Jandu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1389
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jandu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1389
File number(s): MLG 591 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 19 December 2024 Catchwords: MIGRATION – Application for judicial review – Student visa – Failure to have a Certificate of Enrolment – Primary criteria cl 500.211 of Regulations – application dismissed. Legislation: Migration Act 1958 (Cth) ss 353(a), 359, 368, 368(1), 499
Migration Regulations 1994 (Cth) Sch 2 cls 500.211, 500.211(a)
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MZAIB V Minister for Immigration & Border Protection [2015] FCA 1392
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 4 December 2024 Date of hearing: 4 December 2024 Place: Melbourne Solicitor for the Applicant The applicant appeared in person Solicitor for the Respondents Mr J McDonald, Clayton Utz ORDERS
MLG 591 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NARINDERPAL SINGH JANDU
Applicant
AND: MINISTER FOR IMMIIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 4 March 2019 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.
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 CORBETT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 February 2019 to affirm a decision of a delegate of the second respondent (Minister) to refuse the applicant a Student (Temporary) (class TU) (subclass 500) visa (visa).
At the time of the decision of the Tribunal the applicant was not enrolled in a registered course of study and therefore failed to meet the requirements of cl 500.211 of the Migration Regulations 1994 (Cth) (Regulations).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of India. He first arrived in Australia on 7 February 2014 as the holder of a TU 573 Higher Education Sector Student visa which expired on 15 March 2017 (CB 33).
On 7 April 2017, the applicant applied for the visa (CB 1-20).
On 21 July 2017, the delegate of the Minister informed the applicant that the application for the visa had been refused (CB 26–34). The delegate found that the criteria for the grant of a student visa had not been met by the applicant (CB 30).
On 11 August 2017, the applicant applied to the Tribunal to review the delegate’s decision (CB 35–6).
On 26 October 2018, the applicant was invited by the Tribunal to submit in writing, information about his proposed course of study and his entry and stay in Australia as a student by 9 November 2018 (CB 56-8). The invitation attached a questionnaire for the applicant to complete in order to provide further information (s 359 Response) and referred to Ministerial Direction No 69 issued pursuant to s 499 of the Migration Act 1958 (Cth) (the Act).
On 9 November 2018, the applicant sent a completed Request for Student Visa Information form (s 359 Response) to the Tribunal which he declared to be true and correct (CB 77–94).
At question one of that form the applicant was asked if he consented to the Tribunal deciding the review without a hearing. The applicant ticked the affirmative box indicating that he did consent to the Tribunal deciding the review without a hearing. The following note was printed below question one (CB 78);
Note: If you consent to us deciding your review without a hearing:
• We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. This means we may either affirm or set aside the decision under review.
• Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed.
At question four, the applicant was asked if he had a current Confirmation of Enrolment in an approved course of study. The applicant circled “no” and hand wrote the following in answer to question four (CB 79) (verbatim);
“At present I don’t have Confirmation of Enrolment because I don’t have right to study in Australia.”
Attached to the s 359 Response was a statement prepared by the applicant dated 9 November 2024. In that statement the applicant said:
But same time I lodged my student visa extension application through an agent. But my agent made a mistake and lodged my visa extension application after my visa has expired. So I was entitled with Bridging Visa - C. On a bridging visa C, I did not have study rights. So I could not enrolled for my further studies to continue my same course of hospitality. (CB 93)
On 7 February 2019, the Tribunal notified the applicant that it had decided to affirm the decision under review (CB 96). A copy of the decision record dated 6 February 2017, and a fact sheet were provided to the applicant (CB 97-102) (Decision).
TRIBUNAL DECISION
The Decision was brief. After setting out the delegate’s decision in short form, the Tribunal confirmed that the applicant consented to the Tribunal deciding the review without a hearing (CB 98 [4]). The Tribunal then considered the applicant’s claims, and the evidence contained in the completed s 359 Response. The Tribunal confirmed that in the s 359 Response the applicant confirmed that he was not currently enrolled in a course of study (CB 98 [9]).
The Tribunal then referred to cl 500.211 of the Regulations which requires an applicant for a Student (subclass 500) visa to be enrolled in a course of study at the time a decision is made on the application (CB 98 [10]).
The Tribunal concluded at paragraph [11] that (CB 98)
On the available evidence the Tribunal is satisfied the applicant is not enrolled in a course of study, therefore he fails to meet the requirements of cl 500.211 of the Regulations. This finding is fatal to the application; consequently it is unnecessary for the Tribunal to further consider the decision of the delegate.
The Tribunal found that the criteria for the grant of a Student (subclass 500) visa were not met. Accordingly, the decision under review must be affirmed (CB 99 [12]).
PROCEEDINGS IN THIS COURT
On 4 March 2019, the applicant filed an application for judicial review with this Court together with an affidavit in support sworn 4 March 2019 (CB 103–119).
In the application for judicial review the applicant identified the following grounds of review (CB 106-7(verbatim):
(1)By application filed 21 July 2017, I applied for the merit review application with Administrative Appeals Tribunal. The grounds of the application are as follows:
(2)The migration agent lodged the application after the due date. It was the fault of the agent for which my case was refused. I requested the court to take a strong action against these agents. They ruined my life and are now free to ruin the life of other students.
(3)The member did not paid heed towards my circumstances and refused my case as I was not having any CEO at the moment.
(4)I was told by the agent that I can’t work and study but later I came to know that I can study when I got the invitation to provide the information.
(5)Member failed to consider that the Department of Immigration and Border Protection did not accord to the applicant procedural fairness and natural justice.
(6)Member failed to provide the proper decisions and made a jurisdictional error and hence my matter must be looked after again and proper detailed decision must be provided.
(7)The member did not pay heed towards my case and interpret this clause according to his own understanding.
(8)The decision of the member clearly depicts the jurisdiction error and this must be overlooked again according to law.
(9)The Member erred in dismissing the applicants review application by relying on hearsay obtained by department of immigration which was not tested and put to the applicant.
(10)The member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group.
(11)Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
(12)The appellant’s application clearly raises an arguable case.
On 14 April 2021, a Registrar of the Court made orders for the filing of a Court Book in electronic form and directed the applicant to file and serve any amended application with proper particulars, a supplementary Court Book and written submissions at least 28 days before the final hearing date.
On 22 May 2024, a Registrar of the Court directed that the application for judicial review be adjourned for final hearing on a date to be advised. The proceeding was subsequently listed for hearing before this Court at Melbourne on 4 December 2024. The applicant did not file or serve any amended application, supplementary Court Book or outline of submissions.
At the hearing on 4 December 2024, the applicant appeared in person and was assisted by an interpreter fluent in the English and Punjabi languages. Mr McDonald, solicitor, appeared for the Minister.
Prior to the final hearing, the solicitors for the Minister filed and served an affidavit of Trent Berenger Jones affirmed on 20 November 2024 which annexed the applicant’s Provider Registration and International Student Management System (PRISM) records held by the Department of Education which recorded the applicant’s study history and enrolment history in Australia.
The Court confirmed that the applicant received the Minister’s Court Book and outline of submissions together with the affidavit of Mr Jones affirmed on 20 November 2024.
The Court invited the applicant to provide any further documentation or evidence he wished to rely upon to support his grounds of review, but the applicant did not seek to rely on any further documentation or evidence to assist the Court.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on and further articulate his grounds of review. It was explained that the Court cannot review the merits of the Tribunal’s Decision to refuse the visa, rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision. It was explained to the applicant that the Court cannot grant the applicant the visa but is confined to determining if the Tribunal has made a “jurisdictional error”. The Court invited the applicant to explain why the Tribunal’s Decision was wrong and to identify any jurisdictional error.
The applicant submitted that when he finished his Student visa in March 2017 his then migration agent did not apply for a new visa until three weeks too late and did not tell him about the need to have a Certificate of Enrolment at the time of the application. The applicant told the Court that until he found out about the Decision, the migration agent did not tell him anything about his application or what was required of him.
The applicant was then referred by the Court to the application for judicial review and the grounds for review and asked the applicant to explain each of the twelve grounds relied on. The applicant responded by saying that he could not contact any migration lawyers due to the holidays and they were charging very high prices and therefore he needed more time to make further arrangements for legal representation. The applicant sought an adjournment of the hearing until February 2025 to make further arrangements. The request for an adjournment was denied on the basis that the application for judicial review was filed in March 2019 and that the applicant was aware that this matter would come on for final hearing after the callover and directions hearing before the Registrar in May 2024. The applicant had ample opportunity to retain legal representation since March 2019 and the Court was not prepared to further delay the final hearing of the application.
The applicant confirmed that he had prepared the application for judicial review by himself but had also been assisted by a friend. The applicant was asked to explain each of the twelve grounds of review but he was unable to assist the Court.
The applicant could not identify any error or mistake by the Tribunal in the Decision.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Mr McDonald relied upon the outline of submissions filed on 20 November 2024 and the affidavit of Mr Jones affirmed on the same date.
In relation to the allegation of misconduct and negligence on the part of the applicant’s former migration agent, Mr McDonald noted that there was a high evidentiary burden to establish fraud or misconduct. Negligence by an agent was not enough to vitiate the Decision. There was also no evidence filed by the applicant to support any allegation of misconduct or negligence. Further, at the time of the Decision the applicant was not represented by a migration agent and there was nothing in the s 359 Response provided to the Tribunal to substantiate any misconduct.
Mr McDonald then addressed each of the twelve grounds in the application for judicial review.
Grounds one, eight and twelve were submitted to not disclose any recognisable claim of jurisdictional error. The statements made in those grounds were simply narrative and must fail.
Grounds two and four were unclear but appeared to be allegations of misleading and unsatisfactory conduct by an unidentified agent. It was unclear when the conduct of the agent was alleged to have occurred. If it was prior to the delegate’s decision then the Court does not have jurisdiction to review the delegate’s decision under s 476(2) of the Act. At the Tribunal stage there was no agent acting for the applicant. There was also no agent acting at the time of the s 359 Response, or at the time of the Decision. Ground four was also confusing in so far as the applicant alleged misinformation from the agent. The relevance of the applicant’s ability to work and study was not explained or apparent. It was also unclear when the advice was given.
Grounds three, seven and ten were submitted to be an allegation of a failure to consider a relevant fact or claim made by the applicant. Clause 500.211 of the Regulations requires that the applicant be registered in a full-time registered course of study at the time of the application. The applicant’s evidence was that he was not enrolled in a course of study and did not have a Certificate of Enrolment. Therefore, the Tribunal found that the applicant did not satisfy the primary criteria in cl 500.211 of the Regulations.
The Minister relied on the decision of Justice Rofe in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605 at [28] (Singh 2022), where her Honour held that once the Tribunal determined that the applicant did not meet the mandatory requirement of a current enrolment in a course of study per cl 500.211(a), it was not required to assess whether any other visa criteria was or wasn’t met. That included whether the applicant satisfied the genuine temporary student criteria. Therefore, there was no failure to consider any relevant claim or fact.
In ground five, the applicant alleged that the Tribunal failed to consider that the Minister (or Department) did not afford the applicant procedural fairness. It was submitted that the delegate’s decision was not the subject of judicial review by this Court and the Tribunal’s role was to consider the application on the merits, which it did. The Tribunal complied with the statutory obligations to afford procedural fairness and once the applicant agreed to waive his right to a hearing, the Tribunal was entitled to consider the merits of the application without a hearing. It was submitted that no error by the Tribunal was identified.
Ground six appeared to be a broad allegation of a failure to provide a decision. The Tribunal complied with s 368(1) of the Act and provided a decision that set out the concluding decision, the reasons for the decision, the findings made, the relevant evidence and recorded the day and time that the Decision was made. It was submitted that ground six must fail.
Ground nine was an allegation that the Tribunal relied on hearsay evidence from the Department of Immigration which was not put to the applicant. The Minister submitted that this ground was misconceived as the Tribunal was not bound by the rules of evidence. Further, the evidence was not identified. The Tribunal relied upon the applicant’s own evidence to reach the conclusion that the applicant did not satisfy the primary criteria for the visa.
Ground eleven was also vague and unclear. There was no request made for further time and the applicant consented to the Tribunal deciding the review without a hearing. Therefore it was submitted that this ground must also fail.
Finally, insofar as the applicant asserted in his affidavit that the Tribunal was biased and simply copied the delegate’s decision, the allegation was factually wrong. There was no evidence of actual or apprehended bias and the Tribunal affirmed the delegate’s decision for different reasons. There was no suggestion in the Decision that the Tribunal did not bring an impartial and unprejudiced mind to the reasons given and the onus of proof of bias was not satisfied (see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [50],[175] and [292]).
CONSIDERATION
Clause 500.211 of Sch 2 of the Regulations provides the primary criteria that must be satisfied for the Student (subclass 500) visa:
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.
Subparagraphs (b), (c) and (d) do not apply to the applicant. At the time of the application for the visa and the Decision, the applicant was not enrolled in a course of study and had no Certificate of Enrolment. Therefore, he did not meet the primary criteria for the visa sought.
In Singh 2022, Justice Rofe considered an appeal from the Federal Circuit Court which dismissed an application for judicial review in circumstances substantially the same as the facts in this case. At the time of applying for the Student visa in that case, the appellant was not enrolled in a course of study. The delegate of the Minister initially refused the application because the delegate was not satisfied that the appellant satisfied the criteria in cl 500.212 of the Regulations. The appellant then sought review by the Tribunal. The Tribunal wrote to the appellant and invited the appellant to provide a current certificate of enrolment. The appellant did not provide a certificate. The Tribunal concluded that the at the time of the decision the appellant was not enrolled in a full-time registered course of study and therefore failed to meet the requirement of cl 500.211(a) of the Regulations.
Her Honour said at [28] of her reasons in Singh 2022:
The primary judge was correct in dismissing the related grounds as they were not relevant to the task of the Tribunal. Once it was determined that the appellant did not meet the mandatory requirement of a current enrolment in a course of study per cl 500.211(a), it was not required to assess whether any other visa criteria was or wasn’t met: Bodige v Minister for Immigration [2018] FCCA 1841 at [24].
In this case, the Tribunal concluded that the applicant did not meet the criteria in cl 500.211(a) (CB 98 [11]). This finding was fatal to the application for the visa and it was not necessary to further consider the decision of the delegate to refuse the application.
Each of the grounds of review identified by the applicant in the application for judicial review are misconceived and must fail for the reasons identified in the outline of submissions prepared by the Minister.
Grounds one, eight and twelve do not identify any jurisdictional error. Ground one is simply a narrative of the grounds that follow and grounds eight and twelve are broad allegations or error without particulars. Without particulars these general grounds must be dismissed (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J and DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4]–[7] and [11] per Colvin J).
Grounds two and four allege unproven misconduct by the applicant’s former migration agent. It appears that it is alleged that the agent failed to submit the application for a visa in a timely manner and that this resulted in the applicant becoming unable to enrol in a course of study. The circumstances in which the applicant ceased to be enrolled were not explained by the applicant nor was there any evidence of negligent or fraudulent advice by the agent. It is entirely unclear why the conduct of the agent is relevant to a review of the Decision. The undisputed fact was that at the time of the Decision the applicant was not enrolled in a course of study and therefore he was not entitled to a Student visa. No error by the Tribunal is identified. These grounds are not established.
Grounds three, seven and ten are unparticularised allegations of a failure to consider relevant facts and circumstances. However, the decision in Singh 2022 makes plain that once it was established that the applicant was not enrolled in a course of study, further inquiry by the Tribunal was unnecessary and the task of the Tribunal was complete. These grounds also fail.
Ground five is misconceived as a matter of law. The Tribunal was not required to consider whether the delegate afforded procedural fairness to the applicant. The Tribunal’s statutory task was to review the merits of the application for the visa and determine if the applicant met the criteria in cls 500.211 to 500.218 of the Regulations. Once the Tribunal was satisfied that the applicant did not satisfy the primary criteria in cl 500.211 further inquiry was unnecessary. This ground also fails.
Ground six is a broad allegation of jurisdictional error and a failure to provide “the proper decision”. This appears to be an invitation to undertake an impermissible merits review, which is not the task of this Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272). The ground does not identify why the Decision was “improper” or what the “proper” decision was especially when the applicant was not enrolled in a course of study at the time of the Decision. There was also no failure to comply with s 368 of the Act. The Decision complies with each requirement of that section.
Grounds nine and eleven are also without substance. The Tribunal is not bound by the rules of evidence (s 353(a) of the Act) and may receive and act on hearsay evidence. However, the “hearsay” complained of is not identified. The only evidence relied on by the Tribunal was the applicant’s admission in the s 359 Response that he did not have a certificate of enrolment. The applicant did not seek any “extra time” from the Tribunal and in the circumstances of this case the provision of extra time would have been futile.
The Court has also scrutinised the application, the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB V Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No jurisdictional error is found. The application for judicial review is dismissed.
OTHER MATTERS
The solicitor for the Minister asked to amend the name of the first respondent to Minister for Immigration and Multicultural Affairs. The name of the first respondent and title to this proceeding will be amended accordingly.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
At the conclusion of the Minister’s submissions, the solicitor for the Minister informed the Court that if the application for judicial review was dismissed, the Minister sought an order for legal costs and disbursements associated with the review Application fixed in the sum of $7,467.00. The Court considers that sum to be fair and reasonable.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 4 March 2019 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 19 December 2024
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