Hussain v Minister for Immigration

Case •

[2014] FCCA 1726

•

4 August 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSAIN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1726
Catchwords:
MIGRATION – Merits review Application from decision of Migration Review Tribunal – extended periods provided to Applicant to provide ‘certificate of enrolment’ – failure to comply with requirements of student visa.

Legislation:  
Migration Act 1958 (Cth), ss.48, 359A, 360, 476(1)

Migration Regulations 1994, reg.572.222 & 572.223
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Applicant: MARUF HUSSAIN

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL
File Number: CAG 12 of 2014
Judgment of: Judge Neville
Hearing date: 6 June 2014
Date of Last Submission: 6 June 2014
Delivered at: Canberra
Oral reasons delivered on: 6 June 2014

REPRESENTATION

Counsel for the Applicant: Not applicable
Solicitors for the Applicant: Self-represented
Counsel for the Respondent: Not applicable
Solicitors for the Respondent: Clayton Utz, Canberra

ORDERS

  1. The Application, filed on 4th March 2014, is dismissed.

  2. The Applicant is to pay the First Respondent’s costs in the sum of $1,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT CANBERRA

CAG 12 of 2014

MARUF HUSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This matter was heard, and determined (with abbreviated oral reasons delivered) on 6th June 2014.  In large part, the reasons then given indicated that (a) the Court accepted and essentially adopted the written submissions provided on behalf of the First Respondent (“the Minister”), and (b) in the event that written reasons were required, the Court reserved its position to revise them.  With an appeal having been lodged by the Applicant on 3rd July, what follows are the revised reasons for dismissing the Application filed on 4th March 2014, together with an order for costs.

  2. The Court has before it an Application for Review in relation to a decision of the Migration Review Tribunal (“the Tribunal”), dated 5th February 2014, which affirmed a decision of the delegate of the Minister to refuse to grant the Applicant a student visa.  The decision of the Delegate was made on 9th February 2012.

  3. The Delegate concluded that the Applicant had not produced evidence of proficiency in English as required by clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).[1] In the result, the Tribunal’s decision ultimately (and essentially) turned on the Applicant’s failure to provide a certificate of enrolment as required by the Regulations.

    [1] A Court Book (“CB”), which contained the decision of the Tribunal, and of the Delegate, and other relevant documents, was provided by the Minister.  The decision of the Tribunal is at CB pp.330-334.

  4. The Application was filed on 4th March 2014, pursuant to s.476(1) of the Migration Act1958 (“the Act”).  The Applicant sought certain relief by way of quashing the decision and also a writ (in the nature of mandamus) by which the decision be remitted to the Tribunal to determine its decision according to law.

  5. The grounds of the Application were in the following terms:

    i.The Tribunal was asked to determine whether or not the Department of Immigration and Border Protection had made a decision not to grant the applicant a student (Temporary) (Class TU) visa according to law for a subclass 572 application.  An absence of a current certificate of enrolment for a subclass 573 cannot be a reason to affirm that decision as the applicant did not apply for a further visa;

    ii.The Tribunal asked the applicant to provide financial requirement under subclass 572 whereas it sought to assess the applicant under subclass 573 visa application category, which is contrary to schedule 5A of the Migration Regulation 1994 and this unlawful conditions [sic] led to difficulties to obtain a certificate of enrolment;

    iii.The Tribunal refers to the delegate's only reasoning for the refusal was a failure to provide English language proficiency (please refer to the decision record and the recorded hearing), however the principal member accepted on the day of the hearing on the 9 September 2013 that it was a wrong decision and that the applicant did in fact provide English language proficiency to the delegate;

    iv.On 9 September 2013, case officer Lachlan Martin said sometime between 1400 and 1700 hours that universities are sometimes slow in uploading enrolment details in PRISMS.  This appeared to mean to the applicant that a failure of electronic transmission may be the cause why the enrolment details are not shown on PRISMS.  At this stage, the tribunal had enough evidence before it regarding the applicant's enrolment.

  6. The Minister opposed the Application, and contended that each of the Applicant’s grounds was unmeritorious.  For the reasons that follow I agree.  Accordingly, the Application must be dismissed.

General Background

  1. I note the following by way of general background of the Tribunal’s decision, which, in large part, (a) I take to be essentially undisputed, (b) is drawn from material filed on behalf of the Minister, as well as (c) the Tribunal’s decision at [6] – [21], and (d) copies of primary or source material contained in the Court Book.

  2. At the time of the application for a student visa, the Applicant was enrolled at the Canberra Institute of Technology for an advanced diploma of business.  The course was to commence on 18th July 2011 and to conclude on 30th June 2012.

  3. On 29th February 2012, the Applicant applied for review of the Delegate's decision by the Tribunal (CB 63 - 78), claiming that he had been unable to sit the requisite International English Language Testing System (IELTS) test because he had been charged with indecency and common assault (for which he was subsequently convicted).

  4. In this regard, I also note that the Applicant appealed his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales.  This appeal was unsuccessful.

  5. Further, in the general material before the Court, the Applicant said that he intended to appeal to the High Court of Australia in relation to his conviction.  In answer to an inquiry from me in the course of the hearing, the Applicant confirmed that his application for leave to appeal to the High Court (which was out of time to a very significant degree) was unsuccessful.

  6. On 14th August 2013, the Tribunal invited the Applicant to attend a hearing scheduled for 9th September 2013 by video-link from Canberra and to present evidence or submissions (CB 129 - 137) in accordance with s.360 of the Act. The Tribunal also invited the Applicant to provide evidence of a current certificate of enrolment (“COE”) as required for the grant of a student visa (CB 129) (in addition to evidence of his past studies in Australia and evidence of his financial capacity).

  7. At the Applicant's request (CB 139), the location of the hearing was changed to Sydney to allow the Applicant to attend in person (CB 141) and then subsequently, also at the Applicant's request (CB 148), the original hearing by video-link was reinstated (CB 149).

  8. On 5th September 2013, the Applicant responded to the invitation to the hearing (CB 161 - 290) and provided (a) evidence of an IELTS test which he sat on 14th March 2009 (CB 186), (b) evidence that the University of Canberra Faculty Course Convenor was prepared to offer him "7 more units of credit" towards a Bachelor of Business Administration when he provided an official Canberra Institute of Technology transcript (CB 172 - 173), and (c) evidence that he was enrolled in 4 units of the Bachelor of Business Administration degree at the University (CB 174).  The Applicant provided a document from the University headed "Confirmation of Enrolment" (CB 176) but not a COE, which is defined to mean "a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant".[2]

    [2] See Reg 1.03 of the Regulations. As hair-splitting as it appears, the Court cannot embark on an inquiry into the distinction between a certificate of enrolment (as required and as defined by the Regulations) and a letter confirming enrolment.

  9. On 9th September 2013, the Tribunal conducted a hearing at which the Applicant appeared and gave evidence (CB 293 - 296). 

  10. The Applicant told the Tribunal that he had enrolled at the University to study a Bachelor of Business Administration that would finish in June 2014 (CB 332 [12]).  The Tribunal put to the Applicant that, according to the Provider Registration and International Student Management System (PRISMS) (CB 291 - 292), the Applicant was not enrolled in a course of study and did not have a COE (CB 332 [13]).  The Tribunal asked the Applicant to provide a current COE (in addition to evidence of financial capacity) by 20th September 2013 (CB 333 [15]).  Following the hearing, the Applicant indicated that he could obtain a COE and that he would provide it the following day.  There is a “Case Note” that records this conversation (CB 297).

  11. On 20th September 2013, the Applicant wrote to the Tribunal attaching his “subsequent submission” (CB 299), which attached a letter (dated 19th September 2013) and other documents that formed a study plan and an application for credit with the University (CB 300 - 313).  In the course of this letter he stated (emphasis added):

    "I have also attached a revised credit approval and new study plan from the university, however I am in the process of applying for more credit.  Besides, I have resat for unit 6348 which is scheduled for Semester 1 2014 and hopeful to pass it [sic].  That result will be published on Monday 23rd [September].  Therefore, I did not formally apply for a COE yet as that will result in another revised COE.  Given that I pass the unit and no more credit is granted I will only have to do 3 units for semester 1 2014 in order to graduate.  I will definitely be able to send you a COE, confirming at least no more than 4 units and no less than 2 units to study in semester 1, 2014 on the 5th of October as I have to renew my OSHC and wait for the result".

  12. On 23rd September 2013, the Applicant wrote to the Tribunal in relation to his financial capacity, stating that his "wrongful conviction" for indecency meant that the Canberra Institute of Technology had withdrawn him from the course without authorisation and that he had lost the tuition fees, meaning (the Applicant submitted) he was unable to provide evidence of money in a matured fund.  He claimed to be "recovering [his] loss through proving [his] innocence" in the Supreme Court and requested a further month to allow his Mother's loan to be processed (CB 316).

  13. On 20th January 2014, the Tribunal wrote to the Applicant in accordance with s.359A of the Act and put to him that, according to PRISMS, the Applicant was not enrolled in a course of study and did not have a [current] COE (CB 318 - 320). The Applicant was invited to comment by 3rd February 2014.

  14. On 3rd February 2014, the Applicant wrote to the Tribunal and requested an 8 week extension and a further hearing (CB 321 - 323).  He provided a University document headed "Confirmation of Enrolment" (but not a COE as defined) dated 3rd February 2014 (CB 323) which indicated that he was enrolled in 3 units.  In the course of this letter he confirmed that he would be appealing to the High Court “out of time” in relation to his earlier mentioned conviction. 

  15. Also on 3rd February 2014, the Applicant wrote a further letter to the Tribunal stating that the University would issue him with a COE if he paid his tuition fees for the semester (CB 324).  The Applicant claimed that his Mother would pay the tuition fee towards the end of March and it would take a further week to provide a COE.  He stated that he required 9 weeks to provide a COE.

  16. On 5th February 2014, almost two years after his application for review to the Tribunal, the Tribunal refused the request for a further 9 week extension of time (CB 326).

  17. On 5th February 2014, the Tribunal affirmed the decision to refuse to grant the Applicant a student visa (CB 330 - 334) on the basis that the Applicant did not hold a current COE and did not meet the requirement of clause 573.222 of Schedule 8 to the Regulations (CB 334 [24] - [25]).

The Tribunal’s Decision

  1. Brief as it is, after setting out a summary of the procedural history of the matter, essentially as outlined above, the Tribunal concluded, at [22] – [24], as follows:

    [22] The Tribunal finds that the visa application was made on a form 157A, not a form 157E.  The Tribunal finds that there was no failure of electronic transmission that has prevented an education provider from sending a certificate of enrolment.  Therefore, subclasses 573.222(2) and (3) do not apply in this case.

    [23] Subclause 573.222(1) requires the applicant to give to the Minister (or the Tribunal) a certificate of enrolment relating to the applicant undertaking a course of study, the provider of which is not a suspended education provider (an acceptable course).  This must be current at the time of the Tribunal’s decision.

    [24] The Tribunal finds that at the time of decision, there is no certificate of enrolment before it to show that the applicant is currently enrolled in an acceptable course.  The applicant confirmed at the hearing and subsequently in writing that he did not have certificate of enrolment.  The Tribunal therefore finds that the applicant does not meet subclause 573.222(1).

  2. The Tribunal affirmed the Delegate’s decision.

The Applicant’s Submissions

  1. The Applicant filed (a) an affidavit, on 4th March 2014, and (b) written submissions, on 5th June 2014.  In terms, the Applicant’s submissions were as follows.

  2. In his affidavit, the Applicant firstly contended (as I understand it) that the Tribunal either misled him as to the ground or basis upon which it was assessing his visa application, and or that it assessed it on the wrong basis. He said that the Tribunal asked him to provide [evidence] of his financial capacity, in relation to a “subclass 572” visa, whereas (he said) the Tribunal actually assessed him under a “subclass 573 visa application category.” He said that this was contrary to Schedule 5A of the Migration Regulations1994, which in turn “led to difficulties to obtain a certificate of enrolment.”

  3. The Applicant further deposed that on 9th September 2013 the “principal member [of the Tribunal] Bronwyn Forsyth asked the Applicant to provide financial requirement from his Mother and Father.”  Without saying so, it would appear that the Applicant contended that the conversation deposed to was alleged to have taken place in the course of the hearing before the Tribunal on 9th September 2013.

  4. I note that at CB 297, there is a “Case Note”, dated 9th September 2013 (to which I have already referred), which records the detail of the telephone conversation between the Applicant and Mr Martin, which obviously took place after the conclusion of the hearing.[3]

    [3] See further the letter from the Applicant, dated 19th September 2013, at CB 300.

  5. The Applicant further deposed that also on 9th September his conversation with Mr Martin included a discussion about the slowness or difficulty with some tertiary institutions to upload enrolment details.

  6. At par.3 of his affidavit, the Applicant said that at the hearing before the Tribunal on 9th September 2013 the Tribunal Member accepted that it was “a wrong decision” of the Delegate to have determined the matter on the basis of the Applicant’s English language proficiency.

  7. In this regard, I simply note that the reasons of the Tribunal are the reference point, which constitutes the relevant record for the Court in the determination of the Application.

  8. Finally, the Applicant deposed (at par.4) that he did not apply for a visa under subclass 573, and that he did not consent to the Tribunal assessing or determining his visa application under this subclass.  Further, he said that he [only or simply] sought to have determined his application for “a student (Temporary) (Class TU) visa according to law.”

  9. In his written submissions, filed 5th June 2014, the Applicant contended as follows.

  10. First, he said that the Delegate’s refusal of his student visa (subclass 572) was based on “flawed and irrelevant grounds”. 

  11. In paragraph 2 of his submissions, he said, amongst other things: “The matter before the Court is whether or not MRT has jurisdiction to assess the applicant for a further VISA while the applicant is waiting for the review of an already existing matter”.  He further contended: “Whether or not the Minister has made a correct decision on 9 February 2012 is irrelevant to this Court as this Court is, as I understand, will not reflect on the merits of the application, but to determine if a substantial error had occurred during the process”.

  12. After setting out what the Applicant says are the terms of Section 48 of the Act, he then said: “What this means is the Applicant was not eligible to lodge another student visa application of any kind until the matter is determined by MRT, in other words, MRT has no jurisdiction to allow the Applicant another VISA until it finalises its decision.”

  13. The Applicant further submitted that he did not make any application for a subclass 573 visa because he is/was not eligible because of the operation of s.48, to which he referred. The Applicant contended that the Tribunal “had shown no explanation to the task it was set to and went on saying that as the Applicant did not have a CoE for a current course, it affirms the decision by the delegate is fatal and amounts to a substantial jurisdictional error”.

  14. The Applicant confirmed that he “did not wish to have a further substantial VISA under subclass 573”.

  15. In paragraph 4 of his submissions, the Applicant repeated some of the matters set out in his earlier filed affidavit, namely, that during the hearing the Tribunal member told the Applicant that he would need to provide financial capacity from his Mother and Father only and that if this was not provided, the decision of the Tribunal would be adverse to him. 

  16. The Applicant then made further submissions regarding the assessment of his financial capacity and otherwise contended that the decision of the Tribunal was “bogus”.  Further, relying upon the decision in SZBEL, the Applicant said: “In this present case, the decisive issue was the lack of CoE, which MRT made impossible to obtain as a result of its unlawful conditions upon the Applicant.”

  17. The Applicant finally submitted that the MRT ‘admitted’ that the Delegate had made a wrong decision and had imposed unlawful conditions upon the Applicant which, thereby, made it impossible for him to obtain a CoE.

  18. By way of brief observation only at this stage, a principal difficulty with the Applicant’s evidence and submissions is that he relies upon an asserted “admission” said to have been made by the Tribunal member to the effect that the delegate’s decision was wrong.  Having regard to the record of the Tribunal’s decision, as well as there being no other evidence (apart from his own assertion), the Court cannot, in my view, proceed on the basis that the Tribunal made any such comment of the kind alleged by the Applicant.

  19. I do not suggest that anything turns on it, but at the conclusion of the hearing before me the Applicant confirmed that (a) he had paid his tuition fees for his course [only] in March of this year, and (b) that he had finished his course of study.  At one level, this information might therefore lead to a conclusion that the review application, per se, was moot.  However, because no such submission was made, I do not proceed on this basis.

First Respondent’s Submissions

  1. In relation to the relevant subclass of visa, the Minister submitted as follows (it is as well to set out the submissions in full; emphasis added):

    [19] The Applicant applied for a student visa on Form 157A, the form used to apply for subclasses 571, 572, 573, 574, 575, and 576.  At that stage, he wished to study an advanced diploma of business at the Canberra Institute of Technology (CB 10).  The form stated "Each subclass is linked to the type of course you intend to undertake in Australia as your main course of study" (CB 1).  At the date of the application, the Applicant had a COE for the Canberra Institute of Technology for an advanced diploma of business commencing 18 July 2011 and ending 30 June 2012 (CB 23) and this course was nominated as his intended course (CB 10).  Accordingly, the appropriate subclass for the delegate to consider was subclass 572, Vocational Education and Training.

    [20] On 14 August 2013, the Tribunal invited the Applicant to attend the hearing and present evidence or submissions (CB 129 - 137) in accordance with s 360 of the Act. The Tribunal also invited the Applicant to provide evidence of a current COE as required by clause 572.222 (CB 129) and evidence of his financial capacity as required by clause 572.223 (CB 130). The invitation stated "Please note that depending on your current enrolment, you may be eligible for a visa in a different subclass and different requirements may then apply" (CB 130).

    [21] As at the date of the Tribunal's decision (5 February 2014), the Applicant wished to study a Bachelor of Business Administration degree at the University (CB 174 - 176, CB 310 - 311, CB 323, CB 332 [12]).  The Tribunal stated "Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course" (CB 331 [2]) and "The issue before the delegate was whether the applicant met the criterion in cl 572.223.  However, the applicant is now seeking a student visa to complete studies in the higher education sector and the issue before the Tribunal is whether, at the time of decision, the applicant has given the Tribunal a certificate of enrolment relating to him undertaking a course of study: cl 573.222" (CB 331 [6]).

    [22] The Minister submits that the Applicant has failed to demonstrate any jurisdictional error in assessing the Applicant against the Higher Education subclass 573 given that the Applicant was, as at the date of the decision, seeking to study a University Bachelor of Business Administration degree rather than a diploma at the Canberra Institute of Technology as he was at the date of the application.  In any event, a current COE is a requirement of all of the subclasses of visa including subclass 572. Clause 572.222 of Schedule 8 to the Regulations also requires that "the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course)" so the absence of a COE is fatal to an application for either subclass.

    [23] In relation to ground 2, the Minister notes that the Tribunal made no findings in relation to financial capacity but affirmed the delegate's decision on the basis of the lack of a COE only. The Minister submits that there is no evidence that the Tribunal's request for information as to financial capacity as required by clause 572.223 for a subclass 572 visa[4] (CB 130) when it subsequently decided the appropriate subclass was subclass 573[5] had any impact upon the Applicant's ability to obtain a COE.

    [4] The Minister noted that the financial requirements for a Subclass 572 visa are to be found at clause 5A405, Schedule 5A to the Regulations, the Applicant being the holder of a Bangladesh passport: IMMI 11/011 Student Visa Assessment Levels (Regulation 1.41) dated 7 March 2011.

    [5] The Minister noted that the financial requirements for a Subclass 573 visa are to be found at clause 5A508, Schedule 5A to the Regulations, the Applicant being the holder of a Bangladesh passport: IMMI 11/011 Student Visa Assessment Levels (Regulation 1.41) dated 7 March 2011.

  2. In relation to the contention by the Applicant that the Tribunal determined the matter on a basis different to that adopted by the Delegate, among other things, the Minister submitted:

    Upon lodging his application for review, it may be possible that the Applicant may have had the belief that the review would relate to his English proficiency. However, the Applicant was invited to provide evidence of a current COE in the Tribunal's letters of 14 August 2013 (CB 129) and 22 August 2013 (CB 150), it was put to him at the hearing that he did not hold a current COE (CB 332 [13]) he was reminded after the hearing to provide a COE (CB 297) and he was invited to comment on or respond to information to the effect that he did not hold a COE in the Tribunal's letter of 20 January 2014 pursuant to s 359A of the Act. The Minister submits that the Applicant was given a more than sufficient opportunity to give evidence, or make submissions, about the determinative issue arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300.

  3. In relation to the Applicant’s submission that there had been a failure by his tertiary institution to upload either at all, or that it occurred too slowly, his enrolment details, the Minister submitted:

    [29] … Other than his claim that a Tribunal officer told him on 9 September 2013 that education providers can be slow in uploading the details of a COE (which is of no relevance), the Minister submits that no evidence has been provided to support such a claim.  Clause 573.222(2) provides that the requirement that the Applicant have a valid COE is satisfied if "a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course".

    [30] The Applicant never suggested to the Tribunal that there had been any failure of electronic transmission and that he needed to travel urgently.  Rather, on 3 February 2014, the Applicant requested an [sic] 9 week extension of time to pay his fees in order to provide a COE.  The Minister submits that this ground of review is without merit.

  4. In the detailed written submissions, the Minister noted that the Applicant had not raised any ground of review that related to the Tribunal’s decision ‘not to adjourn the hearing.’  The Minister nonetheless provided extensive submissions regarding the exercise of a discretion to adjourn a hearing.  The Minister referred to the High Court decision in Minister for Immigration and Citizenship v Li, and the Full Court decision in Minister for Immigration and Border Protection v Singh.[6]

    [6] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280.

  5. Subject to what follows, because the Applicant does not raise any formal ground in relation to any adjournment, or indeed that he had been deprived by a refusal of a reasonable opportunity for a hearing, I do not propose making any comment on this aspect of the Minister’s submissions.[7]

    [7] In relation to matters of procedural fairness in the MRT, see the comments of French CJ in Li 249 CLR at [17] – [20].

  6. That said, I note the following submissions on behalf of the Minister (correction added):

    [34] … the Applicant had been asked to provide a COE in the Tribunal's letter of 14 August 2013 (CB 129) and at the hearing of 9 September 2013 was asked to provide a COE by 20 September 2013 (CB 332 [13], CB 333 [21]).  On 10 September 2013, the Applicant had indicated to the Tribunal that he would provide a COE the next day (CB 297).  On 19 September 2013, the Tribunal [sic – the Applicant] requested more time to provide the required documentation and stated he would "definitely" be able to provide a COE by 5 October 2013 (CB 300).  On 20 January 2014, the Applicant was given a further 2 weeks to comment on the fact that he did not hold a COE (CB 318).  On 3 February 2014, the Applicant requested a further 9 weeks (that is, until April 2014) in order to pay his fees and obtain a COE.  Almost two full years after his application to the Tribunal, the Tribunal exercised its discretion not to grant a further adjournment …

  7. Later still, and finally, the Minister submitted:

    … This is not a case where the appellant had already done what was required (that is enrolled in an acceptable course of study and paid his tuition fees) and was simply awaiting the required evidence of it (the CoE)…

    … the Applicant had known for nearly 6 months that he required a COE, was aware that education providers require the payment of tuition fees (see CB 316) before a COE was issued, and had had some 5 months since his hearing to provide a COE.  Further, the decision in Li makes clear that the Tribunal is not required to grant an adjournment to allow a visa applicant to obtain the “best possible evidence” or because “the passage of time will allow a visa criterion to be met”: Li at [82] per Hayne, Kiefel and Bell JJ and at [101] per Gagelar J.

Disposition

  1. It is almost trite to observe that the capacity and scope for this Court to intervene, as it were, in an Application of the kind currently before the Court is heavily circumscribed.  By way of a reference point of principle I simply note that in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court said, at [25]:[8]

    Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome".  As Brennan J said, in Attorney-General (NSW) v Quin:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right.  The relevant question is about the Tribunal's processes, not its actual decision.

    [8] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. See also the Court’s further comments at [42] – [45].

  2. In my view, the complaint(s) raised by the Applicant are limited to or challenge the “actual decision” of the Tribunal.  As such there is no scope or capacity for this Court to intervene in the decision of the Tribunal unless it is shown that the Tribunals conduct of the hearing is attended by jurisdictional error.  A review of the merits of the decision is not permissible.

  3. The Applicant has provided no relevant evidence that would otherwise warrant or permit the intervention of this Court. Moreover, as the Minister pointed out, and as the reasons of the Tribunal make plain, the Applicant was provided very significant latitude in order to remedy the matters put in issue by the Tribunal in the provision of a certificate of enrolment.

  4. In short, in my view, no jurisdictional error has been established by the Applicant.  His complaint is with the result of the Tribunal’s decision, not with its process(es).  Indeed, he was provided with more than ample opportunity to meet the requirements prescribed and notified to him by the Tribunal.  He did not meet them.

  5. Otherwise, I accept and adopt as the Court’s reasons, the submissions provided by the Minister.  This necessarily leads to the result that the application must be dismissed with an order for costs, which I will fix in the amount of $1000.  The Court so orders. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate:  SS

Date:  4 August 2014


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Costs

  • Jurisdiction

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Kioa v West [1985] HCA 81
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508