He v Minister for Immigration

[2018] FCCA 1419

FEDERAL CIRCUIT COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1419

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant student visa – whether Tribunal identified the correct issue – whether in the face of the applicant not attending hearing the Tribunal acted reasonably in determining the application for review without taking any further action to enable the applicant to appear before it – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B, 379A, 426A
Migration Regulations 1994 (Cth), regs.1.03, 1.40A, 1.41, Schedule 2, cl.570.227

Applicant: CAIXI HE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3299 of 2016

Judgment of: Judge Manousaridis

Hearing date: 25 May 2018

Date of Last Submission: 25 May 2018

Delivered at: Sydney

Delivered on: 1 June 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the first respondent: Mr T Galvin of Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3299 of 2016

CAIXI HE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) ELICOS Sector (subclass 570) visa (Student visa).

Relevant criteria for grant of student visa

1. The applicant applied for a Student visa on 13 October 2015.[1] At that time the applicant was in Australia as the holder of a FA-600 visa. That meant that to have been entitled to a Student visa the applicant was required to satisfy cl.570.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which, at the time the applicant applied for the Student visa, relevantly provided as follows:

   [1] CB1

   If:

   (a)the application was made in Australia; and

   (b)subject to clause 570.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

   (c)at the time of application, the applicant met the requirements of clause 570.211:

   (i)as the holder of a visa of one of the following classes or subclasses:

   . . . .

   (NB) Tourist (Class TR);

   . . . . .

   the applicant establishes exceptional reasons for the grant of a Subclass 570 visa.

2. The expression “relevant course of study”, when used for a subclass of student visa, was defined in reg.1.03 of the Regulations to mean a “type of course for the subclass of student visa that the Minister has specified in a legislative instrument made under” reg.1.40A of the Regulations. Subregulation 1.40A(1) provided that the Minister “must specify, by instrument in writing, the types of courses for each subclass of student visa”. Relevant to the application before me is an instrument in writing (IMMI 14/015) made on 16 March 2014 in which the Assistant Minister specified a number of courses for the purposes of subclass 570 visas, these being “Certificate I in ELICOS”, “Certificate II in ELICOS”, “Certificate III in ELICOS”, and “Certificate IV in ELICOS”. The acronym “ELICOS” is defined in reg.1.03 of the Regulations as “English Language Intensive Course for Overseas Students that is a registered course”.

3. The expression “assessment level”, when used in relation to a student visa, was defined in reg.1.03 of the Regulations as “the level of assessment… specified for a kind of eligible passport for the student visa under reg.1.41”. Subregulation 1.41(1) provided that the Minister “must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject”. Under reg.1.41(4) of the Regulations the assessment the Minister specifies “must be a number from 1 to 3”. An instrument in writing was made under reg.1.41(1) of the Regulations (IMMI 14/014); and in relation to “Subclass 570(Independent ELICOS Sector)”, the instrument specified “Assessment level 3” for eligible passports issued by the People’s Republic of China.

4. Finally it is necessary to note the expression “highest assessment level”, which is defined in reg.1.03 of the Regulations as follows:

   highest assessment level, for an applicant for a student visa, means:

   (a)if the applicant proposes to undertake a single course of study that is a registered course—the assessment level for that course of study; and

   (b) if the applicant proposes to undertake 2 or more courses of study that are registered courses and that do not include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3; and

   (c)  if the applicant proposes to undertake 2 or more courses of study that are registered courses and that include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3, not including the ELICOS course.

5. The effect of these provisions and instruments is that each of “Certificate I in ELICOS”, “Certificate II in ELICOS”, “Certificate III in ELICOS”, and “Certificate IV in ELICOS” was a relevant course of study for sub class 570 visa; and a person who held a Chinese passport was assigned an “Assessment level 3” for each of those courses of study.

Applicant’s application for Student visa

1. In his application for a Student visa the applicant placed a tick in the box next to the words “Independent ELICOS Sector (subclass 570) visa”, thus indicating he intended to apply for a Student visa of that subclass. The applicant also stated China was his present country of citizenship, that he held a Tourist visa, and, under the heading “Intended course”, “Intensice [sic] English”. The applicant stated he had not enrolled in the course, but he held an “offer of a place in a course”. Attached to his application was a “Letter of Offer” dated 12 October 2015 from Castle College.

Course of application before delegate

1. By letter dated 16 October 2015 the delegate informed the applicant that because he was an “Assessment Level 3 applicant” he was not entitled to be granted an initial student visa in Australia unless exceptional reasons exist. The letter identified matters that may constitute “exceptional circumstances”, and then requested the applicant provide “a statement explaining your exceptional reasons for the grant of an initial student visa and any supporting evidence”.[2] The applicant did not respond to the delegate’s request and, by decision made on 23 December 2015, the delegate refused to grant the applicant a Student visa.

   [2] CB34

Before the Tribunal

1. On 12 January 2016 the applicant applied to the Tribunal for a review of the delegate’s decision.[3] In his form of application the applicant provided his mobile telephone number and provided details of the applicant’s migration agent, including the agent’s email address.

   [3] CB48-49

2. On 28 July 2016 the Tribunal sent by email to the applicant’s agent’s email address a letter inviting the applicant to appear before the Tribunal on 27 October 2016 to give evidence and present arguments relating to the issues in the applicant’s case.[4] The letter stated, among other things, that if the applicant were not to attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. Before the scheduled hearing, the Tribunal sent text messages to the mobile number the applicant provided in his form of application reminding the applicant of scheduled hearing date, but delivery of the messages failed.[5]

   [4] CB62-63

   [5] CB71-74

3. The applicant did not appear at the scheduled hearing. There is in evidence the “Migration Hearing Record” which contains hand writing which I find shows that attempts were made to contact the applicant at 1.45 pm, 2.00 pm, and 2.40 pm on the day of the hearing, and these attempts proved unsuccessful.[6]

   [6] CB75

Tribunal’s reasons

1. The Tribunal began its reasons by referring to the invitation the Tribunal sent to the applicant to appear before it on 27 October 2016, and the applicant’s failure to appear at that hearing without contacting the Tribunal to explain his absence. The Tribunal then noted that, in those circumstances “and pursuant to s.426A of the Act”, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

2. The Tribunal made an error in purporting to rely s.426A of the Act in deciding to make its decision on the review without taking any further action to enable the applicant to appear before it. That section applies to review of Part 7-reviewable decisions, but the application before it was a Part 5-reviewable decision. This, however, does not give rise to any arguable jurisdictional error. There exists in relation to applications for review of Part 5-reviewable decisions s.362B of the Act which is in near identical terms to s.426A of the Act. By relying on s.426A of the Act the Tribunal relied on a power that was also provided by s.362B of the Act.

3. The Tribunal then considered the merits of the review before it. The Tribunal noted the applicant held a “FA-600 visa”, which was a “non-student visa”; that based on his proposed course of study the applicant was “at assessment level . . . A/L3”; and that, as an “A/L3 visa applicant” the applicant, when applying onshore, must either be the holder of a student visa or establish “exceptional circumstances”. The Tribunal then identified what was required to establish “exceptional circumstances”. After referring to the delegate having requested the applicant provide “exceptional reasons for the grant of the requested visa being a 570 student visa”, and the delegate receiving no information, the Tribunal noted that no information was received by the Tribunal. There being nothing on the information available to the Tribunal on “this threshold issue for the Tribunal to consider”, the Tribunal decided to affirm the delegate’s decision.

Ground of application

1. The application contains the following ground of application:

   I met all the requirements to grant the student visa.

2. Although invited to do so, the applicant, who is not legally represented, made no submissions to me in relation to this ground.

3. The ground, as stated, discloses no jurisdictional error by the Tribunal. Whether the applicant met the requirements for the grant of the Student visa for which he applied was a matter for the Tribunal, not this Court, to consider. For this reason alone the application should be dismissed. I propose, however, to consider whether, at least on the face of the material before me, the Tribunal conducted the review according to law; and here there are a number of matters to consider.

4. The first arises from the Tribunal’s stating that the applicant was required to establish “exceptional circumstances” whereas cl.570.227 of Schedule 2 to the Regulations uses the expression “exceptional reasons”. In my opinion, at least in the circumstances of the case that was before the Tribunal, the Tribunal’s use of the expression “exceptional circumstances” rather than “exceptional reasons” gives rise to no arguable jurisdictional error. First, it is doubtful there is any material difference between the meanings of the two expressions. Secondly, to the extent there may be a material difference, the Tribunal’s use of “exceptional circumstances” rather than “exceptional reasons” could have made no difference to what the Tribunal did. The applicant provided no information to the Tribunal on the basis of which the Tribunal could reasonably have made any assessment about whether there were exceptional reasons for granting the applicant a Student visa.

5. Assuming the Tribunal considered the expression “exceptional circumstances” to be synonymous with “exceptional reasons”, the second matter to consider is whether the Tribunal was correct that the relevant question before it was whether there were exceptional reasons for the grant of the Student visa. In my opinion the Tribunal was correct. The applicant applied for a Student visa while in Australia; the applicant nominated the 570 visa as the visa for which he applied; the applicant stated in his application that his nominated course was “intensice [sic] English”; the Tribunal inferred, as it was reasonably entitled to infer, that the intended course of study nominated by the applicant, namely, “intensive English” was intended to be one of the ELICOS courses which are specified by IMMI 14/05, with the consequence that the course the applicant nominated was a “relevant course of study” for the purposes of cl.570.22(a); and that, being the holder of a Chinese passport, the applicant was subject to “Assessment level 3”, being the highest assessment level specified by IMMI 14/014.

6. The next question to consider is whether, faced with the applicant’s non-appearance at the scheduled hearing, the Tribunal was entitled to proceed to decide to make its decision on the review without taking any further action to enable the applicant to appear before it. There is no question the Tribunal had the power to proceed as it did.

7. The power is conferred by s.362B(1)(b) of the Act which applies where, as provided by s.362B(1)(a), an applicant is invited under s.360 to appear before the Tribunal but the applicant does not appear on the day on which, or at the time and place at which, the applicant is scheduled to appear. Under s.360A(2)(a) of the Act, where the applicant is not in detention the Tribunal may give an invitation under s.360 to appear before it by giving notice by one of the methods provided by s.379A of the Act. One of those methods is that provided for by s.379A(5) of the Act, namely, by transmitting the relevant document by email to the last email address provided by the recipient in connection with the review. On the evidence before me, the Tribunal invited the applicant to attend a hearing before it by the letter dated 28 July 2016 to which I have already referred, and that letter specified the time, date, and place of the hearing, and the Tribunal transmitted the letter by email to the email address of the applicant’s migration agent as notified by the applicant in the form of application for review he lodged with the Tribunal.

8. Finally, there is the question of whether the Tribunal acted unreasonably or made some other jurisdictional error by deciding to make its decision on the review without taking any further action to enable the applicant to appear before it. There is no arguable basis on which the Tribunal could be said to have acted unreasonably. That is particularly so given that the applicant provided no information to the Tribunal or to the delegate relevant to establishing exceptional reasons, and that before the scheduled hearing the Tribunal sent reminders to the mobile telephone number provided by the applicant in the application lodged 12 January 2016, and that at the appointed time and date of the hearing the Tribunal attempted to contact the applicant by telephone three times.

Conclusion and disposition

1. The applicant has not established that the Tribunal made any jurisdictional error. I propose, therefore, to dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 1 June 2018