Hermawan v Minister for Home Affairs

[2019] FCCA 2350

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERMAWAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2350

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – applicant not enrolled in a course of study – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359, 359A, 359AA, 366A
Migration Regulations 1994 (Cth)

First Applicant: HENDRY HERMAWAN

Second Applicant: SYLPHIE SYLPHIE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3343 of 2018

Judgment of: Judge Driver

Hearing date: 23 August 2019

Delivered at: Sydney

Delivered on: 23 August 2019

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms K Evans of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3343 of 2018

HENDRY HERMAWAN

First Applicant

SYLPHIE SYLPHIE

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 November 2018.  The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas.  Background facts relating to this matter are set out in the submissions of the Minister filed on 16 August 2019.   

2. The first applicant, Mr Hermawan, a citizen of Indonesia, first arrived in Australia in April 2010 as the holder of a student visa.[1]  The second applicant, Ms Sylphie, is the applicant’s wife and applied for the visa as a member of his family unit. On 12 January 2017, Mr Hermawan applied for a student (Temporary) (Class TU) (Subclass 500) visa (visa) on the basis of his enrolment in an Advanced Diploma of Business.[2]

   [1] Court Book (CB) 64

   [2] CB 1-30

Delegate’s decision

1. On 29 May 2017, the delegate refused the visa application on the basis that Mr Hermawan did not satisfy clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). In assessing whether Mr Hermawan met clause 500.212, the delegate considered the factors set out in Ministerial Direction 69 (Direction 69) and found that Mr Hermawan did not satisfy the genuine temporary entrant criterion.[3]

   [3] CB 62-67

Tribunal's proceedings

1. On 15 June 2017, Mr Hermawan applied to the Tribunal for review of the delegate’s decision.[4] A copy of the delegate’s decision was provided with the application.[5]

   [4] CB 68-70

   [5] CB 69

2. On 5 September 2018, the Tribunal invited Mr Hermawan to attend a hearing.[6] The invitation, amongst other things, requested that he provide evidence, including confirmation of enrolment at least seven days before the hearing date.[7]  Mr Hermawan sought a postponement of the hearing, which was granted, and on 20 September 2018 was invited to a re-scheduled hearing.[8] That invitation again requested that Mr Hermawan provide a confirmation of enrolment at least seven days before the hearing.[9] The hearing was then rescheduled again because of the Member’s unavailability.[10]

   [6] CB 77-79

   [7] CB 78

   [8] CB 86-88

   [9] CB 87

   [10] CB 94-95

3. Mr Hermawan did not provide any documents or submissions to the Tribunal prior to the hearing.

4. On 5 November 2018, the applicants attended the scheduled Tribunal hearing to give evidence.[11]

   [11] CB 102-104

Tribunal decision

1. On 5 November, the Tribunal affirmed the delegate’s decision on a different basis. The Tribunal found that Mr Hermawan did not satisfy clause 500.211 of the Regulations, which required him to be enrolled in a course of study.[12]

   [12] CB 109-111

2. The Tribunal noted that it discussed with Mr Hermawan that the issue on the review at the hearing was whether he met the enrolment requirements pursuant to clause 500.211 and also whether he was a genuine temporary entrant.[13]

   [13] CB 110, [9]

3. The Tribunal noted that Mr Hermawan confirmed that he had completed his course in August 2017 and had not been enrolled in a course of study since and was not currently enrolled. The Tribunal noted that he stated he only stayed in Australia to defend himself as he felt the delegate’s decision was unfair since he had successfully completed his course. He also stated it was now his intention to return to Indonesia.[14]

   [14] CB 110, [10]

4. On the basis of Mr Hermawan’s evidence that he was not currently enrolled in a course, the Tribunal found that he did not meet clause 500.211.[15]  Accordingly, the Tribunal affirmed the decision under review.[16]

   [15] CB 111, [15]-[16]

   [16] CB 111, [17]-[18]

The present proceedings

1. These proceedings began with a show cause application filed on 30 November 2018.  The applicants continue to rely upon that application.  The four grounds in it are:

   1. Pursuant to Section 424AA of the Migration Act 1958 (Cth), the Administrative Appeals Tribunal is obliged to give the applicant reasonable time to comment on or respond to any information that is of relevance to the decision under review.

   2. The Tribunal despite having been aware of the fact that the applicant’s representative was absent, failed to adjourn the review for the sake of a fair hearing.

   3. Having said that the applicant had appeared before the Tribunal, there was a breach of procedural fairness since the applicant’s representative failed to do so. This potentially intervenes with the natural justice rule since the representative’s evidence or argument may be relevant to the review.

   4. In light of the Tribunal’s decision and Section 424 of the Act, the applicant humbly submits that it was unjust and unfair of the Tribunal to affirm its previous decision without considering all factors relevant to the decision.

2. The application is supported by a short affidavit filed with it, which I received. 

3. Mr Hermawan filed a second affidavit on 21 August 2019, which I received as a submission.  A more fulsome set of submissions was also filed on behalf of the applicants on 21 August 2019. 

4. I also have before me as evidence the court book filed on 4 February 2019. 

5. The applicants denied receipt of the court book.  Exhibit R1 establishes that the court book was sent by post to Mr Hermawan at his address for service under cover of a letter dated 4 February 2019.  I provided the applicants for the purposes of today’s hearing with the original court book from the court file.  I explained to them the contents of the court book.  Mr Hermawan did not object to its receipt into evidence. 

6. I also invited oral submissions from both applicants.  It is plain from Mr Hermawan’s oral submissions that his central difficulty with the Tribunal’s decision was the absence of his agent from the Tribunal hearing and his inability to call on the agent for advice or assistance during the hearing.  This was explored during argument.  I took Mr Hermawan to the hearing invitation issued to his agent on 18 October 2018.[17]  He confirmed that the agent had informed him and his wife of the upcoming Tribunal hearing.  He told me from the bar table that his agent told him that she would be unable to attend due to leave arrangements. 

   [17] CB 93

7. Mr Hermawan confirmed that he had completed and signed the response to hearing invitation appearing[18].  In answer to the question, “Will your representative be attending,” he ticked, “No”.  Nothing was raised either by the applicants or their representative prior to the Tribunal hearing to suggest that some problem resulted from the decision of the agent not to attend.  Mr Hermawan also confirmed that he did not raise with the Tribunal any problem at the hearing, because he thought it was too late.  Plainly, the Tribunal cannot deal with a problem of which it is not aware. 

   [18] CB 98-100

8. The circumstances do not support any argument that there was any obligation on the Tribunal to consider an adjournment, let alone any arguable case of jurisdictional error arising from a failure to adjourn.  Even if there had been some error made by the Tribunal, I doubt that it would have gone to jurisdiction.  The applicants had been put on notice by the Tribunal that a key question on the review would be the enrolment status of Mr Hermawan.  At hearing, he confirmed to the Tribunal that he had not been enrolled in a course of study since August 2017. 

9. Mr Hermawan further told the Tribunal that he had completed his studies and intended to return to Indonesia.  Mr Hermawan explained to the Tribunal that he was pursuing the review in order to obtain some sort of vindication.  This is explicable on the basis that the delegate had found that Mr Hermawan was not a genuine student.  The Tribunal’s decision was, however, made on the simple basis that Mr Hermawan was not enrolled in a course of study and was hence ineligible for the visa.  In my view, the presence of the applicants’ advisor at the Tribunal hearing could have had no impact on that stark reality. 

10. I also invited oral submissions from Ms Sylphie, but she did not make any. 

11. In other respects, I agree with the Minister’s submissions on the grounds of review raised.   

Ground 1

1. The complaint made by Ground 1 is unclear. Further, the applicants’ reference to s.424AA (which is presumably intended to be a reference to the mirroring provision under Part 5 of the Migration Act 1958 (Cth) (Migration Act), s.359AA), is misconceived. There is no indication that there was any “information” before the Tribunal that was required to be put to Mr Hermawan for comment such that its obligations under ss.359A or 359AA were even enlivened. Ground 1 fails to raise an arguable case for the relief claimed.

Grounds 2 and 3

1. Grounds 2 and 3 can be dealt with together. By these grounds, the applicants complain that the Tribunal “failed to adjourn” the hearing in the absence of the applicants’ representatives and that the failure of the representative to appear at the hearing “potentially intervenes with the natural justice rule”. Grounds 2 and 3 must fail for several reasons.

2. First, and as stated above, in their response to hearing invitation, signed by Mr Hermawan, the applicants indicated that their representative would not attend the hearing.[19] Secondly, the applicants made no complaint about the representative’s absence at any point, nor did they seek an adjournment to enable his appearance. Thirdly, in any event, there is no right to representation before the Tribunal, pursuant to s.366A(3) of the Migration Act. Finally, and as noted above, the attendance of the representative would not have made any difference to the outcome.

   [19] CB 98-100

Ground 4

1. Again, without particulars, the complaint made by Ground 4 is difficult to comprehend. If the applicants’ intended complaint is that the Tribunal ought to have “sought information” under s.359 of the Migration Act, it is entirely unclear what “information” the applicants contend the Tribunal should have sought. To be eligible for the grant of a student visa, Mr Hermawan was required to be enrolled in a registered course, which he was not. That was information Mr Hermawan himself provided to the Tribunal. Ground 4 does not raise an arguable case for the relief claimed by the applicants.

Conclusion

1. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. The decision therefore will be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Hermawan asked for some moderation of the costs order, either as to the amount or the arrangements for payment.  I explained to him that I considered the amount reasonable and appropriate to the circumstances of the case.  I also explained to him the possible arrangements he could make with the Minister’s Department concerning the costs debt.

3. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 August 2019