DING v Minister for Home Affairs
[2018] FCCA 3782
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DING v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3782 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s reasons lack an evident and intelligible justification – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 486E |
| Applicant: | MINNIE DING |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2178 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 18 December 2018 |
| Date of Last Submission: | 18 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Levingston Christopher Levingston & Associates |
| Solicitors for the Respondents: | Ms S Sangha Mills Oakley |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.
DATE OF ORDER: 18 December 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG2178 o 2018
| MINNIE DING |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 July 2018 affirming the decision of a delegate to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa.
The applicant is a citizen of Malaysia. The applicant applied for the visa on 25 November 2016. On 8 February 2017, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate was not satisfied the applicant was a genuine applicant for for entry and stay as a student and that she intends to stay in Australia temporarily.
The applicant applied for review on 27 February 2017. On 13 April 2018, the Tribunal wrote to the applicant seeking further information. The invitation to provide information expressly referred to the Ministerial Direction No. 69 in relation to assessing temporary entrant criteria. The letter also referred to written information requested in the attached questionnaire and requested that that be received by 27 April 2018. That questionnaire had in it question 9:
Do you have a current Confirmation of Enrolment or letter of offer in a course of study?
The questionnaire provided for a circling of either a yes or no. No answer was circled.
Following the sending of the letter of 13 April 2018, a letter was sent by email dated 26 April 2018 on behalf of the applicant requesting an extension of time to submit documents. On 30 April 2018, a response was sent by the Tribunal referring to the invitation dated 13 April 2018 and the request for an extension made on 26 April 2018. The letter identified having carefully considered the same. There was the grant of an extension in respect of the letter of 13 April 2018 identifying that information had to be received by 14 May 2018. That information included reference to the course of enrolment in the questionnaire.
On 13 June 2018, the Tribunal sent to the applicant an invitation to attend a hearing to take place on 5 July 2018. The letter dated 13 June 2018 expressly referred on the second page in paragraph 1 to there being a need to provide the following information so 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 of the Migration Regulations 1994, as is required for the grant of a student visa.
The applicant appeared at the hearing on 5 July 2018 together with a representative to give evidence and present arguments.
The Tribunal in its reasons identified the background to the visa application and referred to the applicant’s attendance at the hearing. The Tribunal expressly referred to the requirements of the of the Migration Regulations 1994 (Cth) (“the Regulations”) and to cl 500.211 of the Regulations that at the time of the decision the applicant must be enrolled in a course of study. The Tribunal referred to the communication inviting the applicant to attend the hearing and the express reference to the need to provide evidence of enrolment at least seven days before the hearing. The Tribunal noted that such evidence had not been provided. The Tribunal noted at the hearing that the applicant was requested to provide evidence, such as a certificate of enrolment, and found the applicant had not done so.
The Tribunal noted that the applicant did request further time, which was considered by the Tribunal. The Tribunal noted that the applicant asserted she had offers of enrolment at home and requested time in which to provide that to the Tribunal. The Tribunal identified, having considered the requests, that it declined to grant an adjournment, taking into account that the applicant had had several months to do so following the delegate’s decision. The Tribunal found that it had been over a year since the delegate’s decision in February 2017 in which to provide the information. The Tribunal referred to the invitation that it sent on 13 June 2018 and that the applicant had several weeks to provide the relevant documents. It was in these circumstances the Tribunal declined to grant the request to afford further time.
The Tribunal found that there is no evidence that the applicant is enrolled in or has a current offer of enrolment in a course of study. The Tribunal found the applicant did not meet at the time of decision the requirements of cl 500.211 of the Regulations by reason of not being enrolled in a course of study and affirmed the decision under review.
Before this Court
These proceedings were commenced on 6 August 2018. The ground in the application is as follows:
1. The Second Respondent fell into jurisdictional error by failing to afford the Applicant procedural fairness as required by section 353 of the Migration Act, 1958.
Particulars
(a) On 5 July 2018 the Second Respondent proceeded to an oral decision to affirm the decision of the First Respondent's servants to refuse a subclass 500 Visa. At paragraph 9 of the decision record, the Second Respondent unreasonably refused the application for an adjournment made by the Applicant to travel home and collect her COE. That application was refused and the second respondent thereafter immediately proceeded to orally affirm the decision of the First respondent to refuse the visa. Thereafter the Second Respondent was "functus".
Ground 1
Mr Levingston, solicitor for the applicant, contended that the Tribunal’s decision was legally unreasonable in the circumstances of the case. Mr Levingston took the Court to the communications that had been sent to the applicant and in particular the questionnaire which had been answered by the applicant and that the answer to question 9 had not been completed. Mr Levingston contended that in the circumstances it was legally unreasonable for the Authority to refuse to adjourn the matter.
There is no substance in ground 1. It is not reasonably arguable. The Tribunal provided logical and rational reasons for the refusal of the decision. Those reasons cannot be said to lack an evident and intelligible justification. The opportunity already given to the applicant by reason of the time period from the lapse of the delegate’s decision, as well as the reference to the letter of 13 June 2018, were logical and rational reasons in support of the Tribunal’s refusal to adjourn. Given the Tribunal’s reasons there was no failure to afford the applicant procedural fairness and the refusal to adjourn was not legally unreasonable. These proceedings, the Court finds, have no reasonable prospect of success under s 486E of the Act. No jurisdictional error as alleged in ground 1 is made out.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 11 January 2019
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