Johal v Minister for Immigration
[2020] FCCA 2057
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHAL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2057 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the applicant was not enrolled in a course of study – no arguable error – application dismissed. |
| Legislation: Federal Circuit Rules 2001 (Cth), rr.44.12, 44.13 Migration Act 1958 (Cth), ss.359AA, 476 Migration Regulations 1994 (Cth), regs.500.211, 500.214 of Sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| First Applicant: | HARMAN JOHAL |
| Second Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 497 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 July 2020 |
| Date of Last Submission: | 27 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 497 of 2019
| HARMAN JOHAL |
First Applicant
| GAGANDEEP SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. The second applicant, her husband, is also a citizen of India. On 12 September 2017, the applicants applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 1-19). The first applicant was the primary applicant. The second applicant was listed as a member of the family unit.
On 9 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 24-32). The delegate found that the first applicant did not satisfy cl.500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate determined that the first applicant did not demonstrate that she had sufficient funds to meet the costs and expenses of her stay in Australia. As the first applicant did not meet the primary criteria, the second applicant was also refused the visa.
On 24 November 2017, the applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 33-34).
On 11 November 2019, the applicants were sent an invitation to attend a hearing before the Tribunal (CB 41-44). That invitation indicated that the applicants should ensure that they had evidence of, relevantly, a current confirmation of enrolment in a course of study.
On 27 November 2019, the applicants attended a hearing before the Tribunal (CB 50-52). At the conclusion of the hearing, the Tribunal made an oral decision affirming the delegate’s decision to refuse the visa. The Tribunal provided the written statement of that decision on 1 December 2019 (CB 56-60).
On 19 December 2019, the applicants sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed in this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s written statement is 5 pages long and spans 26 paragraphs.
The Tribunal commenced by providing a brief history of the application for review (at [1]-[7]). The Tribunal then referred to the requirements for the visa and noted that in issue in the present matter was whether the applicants met cl.500.211. The Tribunal acknowledged that the issue before it differed from the dispositive issue before the delegate (at [8]-[9]).
The Tribunal then set out the requirements of cl.500.211 of the Regulations (at [10]-[11]) as follows:
10. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211 (a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
11. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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.
The Tribunal then summarised the first applicant’s evidence at the hearing. The Tribunal noted that the first applicant had confirmed that she was no longer enrolled in any course of study (at [14]). Pursuant to s.359AA of the Act, the Tribunal put to the applicants information from the first applicant’s study record which showed that her most recent enrolment was in a Master of Professional Accounting course and that her enrolment in that course had ended on 31 December 2017. The Tribunal explained that this information was relevant because it confirmed the evidence the first applicant had already given the Tribunal (orally) that she was not currently enrolled in any course of study. The Tribunal explained that being enrolled in a course of study was a mandatory requirement for the grant of a student visa (at [15]). The Tribunal advised the first applicant that she did not need to respond immediately. The first applicant indicated that she did not require any further time and was prepared to respond (at [16]).
The Tribunal then stated:
17. The applicant gave evidence that due to some difficulties in the course of her studies, she did not complete her studies by the end of the first semester of 2017 and obtained an extension of her Confirmation of Enrolment to 31 December 2017. Consequently, at the time her initial student visa expired in or about September 2017 the applicant still had approximately 2 to 2 16 months left before she could complete her course. The applicants applied for a further student visa on 12 September 2017. That application was rejected on 9 November 2017, whereupon the applicants initiated this review application. The applicant went on to complete her studies successfully by 31 December 2017.
18.The Tribunal, having noted the applicant’s comments, went on to explain to the applicant that because of her evidence that she was not currently enrolled in any course of study, the determinative issue in this case - the issue on which it would be decided - had changed. Although the applicant had been refused her visa on the basis that she did not satisfy the financial requirements provided in cl.500.214, as she had now given evidence to the Tribunal that she was not currently enrolled, and that as this was confirmed by her PRISMS record, the determinative issue had become the issue of whether she met the enrolment requirements of cl.500.211. The Tribunal then told the applicant that it was on the enrolment requirement that the Tribunal proposed to make its decision.
The Tribunal confirmed with the applicant that she understood that the determinative issue had changed and invited her to comment or respond to this issue (at [19]).
The Tribunal continued as follows:
20. The applicant gave evidence that in December 2017, the same month in which she was finishing her studies, he gave birth. Her child was not included in her visa application because he had not yet been born when that application was made and his name could not be added to it. The applicant had intended to undertake a professional year programme on the completion of her Master’s degrees, so as to qualify as an accountant in Australia. She explained at hearing that this would give her a great advantage in the employment market in India. To that end, she applied for a visa for her parents-in-law so that they could help with child care. That application was refused. The applicant had also intended to apply for a subclass 485 visa, but found that she could not because this review application was still pending. She also found that as her child had no visa, if she took him to India she would not be able to return to Australia with him.
21. The applicant gave evidence that she had particularly wanted to return to India with her child at that time so that she could introduce him to his grandparent. Unfortunately, her mother-in- law passed away before this could be done. The applicant still harboured her ambition to complete her professional year programme, and remained in Australia in the hope that these review proceedings would be concluded before the end of the 6 month period following completion of her Master’s degree, which was the window in which she could apply for a subclass 485 visa. After that window closed, the applicant remained in Australia in the hope that she would be able to obtain a visa that would allow her to complete a professional year programme once this review was determined. At the same time, the applicant stated, she desperately wanted to take her child back to India to see her and her husband’s family but could not because he had no visa and she would not be able to bring him back into Australia.
22. The applicant gave evidence that she was stuck in this impossible situation pending determination of this review, and that this has caused her great emotional suffering. The applicant’s disappointment and anguish at the situation in which she found herself was palpable in her demeanour in giving evidence before the Tribunal, and the Tribunal has no hesitation in accepting her account as sincere and truthful. fortunately, that does not alter the fact that the applicant is not enrolled in a registered course of study as required by cl.500.211 at the time of decision on her application
The Tribunal determined that the first applicant did not meet cl.500.211 of the Regulations and, accordingly, affirmed the decision not to grant the applicants the visa (at [23]-[26]).
The Tribunal then noted that, as the first applicant did not satisfy the primary criterion, the second applicant also cannot be granted the visa (at [25]).
The Tribunal affirmed the decision to refuse to grant the applicants the visa.
Proceedings in this Court
The judicial review application filed in this Court on 19 December 2019 contains two grounds as follows:
1. The Tribunal’s decision was tainted by jurisdictional error in that it asked itself the wrong question whether the applicant was enrolled in a course of study, rather than the question whether the applicant met the financial requirements for grant of the student visa at the time of refusal of her application for a student visa on 2 November 2017.
2. The Tribunal failed to consider, as it ought to have done, that as a consequence of the error by the delegate in refusing to grant the student visa on financial grounds when the applicant had only 1.5 months left to complete her Masters of Accounting course, she had lost her eligibility to be granted a subclass 485 visa. The Tribunal’s failure to do so amounted to unreasonableness in arriving at the decision to affirm the delegate’s decision.
Particulars
• The applicant was entitled to be granted a subclass 485 visa after completing her Masters in Professional Accounting course. This visa would have provided her with the opportunity to work full-time for a period of 2 years. She would have been able to include her new born child in the same subclass 485 visa. The grant of the visa would have provided all the related benefits, including the opportunity for the child to travel overseas with the applicant and return to Australia.
• As a consequence of the refusal of the student visa by the delegate of the Minister, the applicant was prohibited by the Migration Regulations to lodge the subclass 485 visa.
In an affidavit sworn by the first applicant on 18 December 2019, the first applicant states that the “pertinent facts and background” to this matter are as follows:
• My husband and I came to Australia on a student visa on 21 February 2015. The visa was valid till September 2017. I undertook a course leading to a Masters of Professional Accounting. The course was to have been completed in July 2017. However, due to some initial language difficulties relating to coping with the course requirements, I could not finish the course within the period of enrolment with Edith Cowan University (ECU). I applied to ECU for an extension of the enrolment for a further 3 months till December 2017. As my visa was expiring in September 2017, I applied for a new student visa to cover the 3 months period till end of December 2017. The delegate of the Minister refused my application for the new student visa on the ground of not meeting the financial requirement. I then lodged a review application with the Administrative Appeals Tribunal (AAT) in November 2017. This review application was only heard on 27 November 2019, some two years later.
• The student visa refusal in November 2017 had adverse impact on my ability to apply for a subclass 485 visa, which would have provided me with better chances to secure employment as an accountant. Employers in Australia do not understand what a bridging visa is and are reluctant to employ people on the bridging visa. As a consequence, I did not obtain any job as an accountant while I was on the bridging visa.
• I became pregnant and gave birth to my first child on 13 December 2017 while the AAT review application was pending. I could not include my child in the review application as he was born post application. The child was granted a bridging visa, which prohibited overseas travel.
4. The delegate of the Minister did not request for any further information before refusing my student visa in November 2017. I believe had the delegate made a request, the visa would not have been refused. The Tribunal, by not addressing this issue of financial requirement, made an error in coming to a decision in affirming the delegate’s decision.
The applicants were given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions. The applicants filed written submissions on 22 July 2020. The Minister took no issue with the Court having regard to those submissions. They provide as follows:
1. The student visa lodged by me on 12 Sep 2017 was to complete the balance of the requirements for the Masters of Professional Accounting course. It only required an additional 3 months to do so.
2. The delegate refused my application on 9 November 2017, which had grave consequences on my inability to lodge a subclass 485 Post-Study Work visa.
3. I applied for a review to the AAT, which heard my case 2 years’ later. I had already completed my Masters of Accounting course. I did not enrol for any other course. At time of hearing, AAT only considered the issue of whether I was enrolled for a registered course. I consider this approach by the AA T as an error in dealing with my case.
4. On 19 March 2020, I was invited by the Department of Home Affairs to lodge a permanent residence visa subclass 190 within 60 days. I had to go overseas to do so as section 48 of the Migration Act prohibited me from doing so while I was in Australia. I could not travel overseas due to COVID travel restrictions. The 60 days expired and I lost this opportunity.
5. The consequence of the AAT to remit the matter to the Department resulted in my inability to lodge the above-mentioned matter. e m my
6. I humbly plead to the Honourable Court to set aside the AAT decision.
The materials before the Court thus include the materials referred to above, a Court Book numbering 65 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 2 July 2020. The Court confirmed with the first applicant that she had received a copy of the Court Book and the Minister’s submissions
Before this Court, the first applicant (on behalf of her partner) appeared without legal representation.
The Court explained to the first applicant that, as this matter was listed for a show cause hearing pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”), the purpose of the hearing was to determine whether there was “an arguable case of jurisdictional error” in the Tribunal’s decision.
Whether there is an arguable case of jurisdictional error is to be determined at a reasonably impressionistic level.
The Court accepts that r.44.13 of the Rules provides that, at a show cause hearing, an applicant is confined to the grounds and relief sought in the judicial review application. However, the Court is also mindful that an unrepresented applicant should usually be given an opportunity to explain orally any concerns that they have with the Tribunal’s decision and that the Court should remain astute and alert to any error in the Tribunal’s decision: Bala v Minister for Immigration & Border Protection [2019] FCA 600; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Noting that the applicants were not legally unrepresented, the Court gave the first applicant an opportunity to explain what, she believed, the Tribunal “did wrong”. To assist her, the Court explained that the Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant submitted that, at the hearing the Tribunal did not ask any questions about financial capacity and did not make any mention of the financial capacity criterion. She indicated that she satisfies the “financial capacity criterion”. The first applicant also referred to her current inability to apply for a post-graduate visa. She also explained that, having finished her Masters level course, she could now only enrol in a PhD program but did not wish to enrol in such a course (which is why she was not enrolled at the time of the hearing before the Tribunal).
The Court will address these submissions below.
Consideration
Ground 1
Ground 1 is, as the Minister correctly submits, misconceived.
The applicants allege that the Tribunal erred as it refused the visa on a different basis to that of the delegate. They say that the Tribunal should have confined itself to the financial circumstances criterion, as opposed to the enrolment criterion. The first applicant’s oral submissions also addressed the Tribunal’s “failure” to address the “financial criterion”.
The Tribunal’s task was to determine whether the applicants met the relevant visa criteria. This required the Tribunal to consider afresh whether the applicants met each of the relevant criterion. The Tribunal was not confined to the issues addressed in the delegate’s decision. If the applicants did not meet one of the criteria, the Tribunal was obliged to refuse the visa.
Here, there is no dispute that the dispositive issue had changed. The Tribunal recognised this at [9].
The Tribunal also complied with its procedural fairness obligations in relation to what had become the dispositive issue as it:
a)put to the first applicant, pursuant to s.359AA, her PRISMS records, which indicated that she was not enrolled, and advised her that this was relevant as it would be the reason for affirming the decision (at [15]-[16]). The first applicant indicated that she understood and provided her response accordingly (at [17]); and
b)(in compliance with SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63) expressly discussed with the first applicant that the dispositive issue had changed and noted that the Tribunal proposed to make its decision on the basis of the relevant enrolment criterion (at [18]). Again, the applicant indicated that she understood this (at [19]) and provided her response in this regard (at [20]-[22]).
The Tribunal did not err in determining the application on the basis that the applicants did not satisfy the relevant enrolment criterion. Notwithstanding that the first applicant had no further course to enrol in at the time of the Tribunal hearing (as she had completed her qualifications to the highest level), she was required to be enrolled in a course. There was no discretion for the Tribunal to waive this requirement.
To the extent that the first applicant’s oral submissions indicated that she did not receive any communications from the Minister’s Department about providing financial statements, this relates to the delegate’s decision – something which this Court has no jurisdiction to consider: the Act, s.476(2) and (4).
Ground 1 fails to identify a reasonably arguable error.
Ground 2
By ground 2, the applicants allege that it was “unreasonable” for the Tribunal to have failed to consider that the delegate erred in failing to grant the applicants the visa as this decision resulted in the applicants being prohibited from applying for a graduate visa. The ground seems to allege a “failure to consider” and “unreasonableness”.
To the extent that the applicants argue that the Tribunal failed to consider the delegate’s error, it is not the role of the Tribunal to assess the delegate’s decision for error. The Tribunal conducts a de novo review which cures any error in the delegate’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
As for whether the Tribunal failed to consider the “consequences” of the delegate’s “visa refusal” (resulting in hardship), the Tribunal did, in fact, consider the first applicant’s circumstances (including her inability to apply for a graduate visa). It had no hesitation accepting the first applicant’s evidence about what was an “impossible situation” (at [20]-[22]).
The applicants’ complaint appears to be that it was unreasonable for the Tribunal to have made the decision it did in light of the “consequences” of a negative finding.
Unfortunately, the Tribunal’s decision was the only decision open to it in the circumstances as presented by the applicants. As the Tribunal noted at [22], notwithstanding the applicants’ circumstances it was still a requirement for the first applicant “to be enrolled”. There was no discretion for the Tribunal to waive this requirement.
Ground 2 presents no arguable error.
First Applicant’s Affidavit
The first applicant’s affidavit details the applicants’ rather unfortunate circumstances. The Court sympathises. The delegate’s decision to refuse the visa had a significant impact on the applicants’ future plans and caused undeniable hardship. This is most regrettable.
Unfortunately, the Court is unable to assist the applicants in this regard. The Court has no jurisdiction in relation to the delegate’s decision and the first applicant’s affidavit has not identified any error on the part of the Tribunal: the Act, s.476(2) and (4).
The first applicant’s affidavit raises no arguable error.
Applicants’ Submissions dated 22 July 2020
The applicants’ submissions filed on 22 July 2020 also fail to identify any arguable error.
Paragraphs [1] and [2] are factual matters. Paragraphs [5] and [6] are also factual matters which, as the Court has stated above, are unfortunate.
Paragraph [3] repeats ground 1 of the judicial review application. For the same reasons, it does not identify any arguable error.
Paragraph [4] highlights a most unfortunate situation. The Court sympathises with the applicants. The applicants have now, in effect, been unable to take advantage of two opportunities to apply for and obtain further visas (one being for permanent residency). Unfortunately, the Court cannot do anything to assist the applicants in this regard.
No arguable error arises in the applicants’ submissions.
Conclusion
The applicants’ application, affidavit, written submissions and oral submissions raise no arguable error on the part of the Tribunal. The Court has also been unable to identify any error. Here, the Tribunal arrived at the only decision that was open to it.
The application is dismissed pursuant to r.44.12(1)(a) of the Rules.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 28 July 2020
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
12
4