Gill v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 135
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 135
File number: PEG 70 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 23 February 2023 Catchwords: MIGRATION – cancellation of a Student visa – decision of the Administrative Appeals Tribunal – extension of time application – minor delay – adequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 48, 116, 348, 360A, 362A, 366, 379C, 476 & 477
Migration Regulations 1994 (Cth), reg 4.21 and Condition 8202 in Schedule 8
Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Vidiyala v Minister for Home Affairs [2018] FCA 1973
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 22 February 2023 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 70 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPAL KAUR GILL
First Applicant
JAGDEEP SINGH GILL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 22 February 2023) be dismissed.
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 KENDALL:
Background
The first and second applicants are citizens of India. They are wife and husband respectively (CB 39).
The applicants first arrived in Australia in November 2017 as the holders of Student (Class TU) (Subclass 500) visas (the “visas”). The first applicant was granted the visa in October 2017 for the purpose of studying a Master of Education course (CB 42). Her husband, the second applicant, was included in that visa application as a member of the first applicant’s family unit. The visas were due to expire on 15 March 2020 (CB 39).
On 23 January 2020, the Department of Home Affairs (the “Department”) sent the first applicant a “Notice of Intention to Consider Cancellation” letter under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 14-19).
On 4 March 2020, the Department sent the first applicant a further “Notice of Intention to Consider Cancellation” letter (the “NOICC”) under s 116 of the Act (CB 21-26). The NOICC referenced a breach of condition 8202(2)(b) in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”), noting that the first applicant had “not maintained enrolment in a registered course at the same level as, or [a] higher level than, the registered course in relation to which [her] visa was granted” (CB 23).
On 10 March 2020, the first applicant wrote to the Department responding to the NOICC and requesting additional time within which to respond more substantively (CB 28-29).
On 11 March 2020, the Department declined to grant the applicants the extension of time requested (CB 30-31).
On 13 March 2020, the first applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 39-45). The first applicant was sent a letter (by email) notifying her of the visa cancellation. That letter attached a copy of the delegate’s decision record (CB 32-38). Having reviewed information obtained from the Provider Registration and International Student Management System, the delegate determined that, while the first applicant’s visa was approved on the basis of her enrolment in a Masters Degree, she was only enrolled in a Diploma level course. On that basis, the delegate found that the applicant was in breach of condition 8202(2)(b) in Schedule 8 of the Regulations (and had been for a two year period, which the delegate found “to be considerable”). The delegate cancelled the first applicant’s visa pursuant to s 116(1)(b) of the Act (CB 43). As a result, the second applicant’s visa was also cancelled.
On 19 March 2020, the applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 46-48).
On 19 October 2021, the Tribunal invited the applicants (via email) to attend a hearing before it scheduled for 4 November 2021 (via telephone) (CB 54-57).
On 1 November 2021, a representative from Connect Migration Services (the “representative”) contacted the Tribunal (via email) to advise that they had been appointed to act on behalf of the applicants (CB 58). That email correspondence attached a completed “Appointment of Representative” form and a “Change of Contact Details form (CB 59-62).
Later that day (also on 1 November 2021), the applicants’ representative contacted the Tribunal (via email) and requested an extension of time to provide further documents and a postponement of the Tribunal hearing. The representative also asked that the hearing be a “face to face hearing” (CB 63-65).
That same day, the applicants’ representative also requested copies of all of the documents on file with the Department and the Tribunal under s 362A of the Act (CB 66-67).
On 3 November 2021, the applicants’ representative advised the Tribunal that the first applicant was unwell and again requested an adjournment and a “face to face hearing”. With that request, the representative also provided a medical certificate (dated 2 November 2021) (CB 68-72).
Later that day (also on 3 November 2021), the Tribunal agreed to postpone the hearing and notified the applicants (through their representative) accordingly (CB 73-75).
On 4 November 2021, the Tribunal provided the applicants’ representative with documents from the Departmental and Tribunal files (CB 76-78).
On 8 November 2021, the Tribunal invited the applicants (through their representative) to attend a rescheduled hearing before it on 15 November 2021 (via video link) (CB 79-83).
Later that day (also on 8 November 2021), the applicants’ representative contacted the Tribunal requesting a further adjournment (CB 84-86). Relevantly, the request stated:
We just overtook the case last week. Client was initially given 2 weeks only for hearing and we had to request for extension which was granted. Now, hearing is rescheduled for next week which is just a week away. This is a very-very short notice.
I am not available next week. I has requested AAT for another hearing not to reschedule hearing between 10-20 November 2021.
I have another hearing on 22 November 2021 which was already scheduled on 12 October 2021.
Therefore, I would like to request AAT to grant a reasonable time and reschedule hearing next month or so.
Also, client like to request to reschedule face to face hearing in WA as client is based in WA.
Looking forward to hear back soon.
Feel free to contact me if you have any further queries.
On 10 November 2021, the Tribunal notified the applicants (through their representative) that the request for an adjournment had been declined and advised that the hearing would proceed on 15 November 2021 (via video link) (CB 87-91).
On 12 November 2021, the applicants’ representative told the Tribunal that further documents would be “forwarded soon” (CB 92-94).
On 14 November 2021, the applicants’ representative provided a large amount of supporting material to the Tribunal (via email) (CB 99-203).
On 15 November 2021, the first applicant appeared at the Tribunal hearing to give evidence and present arguments. She was assisted by her representative and an interpreter in the Punjabi and English languages. The second applicant did not attend (CB 214-217).
On 18 February 2022, the Tribunal affirmed the delegate’s decision to cancel the first applicant’s visa. The Tribunal also found that it had no jurisdiction with respect to the second applicant (CB 221-228).
On 23 February 2022, the applicants were notified of the Tribunal’s decision via email (through their representative) (CB 218-220). With that notification, the applicants were also provided with a “fact sheet” containing “information about decisions” and, relevantly, how they could seek review of the Tribunal’s decision (CB 229-231).
On 29 March 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act.
In the circumstances, the applicants require an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has concluded that an extension of time should not be granted.
Consideration
The materials before the Court include the application for an extension of time within which to make an application for judicial review and supporting affidavit filed by the applicants on 29 March 2022, a court book numbering 231 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 7 February 2023.
The Court notes that on 20 June 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The first applicant appeared before this Court without legal representation. The Court confirmed with her that she would be speaking on behalf of her husband (the second applicant) and that she had received a copy of the Minister’s material outlined above.
The Court noted that the application for an extension of time to seek judicial review filed by the applicants only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this oversight to the first applicant and made an order amending the application for judicial review to include the seeking of a writ of mandamus. This is now the preferred approach in this Court in relation to unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 per Judge Given at [25]-[35].
Noting that the first applicant was not legally represented, the Court also explained to her that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 18 February 2022. The date by which the applicants were required to file their application in this Court was 25 March 2022. Unfortunately, the applicants did not file their substantive application until 29 March 2022. Hence, the delay here is four days.
The Court explained further that, despite the late filing of a substantive application for judicial review, applicants can ask the Court for an extension of time within which to file their substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicants requested an extension of time in writing but did not provide any substantive “grounds” explaining why they believe that the extension should be granted (the relevant section of the application simply reads “[f]inal orders sought by applicants”). Section 477(2)(a) of the Act is, nonetheless, satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the first applicant appeared without any legal assistance, the Court explained to her that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the first applicant to address each of the factors outlined above and highlight anything else she considered relevant to the applicants’ request for an extension of time. The first applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
While limitation periods should not to be treated lightly, the delay in filing the application for judicial review in this matter is only four days.
This delay is minor and this weighs in favour of granting an extension of time.
Prejudice
The Minister does not claim any relevant prejudice due to the delay.
While a lack of prejudice will not automatically entitle an applicant to an extension of time, it does weigh in favour of granting an extension.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
Here, the applicants’ “ground” for an extension of time provides (without alteration) (CB 4):
1.Final orders sought by applicants.
Unfortunately, this does not provide any explanation in relation to why the application for judicial review was filed late.
At the hearing of this matter, the first applicant told the Court that she “did not want to make another mistake” and “probably needed the assistance of a lawyer”.
It is certainly the case that there is no right to legal representation in migration proceedings in this Court. Nonetheless, the fact that an applicant does not have a lawyer is a factor which can, contextually, be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J. This is particularly the case where there is only a short delay (as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial” and where the Minister also concedes that there would be no prejudice: ADN15 at [30] per Charlesworth J).
As the Minister highlighted (at [32] in written submissions filed in this Court on 7 February 2023), in this matter there was a delay in the Tribunal providing the applicants with a copy of its written reasons. Relevantly, the Court notes that the Tribunal decision in this matter was made on 18 February 2022 (CB 221-228). However, the Tribunal did not send a copy of that decision to the applicants’ representative (via email) until 23 February 2022. That is, five days after the Tribunal’s decision was made.
While the Court acknowledges that the “fact sheet” provided to the applicants by the Tribunal with its written reasons clearly sets the timeframe within which an applicant can apply for review in this Court, the applicants may nonetheless have been confused or may have otherwise misunderstood what was required of them.
On the basis of the above, the Court determines that there is a satisfactory explanation for the delay in this matter.
This weighs in favour of granting an extension of time.
Merits
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on the substantive “ground of review” (set out in the application for judicial review filed by the applicants) and to outline any other concerns she might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, 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 ignores relevant 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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 that this Court cannot review the merits of the Tribunal’s decisions or revoke the cancellation of the applicants’ visas. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that she had come to Australia to study a Master of Education but, “due to misinformation or mistake”, she “took commercial cookery instead, which was a big mistake”. When asked if she thought that Tribunal had made any “mistake” in relation to her matter, the first applicant said that she did not think so. Rather, “the mistake was [her] own” and she simply “wants one more chance to study the Master of Education”.
Unfortunately, the first applicant’s oral submissions to not raise any issue of jurisdictional error or any issue of the sort that this Court can address. As noted above, however, the Court will (noting that the applicants are unrepresented), assess the Tribunal’s decision in detail to determine if any arguable case of error arises on the Tribunal’s decision.
The Tribunal’s decision
In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision is eight pages long and spans 44 paragraphs. The final page contains extracts of relevant legislative provisions.
The Tribunal began by confirming that the first applicant’s visa was cancelled on 13 March 2020 and that the second applicant’s visa was automatically cancelled as a consequence (pursuant to s 348 of the Act). The Tribunal noted that the [first] applicant participated in a Tribunal hearing (via audio link) on 15 November 2021 and was assisted by a Punjabi interpreter and the applicants’ representative (at [1]-[3]).
The Tribunal identified that the issue in this matter as whether the first applicant had breached condition 8202 in Schedule 8 of the Regulations and noted that, if the condition had been breached, the first applicant’s visa may be cancelled (at [5]).
The Tribunal then set out the requirements outlined in condition 8202 in Schedule 8 of the Regulations and the Australian Qualifications Framework. The Tribunal also explained that the first applicant’s visa was cancelled because she did not maintain her enrolment in a registered course that, once completed, would provide a qualification at the same level as (or at a higher level than) the original course for which the visa was granted (at [6]-[8]).
The Tribunal continued:
9.The applicants have provided a copy of the delegate’s decision record dated 13 March 2020 to the Tribunal. Jaspal Kaur Gill stated that the information in the delegate’s decision record dated 13 March 2020 was correct.
10. Accordingly, the Tribunal accepts that:
-Jaspal Kaur Gill’s student visa was granted in respect to her enrolment in the Master of Education course at the University of Adelaide from 14 February 2018 to 31 December 2019;
-the highest Confirmation of Enrolment (CoE) in relation to which the visa was granted was Master of Education which, once completed, would provide a Level 9 (Masters) qualification from the AQF;
-on 20 March 2018 Jaspal Kaur Gill’s enrolment in the Masters course was cancelled by the education provider;
-on 11 January 2018 Jaspal Kaur Gill enrolled in a Certificate III in Commercial Cookery course, Certificate IV in Commercial Cookery course and a Diploma of Hospitality Management;
-the highest CoE that Jaspal Kaur Gill held at the time of the cancellation of her visa on 13 March 2020 was for a Diploma of Hospitality through Global College Australasia, and this enrolment is at AQF Level 5 (Diploma);
-as Jaspal Kaur Gill was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) did not apply to her.
11.On the evidence before the Tribunal, the Tribunal finds that Jaspal Kaur Gill has not maintained her enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. Accordingly, the Tribunal finds that Jaspal Kaur Gill has not complied with condition 8202(2)(b) and there are grounds for cancellation of her student visa under s.116(1)(b) of the Act.
Noting that the decision to cancel in this case was discretionary, the Tribunal considered whether the visa should be cancelled. In doing so, the Tribunal had regard to the matters identified in the Department’s Procedural Instruction “General visa cancellation powers” (at [12]).
The Tribunal then considered the “circumstances in which the ground for cancellation arose”, noting the first applicant’s evidence given at the Tribunal hearing, as follows:
(a)when the first applicant came to Australia, she developed a chest problem and wanted to be in Perth rather than Adelaide (causing her to move) (at [13]);
(b)she had done so knowing that she was enrolled in a Masters course in Adelaide but explained that she thought she could “get an enrolment … in Perth” (at [14]);
(c)when she was unable to obtain an enrolment in a Masters course in Perth, she enrolled in a cookery course but was not aware that it was a breach of her visa conditions to do so (at [15]);
(d)she agreed that she should “reasonably be expected to understand and comply with her visa conditions” (at [16]);
(e)she accepted that her failure to remain enrolled was not due to circumstances beyond her control. Rather, she moved to Perth because “she thought it had better weather than … Adelaide” (at [17]);
(f)while the first applicant (in response to the NOICC) blamed her solicitor for misadvising her, she conceded at the Tribunal hearing that it was “ultimately her responsibility to understand and comply with her visa conditions” (at [18]);
The Tribunal also referenced the following evidence:
19.The Tribunal referred to a letter from Jaspal Kaur Gill dated 14 November 2021. The letter indicated that Jaspal Kaur Gill was now living in Perth with her husband and baby. She said that she initially had chest problems, but that her issues regarding her chest problems had ceased. In the letter, she indicated that she came to Australia she did not like the weather in Adelaide. She said she was also homesick when she was in Adelaide, which was why she wanted to go to Perth as she also had a family member there. Jaspal Kaur Gill said she never actually commenced her Masters degree. She said she did not get proper guidance from a migration agent. Jaspal Kaur Gill said she completed her commercial cookery and hospitality management courses. When asked what her pregnancy in 2020 had to do with her failure to commence her Masters course in 2018, Jaspal Kaur Gill admitted in response that her pregnancy in 2020 did not have anything to do with her failure to commence her Masters course in 2018.
The Tribunal then continued to summarise the first applicant’s evidence, noting that:
(a)the first applicant initially told the Tribunal that COVID-19 impacted her ability to commence her studies because travel restrictions meant there was no one able to look after her baby, however, she later admitted that COVID-19 “had nothing to do with it”. The first applicant also said that she now wanted to complete her Masters degree and return to India (at [20]);
(b)when asked about her claimed depression, the first applicant admitted that she had no medical diagnosis of depression and had not had any medical treatment in that regard (at [21]);
(c)the first applicant told the Tribunal that she returned to India in 2019 to see her grandmother (who had “experienced some illness”) and provided information to the Tribunal in that regard to demonstrate where she had travelled. Further, information about property was provided to show that she could pay for her student fees (at [22]-[23]); and
(d)the first applicant provided health information in relation to her father-in-law and mother (indicating she had “family issues”) and provided information in relation to attempts and enquiries made at other educational institutes, however, she did not have an enrolment (at [24]-[25]).
The Tribunal then determined as follows:
27.The Tribunal accepts that when Jaspal Kaur Gill initially moved to Australia she experienced health issues and that she was homesick. The Tribunal accepts that Jaspal Kaur Gill moved to Perth for the better weather and because she had a family member in Perth. The Tribunal accepts that Jaspal Kaur Gill never commenced her Master of Education course. The Tribunal accepts that Jaspal Kaur Gill has since had a baby, and while she has studied other courses she now wished to do a Masters degree. The Tribunal accepts that some of her family members had some health issues, and this may have caused her some stress. The Tribunal accepts that Jaspal Kaur Gill appears to be able to afford course fees and that she had made attempts to obtain a further course enrolment. The Tribunal accepts that while Jaspal Kaur Gill may feel that she has been depressed, she has never taken any medication for any mental health conditions and that she has not been diagnosed with any mental health conditions. The Tribunal gives these matters low weight in Jaspal Kaur Gill’s favour.
28.However, the Tribunal finds that Jaspal Kaur Gill was ultimately responsible to understand and comply with her visa conditions. The Tribunal does not accept that Jaspal Kaur Gill’s failure to remain enrolled in her Master of Education course at the University of Adelaide in 2018 had anything to do with COVID-19. The Tribunal does not accept that Jaspal Kaur Gill’s failure to remain enrolled in her Master of Education course at the University of Adelaide in 2018 was due to circumstances beyond her control. The Tribunal gives these matters heavy weight against Jaspal Kaur Gill.
The Tribunal was also not satisfied that the first applicant took reasonable steps to remain enrolled in an appropriate course to comply with her visa conditions and “placed heavy weight” on that information against the first applicant (at [29]-[30]).
The Tribunal accepted that the initial purpose of the visa was for the first applicant to travel to and stay in Australia was so that she could study but found she had no compelling need to remain in Australia. The Tribunal placed no weight on that information (at [31]).
The Tribunal also accepted that the first applicant had generally complied with her other visa conditions and that had low weight in her favour. The Tribunal further accepted that the first applicant and her family may experience some disappointment if her visa was cancelled and that she may have some challenges undertaking further study in India. This also had some weight in the first applicant’s favour (at [32]-[33]).
The Tribunal explained that there was no evidence that the first applicant had failed to cooperate with the Department in the past and that had some weight in the first applicant’s favour. The Tribunal also acknowledged that the second applicant would be affected by a visa cancellation and the Tribunal gave this some weight in the first applicant’s favour (at [34]-[35])).
The Tribunal also set out the consequences of cancellation pursuant to s 48 of the Act and placed some weight on that information in the first applicant’s favour (at [36]-[40]).
The Tribunal confirmed that the first applicant had raised no claims to fear harm upon return to India and the first applicant indicated that she had no further matters to raise with the Tribunal (at [41]-[42]).
In balancing the circumstances of the first applicant, the Tribunal determined that the visa should be cancelled and affirmed the delegate’s decision to cancel the first applicant’s visa. The Tribunal then determined that it had no jurisdiction in relation to the second applicant (at [43]-[44]).
Proposed application for judicial review
The application for judicial review filed by the applicants on 29 March 2022 contains two proposed “ground of review” as follows (without alteration) (CB 4):
1. Applicant want the review of AAT decision.
2. Applicant believes that AAT decision is not made as per her consideration.
The applicants’ proposed grounds of review are unclear and the first applicant was not able to clarify those “grounds” at the hearing before this Court.
To the extent that the applicants claim that the Tribunal member who conducted the hearing with the first applicant did not prepare the written reasons, any such claim fails on a factual level. The details of the Tribunal member listed in the Tribunal’s hearing record (CB 214) are the same as those detailed in the Tribunal’s decision record (CB 221).
No error arises in this regard.
Insofar as the applicants claim that the Tribunal failed to take into account relevant considerations, the Court disagrees.
The Tribunal first considered whether a ground for cancellation existed (at [10]-[11]). Having determined that such a ground did exist, the Tribunal then went on to consider whether the visa should be cancelled. The Tribunal did so in some detail (at [13]-[25]). These are the two mandatory considerations or questions which the Tribunal is required to determine. The Tribunal did so here with reference to the matters raised in the Department’s Procedural Instruction materials and addressed the issues raised by the applicants in their evidence and submissions.
No error arises in relation to the Tribunal’s approach in this regard.
Finally, to the extent that the applicants simply disagree with the findings of the Tribunal, disagreement, however strongly felt, does not amount to jurisdictional error on the part of the Tribunal: Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [36].
No error arises in relation to the proposed grounds of review.
Otherwise
In its duty to assist self-represented litigants, the Court has considered for itself whether any error arises in the Tribunal’s decision (as per the decision in MZAIB).
In this regard, the Court will consider the following issues:
(a)whether the applicants were provided with sufficient notice of the Tribunal hearings;
(b)whether the Tribunal erred by conducting a hearing via telephone or video link; and
(c)whether the Tribunal acted unreasonably in failing to further adjourn the hearing.
Whether the applicants were provided with sufficient notice of the Tribunal hearings
To the extent that the applicants’ representative raised concerns about the period of notice given to the applicants in relation to the Tribunal hearings, the Court disagrees with any suggestion that the Tribunal erred in this regard.
The requirements for a notice of invitation to appear before the Tribunal (including the period of notice which must be given) are set out in s 360A of the Act, relevantly as follows:
360A Notice of invitation to appear
…
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
…
The prescribed periods in relation to a notice to appear before the Tribunal are set out in reg 4.21 of the Regulations. As the applicants in this matter were not in immigration detention, the relevant provision is reg 4.21(4), which provides:
4.21 Prescribed periods—notice to appear before Tribunal
…
(4)If the invitation relates to any other application for review of a decision, the period of notice:
(a)commences when the person receives notice of the invitation to appear before the Tribunal; and
(b) ends at the end of:
(i)14 days after the day the person receives notice of the invitation to appear before the Tribunal; or
(ii)if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
Here, the Tribunal sent an invitation to the first applicant by email on 19 October 2021 inviting the applicants to attend a hearing before it on 4 November 2021 (the “first hearing invitation”) (CB 54-57). Pursuant to s 379C(5) of the Act, in circumstances where a document is transmitted by fax, email or other electronic means, the “person is taken to have received the document at the end of the day it was transmitted”. The applicants were thus taken to have received the first hearing invitation on 19 October 2021. This means that the first hearing invitation was taken as received 16 days prior to the originally scheduled Tribunal hearing (which exceeds the prescribed period of 14 days).
On 1 November 2021, the applicants’ representative asked for the hearing be postponed. That request was sent to the Tribunal via email (CB 63-65).
On 8 November 2021, the Tribunal wrote to the applicants (again via email and this time, through their representative) advising that the Tribunal Member had agreed to allow a short adjournment request. The applicants were also invited to attend a rescheduled hearing before the Tribunal on 15 November 2021 (the “second hearing invitation”) (CB 79-83). The applicants were again taken to have received the second hearing invitation at the end of the day it was transmitted (being 8 November 2021): s 379C(5) of the Act.
The applicants thus received the second hearing invitation seven days prior to the rescheduled hearing. This does not meet the prescribed period of 14 days. However, where the Tribunal complies with s 360A(4) of the Act and provides an applicant with the “prescribed” period of notice in relation to a hearing (as the Tribunal did here in relation to the first hearing invitation), the Tribunal is not required to again give the prescribed period of notice where a hearing is rescheduled or where a further hearing is required: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 at [79]-[83]; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 at [29]; Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358 (“Ogawa”) at [29].
The Tribunal is, however, required to provide a notice period that is not “unreasonably short”: Ogawa at [32]-[35].
The first hearing invitation was provided to the applicant 16 days prior to the scheduled hearing. This exceeds the prescribed notice period. The second hearing invitation was provided to the applicant seven days prior to the rescheduled hearing. The Court does not consider this period of time to be “unreasonably short”.
No error arises in relation to the periods of notice given to the applicants by the Tribunal in this regard.
Whether the Tribunal erred by conducting a hearing via telephone or video link
To the extent that any concern is raised about the Tribunal conducting a hearing via video or telephone, the Court disagrees that any error arises in this regard.
Section 366 of the Act provides:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
…
The Tribunal was therefore legislatively empowered to conduct a hearing via telephone or video link.
The Court also notes that the Tribunal hearing in this matter was held during the COVID-19 pandemic and the applicants were notified of the Tribunal’s arrangements during that time in its correspondence to the applicants (on 19 October 2021 at CB 55, 8 November 2021 at CB 81-82 and 10 November 2021 at CB 90-91).
On 1 November 2021, the applicants’ representative first requested a “face to face hearing” on behalf of the applicants. The representative referenced a “bad experience appearing in another Tribunal matter” as the reason for doing so (CB 63).
On 3 November 2021 and 8 November 2021, the applicants’ representative again reiterated that request (CB 68 and CB 84).
The Tribunal declined the request for a “face to face” or “in person” hearing on the basis that the Tribunal member was located in Victoria. The Tribunal explained that the hearing would take place by telephone. As outlined above, the Tribunal was legislatively empowered to do so.
The first applicant attended the Tribunal hearing as scheduled on 15 November 2021 by telephone (CB 214-217). She was assisted by the applicants’ representative and an interpreter in the Punjabi language. There is no evidence before the Court to suggest that the first applicant (or her representative) raised any concerns regarding the quality of the phone connection or any difficulties in understanding the Tribunal Member, either at the Tribunal hearing or in the time between the Tribunal hearing (on 15 November 2021) and the time the Tribunal handed down its decision (on 18 February 2022).
Unfortunately, the Court was not provided with a transcript of the Tribunal hearing and there is no evidence in the Court Book (or otherwise before the Court) that suggests that the first applicant had any difficulties appearing before the Tribunal by telephone. Nor is there any evidence before the Court to suggest that the first applicant was prejudiced by attending the Tribunal hearing by telephone.
No error arises in this regard.
Whether the Tribunal acted unreasonably in failing to further adjourn the hearing.
The Court has also considered whether it was unreasonable of the Tribunal to not grant a further adjournment (when the applicants’ representative asked for one).
The Court is satisfied that the Tribunal acted reasonably in circumstances where:
(a)the applicants had a period of more than 18 months between filing their application for review and the Tribunal hearing within which to seek assistance and provide any further information to the Tribunal in support of their application. The applicants do not appear to have sought assistance until the week prior to the originally scheduled Tribunal hearing;
(b)the Tribunal had already granted the applicants an 11-day adjournment;
(c)the applicants’ representative provided a large amount of additional material to the Tribunal on 14 November 2021 (prior to the Tribunal hearing) (CB 99-203);
(d)the applicants’ representative provided no details about any further materials it could provide or how that might have impacted on the Tribunal’s ultimate decision or findings in this matter;
(e)there is no evidence before the Court to suggest that the first applicant or her representative sought a further adjournment at the Tribunal hearing or made any request to provide any additional information to the Tribunal; and
(f)there was a period of three months between the Tribunal hearing and the date of the Tribunal’s decision within which the applicants could have provided additional materials to the Tribunal, however, they did not do so.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably in refusing to grant a further hearing adjournment.
Conclusion regarding merits of the substantive application
The applicant’s “grounds of review” do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has been unable to identify any arguable grounds of error of the sort of this Court can address.
This weighs heavily against granting an extension of time.
Conclusion
While the negligible delay, acceptable explanation and lack of prejudice weigh in favour of granting the applicants’ request for an extension of time, the lack of an arguable case of error in the Tribunal’s decision (judged at an impressionistic level only in relation to this matter) heavily outweighs those considerations.
It is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time (as amended on 22 February 2023) is, accordingly, dismissed.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2023
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