Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 78
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 78
File number: MLG 786 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant Student (Temporary) (Class TU) visa – whether Tribunal erred by failing to grant applicant a further opportunity at or after the hearing to provide a Confirmation of Enrolment – whether Tribunal erred by failing to consider or assess the genuine temporary entrant criterion – whether Tribunal denied applicant procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 ss 357A, 359AA, 359A, 360, 360A, 362B, 366C, 476, 477
Migration Regulations 1994 (Cth) cl 500.211, 500.212, reg 4.21
Cases cited: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1721
Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; [2002] FCA 1050
W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 7 February 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms M Harradine Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 786 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASVIR SINGH DHALIWAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
9 February 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
Introduction
The application before the Court is an application for judicial review filed on 27 March 2018 under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks judicial review of a decision made by the Tribunal on 14 March 2018 affirming a decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.
For the reasons explained below, the applicant has not established that the Tribunal has made any jurisdictional error. I therefore dismiss the application to the Court.
Background
The applicant is a non-citizen who arrived in Australia in August 2007 as the holder of a student visa.
The applicant applied for the student visa the subject of this application on 27 July 2016.
On 15 September 2016 a delegate of the Minister refused to grant the applicant a student visa. The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia and therefore found that he did not meet cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 4 October 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 9 February 2018 the Tribunal sent to the applicant an invitation to attend a hearing which had been scheduled for 14 March 2018. In that invitation the Tribunal requested that the applicant provide certain documents ahead of the hearing, including:
A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as required for the grant of a student visa.
The applicant provided some documents to the Tribunal in accordance with this request. However, he did not provide any certificate of enrolment or other documents showing that he was enrolled in a course of study.
The applicant attended the hearing on 14 March 2018. At the conclusion of the hearing the Tribunal made an oral decision affirming the delegate’s decision. The Tribunal subsequently provided a written statement of reasons on 16 March 2018.
In its reasons, the Tribunal identified that the issue in the case before it was that the applicant was not enrolled in a course of study. The Tribunal noted that the applicant testified that he was not enrolled in a course of study and therefore the Tribunal was not satisfied that at the time of its decision the applicant was enrolled in a course of study. The Tribunal found that the applicant did not meet the criteria in cl 500.211 in Schedule 2 to the Regulations.
Judicial review application
The application for judicial review was filed within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act. The application contains the following three grounds:
1.Jurisdictional Error- I was not provided an opportunity to give the Confirmation of Enrolment
2.Error in interpretation of legislation – GTE criteria was not assessed by the Tribunal
3. Procedural fairness
On 20 March 2019 a Registrar of this Court made an Order setting out the steps required to progress this matter to hearing. Pursuant to that Order the applicant was required to file and serve 28 days before the hearing any amended application, any supplementary court book and written submissions. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions on 16 January 2023 as required by the Order.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit deposed by the applicant and filed on 27 March 2018 which sets out his grounds of application and annexes a copy of the Tribunal decision; and
(c)an affidavit of Jessica Ruth Noakesmith filed on behalf of the Minister on 30 July 2019 which annexes a copy of the transcript of the applicant’s hearing before the Tribunal.
Consideration
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s judgment in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1
By ground 1, the applicant asserts jurisdictional error on the basis that he was not afforded an opportunity to give to the Tribunal a Confirmation of Enrolment. At the hearing before the Court, the applicant submitted that if he had been given an opportunity, he would have provided a Confirmation of Enrolment.
I accept the Minister’s submission that this ground fails at a factual level.
In the invitation sent to the applicant on 9 February 2018, the applicant was expressly requested to provide evidence of his enrolment in a course of study prior to the Tribunal hearing. The applicant did not provide any Confirmation of Enrolment in response to the request. The applicant confirmed in his evidence given to the Tribunal at the hearing that he was not enrolled in any course. In circumstances where the Tribunal sent the hearing invitation to the applicant some 33 days prior to the hearing, and therefore the applicant had 33 days’ notice that he needed to provide a Confirmation of Enrolment, I do not accept that the applicant was not afforded an opportunity to provide a Confirmation of Enrolment.
It is unclear from the way in which the ground has been advanced by the applicant whether he is also asserting that it was unreasonable for the Tribunal not to give him a further opportunity at or after the hearing to provide a Confirmation of Enrolment. Having reviewed the transcript of the Tribunal hearing, I am satisfied that the applicant did not request any adjournment.
In any event, any failure by the Tribunal not to grant the applicant a further opportunity at or after the hearing to provide a Confirmation of Enrolment is not unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Notwithstanding that the applicant had been put on notice 33 days’ prior to the Tribunal hearing, of the need to prove that he was enrolled in a course of study, the applicant confirmed at the Tribunal hearing that he was not enrolled in a course of study and had not studied since 2016. In these circumstances, it was open to the Tribunal not to grant the applicant further time to meet an essential time of decision criteria necessary for the grant of a student visa.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal erred in its interpretation of the legislation by not considering or assessing the genuine temporary entrant criterion.
Based on my review of the Tribunal’s reasons for decision and the transcript of the hearing, I accept that the genuine temporary entrant criterion was not discussed at the hearing and was not addressed in the Tribunal reasons. However, in the circumstances of this case, that does not amount to jurisdictional error.
The Tribunal decision in the present case was based on the applicant’s failure to be enrolled in a course of study at the time of the decision. This enrolment criterion is a mandatory criterion which must be satisfied at the time of the Tribunal’s decision. Once the Tribunal found that the applicant did not meet the enrolment criterion, the applicant could not meet the requirement for the grant of the visa. In these circumstances, there was no need for the Tribunal to proceed to consider the other criteria for the grant of the visa, including the genuine temporary entrant criterion: Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1721 at [47].
Ground 2 is not established.
Ground 3
Ground 3 of the application simply states the words ‘[p]rocedural fairness’. I accept the Minister’s submission that this should be construed beneficially as an assertion that the applicant was not afforded procedural fairness by the Tribunal. The applicant did not provide in his application any particulars that would explain the basis on which he asserts he was not afforded procedural fairness.
At the hearing before the Court, the applicant submitted that he did not have an interpreter before the Tribunal and he was unable to understand what was being said at the Tribunal hearing.
If established, this could amount to a denial of procedural fairness on the basis that the Tribunal did not comply with s 360 of the Migration Act. Section 360 of the Migration Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is well-established that the invitation to the applicant under s 360 must be a real and meaningful invitation: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31].
The applicant may not have been afforded a real and meaning invitation to attend a hearing if he was unable to effectively take part in the hearing because he could not speak English and an interpreter was not provided: see by way of analogy cases where the Court has accepted that inadequate interpretation can amount to an applicant being denied a fair hearing such as Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788; BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52].
However, in the circumstances of the present case, I am not satisfied that the applicant has established that he was unable to understand what was said at the Tribunal hearing or that he was not afforded a real and meaningful opportunity to give evidence and present arguments at the hearing because of any inability to understand. At the hearing before the Court, the Minister referred the Court to the applicant’s application to the Tribunal where the applicant ticked a box indicating that he did not need an interpreter. In his reply submissions, the applicant submitted that he might have made a mistake when ticking the box.
The Tribunal has an obligation under s 366C(1) and (2) of the Migration Act to appoint an interpreter for the purposes of communications between the Tribunal and an applicant where an applicant requests an interpreter, unless the Tribunal considers that the person is sufficiently proficient in English. That obligation did not arise in the present case because the applicant did not request an interpreter. The Tribunal also has an obligation under s 366C(3) of the Migration Act to appoint an interpreter, even if one is not requested, if it considers that a person appearing before it to give evidence is not sufficiently proficient in English.
I have carefully reviewed the transcript of the hearing before the Tribunal and I am satisfied that in the present case the obligation in s 366C(3) to appoint an interpreter did not arise. The applicant was asked a number of questions during the short Tribunal hearing and he provided coherent answers to each question he was asked. There is nothing in the transcript which indicates that the applicant was unable to understand what was said at the hearing or that he was unable to effectively communicate with the Tribunal at the hearing.
I am not satisfied that the Tribunal failed to comply with its obligations under s 360 of the Migration Act.
I am otherwise satisfied that the Tribunal complied with its procedural fairness obligations. The procedural fairness obligations of the Tribunal are set out in Division 5 of Part 5 of the Migration Act, which is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 357A(1) of the Migration Act. I am satisfied that the Tribunal complied with the requirements of Division 5 of Part 5 of the Migration Act, and I particularly note the following requirements.
(a)As discussed above, the applicant was invited to attend a hearing and give evidence as required by s 360 of the Migration Act. I am satisfied that the notice of invitation sent to the applicant complied with the requirements of s 360A. The invitation clearly set out the date, time and place of the hearing. The invitation was provided to the applicant by email with 33 days’ notice, which is more than the 14 day period prescribed in reg 4.21 (4) of the Regulations, and the invitation contained a statement to the effect of s 362B of the Migration Act explaining to the applicant what might happen if he failed to appear at the hearing.
(b)The dispositive issue had changed since the delegate’s decision. The dispositive issue before the delegate was whether the applicant met the genuine temporary entrant criterion. Before the Tribunal, the dispositive issue was whether the applicant met the enrolment criterion. The applicant was put on notice at the time the hearing invitation was sent to him that whether or not he was enrolled in a course would be a relevant consideration. The Tribunal also notified the applicant at the hearing of the need to be enrolled, with the Tribunal stating that it was mandatory to have a current certificate of enrolment before asking the applicant if he had one.
(c)There is no information in the present case that the Tribunal was required to put to the applicant pursuant to ss 359A or 359AA of the Migration Act.
The applicant has not established that he was denied procedural fairness by the Tribunal and therefore ground 3 is not established.
Conclusion
The applicant has not established that the Tribunal made a jurisdictional error in reaching its decision in this matter. It follows that the application to the Court must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 February 2023
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