Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 155
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 155
File number(s): SYG 69 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 16 February 2022 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – refusal of a Student visa – whether the Tribunal acted unreasonably or failed to take a relevant consideration or a Ministerial Direction into account considered – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 360, 476
Migration Regulations 1994 (Cth)
Cases cited: FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293
Kaur v Immigration and Border Protection [2016] FCA 132
Minister for Immigration and Border Protection v Sandhu [2016] FCA 130
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship vLi (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 16 February 2022 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms A Zinn of Mills Oakley Place: Sydney
Table of Corrections Paragraph [9], line 1 Delete words “applicant’s claims for protection and the” ORDERS
SYG 69 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD KAMRUL ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 10 January 2018 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
As CorrectedJUDGE GIVEN:
By an application to show cause filed with this Court on 10 January 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 December 2017, affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
Background
The applicant is a male citizen of Bangladesh who arrived in Australia on 7 March 2013 as the holder of a Student (Subclass 573) visa which expired on 3 August 2016 (Court Book (CB) 33).
On 3 August 2016, the applicant applied for a Student (Subclass 500) visa on the basis of his enrolment in a Bachelor of Business at Holmes Institute (CB 1-15). With his application, the applicant provided a copy of his passport (CB 16), a genuine temporary entrant (GTE) statement (CB 20-21), evidence of financial support (CB 23) and evidence of his health insurance (CB 22, 24-26).
On 4 October 2016, the delegate refused to grant the applicant a Student visa (CB 27-34). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). With reference to the applicant’s limited academic progress since his arrival in Australia, the delegate found the applicant had spent a significant period in Australia on Student visas containing study gaps and it appeared the applicant intended to continue to use the student visa program to remain as a de facto resident in Australia rather than to further his education as a genuine student (CB 33).
The Tribunal
On 20 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal (CB 35-46). The applicant appointed his representative as his authorised recipient.
By a letter dated 8 November 2017, the applicant was invited via his authorised recipient to attend a hearing before the Tribunal scheduled for 13 December 2017 (CB 55-68). The hearing invitation relevantly requested that the applicant provide (at CB 58):
A copy of your current Certificate of Enrolment (CoE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2…as is required for the grant of the visa.
On 10 December 2017, the applicant’s representative submitted a “response to hearing invitation” form confirming the applicant’s attendance at the hearing (CB 70-73). However, no current CoE or any other documents to show he was enrolled in a course of study were provided.
On 13 December 2017, the applicant attended the hearing with his representative (CB 75-77). At the hearing, the applicant submitted two medical certificates (CB 78-79), a death certificate (CB 80) and a CoE for a Bachelor of Business at Holmes Institute that was last updated on 2 August 2016 (CB 81). He also gave oral evidence that he had stopped studying when his visa was refused by the delegate (CB 86, [11]) and that his parents were unable to provide him with the money for his course fees but he was “back on track” and “in a position to study” (CB 87, [14]). The applicant informed the Tribunal that he had not enrolled because he was wanting to “get the visa sorted out first” (CB 87, [14]-[16]).
After summarising the relevant legislation that applied, the Tribunal summarised the hearing that it held with the applicant on 13 December 2017. The Tribunal identified that the issue before it was whether or not the applicant was enrolled in a course of study because cl 500.211 of Schedule 2 to the Regulations relevantly required that at the time of the Tribunal’s decision the applicant be so enrolled.
The Tribunal’s decision records that the applicant gave evidence that he had stopped studying when his visa application had been refused, and that the Tribunal explored with him his history of study and the delegate’s decision which the applicant had placed before the Tribunal for the purposes of review, and the Tribunal noted that the applicant failed to maintain enrolment while holding his previous visa. The Tribunal observed that the applicant’s failure to maintain enrolment did not reflect well on his claim to be a genuine student, a matter which it put to the applicant in the course of the Tribunal hearing. The Tribunal considered the evidence submitted by the applicant at hearing pertaining to the death of his friends in a car accident, and accepted that the applicant had been disturbed by this event which had taken place in February 2016.
However, the Tribunal noted that at the time of the accident which caused his friends’ deaths the applicant was not in fact enrolled. The Tribunal observed that the medical certificate provided by the applicant indicated that he was advised to take a break for only a few weeks, and that that was as at March 2016. Further, a medical certificate which was dated later in time indicated that the applicant’s doctor had by then encouraged him to resume study, which the Tribunal took to mean that the applicant must therefore have been medically deemed fit for study. The Tribunal set out evidence pertaining to the applicant’s father who had been imprisoned in Bangladesh and had then suffered a period of ill health, but it noted that at that time the applicant had not returned to Bangladesh.
The Tribunal noted that the applicant had been working for three to four years as a chef while awaiting his Tribunal review. In relation to why he was not enrolled, the applicant said that he first wished to regularise his visa, following which he would attend to his enrolment. Despite this, the applicant seemed to acknowledge that he knew that being enrolled was a requirement for the grant of his visa. The Tribunal recorded that the applicant’s migration agent, who attended the hearing to assist him, sought further time to submit documents in relation to the imprisonment of the applicant’s father.
The Tribunal’s decision records that this request was refused on the basis that it did not inform the relevant issue, namely, whether or not the applicant was enrolled. In any event, the Tribunal formally recorded that it accepted that claim, which I take to be a reference to the claim about the imprisonment of the applicant’s father. Based on the evidence before it, the Tribunal found that the applicant was not currently enrolled in a course of study for the purposes of the visa criterion provided by the Regulations. The applicant did not dispute this. As a result, the Tribunal was not satisfied that the applicant met cl 500.211 of Schedule 2 to the Regulations and affirmed the decision of the delegate.
The applicant appeared before me this morning via the Microsoft Teams platform, with the assistance of a Bengali interpreter. However, at the commencement of the hearing, the applicant confirmed that he speaks English and that it was his preference that the matter proceed using English. I asked the interpreter to stay on the line throughout in the event that she was required and she did so, although the applicant did not seek to utilise her services. The Minister was represented by a solicitor. The connection initially appeared to be clear and without any technical difficulties. The parties did not have any difficulty in understanding one another, nor engaging with the Court. At a certain moment when the Court system failed to operate I adjourned briefly so that that could be rectified, which it was.
The applicant commenced these proceedings in January 2018. At all times throughout the proceedings he has been unrepresented. On 12 February 2018 a Registrar of this Court made orders by consent which provided inter alia for the applicant to file and serve an amended application by 4 June 2018, and I note that this did not occur. Subsequently, on 22 December 2021 a Registrar made orders in this matter once it had been brought into my docket, listing it for hearing before me today and also making consequential orders for the filing of written submissions 14 and 7 days before the hearing for the applicant and first respondent (respectively). The applicant did not file any further documents. The Minister filed written submissions in accordance with the Court’s orders.
When asked why it was that he had not filed written submissions, the applicant said that he had not checked his email until the middle of January and therefore he did not have time to file anything. He said he acknowledged that this was his fault and knew it was his responsibility to check his emails. On 11 February 2022 the Court received an email from a solicitor at Abbas & Co Lawyers, the contents of which are as follows:
Dear Sir/Madam,
We act for the applicant…
The applicant has instructed our authority to act for his matter.
He has court on 16/2/22 however he has a few medical conditions after he recently got the covid vaccine booster few days ago.
In addition, his GP has advised for him to be observed by the doctor again due to his chest and heart condition. He has a specialist next week with his cardiologist specialist.
As a result of the above, the applicant has been extremely stressed about his medical condition after he had the booster third vaccine. His GP has stated his heart and chest pain needs to be reviewed by his specialist next week as a matter of urgency.
He wont be able to attend the court next week due to the compelling reasons stated above. Please find attached the following:
1. Medical certificate from GP;
2. Referral to psychologist and
3. Referral to cardiologist Dr [S].
The email attached three documents, being a medical certificate and two referrals. The Minister’s solicitor was not copied into that correspondence and, as a result, I had my chambers forward the email.
The Minister subsequently opposed the adjournment application.
The Minister noted that in relation to the documents attached, the medical certificate only said that the applicant was “unfit to continue his Occupation/School/University”, but did not otherwise explain why the applicant would be unfit to participate in a hearing which would, in any event, take place via Microsoft Teams due to the ongoing COVID-19 restrictions, and would therefore enable the applicant to attend Court from a comfortable and convenient place.
At my request the parties were notified that the matter remained listed and, given their statement to the Court which said that Abbas & Co acted for the applicant in this matter, that they should immediately file and serve a Notice of Address for Service. I note that no such document has been filed as at today’s hearing. Today the applicant appears and represents himself. After I identified the documents that I had before me, the applicant said that once I had concluded the hearing he would have a request to make at the end. I indicated to the applicant that if the request was an adjournment application, he should instead make it immediately. The applicant said that it was not an adjournment request and that it was a different kind of request.
The applicant then made submissions to me to the effect that he has been working as a chef for the last six years and has built a solid reputation in this regard. The applicant said that he had moved to Canberra for work and then he had started working again in Sydney at a bar in Darling Harbour where he is the sous-chef. The applicant said that once he found out about today’s hearing, he had sat down with his employers to explain to them that if today’s matter were to be dismissed, he would have to go back to his country. The applicant said that his employers were trying to get additional chefs, but that it was very difficult for them because there are staffing shortages in the hospitality industry as a result of the COVID-19 pandemic.
The applicant says that his employer has retained a lawyer who is trying to do everything they can in order to lodge an application for a subclass 482 visa, with the applicant being sponsored by his employer, and that this would happen on or about 1 or 2 March 2022. The applicant’s request was, in effect, that I give him three months so that his employer did not have to face business issues as a result of disruption caused by the departure of the applicant. The applicant says that he is in a very senior position and he runs a large team.
In response to this deferral request, the solicitor for the Minister said that it would not be in the interests of the administration of justice to allow the applicant further time simply to explore his other visa options. It was submitted to me that the Court should not defer making a decision in relation to the review that is before me today and that, in any event, the applicant could continue exploring his visa options, notwithstanding the fact that these proceedings might resolve. The applicant said in reply that if he was to leave at this moment it would be very difficult for the company which employs him because he knows all of the recipes and while he has been trying to convey the recipes to the head chef, it would still cause difficulties. The applicant said that the head chef wants him to here for another two years in order to “give him a boost” and that it has been a very difficult moment for the business.
In relation to this request, if it was to be interpreted as an adjournment request it was difficult to see a basis upon which it should be granted. I note that notwithstanding the fact that the applicant had initially (via Abbas & Co) requested an adjournment on the basis of medical grounds, this was not renewed today. I further note that notwithstanding the fact that Abbas & Co had indicated that they would represent the applicant but failed to ultimately file an appearance in this matter, to correspond further with the Court and are not here to represent the applicant today, the application for an adjournment (if it be one) was also not put on the basis that the applicant needed further time in order to obtain legal representation for the purpose of engaging with today’s hearing.
Furthermore there is no right in a migration matter to be legally represented. Without more, it is difficult to see why, the matter having been on foot for four years, the Court would be persuaded that there would be sufficient utility in granting an adjournment for the purpose of enabling the applicant further time to obtain representation when he has not approached that task with any particular diligence. I also note that none of the timetabling orders made since 2018 have been complied with by the applicant.
As the applicant specifically noted when he made the request, this was not an adjournment request. Instead it was a request that I defer either hearing the matter, or, more specifically, making a decision in this matter until such time as the applicant was either able to regularise his migration status with some sort of employment visa sponsored by his current employer, or that I should take into account the business interests of his employer and defer the matter on that basis. As I explained to the applicant in refusing the adjournment request at the time it was made, it is not a part of this Court’s function in sitting in review of the Tribunal’s decision to take into account the business interests of either the applicant or a third party employer in allowing further time so that they can continue with the applicant in their employ in order that their business not suffer.
The role of this Court is to determine the application that is before it. I have, in previous matters, considered the interests of the administration of justice and, in particular, the overarching purpose of the Court’s civil procedure provisions: see FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 at [12]-[13], [25]-[26]. In that regard there is much to be said for the fact that the Court’s time and the time of other parties, in particular the solicitors for the Minister, ought not be occupied in relation to matters where they could be better directed to the hearing of other applications and other cases. In those circumstances I consider it outside of the scope of the task before me today to take into account external and third party interests and delay the administration of justice, simply for extraneous matters which do not pertain to the review before me nor, in particular, with the applicant’s ability to engage with that review.
In that respect the applicant’s characterisation of his request was accurate. It is not an adjournment request in order to enable him to engage in the Court process but a request that I defer making a decision in relation to factors that have nothing to do with the review that I have before me. I am of the view that there was no utility in adjourning or deferring my decision and I refused to do so.
By his application to show cause, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) (Act) and raises the following three grounds of review with extensive particulars, which are omitted (errors in original):
1.The Tribunal acted unreasonably by failing to to give time to provide further documents.
2.The Tribunal failed to consider relevant consideration.
3.The Tribunal failed to take into consideration of the Ministerial Direction and failed to comply with the Direction and failed to mention in its decision.
Ground 1
Ground 1 of the application takes issue with the Tribunal refusing the applicant further time to provide documents in relation to his father’s imprisonment. The applicant, citing inter aliaMinister for Immigration and Citizenship vLi (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, says that the Tribunal, by deciding to refuse additional time for the provision of material, acted in a manner which was legally unreasonable.
In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, Gaudron and Gummow JJ stated that (footnotes omitted):
Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
Relied on later in Li, which is cited by the applicant, the relevant principle emerges that the purpose of the adjournment is relevant to the Tribunal’s consideration of it. In Minister for Immigration and Border Protection v Sandhu [2016] FCA 130, Siopis J found at [28] that:
…the reasons which a visa applicant gives to the Tribunal for seeking an adjournment, and the manner in which the Tribunal responds to those reasons, are material and important considerations in assessing whether, in denying a visa applicant an adjournment, a Tribunal has acted unreasonably...
His Honour also cited Li.
In Sandhu the applicant had sought further time in a Public Interest Criterion (PIC) 4020 context to provide a second Trades Recognition Australia (TRA) skills assessment. On review, and notwithstanding the fact that the applicant had made no mention of it to the Tribunal, the applicant then sought to assert that the evidence was intended not to seek to satisfy the primary criterion as would usually be the case, but rather that it had been intended to make a submission that PIC 4020(1) should be waived pursuant to PIC 4020(4) because there may be compelling circumstances that affected the interests of Australia by the applicant’s ability to be employed as a cook. The first time that that submission was made was to the primary Judge, who found in those circumstances that the Tribunal had been unreasonable in refusing to grant the adjournment based on the new purpose for which the TRA assessment was now said to have gone. The Minister’s appeal from the decision of the primary Judge was upheld by the Federal Court.
In the instant case it seems that it is only now, on review, that the applicant seeks to suggest that the evidence pertaining to his father’s incarceration was intended to establish compelling reasons, however, I cannot see that this motive was in any way made clear to the Tribunal. Even if it had been, and having regard that the Tribunal accepted the fact of his father’s imprisonment, such further evidence was anyway moot. On the face of the Tribunal’s reasons for decision, in particular at [15], there is no suggestion that the applicant was seeking further time to make submissions about the impact of the imprisonment, but merely the fact of it, which the Tribunal did not doubt.
The Minister submits that such a further opportunity would have been misconceived. That is because the existence or otherwise of compassionate and compelling grounds was not a relevant consideration for the purpose of satisfying whether the applicant was enrolled for the purposes of cl 500.211. Unlike other statutory criteria, the effect of which may be waived in certain circumstances, cl 500.211 is not such a criterion. It is binary. The applicant was either enrolled or he was not. In the instant case he was not. No compassionate basis pertaining to the incarceration of the applicant’s father or otherwise was relevant, as the Tribunal found in the course of refusing the adjournment request: see Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [47] per Perry J.
As a result, when faced with a request to adjourn so that the applicant could provide evidence to corroborate an already accepted fact, I agree with the Minister’s submission that the Tribunal’s exercise of discretion to refuse the adjournment was exercised reasonably. Accordingly, in my view, there is no jurisdictional error as alleged by ground 1.
Ground 2
Ground 2 alleges that the Tribunal failed to consider a relevant consideration. The particulars to this ground say that:
The Tribunal refused to give additional time to seek court documents and said that it was not relevant to the issue whether the applicant was currently enrolled in a course of study…
The applicant goes on to say that:
The nature of the evidence and the nature of the situation of the applicant as to why he could not be enrolled would have been further submitted to the Tribunal.
It is clear from the documents to which the applicant is referring when he says that these are “very relevant and a significant issue in relation to the applicant’s case” that he is still talking about documents pertaining to his father’s incarceration. The ground does not really go beyond the matters already addressed in relation to ground 1. The applicant asserts that he was denied a natural justice opportunity, but for the reasons that I have already addressed in relation to ground 1 and, in particular, to s 360, this is not borne out and accordingly, in my view, ground 2 fails for the same reasons as ground 1.
Ground 3
Ground 3 alleges a failure to comply with Ministerial Direction No 53 because the Tribunal did not expressly refer to it in the reasons for decision. This is not surprising, given that by the time of the Tribunal’s decision Ministerial Direction No 53 did not apply. Ministerial Direction No 53 commenced on 5 November 2011 and applied to decision-makers who were tasked with assessing the genuine temporary entrant criterion in relation to a number of former student visa subclasses. The Ministerial Direction relevant at the time of the applicant’s Tribunal review commenced on 1 July 2016 and was Ministerial Direction No 69.
I asked the applicant why it was that ground 3 was cast as it was, and how it was that he said that the Tribunal’s failure to consider Ministerial Direction No 53 gave rise to a jurisdictional error on its part.
From what the applicant put to me, he was concerned that the Tribunal had found that he was not a genuine student. By this I took him to be referring to the final sentence of [11] of the Tribunal’s decision where the Tribunal records that:
… his failure to maintain his enrolment did not reflect well on his claims to be a genuine student.
I sought to explain to the applicant, as did the solicitor for the Minister when she made oral submissions, that the reference here was to the Tribunal simply recounting to the applicant its thought process that his failure to be enrolled may reflect on the fact he was not a genuine student. That is a different concept to the genuine temporary entrant criterion which attaches to some student visas as part of the criteria.
The fact is that the Tribunal’s general observation that by not being enrolled the applicant may not be perceived to be a genuine student did not lead to any part of its decision in relation to cl 500.211, which required that it simply assess whether or not he was enrolled in a course of study.
While it is understandable that the applicant may have been confused by the use of the words “genuine student” in [11], it does not mean that the Tribunal in any way engaged with the genuine temporary entrant criterion. Assuming that the applicant had intended to express ground 3 in relation to Ministerial Direction No 69 which applied at the time instead of Ministerial Direction No 53, I agree with the Minister’s submission that it remains misconceived. That is because the Tribunal was determining whether or not the applicant was enrolled in a course of study for the purposes of cl 500.211. The Tribunal was not undertaking the assessment of the cl 500.212 genuine temporary entrant criterion.
The Minister submits, and I agree, that the Tribunal was bound to conclude that the visa criterion was not met by reason of the undisputed fact that the applicant was not enrolled in a course of study. In all of the circumstances of this case, the conclusions of the Tribunal were not only inevitable, they were not disputed by the applicant. Notwithstanding the grounds of review now sought to be raised, it was never in contention that at the time of the Tribunal’s decision, the applicant simply was not enrolled in a course of study. Accordingly, in my view, the Tribunal did not err in so finding and in turn by affirming the decision of the delegate to refuse the visa. Accordingly, and absent any jurisdictional error, the decision of the Tribunal is a privative clause decision and it should be dismissed, and I will so order.
Consequent upon the dismissal, the Minister seeks an order that the applicant pay the first respondent’s costs fixed in the amount of $5,400. The applicant has made submissions to me that at this moment he is “not really thinking” about costs. He then says that he does not have much money, and he was not able to pay solicitor’s fees which is why he is here representing himself. The applicant has asked that I waive the costs, or whether there was something else that I could do in relation to them. I explained to the applicant that he will in due course receive correspondence from the solicitor for the Minister, which will provide him with details as to whom in the Department he should speak in order to discuss either time to pay or some other arrangement that can be made, but that this would not affect my order in relation to the costs amount.
I am satisfied in this matter that costs should follow the event. I am further satisfied that the amount sought by the Minister is reasonable, having regard to the fact that it is considerably less than the Court’s current scale. I so order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 March 2022
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