Ganesan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 156
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ganesan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 156
File number: MLG 2383 of 2019 Judgment of: JUDGE LAING Date of judgment: 28 February 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal failed to consider evidence before it – whether the procedure adopted by the Tribunal was reasonably open – limitations of the Court’s powers on judicial review – application dismissed. Legislation: 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 Act 1958 (Cth) ss 359, 359B, 359C, 360, 379A, 379C, 370C, 476
Migration Regulations 1994 (Cth) cl 4.17, cl 500.212, 500.211 of Schedule 2
Cases cited: Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Minister for Immigration and Citizenship v Li [2013] HCA 17; (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 28 February 2023 Place: Sydney Solicitor for the Applicant: The Applicant appeared via video-link Solicitor for the First Respondent: Ms M. Harradine (Mill Oakley) appeared by video-link Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 2383 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIGNESAN GANESAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
28 February 2023
BY CONSENT, THE COURT ORDERS THAT:
1.Page 4 of the Application is amended so that the first two options are selected under the heading, ‘Final orders sought by applicant/s’, dispensing with the need for filing any further document in this regard.
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.
THE COURT FURTHER ORDERS THAT:
3.The application be dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $5,400.
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
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 applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a Sri Lankan citizen. He applied for a student visa on 29 August 2017.
The Delegate refused the application on 23 November 2017. 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 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 8 December 2017, the applicant applied to the Tribunal for review of the Delegate’s decision. On 5 April 2019, the applicant was sent (care of his migration agent) an invitation to provide information relating to the requirements that he was (a) enrolled in a registered course of study and (b) a genuine applicant for entry and stay as a student. No response was received by the Tribunal.
On 26 June 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERION
The criterion in issue before the Tribunal was cl 500.211 of Schedule 2 to the Regulations, which provided:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student – the applicant has the support of the Defence Minister for the grant of the visa.
‘Course of study’ was relevantly defined in cl 500.111 as a ‘full-time registered course’. ‘Registered course’ was defined in reg 1.03 by reference to a course provided by an institution, body or person relevantly registered under the Education Services for Overseas Students Act 2000 (Cth).
THE TRIBUNAL’S DECISION
At [1]-[4], the Tribunal set out the background to the matter including the lack of response it had received to its invitation to provide information. At [5]-[11] the Tribunal stated:
5.The Tribunal is satisfied the review applicant was properly invited to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review.
6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).
7. The Tribunal finds that the review applicant did not provide evidence of enrolment as requested.
8. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
9. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met.
10. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts.
11. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.
The Tribunal then set out the criterion in issue at [12] of its decision, before reasoning as follows at [13]-[14]:
13. The Tribunal was provided with a copy of the Department file. The Tribunal has also read and had regard to delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.
14. Critically, the Tribunal does not have before it evidence of current enrolment. As such, the Tribunal is not satisfied that the applicant is presently enrolled in a course of study as required by cl.500.211(a).
Having found that the applicant was unable to meet the criteria for the student visa, the Tribunal affirmed the Delegate’s decision (at [16]-[17]).
PROCEEDINGS BEFORE THE COURT
The applicant commenced the current proceedings through an application filed on 25 July 2019. The following was stated under “Grounds of application”:
· Department of Home Affairs and Administrative Appeals Tribunal failed to consider all the events, and evidence submitted by me for the grant of the visa.
· I strongly believe that I should be given a visa to start and complete my studies and I would like to appeal at the Magistrate Court about the decisions.
After 2 year of my course here, I had developed Oesophagitis & Gastritis, which interfered heavily with my daily activities & personal life, I strongly believe, my intentions to complete my Master’s program are genuine and valid, honest to me & my family.
My inability to meet the re-enrolment is the solemn reason for me to apply for the appeal, had I been given the opportunity to re-enrol & complete my final year project, I would have happily agreed and could have had an easy life, avoiding a lot of unnecessary events that followed.
By the matters raised in the grounds, the applicant appeared to contend that the Department and the Tribunal failed to consider his evidence about having developed Oesophagitis & Gastritis, which had interfered with his studies and life. He also appeared to contend that he had not been given the opportunity to re-enrol.
To the extent that the applicant takes issue with the Delegate’s decision, review of that decision is beyond the jurisdiction of this Court: s 476(2) of the Act.
I accept that the Tribunal did not refer in its decision to the applicant’s evidence regarding the contended impact of his health upon his studies. That evidence had been submitted by the applicant in support of his claim to be a genuine temporary entrant, as a means of explaining his lack of academic progress. The applicant had claimed that these medical issues had impacted his studies and resulted in revocation of his enrolment, which he had been informed when he sought to continue his course due to feeling “fit under the medicines” and “recovering”. The applicant provided a Confirmation of Enrolment for a lower level course, which he claimed that he was studying as a “productive way to fill up the time” until his University allowed him to enrol “by the end of [the] year” (in 2017).
By the time of the Tribunal’s decision in 2019, however, the issue was not whether the applicant could meet the genuine temporary entrant criterion. The Tribunal’s decision turned on the issue that the applicant had not demonstrated enrolment at the time of the Tribunal’s decision. This criterion, in cl 500.211, was an objective one. It was not capable of being waived on account of the applicant’s previous health issues. I am therefore not satisfied that the Tribunal failed to consider this evidence. I find that the more likely inference is that the Tribunal did not regard it as being material to the criterion in issue i.e. whether or not the applicant was enrolled.
I also do not accept, to the extent it was contended, that the applicant was not given the opportunity to demonstrate enrolment prior to the Tribunal’s decision. As was submitted for the Minister, this is not a case such as Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93, in which the Tribunal unreasonably proceeded to a decision without allowing the applicant to regularise his enrolment. In the present case, the invitation to provide information noted that it was a requirement for the grant of the visa that the applicant be enrolled in a registered course of study. Information was therefore sought regarding the course(s) of study the applicant was undertaking. No information was provided at all in response, let alone evidence that the applicant met this requirement for the visa. The invitation warned that if the applicant did not provide the information sought within the requisite period, then he would lose any entitlement to a hearing and the Tribunal may proceed to make a decision without taking any further action to obtain the information.
For the reasons given by the Tribunal, its approach in not inviting the applicant to a hearing involved no legal error. This was in circumstances where the applicant had not responded to an invitation issued under s 359 of the Act. The written invitation complied with the requirements of s 359(3) of the Act, in that it was given by one of the methods specified in s 379A (i.e. by email to the last address the applicant had provided for his representative in connection with the review: see s 379G). The applicant was therefore taken to have received the invitation by the end of the day on 5 April 2019: s 379C. He was provided with a greater amount of time than the minimum prescribed period of 14 days in r 4.17 of the Regulations. Further, the Tribunal’s decision was not made until more than 2 months after the invitation had been sent. The invitation otherwise appears to have complied with the requirements of s 359B of the Act. The applicant did not respond to the invitation.
As the applicant did not respond within the requisite period, ss 359C and 360(3) applied and the applicant lost his entitlement to attend a hearing before the Tribunal, pursuant to these provisions. Further, as the Tribunal observed (at [8]), the consequent effect of s 363A was that the Tribunal had no power to invite the applicant to a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [29].
In these circumstances, the Tribunal’s reasoning at [3]-[11] provided an “evident and intelligible justification” for the Tribunal proceeding in the manner that it did: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ. Namely, (a) the applicant had been given an opportunity through the invitation under s 359 of the Act to provide the requisite information; (b) he had not responded to the invitation that he do so, and; (c) ultimately, it was for the applicant to provide evidence towards his ability to meet the criteria for the visa.
The balance of the matters raised by the applicant in his application and at hearing appeared to be directed towards explaining why he considered that he should be granted the visa, and how important it was to him that this occur. I am not unsympathetic to these submissions. However, this Court has no power to grant the applicant a visa, or to substitute its own decision as to whether this should occur. As I explained during the hearing, the role of this Court is limited to assessing whether the Tribunal’s decision was affected by any material, legally recognisable error. No such error is apparent on the materials that are before the Court.
conclusion
Having regard to the foregoing, I am obliged to dismiss the application.
If successful, the Minister sought costs fixed in the amount of $5,400. I accept that this is an appropriate amount, having regard to the work performed in this matter and noting that it is an amount that is substantially below the Court’s scale.
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 applicant.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 February 2023
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