GOYAL v Minister for Immigration
[2015] FCCA 1226
•14 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOYAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1226 |
| Catchwords: MIGRATION – Requirement of visa to be enrolled in or subject to an offer of enrolment in a course of study – where independent basis for decision – discretion to withhold relief. |
| Legislation: Federal Circuit Court Rules 2001, r.15.03 Migration Act 1958 (Cth), ss.65, 359A, 426A(1) Migration Regulations 1994 (Cth), Sch.2, cl.572.223 |
| Khadka v Minister for Immigration & Anor [2014] FCCA 1461 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | MOHIT GOYAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1633 of 2014 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 14 April 2015 |
| Date of Last Submission: | 14 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 April 2015 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the Respondents: | Mr Smyth |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for judicial review filed 11 August 2014 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1633 of 2014
| MOHIT GOYAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 23 July 2014. That decision affirmed a decision of the delegate to the Minister not to grant the applicant a Student (Temporary) (Class TU) visa. The grounds for a judicial review are set out in the application filed 11 August 2014 as follows:
(1)The decision of the Migration Review Tribunal is made without jurisdiction and is affected by jurisdictional error.
Particulars
The applicant met the criterion in cl.572.223 (2) (b) (ii) and meets the enrolment requirements for a student visa.
By orders made on 5 November 2014, Registrar Allaway ordered that the applicant file and serve written submissions 14 days before the final hearing. At the hearing, the applicant is self-represented and Mr Smyth of Counsel represents the first respondent.
The Court raised with the applicant why he had not filed written submissions and he responded that his migration agent was supposed to do that. The Court notes that it hasn’t been done. The Court invited the applicant today to put oral submissions in support of his case. The applicant says that he was not given an opportunity to put his case to the Tribunal. It appears as though the applicant is confused as to which hearing he is talking about.
The first respondent consented to the Court proceeding under r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”) to make a decision without hearing oral submissions. However, the Court had raised with the first respondent the question of where the requirement is that the applicant be enrolled in, or be the subject of an offer of enrolment in, an approved course of study in order to satisfy cl.572.223(2)(b)(ii).
After hearing Mr Smyth, the Court is satisfied that the Migration Regulations required that at the time of decision the applicant had to be enrolled in, or be the subject of a current offer of enrolment in, a principal course of study. The Court finds that clause 572.223(1) applies, as cl.572.223(1A) does not apply. The reason is that the applicant is not an eligible vocational education and training student as defined in cl.572.223(1) as he is not enrolled in an advanced diploma.
The applicant applied to the Tribunal on 11 December 2012 to review the delegate’s decision. The Tribunal wrote to the applicant on 17 June 2014, inviting him to appear on 23 July 2014 to give evidence and present arguments (Court Book “CB” p.93). The letter also requested the applicant provide specified information as follows:
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to the Tribunal should be in English and if not then accompanied by a translation from a qualified translator.
Additionally, please provide this information so a decision can be made as quickly as possible:
(1)A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
(2)Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
(3)Document/s that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion.
(4)An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
The Tribunal requests that the above information and any other evidence are provided to the Tribunal at least 7 days before the hearing date.
The applicant responded to the invitation to appear on 21 July 2014. That Response to Hearing Invitation form indicates that neither the applicant nor his representative would attend the hearing (CB p.98). The Tribunal Hearing Record (CB p.102) sets out that neither the applicant nor his representative attended the hearing. Today the applicant says he did attend the hearing and was prevented from putting his case properly. However, after hearing the applicant, the Court is not satisfied that that is so.
The applicant says he attended the Tribunal hearing, but the Court file indicates the applicant was invited to attend the hearing, and he responded that he would not attend and did not, in fact, attend. It appears the applicant is confused and was talking about the hearing before Registrar Allaway in this building on 5 November 2014. The applicant said the hearing was in this building. The Court finds that the applicant did not attend the hearing before the Tribunal. He therefore was not denied the opportunity to put his case to the Tribunal.
The applicant complains he was unable to finish his studies because of family illness. He also applied for an extension of time, but that was refused. That refusal is not the subject of this judicial review. The question here is whether the Tribunal erred in hearing the review of the delegate’s decision.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
In SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Reeves J at [21] to [22] stated:
“The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.
Further at [22], his Honour stated:
“…the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.”
Section 426A(1) of the Migration Act 1958 (the “Act”) states:
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:
“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
Of course, here the Court has found that one of the statutory elements required to be fulfilled is that the applicant was enrolled in, or was the subject of a current offer of enrolment, in a course
·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.
·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.
The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish that matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.
In this matter, the Tribunal’s decision shows that the issue before it was whether, at the time of decision, the applicant met the enrolment requirements for a student visa (CB p.109.7).
The Tribunal found that there was no evidence that the applicant met cl.573.111 or 574.111 (CB p.109.9). The Tribunal found that there was “no evidence that the applicant [was] enrolled in, or [had] a current offer of enrolment in, any applicable course of study and therefore, various other clauses were not met (CB p.109.10). The Tribunal found that there was no evidence that the criteria for a subclass 576 or 580 visa were met (CB p.110 [9]). As the applicant had not provided evidence that he met the requirements for a visa, the Tribunal affirmed the delegate’s decision.
The applicant asserts in Ground 1 that he met the criteria in 572223(2)(b)(ii). The Court finds that there is no evidence to support that submission. However, that was not the issue before the Tribunal. The issue was whether, at the time of decision, the applicant met the enrolment requirements for a student visa (CB p.109.7). The Tribunal found that he did not, and affirmed the delegate’s decision not to grant a student (Temporary) (Class TU) visa (CB p.110). Section 65 of the Act required the Minister to refuse to grant a visa if prescribed criteria had not been met. That is what has occurred in this case.
The first respondent filed and served written submissions on 7 April 2015.
The Tribunal noted the applicant applied for a visa to undertake study in Australia (CB p.109.2). Each of the subclasses of Student (Temporary) (Class TU) visa, depended on the type of course the applicant is enrolled in (CB p.109.3). Each of the possible subclasses are set out at CB p.109 [7]. They do not include 572.223. With limited exceptions, each required that at time of decision the applicant be enrolled in, or the subject of a current offer of enrolment in, a specified course of study (CB p.109.8). The Tribunal found that there was no evidence to satisfy that requirement.
The Court has earlier found that the Regulations require the applicant to be enrolled in or be the subject of an offer of enrolment in a specified course of study. The Tribunal found that there was no evidence to satisfy that requirement.
The first respondent’s submissions raise an irregularity relevant to the case. That is, at CB p.95 there is a printout from the Provider Registration and International Students Management System (“PRISMS”) prepared between the date of the invitation to attend the hearing and the hearing itself. A staff member of the Tribunal requested the printout; that can be seen from the top right-hand side of the printout (CB p.95). The printout shows that the applicant was enrolled in various courses between 2007 (on the bottom left-hand side of the three columns) and 2013 (on the top right-hand side of the top of the second column) all of which are shown to be finished or cancelled. The Court finds that nothing in the printout shows that the applicant was enrolled in or the subject of an offer of enrolment, in a relevant course at the time of the Tribunal’s decision on 23 July 2014.
The first respondent raised the issue of whether the applicant should have been given notice that the document, pursuant to s.359A of the Act. The first respondent submits that there is nothing to show that the Tribunal relied on the document; therefore it is not information that the Tribunal considered would be the reason or part of the reason for affirming the decision of the delegate.
The first respondent refers to and relies on the decision in the Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 and submits about that decision
(30)There, shortly before hearing, a staff member of the Tribunal made a telephone call resulting in a file note being placed on the Tribunal’s filed (see [9]). The file note was not bought to the presiding Tribunal member’s attention. Was it information covered by the RRT-equivalent provision of s 359A (s 424A)? The High Court held it was not.
(31)The Chief Justice, Heydon, Crennan, Kiefel and Bell JJ reasoned as follows:
[24] As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship (26), s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.
[25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship (27), s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
[26] The RRT’s reasons show that what counted against the first respondent were internal inconsistencies in his evidence. The RRT disbelieved the first respondent’s evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s 424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the first respondent cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him.
The Court finds that those decisions referred to should also be applied to s.359A of the Act.
The submissions of the first respondent continue at [32] that:
(32)If it be accepted, as in the Minister’s submission it ought to be, that, as in SZLFX, there is no evidence or necessary inference that the Tribunal considered or had any opinion about the PRISMS document, then s 359A imposed no further obligation on the Tribunal.
In this matter, the Court finds no evidence or necessary inference that the Tribunal considered the PRISMS document, or had any opinion about it. It therefore, could not contain information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under the review. The Court finds no breach of s.359A of the Act.
The first respondent raised a second alternative approach in relation to the PRISMS document; that is, that “the Court should withhold judicial review relief on discretionary grounds, since the absence of evidence as to enrolment from the applicant represented an independent basis for the Tribunal’s decision”.
The first respondent refers to the principles stated in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2].”
[1] Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228.
[2] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58]; 75 ALJR 52.
Of course, as referred to earlier, s.65 of the Act requires the Minister to refuse to grant a visa where the criteria for the visa are not met.
As stated by Kirby J in SZBYR (supra) at [88]-[89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A…(The Court also refers to s.359A)… and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”
The Court finds that the matter of a possible breach of s.359A was not raised by the applicant, but was raised by the first respondent. The Court finds no such breach of the s.359A and, therefore, this is a case in which prerogative relief should be refused.
The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:
“Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”
The first respondent’s submissions continued at [35]:
“Here, the basis of the Tribunal’s refusal decision was that there was “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”: CB 109 [8].”
The Court applies the decision of Judge Cameron in Khadka v Minister for Immigration & Anor [2014] FCCA 1461 where his Honour held in similar circumstances to the present matter, that the PRISMS record was not evidence or information, that the applicant was not enrolled. At [23] his Honour stated:
“…those documents represented an absence of evidence that the applicant was enrolled to study, not evidence that he was not enrolled. As such, it was not information which s.359A required be disclosed.”
The Court finds that reasoning applicable to the present matter. The PRISMS report was not evidence that the applicant was not enrolled in a course of study. Therefore, it was not information that would be the reason or part of the reason to affirm the decision of the delegate. It was therefore, not covered by s.359A.
The Court finds that there is an independent, unimpeachable reason for the Tribunal’s decision and even if there was a breach of s.359A, which there was not, it would withhold relief.
The Court finds that there was no evidence before the Tribunal that the applicant was enrolled in, or was subject to an offer of enrolment in, an applicable course of study. Therefore, s.65 of the Act required that a visa be refused.
The Court finds no error of law by the Tribunal. The application for judicial review is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 12 May 2015
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