Islam v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 737
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 737
File number: MLG 300 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTOn Kc Date of judgment: 17 August 2023 Catchwords: MIGRATION LAW – Application for judicial review of decision of Administrative Appeals Tribunal – refusal of Student (Subclass 500) visa – whether Applicant was afforded procedural fairness – whether Tribunal considered adjournment of hearing – unparticularised grounds – impermissible merits review - no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 359A, 360, 476 and 477
Migration Regulations 1994 (Cth) cl 500.211
Cases cited: AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585
Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Sharma v Minister for Immigration & Anor [2018] FCCA 2152
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 7 February 2022 Place: Melbourne (by videoconference) The Applicant: Self-represented litigant Counsel for the First Respondent: Ms Roscoe Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Applicant: Submitted an appearance, save as to costs ORDERS
MLG 300 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RIDWAN ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
Her honour JUDGE c.e KIRTOn Kc
DATE OF ORDER:
17 august 2023
THE COURT ORDERS THAT:
1.The Application filed on 6 February 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC
INTRODUCTION
Before the Court is an application filed on 6 February 2018 (Application) brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 29 January 2018 (Tribunal’s Decision).
The Tribunal affirmed the earlier decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Subclass 500) visa (Visa).
The Applicant’s grounds of review will be considered in detail below. The Applicant must show jurisdictional error in the Tribunal’s Decision in order to obtain relief from this Court.
ISSUES IN DISPUTE
The issues in dispute are whether the Tribunal, in deciding that the Applicant did not satisfy cl 500.211 of the Migration Regulations 1994 (Cth) (Regulations), committed jurisdictional error by:
(a)Failing to provide the Applicant with procedural fairness; and
(b)Failing to consider the Applicant’s claims regarding his confirmation of enrolment.
SYNOPSIS
I have determined that:
(a)The Applicant was afforded procedural fairness; and
(b)The Applicant’s confirmation of enrolment and circumstances relevant to whether he satisfied cl 500.211 were properly considered.
I find there is no jurisdictional error in the Tribunal’s Decision for the reasons set out below. It follows that the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book numbering 107 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, filed on 18 January 2022 (Minister’s Submissions) accurately summarise the factual history of this matter at [3] to [12] The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen on Bangladesh.
On 31 March 2017 the Applicant applied for the Visa (Visa Application). The Applicant stated he held a Confirmation of Enrolment (Confirmation of Enrolment) and provided a Confirmation of Enrolment code in his Visa Application.[1]
[1] Court Book (CB) 1-32.
On 12 July 2017 the Department of Immigration and Border Protection wrote to the Applicant and requested that he provide further information including evidence of enrolment.[2] The Applicant was informed that the Confirmation of Enrolment attached to the Visa Application had expired and he was required to provide evidence that he had a current enrolment, which could be demonstrated by a current and valid Confirmation of Enrolment.
[2] CB 34-42.
On 11 August 2017 the Visa Application was refused on the basis that the Delegate was not satisfied that the Applicant was enrolled in a course of study, as required by cl 500.211 of Schedule 2 of the Regulations (Delegate’s Decision).[3] The Delegate found that according to Provider Records and International Students Management Systems (PRISMS) the Applicant was not enrolled in an acceptable course of study on 11 August 2017 as his previous enrolment was cancelled on 24 May 2017.[4]
[3] CB 44 and 48-50.
[4] CB 80-81.
On 30 August 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision.[5]
[5] CB 51-52.
On 16 October 2017 the Tribunal sent an email to the Applicant’s representative (Applicant’s Representative) requesting a copy of the Applicant’s current Confirmation of Enrolment or other evidence that he was enrolled in a course of study by 30 October 2017.[6]
[6] CB 61.
On 30 October 2017 the Applicant’s Representative sent an email to the Tribunal requesting an extension of one (1) week to provide the Confirmation of Enrolment.[7] On 9 November 2017 the Applicant’s Representative sent an email to the Tribunal requesting “some time” for the Applicant to enrol, as the Applicant had been “caught up with administrative error” by his university.[8]
[7] CB 62.
[8] CB 64.
On 12 December 2017 the Tribunal invited the Applicant to a hearing scheduled for 9 January 2018 (Tribunal Hearing).[9] The invitation to the Tribunal Hearing requested that the Applicant provide a current Confirmation of Enrolment or other documents showing he was enrolled in a course of study.
[9] CB 67-69.
On 8 January 2018 the Applicant sent an email to the Tribunal requesting an extension of two (2) weeks for the Tribunal Hearing, as his admission had been delayed “due to the holiday season” and he was still waiting for an enrolment letter.[10] The Applicant’s request for postponement was immediately brought to the Tribunal’s attention. An officer of the Tribunal called the Applicant and advised him that the Tribunal Hearing would proceed as scheduled on the basis that “no adequate reason was provided to the Tribunal in support of the request for adjournment”.[11] The officer of the Tribunal confirmed with the Applicant that he would attend the Tribunal Hearing and that the Applicant’s Representative was still representing him.
[10] CB 87.
[11] CB 88-89.
On 9 January 2018 the Applicant along with the Applicant’s Representative appeared at the Tribunal Hearing.[12] At the conclusion of the Tribunal Hearing the Tribunal made an oral decision affirming the Delegate’s Decision on the basis that the Applicant did not meet cl 500.211 of the Regulations.[13] On the same day the Applicant requested a written statement of reasons for the Tribunal’s Decision, which was provided to the Applicant on 29 January 2018.[14]
[12] CB 90-92.
[13] CB 94-95 and 99.
[14] CB 100 and 103-107.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 105 to 107 of the Court Book. The Tribunal’s Decision is summarised as follows.
The Tribunal discussed that to be eligible for the grant of a student visa applicants must be both ‘genuine temporary entrants’ and ‘genuine students’. The Tribunal identified that the issue on review was whether: the Applicant could provide a copy of a current Confirmation of Enrolment or evidence of enrolment in an approved course, and the Tribunal could be satisfied that the Applicant was a ‘genuine student’ pursuant to the Regulations.
The Tribunal outlined the Applicant’s circumstances regarding his enrolment. The Tribunal noted that the Applicant had advised on two occasions that he did not have a current Confirmation of Enrolment and had requested an adjournment to attempt to attain a Confirmation of Enrolment. The Tribunal found that the Applicant had at least seven (7) months to enrol as the Delegate had requested evidence of enrolment in July 2017. The Applicant had not provided evidence as requested by the Delegate and the Tribunal.
The Tribunal was satisfied that the Applicant was not enrolled in an approved course and did not have an offer of enrolment. Therefore, the Tribunal found that the Applicant did not meet the requirements of cl 500.211 and affirmed the Delegate’s Decision.
PROCEEDINGS BEFORE THE COURT
The Application was filed on 6 February 2018. This was within 35 days of the date of the Tribunal’s Decision, as required by s 477(1) of the Migration Act.
On 28 December 2018 Orders were made by consent granting the Applicant leave to file an amended application, additional evidence and written submissions 28 days before the final hearing.[15] No further documents were filed by the Applicant.
[15] Orders made on 28 November 2018 and entered on 7 December 2018 by Registrar Burns.
The following grounds of review (Grounds of Review) were advanced in the Application:
I am not satisfied with the decision of the DIBP and AAT. (Ground 1)
I am not been given proper procedural fairness while deciding my application. (Ground 2)
There’s many jurisdictional errors while deciding my application. (Ground 3)
I am a genuine student and I’ve completed more than 75% of the course and I’ve been in talk with my university to reinstate my COE. (Ground 4)
I’ve requested AAT to grant me an extension to get the COE, I’ve been there physically as well, but I did not get an extension. (Ground 5)
My application was refused due to the clause 500.211 but I was about to get the COE from the university to fulfil the requirements of this clause. (Ground 6)
(Words in italics added, otherwise without alteration)
The Applicant’s affidavit sworn and filed 6 February 2018 (Applicant’s Affidavit) did not expand further on the Grounds of Review and reiterated:
1.I’m not satisfied with the decision of DIBP and AAT.
2.I’m not been given proper procedural while deciding my application.
The Application sought that this Court make an order that the Tribunal’s Decision be quashed but did not seek a writ of mandamus.
HEARING BEFORE THE COURT
This matter was heard on 7 February 2022 and proceeded by way of videoconference on Microsoft Teams (Hearing). The Applicant appeared in person and Counsel appeared for the Minister. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
Court’s jurisdiction under s 476 of the Migration Act
As discussed at [26], the Application contains technical deficiencies. The Minister submitted that the Applicant has failed to properly invoke the Court’s jurisdiction under s 476(1) of the Migration Act as the Application does not seek a writ of mandamus or prohibition or injunction against an officer of the Commonwealth.[16] The Minister noted that it would be open to the Court to amend the Application at the Hearing with the Applicant’s consent.[17]
[16] Minister’s Submissions, filed 18 January 2022 (Minister’s Submissions), [16].
[17] Minister’s Submissions, [16].
At the commencement of the Hearing the Minister addressed the Application’s technical deficiency as a preliminary matter.[18] The Applicant made no submissions regarding the need to rectify his Application. Having considered the authorities of AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20] and Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13], the Court amends the technical deficiency in the Application to also seek a writ of mandamus.
[18] Transcript P3.
The Court will now consider the Grounds of Review.
CONSIDERATION
The Court has no jurisdiction to review the Delegate’s Decision pursuant s 476(2)(a) of the Migration Act. To the extent that Ground 1 seeks review of the Delegate’s Decision it is dismissed.
The Minister submitted that Ground 1 fails to articulate a proper ground of judicial review and/or asks the Court to undertake merits review: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.[19] Ground 1 does not advance a particularised and reviewable ground of review and at its highest seeks impermissible merits review. Ground 1 must be dismissed.
[19] Minister’s Response, filed 23 February 2018, [3].
Counsel for the Minister submitted that Ground 2 lacked particulars and should fail on this basis alone according to WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, at [35].[20] Counsel for the Minister further submitted that the Applicant did not particularise the way in which the Tribunal allegedly failed to comply with its procedural fairness obligations.[21] The Applicant did not particularise Ground 2 in the Applicant’s Affidavit or at the Hearing.
[20] Transcript P8:L12-16.
[21] Transcript P8:L31-34.
The Tribunal’s procedural fairness obligations are codified in Division 5, Part V of the Migration Act. The Tribunal considered all the evidence before it, considered the Applicant’s requests for adjournment and held the Tribunal Hearing in accordance with its statutory obligations. The Applicant was invited to appear before the Tribunal, pursuant to s 360 of the Migration Act. The Applicant was provided ample opportunity to give evidence and present arguments in relation to the issue of whether he was validly enrolled in a course. The Applicant advised the Tribunal that he did not have a valid Confirmation of Enrolment due to administrative issues. The Applicant has not identified any information that enlivened the Tribunal’s obligations under s 359A of the Migration Act. Despite being provided with ample opportunity to do so, the Applicant did not demonstrate proof of enrolment at any point in the visa application or Tribunal review process. There is no evidence before the Court that the Tribunal failed to fulfil its statutory obligations under the Migration Act and I am satisfied that the Tribunal afforded procedural fairness to the Applicant. Ground 2 must be dismissed.
The Minister submitted that Ground 3 lacked particulars and is therefore meaningless. The Applicant did not provide further information to Ground 3 in the Applicant’s Affidavit or at the Hearing. Ground 3 articulates a legal conclusion. As discussed throughout the Consideration section herein, the Applicant’s claim in Ground 3 that there are “many jurisdictional errors” is not apparent on the evidence before the Court. Accordingly, Ground 3 is dismissed.
Grounds 4, 5 and 6 are assertions of facts that provide background and evidence supporting the Grounds of Review. Grounds 4, 5 and 6 do not advance particularised and reviewable grounds of review. On this basis alone Grounds 4, 5 and 6 are dismissed.
Counsel for the Minister further submitted that the extent to which Ground 4 concerns whether the Applicant is a “genuine student”, it is an impermissible invitation for the Court to review the merits of the matter. The Applicant did not expand on his Grounds of Review at the Hearing and only reiterated that he did not have a current Confirmation of Enrolment, as his payment to his university was delayed and he was consequently awaiting re-enrolment.[22]. The Court cannot rehear the matter and undertake impermissible merits review. Ground 4 must also be dismissed.
[22] Transcript P4:10-17.
The Grounds of Review imply that the Tribunal unreasonably refused to exercise its discretion to adjourn the proceeding, or consider an extension or the fact the Applicant was about to attain a valid Confirmation of Enrolment. Counsel for the Minister submitted that this contention has no proper basis as the Tribunal considered whether to grant an adjournment on 8 January 2018.[23] The evidence before the Court is that the Applicant requested an adjournment and the Tribunal considered the request, and decided to refuse an adjournment on the basis that the Applicant did not provide an adequate reason as to why additional time should be granted. The Tribunal took into consideration the fact that the Applicant had already been given seven (7) months to provide a current Confirmation of Enrolment. The Tribunal had no further obligation to afford the Applicant time to improve upon his evidence. The Tribunal did not commit jurisdictional error in determining that the Applicant did not satisfy the requirements for a ‘genuine student’ and did not satisfy cl 500.211.
[23] Transcript P9:L35-36.
CONCLUSION
The Applicant has not identified any jurisdictional error in the Tribunal’s Decision and no error of law is apparent on the evidence before the Court.
The Application must be dismissed.
The Minister sought costs fixed in the sum of $5,400. This amount is below the amount at the time in Pt 2 Div 1, Item 3 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), applicable at the time of the Hearing. Accordingly, an order will be made that the Applicant pay the Minister’s costs fixed in the sum of $5,400.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 17 August 2023
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