Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1152

FEDERAL CIRCUIT COURT OF AUSTRALIA

Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152

File number(s):

PEG 176 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

27 May 2021

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was a genuine temporary entrant – whether the Tribunal was required to invite applicant to a hearing – whether applicant was enrolled in a course of study – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 359, 360, 363, 379, 476,

Migration Regulations 1994 (Cth), cll 500.211 and 500.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

51

Date of hearing:

24 May 2021

Place:

Perth

Applicants:

First applicant in person

Counsel for the First Respondent:

Ms S Anicic

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

PEG 176 of 2020

BETWEEN:

TAREEQ HOLKOREE

First Applicant

BIBI NOWSHEEN HOLKOREE

Second Applicant

REHAN TASEEN HOLKOREE (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL:

1. The applicants are citizens of Mauritius. The first applicant and the second applicant are husband and wife respectively. The third applicant and the fourth applicant are their children. Both children were born in Australia.

2. The first applicant arrived in July 2008. The second applicant arrived in Australia in 2009. They were the holders of a student visa (Court Book (“CB”) 95). The second applicant was the primary applicant in relation to that visa.  The first applicant was included as a dependent. The second applicant (and, as a result, the first applicant) were granted 3 subsequent student visas and a graduate visa. The third and fourth applicants were included as dependants in relation to these visas.

3. On 18 May 2019, the applicants applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-55). The first applicant was named as the primary applicant.  He indicated that he intended to study a course in General English and a Diploma of Building and Construction Management. The remaining applicants were included in the visa application as members of the first applicant’s “family unit”.

4. On 5 August 2019, the delegate refused to grant the applicants the visa (CB 82-89). The delegate found that the first applicant did not meet cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the delegate was not satisfied that the applicant was a genuine temporary entrant. As the first applicant did not meet the primary criterion, the remaining applicants were also refused the visa.

5. On 15 August 2019, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 90-92).

6. On 1 April 2020, the Tribunal invited the applicants to provide further information in relation to the first applicant’s current enrolment status and the genuine temporary entrant criterion (CB 102-108). The applicants did not respond.

7. On 19 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 111-113).

8. On 8 June 2020, the applicants filed an application for judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.

   TRIBUNAL’S DECISION

9. The Tribunal’s decision is 3 pages long and spans 16 paragraphs.

10. The Tribunal began by identifying the type of visa that was under review. It noted that the delegate had refused the visa because it was determined that the first applicant did not meet cl 500.212 of the Regulations. The Tribunal then confirmed that the applicants were represented by a registered migration agent (at [1]-[4]).

11. The Tribunal then noted that it had sent the applicants an invitation to comment pursuant to s 359 of the Act. The Tribunal confirmed that that invitation was sent to the correct address and that it included an explanation that if the applicants did not respond, the applicants would lose any entitlement to attend a hearing (at [5]-[6]). The Tribunal noted that the applicants had not responded and that, as such, the Tribunal made a decision without taking any further steps to obtain the information requested (at [7]).

12. The Tribunal identified that the issue in the present case was whether the first applicant met the enrolment criterion in cl 500.211 of the Regulations (at [9]).

13. The Tribunal then summarised cl 500.211, noting that it required an applicant to be enrolled in a course of study at the time of the Tribunal’s decision (at [10]). The Tribunal then outlined the definition of “course of study” (at [11]).

14. The Tribunal continued:

    12. Despite a request to do so, the applicant has failed to provide evidence of current enrolment.

    13. On the available evidence the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

15. The Tribunal found that as the first applicant did not meet the primary criterion, the remaining applicants could not be granted the visa (at [15]).

16. On the basis of the above, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants the visa (at [16]).

    PROCEEDINGS IN THIS COURT

17. On 8 June 2020, the applicants filed an application for judicial review application in this Court. The application provides a rather lengthy “ground of review”, as follows:

    On the 05^th August 2019 Department of Home Affairs, refused my visa on the following ground:

    I have considered your immigration history and note that Departmental records state that you first arrived in Australia on 14 July 2008. Since your arrival to Australia you have spent a period of 11 years in Australia and only 6 days away. I also note that the course you are seeking to undertake would require you and your family to remain onshore until at least 15 March 2021; this would bring your total time in Australia on temporary visas or associated bridging visas to 13 years. I have considered your reasons for studying the above courses. I have placed little weight on your statement of purpose as you have not demonstrated that you have had an interest in improving your qualifications in the last 11 years in Australia. You have had the opportunity to apply for your own student visa over this time however you chose not to. I have also assessed your personal ties to Mauritius. I have given some weight on the fact that you have declared that some family reside in Mauritius which shows that you have some personal ties to your home country. Although I accept you have some family in Mauritius, the fact that your wife and children reside in Australia with you further reduces your incentive on returning upon completion of your proposed courses. I also note that both your children were born in Australia indicating that your personal and social ties to Australia are greater than they are in Mauritius. You have also failed to provide any evidence of your economic, social, family or employment ties to your home country. I have given regard to your visa history in Australia. You have resided in Australia as a dependant on your wife's student visas and other temporary visas for the last 11 years.

    I note that during this time you chose not to apply for your own student visa to further your education to improve your employment opportunities in Mauritius. Although I accept your wife has had positive study history and has demonstrated onshore compliance find that the reasons you have now applied for a student visa is to primarily maintain residence in Australia for other purposes rather than to pursue a genuine education. This is not the purpose of a temporary student visa. Given your lack of evidence of economic ties in Mauritius and the comparatively greater personal economic and employment opportunities you have in Australia, I am concerned that your intention to reside in Australia is motivated by factors other than studying. I am not satisfied of your genuine intention to study in Australia. I am not satisfied that your employment prospects will improve such that they will act as a strong incentive for you to return to your home country given your employment history and qualification you already hold. I have considered all of the information provided by you in support of your application. On balance, I am not satisfied that the information you have provided regarding your circumstances in your home country, potential circumstances in Australia, the value of your proposed courses to your future, your immigration history and other relevant matters are sufficient to demonstrate that you are a genuine temporary entrant.

    On the 5^th of August 2019, I have lodged my Administrative Appeal Tribunal (AAT). On the 1st of May 2020, AAT asked for more documents. I have to clarify that my appeal ground was based on information and documents already provided to Home Affairs and to AAT. I did not provide any further documents to AAT and information because I did not have any additional documents and information to provide to AAT. I was expecting for AAT to call me for a hearing instead of deciding in favour of the Department of Home Affairs. AAT did not give me an opportunity to discuss my case in person. I am of the opinion that AAT made a jurisdictional error. I can prove that AAT has made an error by not giving me a chance. AAT must have called me for a hearing where I would be using the same documents and information to Department of Home Affairs and Administrative Appeal Tribunal.

    I would be really appreciated if I were called to discuss my case and prove to AAT that I was a genuine student

18. The applicants were given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.

19. The materials before the Court thus include the application for judicial review dated 8 June 2020, a Court Book numbering 113 pages (marked as Exhibit 1), an affidavit of Sara Anicic affirmed 23 March 2021 and an outline of written submissions filed by the Minister on 7 May 2021.

20. The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the other applicants. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions.

21. Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review and to outline any other concerns he 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].

22. To assist the first applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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 relies on irrelevant 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: 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].

23. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

24. Against this background, the first applicant advised the Court that he did not wish to comment. When asked if he wished to do so after counsel for the Minister summarised the Minister’s submissions, the applicant again advised that he did not wish to comment. 

    CONSIDERATION

25. The application for judicial review does not provide any grounds of review per se. Rather, it provides a lengthy statement. To assist the applicants, and noting that they are unrepresented, the Court will analyse the statement provided “in parts” to determine whether any error arises in the Tribunal’s decision.

26. The applicants commence by stating:

    I have considered your immigration history and note that Departmental records state that you first arrived in Australia on 14 July 2008. Since your arrival to Australia you have spent a period of 11 years in Australia and only 6 days away. I also note that the course you are seeking to undertake would require you and your family to remain onshore until at least 15 March 2021; this would bring your total time in Australia on temporary visas or associated bridging visas to 13 years. I have considered your reasons for studying the above courses. I have placed little weight on your statement of purpose as you have not demonstrated that you have had an interest in improving your qualifications in the last 11 years in Australia. You have had the opportunity to apply for your own student visa over this time however you chose not to. I have also assessed your personal ties to Mauritius. I have given some weight on the fact that you have declared that some family reside in Mauritius which shows that you have some personal ties to your home country. Although I accept you have some family in Mauritius, the fact that your wife and children reside in Australia with you further reduces your incentive on returning upon completion of your proposed courses. I also note that both your children were born in Australia indicating that your personal and social ties to Australia are greater than they are in Mauritius. You have also failed to provide any evidence of your economic, social, family or employment ties to your home country. I have given regard to your visa history in Australia. You have resided in Australia as a dependant on your wife's student visas and other temporary visas for the last 11 years.

    I note that during this time you chose not to apply for your own student visa to further your education to improve your employment opportunities in Mauritius. Although I accept your wife has had positive study history and has demonstrated onshore compliance find that the reasons you have now applied for a student visa is to primarily maintain residence in Australia for other purposes rather than to pursue a genuine education. This is not the purpose of a temporary student visa. Given your lack of evidence of economic ties in Mauritius and the comparatively greater personal economic and employment opportunities you have in Australia, I am concerned that your intention to reside in Australia is motivated by factors other than studying. I am not satisfied of your genuine intention to study in Australia. I am not satisfied that your employment prospects will improve such that they will act as a strong incentive for you to return to your home country given your employment history and qualification you already hold. I have considered all of the information provided by you in support of your application. On balance, I am not satisfied that the information you have provided regarding your circumstances in your home country, potential circumstances in Australia, the value of your proposed courses to your future, your immigration history and other relevant matters are sufficient to demonstrate that you are a genuine temporary entrant.

27. This is simply an extract of the delegate’s decision. It does not identify jurisdictional error on the part of the Tribunal.

28. If the applicants are alleging that there is some error in those passages of the delegate’s decision, this Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4).

29. The applicants continue:

    On the 5^th of August 2019, I have lodged my Administrative Appeal Tribunal (AAT). On the 1st of May 2020, AAT asked for more documents. I have to clarify that my appeal ground was based on information and documents already provided to Home Affairs and to AAT. I did not provide any further documents to AAT and information because I did not have any additional documents and information to provide to AAT. I was expecting for AAT to call me for a hearing instead of deciding in favour of the Department of Home Affairs. AAT did not give me an opportunity to discuss my case in person. I am of the opinion that AAT made a jurisdictional error. I can prove that AAT has made an error by not giving me a chance. AAT must have called me for a hearing where I would be using the same documents and information to Department of Home Affairs and Administrative Appeal Tribunal.

    I would be really appreciated if I were called to discuss my case and prove to AAT that I was a genuine student

30. It appears the applicants take issue with the fact that they were not invited to a Tribunal hearing.

31. The Tribunal is required by s 360(1) of the Act to invite an applicant to appear before the Tribunal to give evidence and present arguments. However, there are some exceptions to this requirement which are outlined in s 360(2) and (3) of the Act, as follows:

    (2) Subsection (1) does not apply if:

    (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c) subsection 359C(1) or (2) applies to the applicant.

    (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

32. Relevant to this matter is s 360(2)(c) of the Act.

33. In this regard, s 359C(1) of the Act is of note. That section provides:

    (1)       If a person:

    (a) is invited in writing under section 359 to give information; and

    (b)       does not give the information before the time for giving it has passed;

    the Tribunal may make a decision on the review without taking any further action to obtain the information.

1. While the applicants note 1 May 2020 as the relevant date, the relevant date here is 1 April 2020.

2. On that date, the Tribunal relevantly invited the applicants to provide information to the Tribunal. That invitation:

   (a)invited the applicants to give the Tribunal in writing information relevant to their current enrolment status and the genuine temporary entrant criterion: the Act, ss 359(2) and 359B(1);

   (b)was sent to the applicants’ migration agent (as required by s 379G of the Act) by email (a method specified in s 379A) at the last known email address provided in connection with the review: the Act, s 359(3);

   (c)gave the applicants with 14 days to respond which was the prescribed period in reg 4.17(4) of the Regulation; the Act, s 359B(2).

3. The invitation to comment complied with the relevant requirements in ss 359 and 359B of the Act.

4. The applicants do not appear to dispute that they did not provide any information as requested in the invitation.

5. On that basis alone, s 359C(1) of the Act was enlivened. This meant that the Tribunal was not required to invite the applicants to attend a hearing (as the exception in s 360(2)(c) of the Act applied).

6. Further, because s 360(2) of the Act applied, by virtue of s 360(3) of the Act the applicant was not entitled to appear before the Tribunal. Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear. Section 363A states:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person

7. The operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant’s non provision of information in response to the s 359 invitation.

8. Put simply, the applicants were not invited to a hearing as they were not entitled to attend a hearing. The Tribunal had no power to allow the applicants to attend a hearing. If the Tribunal had invited the applicants to attend a hearing, it would have done so in excess of its power and, accordingly, exceeded its jurisdiction.

9. The applicants explain that they did not provide any further information as they had provided all of the information to the Minister’s Department. They say that they did not have anything further to provide. Accepting that this is the case, it does not assist the applicants on review in this Court. The applicants were required to provide the information requested by the Tribunal. They did not do so. This “triggered” the “cascading effect” inherent in ss 359C, 360 and 363A of the Act. The structure of the legislation is such that, no matter how compelling the reason for not providing the information is, if the applicants do not provide the information by the required date (and do not seek an extension) then they lose their right to attend a hearing.

10. This was made clear to the applicants in the invitation to provide information which stated:

    If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

11. The applicants were, accordingly, on notice of what would occur if they did not provide a response.

12. The Tribunal did not fall into jurisdictional error by failing to invite the applicants to attend a hearing and give them a chance to present their case. The applicants lost that right.

13. Accordingly, the applicants’ judicial review application fails to identify any jurisdictional error.

14. The Court notes that the affidavit of Ms Anicic annexes a copy of the Provider Registration and International Student Management System records for the first applicant. That record shows that the first applicant’s enrolment in the two courses he had intended to study was cancelled on 9 August 2019. The applicant has not engaged in any course of study since that time. Accordingly, as at the date of the Tribunal’s decisions, the first applicant was not enrolled in course of study.

15. The Tribunal was correct to find that the first applicant did not meet cl 500.212 of the Regulations. Further, in circumstances where the applicants, in any event, provided no evidence themselves of the first applicant’s enrolment status, even if the applicant was enrolled in a course of study at the time of the Tribunal’s decision, no jurisdictional error would arise. It is the applicants’ responsibility to advance whatever evidence and arguments they require in order to satisfy the Tribunal that they meet the criterion.

16. The Court is otherwise unable to identify any jurisdictional error.

    CONCLUSION

17. The application for judicial review fails to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.

18. The application for judicial review is, accordingly, dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       27 May 2021

SCHEDULE OF PARTIES

PEG 176 of 2020
Applicants
Fourth Applicant:	MYRAH ILYANA HOLKOREE