Jalla v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 541
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jalla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 541
File number(s): SYG 1649 of 2018 Judgment of: JUDGE LAING Date of judgment: 8 July 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal denied the applicant procedural fairness – whether the procedure adopted by the Tribunal was reasonably open – application dismissed. Legislation: Migration Act 1958 (Cth) s 357A, 360
Migration Regulations 1994 (Cth) reg 1.03, cls 500.211, 500.212Cases cited: Minister for Immigration and Border Protection v Pandey [2014] FCA 640; 143 ALD 640
Minister for Immigration and Citizenship v Li [2003] HCA 18; 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 5 July 2022 Place: Sydney Solicitor for the Applicant The applicant appeared in person Solicitor for the First Respondent Mr E. Taylor (Mills Oakley) appeared in person ORDERS
SYG 1649 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SASIDHAR REDDY JALLA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, fixed in the amount of $5,500.
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
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 May 2018. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).
BACKGROUND
The applicant is a citizen of India. He arrived in Australia on 19 October 2014 as the holder of a student visa, which expired on 30 August 2016.
On 22 September 2016, he lodged an application for the Visa.
On 6 December 2016, the Delegate refused the application on the basis that the applicant did not satisfy the genuine temporary entrant criteria in cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied to the Tribunal on 24 December 2016 for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 22 February 2018. At the hearing, the Tribunal raised with the applicant the need to provide an updated Confirmation of Enrolment (COE). The applicant sought an adjournment of two or three days in which to obtain funds and a COE. The Tribunal allowed the applicant until 5 March 2018.
On 6 March 2018, the applicant sent an email to the Tribunal stating the following (errors in original):
Hello sir/madam,,
My name sasidhar reddy Jalla ,, My case number
[ 1622344 ]I attended to tribunal on Feb 22nd regarding my student visa .. but tribunal member gave me time till March 5th to get offer letter from universities .. I’ve applied universities Already,,I’m waiting for their response to send me offer letter ... I think it will takes more time but Tribunal member gave me time till March 5 th only ... but I need more time to submit offer letter, I’ve tried to call tribunlal number but unexpectedly I didn’t... I called today and spoke with one of member they gave me this email .....I’m sure I will get,,please kindly accept my request .
Thank You...
On 9 May 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNALS DECISION
The Tribunal summarised the background to the matter at [1]-[9] of its decision. It noted that the applicant had been unable to provide the Tribunal with an updated COE at the time of the hearing on 22 February 2018.
The Tribunal stated that it had put to the applicant that it had written to him on 15 January 2018, requesting that he provide a COE. The Minister accepts that this was in error, as no such request had been made by the Tribunal. In any event, the Tribunal noted the applicant’s response at hearing that he did “not have the money to pay the fees”: [8].
The Tribunal observed that the applicant had “sought an adjournment stating that he needed 2 or 3 days to obtain funds and obtain his [COE]”. Additional time had been granted until 5 March 2018. On 6 March 2018, the applicant was stated to have written to the Tribunal “advising that he had applied to the university but he needed more time”: [9].
The Tribunal stated (at [12]-[14]):
12. The Tribunal confirmed with the applicant that he received a letter from the Tribunal advising him to come to a hearing and that letter requested that he provide a copy of his Confirmation of Enrolment or other documents to show he is currently enrolled in a course of study.
13.The applicant sought additional time to obtain a Confirmation of Enrolment. The Tribunal granted the applicant 2 weeks to provide a Confirmation of Enrolment. On 6 March 2018 the applicant sought additional time. To date, no Confirmation of Enrolment has been provided to the Tribunal. The Tribunal is of the view that the applicant has had sufficient time within which to obtain a Confirmation of Enrolment and he has not done so, so the Tribunal has decided to proceed to make its decision.
14.As the applicant has not provided a Confirmation of Enrolment 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.
On the basis of these findings, the Tribunal found that the criteria for the grant of the Visa were not met and affirmed the Delegate’s decision (at [15]-[17]).
RELEVANT LEGISLATION
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. Relevantly, cl 500.211 required that at the time of decision:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
‘Course of study’ was relevantly defined in cl 500.111 of the Regulations as a “full-time registered course”. ‘Registered course’ was defined in reg 1.03 of the Regulations as “a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.”
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicant on 13 June 2018 containing the following ground:
I do not agree with the Tribunal decision as it is affected by error of law.
At the hearing, the applicant submitted that the Tribunal denied him procedural fairness by not putting to him in writing its request that he obtain an updated COE. However, the Migration Act 1958 (Cth) (Act) contemplates only limited circumstances in which the Tribunal is required to give notice of an issue in writing. The procedural fairness obligations of the Tribunal are limited by the Act: s 357A. They did not include any obligation upon the Tribunal to request an updated COE from the applicant in writing. I find that the applicant was sufficiently on notice of this issue, for the purposes of s 360 of the Act, from the Tribunal requesting this evidence from him at hearing.
I accept that the Tribunal’s reasons erroneously refer to having requested in writing that an updated COE be provided prior to the hearing before the Tribunal. However, I agree with the Minister’s submission that the materiality of this error is not apparent in circumstances where the Tribunal nonetheless:
(a)allowed the applicant nearly two weeks after the hearing in order to obtain a COE, despite the applicant only requesting two or three days; and
(b)did not decide the matter for more than two months after the applicant’s further email requesting “more time” in order to obtain a response “from universities”.
The applicant submitted that the Tribunal ought to have responded to his email telling him whether he would be allowed additional time before refusing his application. I accept that this would have been preferable. As the Tribunal did not do this, the applicant did not know until he received the Tribunal’s decision some months later whether his request had been granted or refused, nor how much additional time was available to him in attempting to procure a COE.
However, on balance I accept that it was reasonably open to the Tribunal to proceed in the manner that it did. Whilst the Tribunal did not expressly grant the applicant’s second request for additional time, it nonetheless allowed a substantial period after receiving the request before making its decision. This was in circumstances where the applicant had originally indicated that he would only need days in order to obtain a COE, had not specified the additional period sought and had not followed up with the Tribunal regarding his request for over two months.
In these circumstances, I accept that it was reasonably open to the Tribunal to consider that it had afforded sufficient time to the applicant, more than two months after the last request for “more time” had been received. I find that this case falls within the area of “decisional freedom” referred to in Minister for Immigration and Citizenship v Li [2003] HCA 18; 249 CLR 332 at [28], [66] and Minister for Immigration and Border Protection v Pandey [2014] FCA 640; 143 ALD 640 at [51]-[55].
At the hearing of this matter, the applicant additionally submitted that he had been unable to obtain a COE because he did not have a visa. He submitted that this placed him in an untenable position, as he was unable to obtain a visa without a COE and the universities that he approached would not give him a COE without a visa. However, even if this was the case, the Tribunal had no power to waive the requirements of cl 500.211. If the applicant was unable to meet those requirements, the Tribunal was obliged to refuse his application for the Visa.
The applicant requested that the Court seek Ministerial Intervention on his behalf. I explained that this was not the role of the Court on judicial review. However, should the applicant wish to make such a request of the Minister, then it would be open to him to do so.
CONCLUSION
For the above reasons, I am unable to identify any jurisdictional error in the procedure or the decision of the Tribunal. The application must therefore be dismissed with costs.
At the hearing, the Minister sought that costs be fixed in the amount of $5,500. I accept that this amount is reasonable, being an amount that is substantially below the Court’s scale.
25 I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 8 July 2022
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