Galden v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 172

Federal Circuit and Family Court of Australia

(DIVISION 2)

Galden v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 172

File number(s):

MLG 319 of 2019

Judgment of:

JUDGE LAING

Date of judgment:

7 March 2023

Catchwords:

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas – whether the reasoning and procedure adopted by the Tribunal was relevantly open – limitations of the Court’s powers on judicial review – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 359, 359A, 360, 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02

Federal Court Rules 2011 (Cth) r 36.03

Migration Regulations 1994 (Cth) cl 572.223

Division:

Division 2 General Federal Law

Number of paragraphs:

32

Date of hearing:

7 March 2023

Place:

Sydney

Solicitor for the Applicants:

The first applicant appeared via telephone.

Solicitor for the First Respondent:

Ms M Harradine (Mills Oakley) appeared via video-link.

Solicitor for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

MLG 319 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHAMELI TAMANG GALDEN

First Applicant

ANKIT KARKI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	7 MARCH 2023

BY CONSENT, THE COURT ORDERS THAT:

1.Page 3 of the Application is amended so that the second box under the heading, ‘Final orders sought by applicant/s’ is selected, dispensing with the need for filing any further document in this regard.

THE COURT FURTHER ORDERS THAT:

2.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs” dispensing with the need for filing any further document in this regard.

3.The application be dismissed.

4.The first applicant pay the first respondent’s costs fixed in the amount of $3,600.

5.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 3 and 4 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced and orders made.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).

   background

2. The applicants applied for student visas on 2 March 2016. The first applicant (Applicant) sought to meet the primary criteria for the grant of the visas. The second applicant, her son, applied as a member of the family unit.

3. The Delegate refused the application on 26 September 2016. The Delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that the Applicant did not meet the requirements of cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

4. On 13 October 2016, the applicants applied to the Tribunal for review of the Delegate’s decision. The Applicant attended a hearing before the Tribunal on 28 February 2018.

5. On 4 December 2018, the applicants were sent by email (care of their migration agent) two letters. The first was an invitation to provide information including about the Applicant’s “current study” such as a “current certificate or offer of enrolment”. The second was an invitation to comment on or respond to the following:

   On 7 November 2018, the Tribunal obtained an updated report from your Movement Records and Provider Registration and International Student Management System (PRISMS) records. A copy of those updated reports is enclosed.

   At the time of your hearing on 28 February 2018 you told the Tribunal you were studying an Advanced Diploma of Hospitality Management which you were due to complete on 1 June 2018. Your updated PRISMS report records that enrolment as “finished” and does not have any record of you enrolling in further study since that time.

   This information is relevant to your review because the information in your updated Movement Records and PRISMS report indicates:

   •You are not currently enrolled in, or the subject of a current offer of enrolment in, a course of study which indicates you do not meet the primary criteria for the grant of a Student visa under cl.572.231(a). This was not the ground on which your application for the Student visa was refused. This is a time of decision criteria which means at the time the Tribunal makes its decision on your application you must be currently enrolled in, or the subject of a current offer of enrolment in, a course of study to be eligible to be granted a Student visa; and

   •The information in your updated Movement Records read in conjunction with your updated PRISMS report indicates you have completed your intended study in Australia but continue to reside in Australia.

6. The latter letter noted that the Tribunal may rely upon the information to find, inter alia, that the Applicant could not meet cl 572.231(a) of Schedule 2 to the Regulations.

7. No response was received by the Tribunal to these letters.

8. On 17 January 2019, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

9. At [1]-[16], the Tribunal set out the background to the matter including the lack of response it had received to its letters. 

10. At [17]-[21] the Tribunal reasoned:

    17.The issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a Student visa.

    18.With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain 'eligible higher degree students', 'eligible university exchange students', and 'eligible non-award students'. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

    19.The evidence before the Tribunal, being the information in the applicant's updated PRISMS report dated 7 November 2018, is that her enrolment in an Advanced Diploma of Leadership and Management "finished" on 1 June 2018 and there is no record in PRISMS that she has been enrolled in a registered course since that time.

    20.There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

    21.Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

11. In relation to the second applicant, the Tribunal stated (at [23]):

    23.As the Tribunal has found that the primary applicant does not meet the requirements of clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 this means that the dependant applicant does not satisfy the requirements of clauses 570.322, 571.322, 572.322, 573.322, 574.322 and 575.322 for the secondary criteria for dependent applicants as each of these clauses require that the secondary applicant must be a member of the family unit of a person (the primary applicant) who has satisfied the primary criteria for the grant of a Student visa.

12. The Tribunal therefore found that the applicants were unable to meet the criteria for the student visas. Accordingly, it affirmed the Delegate’s decision (at [24]).

    PROCEEDINGS BEFORE THE COURT

13. The applicants commenced the current proceedings through an application filed on 8 February 2019. The following was stated under “Grounds of application”:

    1.THE MINISTERIAL DIRECTION NO. 53 HAS BEEN APPLIED INAPPROPRIATELY TO ASSESS THE VISA APPLICANTS A NON-GENUINE STUDENT FOR REFUSAL OF VISA APPLICATION. THE MAIN VISA APPLICANT HAD BEEN REGULARLY COMPLETING HER FULL TIME STUDIES SINCE THE ARRIVAL IN AUSTRALIA, WITHOUT GIVING ANY OPORTUNITY OF COMPLAINT.

    2.THE MERITS OF VISA APPLICATION AND REVIEW COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.

    3.THE ACTUAL ISSUE INVOLVED WAS NOT CONSIDERED APROPRIATELY. THE DECISION OF THE DELEGATE IS BASED ON ASSUMPTIONS AND PRESUMPTIONS.

    4.THE MEMBER DID NOT KEEP PERSONAL CIRCUMSTANCES OF VISA APPLICANTS IN CONSIDERATION AND INAPPROPRIATELY UP HELD THE DECISION OF DELEGATE.

    5.THE DELEGATE DID NOT CONSIDER THE DEGREE OF HARDSHIP BEING CAUSED TO APPLICANTS AND THEIR FAMILY MEMBERS WITH THE REFUSAL OF VISA.

    6.THE DETERMINATION OF APPLICATION HAS RESULTED IN UNFAIRNESS TO VISA APPLICANTS WHO HAD SPENT THEIR HUGE MONEY AND VALUEABLE TIME.

    Ground 1

14. Ground 1 contended that “MINISTERIAL DIRECTION NO. 53” was applied inappropriately and that the Applicant had been completing her studies without issue.

15. I accept the Minister’s submission that the applicants’ reliance upon Direction No. 53, which relates to the genuine temporary entrant criterion, is misplaced. Whilst the Applicant’s ability to meet the genuine temporary entrant criterion was the issue before the Delegate, by the time of the Tribunal’s decision the issue in question was the Applicant’s ability to meet the criterion that she be enrolled. The Applicant’s completion of her previous studies, and matters that were otherwise relevant to Direction No. 53, were incapable of determining the Applicant’s ability to meet this objective criterion for the grant of the visa.

16. Ground 1 therefore does not demonstrate jurisdictional error.

    Ground 2

17. Ground 2 contended that “the merits of visa application and review could properly be taken into consideration to [determine] a legal issue of some importance”.

18. However, it was not explained what merits the applicants contended ought to be (or to have been) taken into account, nor how this was said to demonstrate relevant error on the part of the Tribunal.

19. Without this, the ground is unable to demonstrate jurisdictional error.

    Grounds 3 to 5

20. Grounds 3 and 5 took issue with the Delegate’s decision.

21. However, this Court has no jurisdiction to review the decision of the Delegate: s 476(2) of the Migration Act 1958 (Cth) (Act).

22. Grounds 3 and 4 additionally suggested that “the actual issue” was not considered appropriately, and that the Tribunal “did not keep personal circumstances of visa applicants in consideration”. The applicants did not say how the issue before the Tribunal was said to have been considered inappropriately, nor what personal circumstances the Tribunal was said to have failed to have considered.

23. I accept that the Tribunal did not consider in detail the evidence regarding the applicants’ circumstances in its decision, beyond the issue of the Applicant’s ability to demonstrate enrolment. However, the criterion of enrolment was an objective one. It was either met or it was not met at the time of the Tribunal’s decision. The Tribunal was unable to waive that criterion, on account of the applicants’ circumstances more generally. For this reason, I would not draw an inference that the circumstances omitted from express reference in the Tribunal’s decision were overlooked, as distinct from being omitted because they were not considered to be material to the Tribunal’s decision. Even if I were to accept that some aspect of the applicants’ circumstances was not considered, it has not been demonstrated how that lack of consideration could be said to have been material within the context of the Tribunal’s decision.

24. It follows that grounds 3 to 5 are unable to succeed.

    Ground 6

25. Ground 6 contended generally that the Tribunal’s decision resulted in unfairness to the applicants, “who had spent their huge money and [valuable] time.” As the Minister has acknowledged, it is understandable that the applicants may feel aggrieved by the Tribunal’s adverse decision, after spending time and money towards seeking a favourable outcome that did not occur.

26. However, the Tribunal’s procedural fairness obligations were limited under Part 5 of the Act. The applicants were invited to a hearing, which was attended by the Applicant, in accordance with s 360. They were put on notice through the hearing invitation that the question of enrolment was a potential issue on the review. They were then given further opportunity to comment on this issue through a letter issued pursuant to the procedure in s 359 of the Act, as well as a letter issued in accordance with the procedure in s 359A which put to them adverse information contained within the PRISMS records. I am therefore unable to accept that the applicants were denied procedural fairness, within the limitations of Part 5 of the Act.

27. It was, clearly enough, open to the Tribunal to proceed to a decision in circumstances where the applicants had been given an opportunity to demonstrate enrolment in response to the letters issued under ss 359 and 359AA of the Act, and yet had provided no response to that opportunity. The applicants have not pointed to any circumstance capable of indicating that it may have been closed to the Tribunal to have proceeded in the manner that it did. Nor is any such circumstance apparent on my own review of the materials.

28. For these reasons, ground 6 is unable to demonstrate jurisdictional error.

    Other matters

29. At the hearing, the Applicant asked if she could have a further opportunity to provide a COE.  It is entirely understandable why she may seek that opportunity. However, as I explained at the hearing, this Court’s powers on judicial review are limited. The Court has no power to reassess the applicants’ visa application, based upon material that was not before the Tribunal. This Court can only set aside the Tribunal’s decision and require it to reassess her application if some material, legally relevant error is identified in relation to the decision of the Tribunal. As no such error has been identified, either by the applicants or my own review of the materials, this Court has no power to remit the matter to the Tribunal.

    conclusion

30. Having regard to these matters, I am obliged to dismiss the application.

31. If successful, the Minister sought costs fixed in the amount of $3,600. I accept that this is an appropriate amount, having regard to the work performed in this matter and also noting that it is an amount that is substantially below the Court’s scale.

32. I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the applicants.

I certify that the thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 7 March 2023