Dhillon v Minister for Immigration
[2020] FCCA 1998
•23 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHILLON v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1998 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – minimal delay but substantive application has no merit – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359B, 359C, 360, 363A, 379A, 379C, 477 Migration Regulations 1994 (Cth), reg.4.17, cls.500.211, 500.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration & Border Protection v Kim [2014] FCA 390 |
| Applicant: | HARMAN SINGH DHILLON |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 115 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 July 2020 |
| Date of Last Submission: | 22 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 23 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 115 of 2020
| HARMAN SINGH DHILLON |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on 1 October 2017 (Court Book (“CB”) 41).
On 30 October 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-15). The applicant indicated that he intended to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.
On 19 December 2017, the applicant was sent a letter inviting him to provide more information in relation to his visa (CB 17-25). The applicant responded on 23 January 2018. He provided information that included confirmation of enrolment documents and a Genuine Temporary Entrant Statement (CB 26-35).
On 14 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 36-43). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant was not a genuine temporary entrant.
On 28 March 2018, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 44-45).
On 24 October 2019, the Tribunal sent the applicant an email inviting him to provide further information (CB 49-56). No response was received.
On 6 March 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 57-62).
On 15 April 2020, the applicant sought judicial review of the Tribunal’s decision in this Court. That application was filed five days outside of the statutory time period prescribed in s.477 of the Migration Act 1958 (Cth) (the “Act”). As such, the applicant requires an order from this Court extending the time within which to pursue these proceedings.
Tribunal’s Decision
The Tribunal’s decision is four pages long and spans 19 paragraphs.
The Tribunal summarised the background of the application. It noted the type of visa the applicant had applied for and the basis of the delegate’s decision for refusing the visa (at [1]-[3]).
The Tribunal then noted that it had sent the applicant a request for further information pursuant to s.359 of the Act and that the applicant had not responded (at [4]-[5]). As a result of the failure to respond, the Tribunal decided the review without inviting the applicant to attend a hearing (at [6]).
The Tribunal referred to the criterion that needed to be satisfied for the visa to be granted (at [10]) and, relevantly, set out the requirements of cl.500.211 of the Regulations (which require that an applicant be enrolled) (at [11]-[12]).
Without alteration, the Tribunal stated as follows:
13. Producing evidence of a current enrolment is a critical first step towards obtaining a student Visa such evidence shows that the applicant has prior to the tribunal making its decision entered into a legally binding contract with a registered course provider. Enrolment continues to be of legal significance once a student Visa is issued. All student visas are subject to a condition that the Visa holder remains enrolled in a registered course of study. That condition operates on a continuing basis every day the Visa remains valid. If a student Visa is issued to an applicant who is not enrolled in a course of study, the Visa will be breached as soon as it is granted.
14. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in cls 500.212 to 500.218 is premised on the enrolment criterion in clause 500.211 first being satisfied. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.
15. In this case, the Tribunal cannot be satisfied that the applicant is currently enrolled in a registered course of study. The applicant lodged his application for a student visa on 30 October 2017, proposing to study a program in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. He provided two Confirmation of Enrolment documents from Gamma Education, the latest concluding on 2 February 2020. This time has now passed. Accordingly, as at the date of this decision, the applicant has had sufficient time to complete the proposed course of study and there is no evidence to suggest that he is engaged in further studies.
16. For the purposes of determining whether the criteria contained in clause 500.211 are satisfied, cogent evidence of a current enrolment must be presented to the tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study. There is presently no such evidence before the tribunal.
The Tribunal was not satisfied that the applicant met cl.500.211 and affirmed the decision not to grant the applicant the visa (at [17]-[19]).
Proceedings in this Court
The applicant filed an amended application dated 11 June 2020. The applicant did not indicate whether he sought an order for an extension of time in that amended application. He has thus failed to indicate in writing why he believes it is necessary in the interest of the administration of justice for him to be granted an extension of time within which to argue his substantive application.
The Minister submits that in these circumstances, the application for judicial review is “incompetent” because s.477(2)(a) of the Act requires that an applicant apply “in writing” for an order extending time specifying why such order should be made. The Minister submits that, having failed to do so, the application should be dismissed.
Notwithstanding the Minister’s submissions in this regard, the Court notes that the applicant is unrepresented and has proceeded on the basis that s.477(2)(a) was (or can be) satisfied for the purposes of this hearing.
The Court explained to the applicant that he needs to satisfy the Court that it is in the interests of the administration of justice to extend time: the Act, s.477(2)(b). Further, while the factors to be considered in relation to an extension of time are not exhaustive, in determining whether it is necessary in the interests of the administration of justice to extend time, the Court will generally look at the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The Minister submitted that the delay was relatively minor and that no prejudice was claimed.
The Minister also referred to the fact that the applicant had offered no explanation for the delay.
Finally, the Minister argued that the substantive application is without merit.
The Court asked the applicant to explain why he had lodged his application five days late. He stated that he tried to lodge the application but had made mistakes and referenced the current situation regarding COVID-19. It is noted that at the time that the applicant lodged his application, restrictions were in place and the Court’s Registry was not open to the public.
The explanation provided is satisfactory. These are challenging times. The delay in question is minor and the explanation provided need not be compelling.
In all of the circumstances, the minor delay in question weighs in favour of an extension of time being granted.
Here, the determining factor will be the merits of the substantive application.
In this regard, the Court bears in mind that, on a review like the present, the merits of the grounds need only be “reasonably arguable” and any assessment should be made at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585.
The amended application raises the following grounds of review:
1. I like to state that The Administrative Appeals Tribunal (AAT) affirmed the decision not to grant me, the applicant a Student (Temporary) (Class TU) visa on 12 March 2020
2. I applied for a valid visa application for a subclass 500 Student (Temporary) (class TU) Student (subclass 500) visa on 30 October 2017 (DOHA File Reference: BCC2017/4015500) to undertake study in Australia
3.On 14 March 2018, the Department refused my application on the basis that I do not satisfy clause 500.212 in Schedule 2 of the Migration Regulations.
4. On 28 March 2018 my agent lodged a valid appeal to Administrative Appeals Tribunal.
5. On 24 October 2019, the Tribunal sent an email to my agent with AAT Case number: 1808608 to [omitted] which is NOT my email. The Agent who lodged my AAT appeal and according to the green book invited me through my agent to provide updated information of Student Visa Information under s.359(2) of the Migration Act 1958 and to complete a Form M17 to demonstrate I meet the relevant requirements.
6. The stated email is NOT my email and I have no knowledge of this email and might have been created by the agent without my permission or knowledge.
7. After that on 12 March 2020, the Administrative Appeals Tribunal affirmed my review appeal.
8. The decision record was emailed to me by the agent, Mr [omitted] from [omitted].
9. Tribunal DID NOT invite me to attend any hearing; nor to provide any updated information to demonstrate that I meet the relevant requirements for a student visa, or to attend a hearing to provide additional information in support of the grounds for review application.
10. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the refusal decision of the Department of Home affairs and set aside the decision made by Administrative Appeals Tribunal (Migration & Refugee Division Review).
11. Over and above, if AAT followed the law, sent me a postal letter, and provided me the opportunity to defend myself appropriately, the Tribunal decision would be remitted.
(Without alteration)
Further, in an affidavit dated 6 April 2020, the applicant states:
1. My Student visa being refused by AAT and 1 want to challenge the decision of AAT in Federal Circuit Court on the basis of Jurisdictional Error.
2. The AAT has not provided enough time and notification to respond back in regard to further information seeked by them.
3. I want the matter shall be examined and I should be given the fair opportunity to be heard and represent my case in Federal Circuit Court.
4. The evidence of GTE is crucial for the outcome of the case.
(Without alteration)
The materials before the Court includes those referred to above, a Court Book numbering 66 pages and an outline of submissions filed by the Minister on 30 June 2020.
At the hearing, the applicant appeared via video-link before the Court without legal representation. A Punjabi interpreter was also present. However, the applicant indicated to the Court that he was “confident” with English and could proceed without the assistance of an interpreter. The Court explained to the applicant that, in the event that he required the assistance of the interpreter, he should simply ask as the interpreter was available to assist. Ultimately, the applicant had no difficulty communicating with the Court and was able to advance his concerns with clarity.
Noting that the applicant was unrepresented, the Court allowed him to explain his grounds of review and outline any other concerns he had with the Tribunal’s decision. This is now the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that in assessing whether the substantive application has merit, the Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the email that was used was not his own and he did not know about any of the emails that were sent to this account. Further, he did not know who the email address belonged to but believed it might belong to his agent. The Court will address this issue below in assessing the grounds of review as articulated.
Consideration
Interpreting the applicant’s grounds of review in his amended application and the matters he refers to in his affidavit broadly (bearing in mind the Court’s approach in an extension of time application is to assess whether there is a an “arguable” case), the applicant appears to contend as follows:
a)his agent committed a fraud or acted negligently (grounds 4-8 of the amended application);
b)the Tribunal erred by not inviting him to a hearing (grounds 9-11 of the amended application); and
c)he did not have enough time to respond to the invitation to provide information that was sent by the Tribunal (paragraph [2] of the applicant’s affidavit).
The other matters that the applicant refers to in his amended application and affidavit are factual matters that do not identify jurisdictional error. To the extent that the applicant refers to the “GTE criterion”, this was irrelevant to the Tribunal’s review. It pertains to the delegate’s decision – a decision that is not the subject of review in this Court. None of the other matters require attention by the Court.
The Applicant’s Agent
The applicant appears to allege that his agent did not pass on the invitation to comment and that the email address that all of the correspondence was sent to was not his email address. At hearing, the applicant explained that he did not know who the email address identified in the Court Book belonged to.
Relevantly, nowhere in the applicant’s visa application is it indicated that the applicant was represented by a migration agent. At all times (both before the delegate and the Tribunal) the applicant indicated that he was applying for the visa on his own behalf and that he lodged the review application himself. There is, in effect, nothing in the evidence before the Court to suggest that the applicant was ever represented by a migration agent.
On that basis, the Court is not satisfied that there was in fact a migration agent involved in this matter. Hence, no fraud could have occurred.
Even if the applicant did have a migration agent, the Court does not accept on the evidence available that there has been any fraud by that person that would vitiate the Tribunal’s decision: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In his affidavit dated 6 April 2020, the applicant seemingly concedes that he did receive the invitation to provide information but did not have enough time to comment.
The Court rejects any suggestion that the applicant was not advised of the invitation to provide information.
Finally, there is nothing to suggest that any agent acted fraudulently or with the intention to stultify the Tribunal from undertaking the review. The applicant states in his grounds that his “agent” lodged a valid review application. Further, at the hearing the applicant stated that he gave the “agent” documents. This implies that the applicant gave someone the authority to act on his behalf. Whether the applicant’s agent provided an incorrect email address or otherwise, there is nothing to suggest fraudulent intention on the part of the agent or anyone else.
On the basis of the above, there is no merit in any grounds of review directed to the alleged conduct of an alleged migration agent.
Failure to invite the applicant to a hearing
The applicant claims that he was not invited to a hearing (or to provide further information) and was therefore denied procedural fairness. The applicant appears to claim that if the Tribunal had sent correspondence by post then he would have had the opportunity to defend himself “properly”.
The reason the applicant was not invited to attend a hearing was because he had failed to respond to the invitation to provide further information issued pursuant to s.359 of the Act. Having failed to respond, the cascading effect of ss.359C, 360(3) and 363A of the Act meant that the Tribunal had no power to invite the applicant to a hearing: Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40.
The Court has considered whether the Tribunal was correct in finding that the applicant was not entitled to attend a hearing.
The Tribunal invited the applicant to provide further information in a letter dated 24 October 2019. The letter:
a)specified that the information was to be provided in writing (thereby satisfying s.359B(1)(a) of the Act);
b)gave the applicant the prescribed period in which to respond (being 14 days) as required by s.359B(2) of the Act and reg.4.17(4) of the Regulations; and
c)was sent to the nominated email address provided in the applicant’s review application (thereby satisfying s.359(3)(a) of the Act).
The invitation was valid and the consequence of the failure to respond (which was clearly stated in the invitation) was that the applicant lost the entitlement to attend a hearing. No error arises in relation to the Tribunal not inviting the applicant to attend a hearing.
The applicant also expressed concern with the fact that the email address was not his own and that the Tribunal should have sent the correspondence by post. It appears that the applicant is suggesting jurisdictional error on the basis that the email address used was incorrect.
Section 379A of the Act provides:
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
…
(b)email; or
…
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
…
In this matter the Tribunal sent the invitation to the email address that was provided in the application lodged with the Tribunal. This was the only email address provided by the applicant “in connection with the review”. If the agent or the applicant provided an incorrect email address, that is unfortunate but it does not point to jurisdictional error on the part of the Tribunal. The Tribunal sent the relevant email to the address provided by the applicant. In the absence of any fraud (which the Court has found is unfounded) that was all that was required: Cheng v Minister for Immigration & Citizenship (2011) 198 FCR 559. By virtue of s.379C(5) of the Act, the applicant was deemed to have received the invitation at the end of the day on 24 October 2019, whether or not he actually did receive it.
Further, as s.379A(5) makes clear, the Tribunal is not required by law to send correspondence via the post. It was entirely open to the Tribunal to send the correspondence to the applicant by email: Minister for Immigration & Border Protection v Kim [2014] FCA 390. The applicant’s suggestion that the Tribunal was required to send the correspondence by post is rejected.
The applicant was afforded procedural fairness or “natural justice” in accordance with the exhaustive obligations set out in div.5 of pt.5 of the Act. Contrary to the applicant’s assertion, he was invited to provide further information. He did not do so and, accordingly, lost any entitlement to attend a hearing.
It is not reasonably arguable that there was a failure on the part of the Tribunal to invite the applicant to attend a hearing or that the applicant did not have an opportunity to present or defend his case.
Insufficient time to respond to the Tribunal
This argument, which arises from the applicant’s affidavit, seems to contradict the arguments he raises in his amended application. Specifically, the applicant states that the Tribunal did not provide enough time to respond to the invitation and provide information. However, in the amended application he seems to suggest that he never received any correspondence. The applicant’s position is not entirely clear. As such, having found above that the invitation was valid, the Court will address whether the applicant had sufficient time to respond.
The invitation was sent by email to the nominated address. As such, the applicant was deemed to have received it at the end of the day on 24 October 2019: the Act, s.379C(5). The Tribunal required the applicant to respond by 7 November 2019 (within 14 days). 14 days was the statutorily prescribed period: the Act, s.359B(2), the Regulations, reg.4.17(4). Hence, the time provided was not “insufficient”. It was the amount of time mandated by statute.
Further, if the applicant did consider the time to respond to be insufficient, he could have requested an extension of time: the Act, s.359B(4). The invitation made this clear. The applicant did not request more time.
Further, notwithstanding that the applicant lost his entitlement to attend a hearing, there was nevertheless a delay of over three months before the Tribunal made a decision. At no time did the applicant make any inquiries about the progress of his case.
The applicant’s argument that the Tribunal provided him an insufficient amount of time to respond to the invitation is without merit.
Conclusion
While the minor delay, lack of prejudice and explanation for the delay do not weigh against an extension of time within which to file the substantive application, the applicant’s judicial review application and affidavit do not identify any arguable error. The Court is otherwise satisfied that no arguable error arises.
The Court notes that following the hearing on 22 July 2020 and after the Court had reserved judgment, the applicant emailed the Registry as follows:
Hi air i got my application late due to COVID 19 because at that time the registry and court was closed so they did not accepted anything then it took me time to get the emails and i send it through. So at the moment my application is incompetent and to make my application competent i want to have extension of time.
The applicant’s email does not alter the Court’s view and the findings it has made. It repeats matters that were discussed with the applicant during the course of the hearing.
The application for an extension of time is, accordingly, refused.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 July 2020
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