Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 320
•9 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 320
File number(s): SYG 722 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 9 May 2024 Catchwords: MIGRATION – Student visa application – application for judicial review of decision of Administrative Appeals Tribunal – where Judicial Registrar summarily dismissed application – application for extension of time to seek review of decision of Judicial Registrar– extension of time granted – de novo hearing of Minister’s application for summary dismissal of substantive application – where applicant has no reasonable prospect of establishing judicial error – application summarily dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr.13.13, 21.02, 21.04.
Migration Act 1958 (Cth), s.477A.
Migration Regulations 1994 (Cth), Sch 2.
Cases cited: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641
Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 155
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Randeep Singh Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 912
Spencer v Commonwealth (2010) 241 CLR 118
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 21 November 2023 Date of hearing: 21 November 2023 Place: Sydney Applicant: In person Solicitor for the Respondents: Mills Oakley ORDERS
SYG 722 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANDEEP SINGH DHALIWAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 19 March 2019 be summarily dismissed pursuant to r.13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2.The Applicant pay the First Respondent’s costs of this review application fixed at $1,000.
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 GOODCHILD
INTRODUCTION
By an application for judicial review filed in this Court on 18 May 2022, the applicant sought review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 April 2022 dismissing the applicant’s application for review. The Tribunal had affirmed a decision of a delegate of the first respondent refusing the applicant a Student (Subclass 500) visa.
On 11 October 2023, that review application was heard and determined by a Judicial Registrar of this Court. That review application was summarily dismissed pursuant to r.13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”). An order was made for the applicant to pay the first respondent’s costs fixed in the sum of $4,189.38.
By an application lodged on 24 October 2023, the applicant seeks a review of the Judicial Registrar’s decision pursuant to r.21.02 of the Rules.
The application for review of the Registrar’s decision was made outside the time limit of seven days prescribed by r.21.02(a) of the Rules. That period may be extended by order of the Court.
The review of the Registrar’s decision proceeded by way of hearing de novo before me on 21 November 2023.
I have decided that the time for filing an application for review of the Registrar’s decision should be extended to 24 October 2023.
However, for the reason set out below, the orders of the Judicial Registrar should be affirmed. I am satisfied that the applicant’s substantive application has no reasonable prospects of success and for that reason the application should be summarily dismissed pursuant to r.13.13(a) of the Rules.
BACKGROUND
The relevant background to this application is largely uncontested and is conveniently set out in the Judicial Registrar’s published reasons in Randeep Singh Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 912 (“the Judicial Registrar’s reasons”) at [5] – [10].
The Registrar set out the following findings of fact:
[5]A Diploma and Advanced Diploma in Leadership and Management formed the basis of the applicant’s student visa application (CB 1, 30, 42-43). In March 2022, the applicant gave the Tribunal a completed Request for Student Visa Information form (CB 66) in response to the Tribunal’s request dated 24 February 2022 for the applicant to provide information establishing that he satisfied, inter alia, the enrolment criterion (CB 59). In the form, the applicant said that he was “studying now” the Advanced Diploma and that the course end date was “08/22” (CB 70). The form contains no reference to the Diploma.
[6]On 6 April 2022, the Tribunal invited the applicant to attend a telephone hearing on 29 April 2022 (CB 76). The hearing invitation email relevantly stated the following (emphasis in original) (CB 77-78):
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 22 April 2022. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then ccompanied by a translation from a qualified translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.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 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
…
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate
…
We may make a decision at the end of your hearing.
[7]On 19 April 2022, the Tribunal conducted a search of the PRISMS database in respect of the applicant (CB 85). The results of the search indicated the following:
(1)The applicant’s enrolment in the Diploma had been cancelled on 22 December 2021 due to “Non payment of fees”;
(2)The applicant’s enrolment in the Advanced Diploma had been cancelled on 22 December 2021 due to “Change to COE/Student Details”; and
(3)The applicant had not subsequently enrolled in any other courses, and was not enrolled in any course as at 19 April 2022.
[8]On 21 April 2022, the applicant gave the Tribunal a completed Response to hearing invitation form by which he indicated that he would take part in the hearing and that he did not intend to rely on any documents at that hearing (CB 87-89).
[9]The applicant attended the telephone hearing on 29 April 2022 (CB 92). The Tribunal’s decision record contains the following summary of the hearing (CB 99, [11]-[12]):
At hearing, the Tribunal put to the applicant the information that, according to his PRISMS record, he was not enrolled in a course of study, in accordance with the requirements of s 359AA of the Act. It explained to the applicant that this information was relevant to the Tribunal’s decision because enrolment in a course of study was a necessary requirement for the grant of a student visa, and that if the applicant was not enrolled in a course of study he would be ineligible for such a grant. The Tribunal also explained that it could, if it saw fit to do so, change the determinative issue in this case, so that the applicant’s review application would be determined by reference to the enrolment criterion of cl 500.211 rather than be reference to the genuine temporary entrant criterion of cl 500.212.
The Tribunal then asked if the applicant wished to respond to the information that had been put to him regarding his lack of any enrolment, reminding him that he was entitled to seek for additional time in which to respond if he wished to. The applicant stated that he did not wish to seek additional time in which to respond, and that he had nothing to say on that issue. The Tribunal then stated that it was proposing to change the determinative issue in this case and decide it on the basis of the enrolment requirement rather than on the basis of the genuine temporary entrant requirement. The Tribunal invited the applicant to address it on that issue if he wished to, but he declined to do so. That being the case, the Tribunal proceeded to change the determinative issue and to determine with the review application on the basis of the enrolment requirement of cl 500.212.
[10]On the day of the hearing, the Tribunal made an oral decision by which it affirmed the delegate’s decision (CB 97). The crux of the Tribunal’s reasons was as follows (CB 99, [13]):
The evidence before the Tribunal is that the applicant was not enrolled in a course of study as at the date of hearing. The applicant did not adduce any evidence to contradict this proposition. The Tribunal therefore finds that that the applicant is not enrolled in a course of study at the time of its decision. Accordingly, cl 500.211 is not met.
EXTENSION OF TIME
The Judicial Registrars decision was made on 11 October 2023. The application for review of the Judicial Registrars decision was made on 24 October 2023. The seven-day time limit prescribed by r.21.02 of the Rules expired on 18 October 2023. The application was filed six days out of time, two of which were a weekend.
The Court has a wide discretion under r.21.02 of the Rules to extend time. There is no prescribed statutory criteria to inform the exercise of the court’s discretion to extend time. The factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court, in relation to provision s.477A(2) of the Migration Act 1958, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604[1]. The most common factors considered by the Court in matters of this sort include:
(a)The length of delay;
(b)Whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)Whether there is any prejudice to the Minister (prejudice); and
(d)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
The legal representative for the first respondent took a very pragmatic approach and accepted that the delay was short and that there is no prejudice to the Minister. She further indicated that in matters such as these the consistent approach of the Court is for the extension of time to be granted so that the judicial review application can be fully reviewed.
In my view the extension of time should be granted. The application was filed some six days out of time, two of which were a weekend. The Minister is not prejudiced.
Summary dismissal of an application is a significant decision. The applicant is self-represented, and the Court should extend some leniency where a self-represented party seeks a de novo review of a Registrar’s decision in a timely fashion, albeit just outside the prescribed time limit. Having regard to the position of the first respondent and the broad discretion available to me, I consider it to be in the interests of justice to extend time for the Judicial Registrar’s decision to be reviewed and determined by this Court.
REVIEW PROCEEDINGS – MINISTER’S APPLICATION FOR SUMMARY DISMISSAL
I will now consider the first respondent’s substantive application that the applicant’s application for review of the Tribunal’s decision be summarily dismissed.
The review of an exercise of power by a Registrar must proceed by way of a hearing de novo: r.21.04(a) of the Rules.
The first respondent’s application for summary dismissal invokes r.13.13(a) of the Rules, which provides that the Court may order that a proceeding be summarily dismissed if the Court is satisfied that “the party prosecuting the proceeding or claim for relief has no reasonable prospect to successfully prosecuting the proceeding or claim”.
The first respondent submits that the substantive application is without merit and should be dismissed.
In considering an application for summary dismissal under r.13.13(a) of the Rules, it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). It is not necessary for the Court to be satisfied that the applicant is bound to fail.
The discretion to summarily dismiss an application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument: Spencer; Przybylowski. However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities & Investments Commission v Cassimatis [2013] FCA 641 at [46]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
The first respondent sought to rely upon the written submissions, court book and oral submissions.
CONSIDERATION
The material before me included the following documents:
(a)The applicant’s application for judicial review filed on the evening of 18 May 2022;
(b)The affidavit filed by the applicant on the evening of 18 May 2022 which annexes the Tribunal’s decision;
(c)The Minister’s response, by which summary dismissal was sought of the applicant’s application for judicial review, as filed on 13 July 2022;
(d)The court book filed by the Minister on 22 August 2022; and
(e)The Minister’s outline of submissions as filed on 27 September 2023.
The applicant did not seek to rely upon any transcript of the Tribunal hearing.
The application for review contains the following three grounds:
1.APPLICANTS CLAIMS THAT THE ADMINSTRATATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON
2.I AM CURRENTLY DOING MY STUDY AND PRODUCE MY CURRENT COE BEFORE AAT BUT THEY DISMISS MY MATTER.
3.I FULFILL ENROLMENT REQIUREMENT CL.500.211 BUT AAT DID NOT GRANTED VISA.
TRIBUNAL DECISION
The Tribunal Decision Record (“Decision Record”) runs to 15 paragraphs across two pages. The Decision Record begins with an overview of the applicant’s application for review. It records that the applicant had applied for a review of the delegate’s decision to refuse to grant him the student visa.
The Decision Record records that the delegate in the case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because they were not satisfied that the applicant intended genuinely to stay in Australia temporarily. However, the issue at the hearing became whether the applicant satisfies the requirements of clause 500.211 of Schedule 2 of the Regulations.
The Decision Record records that the applicant appeared by telephone before the Tribunal on 29 April 2022 to give evidence and present arguments.
The Decision Record then a enumerates in four paragraphs the relevant criteria to be satisfied for a Subclass 500 (Student) visa. The Tribunal records that prior to the hearing it obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS) which showed that the applicant was not, as of 19 April 2022, enrolled in a course of study.
The Tribunal then correctly identified the requirements of clause 500.211, that at the time of the decision the applicant is enrolled in a course of study.
The Decision Record records that the Tribunal put to the applicant the information that according to his PRISM record, he was not enrolled in a course of study and that being enrolled in a course of study was a necessary requirement for the grant of the student visa.
The Decision Record records that when the Tribunal asked the applicant if he wished to respond to the information that had been put to him regarding his lack of enrolment, reminding him that he was entitled to seek for additional time in which to respond if he wished to, the applicant stated that he did not wish to seek any additional time in which to respond and that he had nothing to say on that issue.
The Decision Record records that it informed the applicant that it was proposing to change the determinative issue in this case from the basis of the genuine temporary entrant requirement to the enrolment requirement and the Tribunal invited the applicant to address it and that issue if he wished to but he declined to do so.
The Tribunal found that the evidence before it was that the applicant was not enrolled in a course of study as at the date of the hearing, that the applicant did not adduce any evidence to contradict that proposition, and it therefore found that the applicant was not enrolled in a course of study at the time of the decision. Accordingly, because clause 500.211 of Schedule 2 of the Regulations was not met, the decision under the review was affirmed.
Ground 1
Ground one of the applicant’s application complains that the Tribunal erred by failing to “consider the appeal from applicant to consider on the compassionate reason”. As I understand the applicant’s case with respect to this ground, he submits that in the circumstances where at the time of the Tribunal decision he was experiencing difficult family circumstances and was not enrolled in a course of study, the failure by the Tribunal to consider those difficult circumstances caused the Tribunal to fall into error.
The Reasons for Decision of the Judicial Registrar correctly identified the applicable legal principles in respect of the objective nature of the enrolment criterion. The Judicial Registrar in his reasons at paragraph 19 identified that:
19.… the enrolment criterion imposes an objective criterion for the grant of a student visa that cannot be “waived by reference to [an] applicant’s previous study or personal circumstances (Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24] per Judge Laing). The cause of the applicant’s non-enrolment was, for the reasons given by Perry J in Kaur v Minister for Immigration [2016] FCA 132 at [31]; (2016) 245 FCR 296 at 303, irrelevant to the Tribunal’s determination as to whether the applicant satisfied the enrolment criterion in circumstances where the Tribunal had no discretion to waive the need for the applicant to meet that criterion (see also Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149 at [9] per Jagot J). As Judge Kendall explained in Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828 at [57] (see also Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606 at [63] per Judge Kendall):
The requirement that an applicant be enrolled in an approved course of study is mandatory. The Tribunal has no discretion to waive that requirement or to take into account any exceptional circumstances. The sole question the Tribunal was required to answer was whether or not the first applicant was currently enrolled in (or had an offer of enrolment for) an approved course of study.
The first respondent, relying upon Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 155 at [35], submitted that the existence or otherwise of compassionate circumstances was not a relevant consideration for the Tribunal in determining the objective criterion of whether the applicant was enrolled in a course of study.
The applicant was not enrolled at the time of the Tribunal hearing. He conceded at the hearing before me that he was not enrolled at the time of the Tribunal hearing. In the circumstances, the decision of the Tribunal was the only one open to it.
In the circumstances I am satisfied that the applicant does not have reasonable prospects of success with respect to Ground 1.
Ground 2 and 3
With respect to ground’s 2 and 3, the applicant asserts that he was currently studying and produced his current COE before the Tribunal, but his application was dismissed.
As identified in paragraph [28] of these reasons, the Decision Record states as follows (at[8]):
… prior to the hearing the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record showed that the applicant was not, as of 19 April 2022 enrolled in a course of study.
In the hearing before me, the applicant conceded that he was not enrolled at the time of the Tribunal hearing.
I am satisfied that the applicant does not have reasonable prospects of success of establishing grounds 2 and 3.
CONCLUSION
I am satisfied that the applicant does not have reasonable prospects of successfully prosecuting his application for judicial review. I have decided to exercise my discretion pursuant to r.13.13(a) of the Rules to summarily dismiss that application.
The applicant should pay the first respondent’s costs of this hearing in the fixed sum of $1,000.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Dated: 9 May 2024
1
11
3