 be dismissed.
4.The applicants pay the first respondent’s costs and disbursements of and incidental to this proceeding fixed in the sum of $5,600.00.
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 CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 17 April 2020. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the primary applicant (first applicant) a Student (Temporary) (Class TU) visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and marked exhibit “R2”.
BACKGROUND
The first applicant is a male citizen of India who applied for the visa on 3 August 2018 (CB 1-17). The application included the second applicant who is the wife of the first applicant (CB 4, 43). The application was made on the basis of the first applicant’s enrolment in a Diploma of Leadership and Management course that was to commence on 6 August 2018 and be completed by 4 August 2019 (CB 42).
The first applicant arrived in Australia on a Student (Class TU) (Subclass 573) visa that was granted on 20 July 2013 and expired on 15 March 2017 (CB 49). The initial visa was granted to undertake courses that would ultimately result in a Bachelor of Administration degree. The first applicant did not complete those courses and subsequently enrolled in a certificate course in hospitality (CB 49). The first applicant was also granted a Temporary Skilled Graduate (Class VC) (Subclass 485) visa (CB 48, 50, 64). The first applicant has lived in Australia for approximately eleven years and has undertaken numerous vocational certificate and diploma courses (CB 18-32, 48-9, 64). The predominant sector was hospitality and commercial cookery.
In the visa application, the first applicant did not attach his employment history, a statement of purpose regarding the studies he was proposing to undertake and supporting documentation to meet the genuine temporary entrant requirement criteria or documentation demonstrating sufficient funds for the duration of stay in Australia (CB 1-17). The first applicant stated in his application that these “will [be] attached” (CB 8, 10-1).
On 27 August 2018, the Minister sent the first applicant a letter requesting further information for the visa (CB 44). The letter attached a checklist of details required for the first applicant to attach to the application (CB 46-55). The timeframe to provide a response was 28 days (CB 44).
On 11 October 2018, a delegate of the Minister refused to grant the visa on the basis that the first applicant did not satisfy the requirements of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the first applicant intended to genuinely stay temporarily in Australia (CB 57-61). The decision record attached to the letter noted that the Department had not received the further information as requested on 27 August 2018 (CB 64-5). The first applicant did not provide evidence to support his intended course of study or the reasons for seeking a further student visa.
On 23 October 2018, the first applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 70-2). The Tribunal acknowledged receipt of the application for review on the same day (CB 73-5).
On 19 March 2020, the applicants were invited via email to provide information to satisfy the visa requirements including proof of enrolment in a registered course of study and evidence that the first applicant is a genuine applicant for entry and stay as a temporary student in Australia (CB 77-8). The letter attached a Request for Student Visa Information form (s 359 invitation) pursuant to s 359 of the Migration Act 1958 (Cth) (Act) for the applicants to complete by 2 April 2020 (CB 77-83). The letter noted that the applicants could seek an extension of time to provide the information but that if the information was not provided by 2 April 2020 or an extension of time sought then the Tribunal may make a decision on the review without taking any further action to obtain the information (CB 78). In particular the letter said:
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
The applicants did not respond to the s 359 invitation, did not seek an extension of time and did not provide any further information to the Tribunal. Neither applicant provide proof that the first applicant was enrolled in a registered course of study.
The Tribunal then made a decision on the review without holding a hearing or taking further steps to obtain information from the applicants.
On 17 April 2020, the Tribunal affirmed the delegate's decision to refuse the first applicant's visa application and provided written reasons on 23 April 2020 (CB 84-8) (Decision).
TRIBUNAL DECISION
The Decision was brief. The Tribunal set out the procedural history of the application for review. The Tribunal recorded that a request for information had been made to which the applicants did not respond. Therefore, pursuant to ss 360(3) and 363A of the Act the applicants were not entitled to appear before the Tribunal.
The Tribunal then set out in short form the relevant criteria required for the visa in Part 500 of Sch 2 of the Regulations (CB 87-8). The Tribunal was not satisfied that the applicant met the primary criterion for the visa as there was no evidence of the applicant holding a current enrolment in an approved course of study, as required by cl 500.211(a) of the Regulations (CB 88 [8]-[13]).
The Tribunal also referred to the entitlement of the second applicant to a visa as a secondary applicant (CB 88 [14]-[15]). The Tribunal determined that because the primary applicant could not satisfy the criteria in cl 500.212, the second applicant could not satisfy cl 500.311 of the Regulations.
The Tribunal affirmed the decision of the delegate not to grant the applicants the visa (CB 88 [16]).
PROCEEDINGS IN THIS COURT
On 20 May 2020, the applicants’ solicitor filed an application for judicial review in this Court citing three grounds of review as follows (verbatim):
(1)The decision of the Tribunal was a denial of procedural fairness and natural justice.
(2)The applicant was not even given a fair opportunity to provide the requested documents to the Tribunal. The applicant also missed the opportunity to attend the hearing and give his verbal submission.
(3)The Tribunal exercise of power is legally unreasonable and therefore exceeded its jurisdiction.
The application was accompanied by an affidavit affirmed on 20 May 2020 by Rajiv Dalal, the applicants’ solicitor. The affidavit elaborated on the grounds of review and annexed a copy of the Decision record dated 17 April 2020.
Paragraph [5] of the affidavit identified errors of the Tribunal as follows (verbatim):
On 19 March 2020, the Tribunal requests to provide further information, which was missed by the applicant. The Tribunal did not make any further attempts to contact the applicant via telephone or electronically.
Paragraph [6] of the affidavit identified errors of the Tribunal as follows (verbatim):
The applicant was not even given a fair opportunity to provide the requested documents to the Tribunal. The applicant also missed the opportunity to attend the hearing and give his verbal submission.
Paragraph [7] of the affidavit identified errors of the Tribunal as follows (verbatim):
The common law procedural fairness principle should be applied as notices in case of Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [37]-[39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Li 249 CLR 332; [213] HCA 18 at [18] per French CJ states that those principles, read with facultative provisions such as ss 353 and 357A(3) and general powers in (for example) s 363, combine to confer on the Tribunal the necessary degrees of flexibility to ensure it can fully perform its statutory task. For example, its power of adjournment (s 363(1)(b)), the power to take evidence by telephone (s 366), the power to require the Secretary to make further investigations (s 363(1)(d)) and the power to seek information (s 359) are all illustrations of the flexibility given by the statutory scheme to the Tribunal to enable it to perform its task.
Paragraphs [4], [6] and [8] of the affidavit simply repeated the grounds of review in the application for judicial review.
On 26 August 2020, a Registrar of this Court made orders for the applicants to file and serve any amended application with proper particulars, a supplementary Court Book and written submissions at least 28 days before the final hearing date.
On 15 November 2024, the applicants’ solicitor filed a notice of withdrawal as lawyer and informed the Court that the applicants require the assistance of a Punjabi interpreter.
The hearing of the application for judicial review was listed before this Court at Melbourne on 17 December 2024. The applicants did not file or serve any documents or materials as ordered on 26 August 2020 and the first applicant appeared in person. The first applicant was assisted by an interpreter who appeared via video link and was fluent in the English and Punjabi languages. The second applicant did not appear before the Court.
Ms Thompson, solicitor, appeared on behalf of the Minister.
The Court confirmed that the first applicant had received the Court Book prepared by the solicitors for the Minister and the outline of written submissions filed on behalf of the Minister. The first applicant had those documents with him together with a copy of the application for judicial review and affidavit in support.
APPLICANT’S SUBMISSIONS
Noting that the first applicant was unrepresented, the Court explained that this Court cannot review the merits of the Tribunal’s decision to grant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a jurisdictional error in arriving at the Decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)). The Court explained that it could not grant the first applicant a visa but could send the application back to the Tribunal for reconsideration if there was a significant legal or factual mistake that meant the Tribunal acted contrary to law.
The Court asked the first applicant to identify the Tribunal’s mistake. The first applicant replied that his lawyer told him that here were “no merits to it”. He did not know why that was so.
The Court directed the first applicant to the Court Book, particularly the Decision record provided by the Tribunal (CB 86). The Court informed the first applicant that the Tribunal’s Decision was that because the applicants did not respond to the s 359 questionnaire by the 2 April 2020 deadline, the applicants’ case was decided without a hearing. Due to an absence of evidence, particularly the Certificate of Enrolment, the Tribunal determined that the first applicant was not a genuine student and affirmed the delegate’s decision. The Court asked the first applicant why this Decision was wrong. The first applicant said “I can’t comment on that”.
The Court asked the first applicant if he had a Certificate of Enrolment in April 2020 and if so, in which educational course. The first applicant responded that he did have a Certificate of Enrolment at that time in a cookery course. The Court then asked why he did not provide this information to the Tribunal to which he replied that he was unaware he had to do so as his lawyer was acting for him on his case with the Tribunal.
The first applicant was then referred to the application to the Tribunal in the Court Book and the correspondence details provided in that application (CB 70-1). The first applicant confirmed that the contact details on the application were his and submitted that at that time he was assisted in his application by a “student lawyer” with an office in William Street but he is no longer practicing as a lawyer.
The Court then asked the first applicant to explain the three grounds of review stated in the application for judicial review dated 20 May 2020. The Court had the grounds interpreted to the first applicant but he was unable to assist the Court or explain to the Court the basis for his claim for judicial review. He was otherwise unable to assist the Court and did not seek to rely on any further documents or evidence.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Ms Thompson sought to rely upon the outline of submissions filed on 3 December 2024 and an affidavit of Crishelle Jane Lopez affirmed on 3 December 2024. That affidavit was read, tendered and marked as exhibit “R1”.
Annexed to that affidavit as annexure CJL-1 was the first applicant’s PRISMS records listing the first applicant’s history of study and enrolments.
The Minister submitted that the first applicant has failed to demonstrate that he was enrolled in a registered course of study at the time of the Tribunal’s Decision and has provided no evidence to this Court to the contrary. There was no evidence in the PRISMS record of the first applicant undertaking a “cookery” course in April 2020 (as he submitted) and the last course in which he had been enrolled was a Diploma of Leadership and Management which was cancelled in October 2018.
In relation to the first applicant’s oral submission that he was unaware that he had to provide a Certificate of Enrolment to the Tribunal, the Minister submitted that the invitation sent on 19 March 2020 put the first applicant on notice that he was required to provide the Tribunal sufficient information that he was enrolled in a registered course of study (CB 78).
Ms Thompson then addressed the grounds of review in the application dated 20 May 2020 and the affidavit in support. In response to the assertion that the Tribunal denied the applicants procedural fairness, the Minister submitted that the common law procedural fairness principles cited in the affidavit of Rajiv Dalal do not apply to this case (see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18). It was submitted that Division 5 of Part 5 of the Act was an exhaustive statement of the procedural fairness requirements of the Tribunal.
Further, the Tribunal sought additional information from the applicants in compliance with its statutory obligations under Part 5, Division 5 of the Act (as the provisions then were). The applicants were placed on notice by the Request for Information that they were required to satisfy the requirement of enrolment in a registered course of study and failed to do so. The applicants lost their entitlement to appear before the Tribunal under ss 360(3) and 363A of the Act.
In relation to ground three of the grounds of review (that the Decision was unreasonable), the Minister submitted that this ground also fails as it is not particularised as to why the exercise of power by the Tribunal was legally unreasonable as alleged and how the Tribunal exceeded its jurisdiction.
The Minister referred to paragraph [7] of the affidavit of Rajiv Dalal which refers to the Tribunal’s discretionary powers to adjourn (s 363(1)(b) of the Act). The applicants did not request an adjournment or more time to provide information and therefore the Decision was not unreasonable or irrational. In the alternative, the Minister submitted, that even if the Tribunal erred then any error was not material because the first applicant was not enrolled in a registered course of study at the time of the Decision and could not satisfy the criteria required by the Regulations (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [35] (LPDT)).
REPLY
The first applicant was unable to respond to the Minister’s submissions or further assist the Court on merits of the application for judicial review.
CONSIDERATION
For the reasons articulated in the submissions made on behalf of the Minister the application for judicial review must be dismissed.
The function of the Tribunal is to conduct a fresh consideration of the merits of the Minister’s decision not to grant the first applicant the visa based upon the material before it (see Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10] per French CJ). This may require the Tribunal to obtain information itself or request it from the applicants.
Section 359 of the Act gives the Tribunal, when conducting a review, the power to request information from an applicant or other person that it considers relevant (s 359(2)). Here the Tribunal made a request to which the applicants did not respond. The first applicant was unable to explain why he did not respond to that request, and it is apparent from the PRISMS records produced by the Minister that the first applicant was not enrolled in a registered course of study at the time of the request or at any time thereafter. Therefore, the applicant was not eligible under the Regulations for the visa sought. Further, the second applicant was not entitled to a visa under cl 500.311 of the Regulations because the first applicant did not and could not satisfy the primary criteria for the visa.
Section 357A of the Act provides that Division 5 of Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters dealt with by the Tribunal under Part 5. Where the Division does not “deal with” certain subject “matters” under Part 5 then the common law rules of procedural fairness apply (see Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [35]-[36]).
In this case the Tribunal was entitled to request information from the applicants and having done so and not received a response within the time prescribed (14 days) then s 359C permits the Tribunal to make a decision on the review without taking any further action to obtain the information. The applicants right to a hearing before the Tribunal is lost (ss 360(3) and 363 of the Act). Once the right to a hearing is lost the applicant can not be heard to say that he or she was denied a hearing (see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [25]–[31]).
The Decision reflects that the Tribunal elected to determine the review on the material before it on 2 April 2020 as it was entitled by Division 5 Part 5 of the Act. Absent from the information available to the Tribunal was evidence of satisfaction of one of the primary requirements of the criteria for the visa. The inevitable consequence was that the application for the visa must be refused. There was no request for an extension of time to provide information by the applicants or a request for a hearing that was unreasonably or unfairly denied. There was no denial of procedural fairness by the Tribunal and ground one of the application for judicial review must fail.
Contrary to ground two, the applicants were also given a reasonable opportunity to provide the requested documents to the Tribunal. Regulation 4.17(4) of the Regulations provides that the prescribed period for giving information is 14 days after the person receives a request for information under s 359. The request for information was sent by email to the applicants on 19 March 2020 (CB 76). Section 379C(5) of the Act deems the request to have been received on the day that it was transmitted. Therefore a response was required by 2 April 2020. That was the time required by the regulations. In any event the Tribunal did not make the Decision until 17 April 2020 and the applicants did not rely on any evidence that the Tribunal failed to consider information supplied after the due date, or that an extension of time to submit information was unreasonable refused. There was no failure to provide a reasonable opportunity to respond to the request for information or an unfair denial of a hearing in circumstances where a hearing was sought or required to occur. Ground two of the application for judicial review is also dismissed.
The Decision was also one reasonably made in accordance with the obligations of the Tribunal under the Act. There was no evidence produced to the Tribunal or this Court that at the relevant time, the first applicant was enrolled in a registered course of study or satisfied any other of the primary criteria for the visa under the Regulations. In the absence of evidence and a failure to respond to the request for information it could not be said that the Decision was not rationally or logically open to the decision-maker.
In this case, there was no Certificate of Enrolment in a registered course of study submitted to the Tribunal by the first or second applicant which is a mandatory prerequisite to a visa of the kind sought. Further this was not a case such as the recent decision in Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478 where Justice Feutrill found that it was unreasonable for the Tribunal to exercise its power to adjourn a hearing under s 363(1)(b) of the Act to give the applicants a reasonable period to satisfy the enrolment criteria. In this case, there was no entitlement to a hearing, no request for an extension or adjournment was made and the first applicant could not satisfy the enrolment criteria because he was not enrolled in a recognised course of study, nor is there any evidence that the applicant intended to enrol in a course.
Further, even if the Tribunal fell into error then in the absence of evidence of enrolment the outcome would not be materially different and therefore there was no jurisdictional error because there was no “realistic possibility” that the Decision in fact could have been different if the error had not occurred (LPDT at [9] and [14]).
The application for judicial review dated 20 May 2020 is dismissed.
OTHER MATTERS
At the conclusion of submissions, the Minister sought to amend the name of the first respondent to refer to the minister’s current name; “Minister for Immigration and Multicultural Affairs”. Leave to amend the title of the proceeding is granted.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
The Minister also sought the Minister’s legal costs and disbursements of and incidental to the proceeding fixed in the sum of $5,600.00 which is less than the scale amount provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) and is fair and reasonable in the circumstances.
ORDERS
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent is amended to Administrative Review Tribunal.
3.The application for judicial review dated 20 May 2020 be dismissed.
4.The applicants pay the first respondent’s costs and disbursements of and incidental to this proceeding fixed in the sum of $5,600.00.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 28 January 2025
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