Joshi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 385
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joshi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 385
File number(s): MLG 2232 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 12 May 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of India – Student (Temporary) (class TU) Higher Education Sector – where course completed – whether current certificate of enrolment – whether undertaking a course of study at time of decision – whether apprehended bias – whether denied the opportunity to be heard – whether particulars of information required to be given – whether procedural fairness afforded – whether practical injustice – whether failure to consider relevant information – whether jurisdictional error
PRACTICE AND PROCEDURE – Application to amend application for judicial review – factors for consideration – nature of amendments – delay – prospects of success – prejudice – case management – whether in the interests of justice
WORDS AND PHRASES – “undertaking” – “undertaking a course of study”
Legislation:, Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth) r 7.01
Federal Circuit Court Rules 2001 (Cth) r 7.01
Federal Magistrates Court Rules 2001 (Cth) r 7.01
Migration Act 1958 (Cth) Pt 5 Div 5, ss 65, 357A, 359A, 359AA, 360, 474, 476
Migration Regulations 1994 (Cth) Sch 2, cll 485, 572.222, 573.222, 573.223
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196
Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 FLR 173
Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 74 ALJR 775; (2000) 170 ALR 553; (2000) 58 ALD 321
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367
Kemei v Minister for Immigration and Border Protection [2019] FCCA 1735
Ko v Minister for Immigration and Border Protection [2019] FCCA 2176
Lamichhane v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1172
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398
Oswal v Apache Corporation (No 3) [2014] FCA 835
Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Re JRL; Ex parte CJL (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917
Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Singh v Minister for Immigration and Citizenship [2009] FMCA 1149; (2009) 236 FLR 384
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443
SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
SZTBR v Minister for Immigration and Border Protection [2014] FCA 582
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2003] 77 ALD 23
WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
Division: Division 2 General Federal Law Number of paragraphs: 115 Date of hearing: 1 March 2022 Place: Perth Applicant: In person via CISCO Webex Counsel for the First Respondent: Ms A Zinn via CISCO Webex Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2232 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRANALI KISHORKUMAR JOSHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
12 may 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant’s affidavit sought to be filed 24 February 2022 and sworn or affirmed on 21 January 2022 be accepted for filing.
3.The applicant’s application for leave to file a proposed amended originating application sought to be filed 24 February 2022 be accepted for filing.
4.The applicant’s application for leave to amend the originating application be dismissed.
5.The originating application filed 18 October 2017 be dismissed.
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 LUCEV
The applicant, Ms Pranali Kishorkumar Joshi (“Ms Joshi”), has filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 21 September 2017 which affirmed a decision of 19 November 2015 by a Delegate (“Delegate” and “Delegate’s Decision” respectively) of the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse Ms Joshi a Student (Temporary) (class TU) Higher Education Sector (subclass 573) (“Student Visa”). On 23 and 24 February 2022 Ms Joshi attempted to file an amended Judicial Review Application and a further affidavit. The circumstances concerning the attempted filings and how the Court has dealt with them are set out at [14]-[16] below.
The Minister filed a Court Book (“CB”) and a Supplementary Court Book (Supplementary CB”).
An interpreter was made available to Ms Joshi at the hearing in this Court, and although Ms Joshi said she did not need an interpreter, the interpreter remained available for the entire hearing: Transcript, 1 March 2022, p 2.
BACKGROUND
The background prior to the Tribunal Decision is a follows:
(a)Ms Joshi is a citizen of India: CB 1;
(b)Ms Joshi first arrived in Australia on 31 March 2009 as the holder of a student visa of a different subclass to that the subject of the Judicial Review Application: CB 72;
(c)since her arrival in Australia Ms Joshi has undertaken a number of different courses in hospitality management, information technology networking, management, marketing and patisserie: CB 46, the majority of which she has completed: CB 72;
(d)on 26 August 2015 Ms Joshi applied for the Student Visa: CB 1-36. The basis for the fresh Student Visa application was enrolment in a General English course and a Master of Professional Accounting (“MPA”): CB 46 and 63;
(e)on 19 November 2015 the Delegate’s Decision was to refuse to grant Ms Joshi the Student Visa on the basis that she did not fulfil the genuine temporary entrant (“GTE”) criterion under cl 573.223(1)(a) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 90;
(f)on 4 December 2015 Ms Joshi applied to the Tribunal for review of the Delegate’s Decision: CB 75-76; and
(g)on 18 August 2017 Ms Joshi was invited to a hearing before the Tribunal: CB 96-106 (“Tribunal Hearing Invitation” and “Tribunal Hearing” respectively), and was specifically asked to provide additional information, including a “copy of your current Certificate of Enrolment (COE)” and “[d]ocuments that show you are currently enrolled in a course”, “as required for the grant of a student visa”: CB 100.
TRIBUNAL DECISION
On 21 September 2017 Ms Joshi attended the Tribunal Hearing with her migration agent: Supplementary CB 1-2. At the Tribunal Hearing the Tribunal gave an oral decision, and the Tribunal Decision is a written record of the oral decision: CB 163 at [2].
In the Tribunal Decision the Tribunal:
(a)noted that at the Tribunal Hearing it discussed Ms Joshi’s “long enrolment history” with her, and that Ms Joshi had confirmed that she had completed her MPA “a couple of months ago” and wanted a visa so she did not have a refusal on her “record”: CB 163 at [9];
(b)explained that the Tribunal’s role was to take a “fresh look” at the Student Visa application and consider whether Ms Joshi met the requirements for the grant of the Student Visa: CB 163 at [10];
(c)identified that the Student Visa application was refused by the Delegate because Ms Joshi had failed to satisfy the GTE criterion: CB 163-164 at [11];
(d)noted that Ms Joshi:
(i)had told the Tribunal she had “completed” her studies, was not enrolled and did not hold “a current offer of enrolment”: CB 163-164 at [11]; and
(ii)was seeking to have the Delegate’s Decision on her record removed so she could hopefully apply for a Subclass 485 student visa in the future: CB 163-164 at [11];
(e)found that:
(i)Ms Joshi was not enrolled in a course and did not hold a current offer of enrolment;
(ii)did not satisfy cl 573.222 of Sch 2 to the Migration Regulations 1994 (Cth), which was a “pre-requisite” for the grant of the Student Visa: CB 163 at [14]; and
(f)affirmed the Delegate’s Decision: CB 164 at [16]-[17].
JUDICIAL REVIEW APPLICATION
The Judicial Review Application was filed in the Melbourne Registry of the Court on 18 October 2017. Delays in the hearing of judicial review migration cases in the Melbourne Registry are notorious: see the observations in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7]-[8] per Judge Lucev. Thus, although the matter was filed in October 2017, there was no first court date in Melbourne before a Registrar until June 2018, and although the orders then made by a Registrar of the Court (“Registrar’s 2017 Orders”) provided that the matter was to be “listed for final hearing on a date to be advised” before a Judge in the Court’s Melbourne Registry, it does not appear that a date was ever advised. Order 3 of the Registrar’s 2017 Orders provided for Ms Joshi to file and serve 28 days before hearing “any amended application with proper particulars of the grounds of application”.
In August 2021 the matter was allocated to a Judge in the Perth Registry. A directions hearing was held on 2 September 2021 and orders (“September 2021 Orders”) were made, including the following orders:
2. The Applicant file and serve the following by 2 November 2021:
a.any amended application with particulars of the grounds of the amended application;
b.a supplementary Court Book, if any; and
c.written submissions.
3.The First Respondent file and serve written submissions and any affidavits by 10 January 2022.
4.The matter be listed for final hearing … before Judge Lucev at 12.30 pm AWST / 3.30 pm AEDT on 1 March 2022 by videolink.
Ms Joshi did not file any documents in accordance with order 2 of the September 2021 Orders. On 22 December 2021 the Minister filed submissions (“Minister’s Submissions”) in accordance with order 3 of the September 2021 Orders.
On 27 January 2022 Ms Joshi attempted to file an amended Judicial Review Application (“Proposed Amended Judicial Review Application”) and an affidavit (“Proposed January 2022 Affidavit”) appending a COE. Having regard to the September 2021 Orders the parties were advised by email from Chambers that:
In order for the Applicant to be able to file the amended originating application and affidavit, proposed consent orders must be drafted by the parties permitting an extension of time to the time in which the Applicant can file and serve material.
On 7 February 2022 consent orders (“Consent Orders”) were made as follows:
1. The applicant file and serve the following by 8 February 2022:
a.any proposed amended application with particulars of the grounds of the amended application;
b.a supplementary Court book, if any; and
c.written submissions.
2.The first respondent file and serve any supplementary written submissions by 22 February 2022 addressing whether leave should be granted for the applicant to rely on any proposed amended application, including the merit of the proposed grounds of judicial review.
3. Costs be reserved
Ms Joshi did not file any documents in accordance with order 1 of the Consent Orders.
Although Ms Joshi had not complied with order 1 of the Consent Orders, on 18 February 2022 the Minister filed supplementary submissions (“Minister’s Supplementary Submissions”), dealing with the matters raised by the Proposed Amended Judicial Review Application and the Proposed January 2022 Affidavit.
On 23 February 2022 Ms Joshi attempted to file an affidavit sworn or affirmed 8 February 2022 appending a COE (“Proposed February 2022 Affidavit”). As the time for the filing of documents under the Consent Orders had expired, the Proposed February 2022 Affidavit was not accepted for filing. The parties were advised that the Court would hear submissions as to whether leave ought to be granted for filing of the Proposed February 2022 Affidavit at hearing, which remained listed for 1 March 2022.
On 24 February 2022 Ms Joshi attempted to file a further Proposed Amended Judicial Review Application (“Further Proposed Amended Judicial Review Application”) with another affidavit, this one sworn or affirmed on 21 January 2022, appending the same COE as was appended to the Proposed February 2022 Affidavit (“Further Proposed February 2022 Affidavit”). As the time for filing documents under the Consent Orders had expired, the Further Proposed Amended Judicial Review Application and the Further Proposed February 2022 Affidavit were not accepted for filing. The parties were advised that the parties could provide new consent orders allowing for the further filing of the documents, or, if filing was opposed by the Minister, the Court would hear submissions at hearing, which remained listed for 1 March 2022, as to whether leave ought to be granted for filing of the Further Proposed Amended Judicial Review Application and the Further Proposed February 2022 Affidavit.
The contents of the Further Proposed Amended Judicial Review Application and the Further Proposed February 2022 Affidavit are, for all intents and purposes, in the same terms as the Proposed Amended Judicial Review Application and the Proposed January and February 2022 Affidavits. It is therefore unnecessary to further consider the Proposed Amended Judicial Review Application and the Proposed January and February 2022 Affidavits. Because the Further Proposed February 2022 Affidavit is relevant to the arguments run by Ms Joshi in these proceedings it ought to be accepted for filing, and an order will be made accordingly.
On 25 February 2022 the Minister’s lawyers wrote to Ms Joshi and the Court advising that as the Further Proposed Amended Judicial Review Application and the Further Proposed February 2022 Affidavit had previously been provided to the Minister (in the form of the Proposed Amended Judicial Review Application and the Proposed February 2022 Affidavit), and had been addressed in the Minister’s Supplementary Submissions, the Minister accepted that, albeit that Ms Joshi had not complied with the Consent Orders, there was no prejudice to the Minister. Otherwise, however, the Minister opposed the Proposed Amended Judicial Review Application and the Further Proposed Amended Judicial Review Application on the basis that both were filed late without any explanation.
CONSIDERATION
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances:
(a)a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”); and
(b)bias, whether actual or apprehended, may also constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”) at [27] per Gleeson CJ, Gaudron and Gummow JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
2.Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Ms Joshi to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173 at [47] per Griffiths, White and Bromwich JJ.
It is also important to observe that it is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to determine Ms Joshi’s Student Visa claims: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Legislation
Before dealing with the Judicial Review Application and the Further Proposed Amended Judicial Review Application it is necessary to consider the legislation immediately relevant to this matter, that is, s 65(1) of the Migration Act and cl 573.222 of Sch 2 to the Migration Regulations.
At the relevant time (the time of the Tribunal Decision) s 65(1) of the Migration Act provided as follows:
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 65(1) of the Migration Act imposes on the Minister (and the Tribunal on review of a decision of a delegate of the Minister) a mandatory obligation to:
(a)grant a visa if the relevant criteria are met; and
(b)refuse to grant a visa if the relevant criteria are not met,
and the Minister’s state of satisfaction (or non-satisfaction) is a jurisdictional fact, which necessarily precedes the obligation to discharge the power to grant or not grant a visa: Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 74 ALJR 775; (2000) 170 ALR 553; (2000) 58 ALD 321 at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [37] per Gummow and Hayne JJ, Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] per Black CJ, Sundberg and Bennett JJ.
At the relevant time (the time of the Tribunal Decision) cl 573.222 of Sch 2 to the Migration Regulations provided as follows:
(1)Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
(2)If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.
(3)If the application was made on form 157E, the applicant is enrolled in an acceptable course.
Cl 573.222 of Sch 2 to the Migration Regulations was part of a group of clauses under cl 573.22 of Sch 2 to the Migration Regulations which concerned the subject “Criteria to be satisfied at the time of decision” (in this case the Tribunal Decision). Thus, when cl 573.222(1) of Sch 2 to the Migration Regulations refers to “the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study” it means “undertaking a course of study” at the time of the relevant decision (in this case the Tribunal Decision).
Cases
In Lamichhane v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1172 (“Lamichhane”) Mr Lamichhane’s Student Visa had been cancelled due to non-commencement of studies and the Tribunal found that at the time of its decision there was no certificate of enrolment “to show that the applicant is currently enrolled in an acceptable course”, and that Mr Lamichhane did not therefore “meet subclause 572.222(1)”: Lamichhane at [7] per Judge Raphael (cll 572.222(1) and 573.222(1) of Sch 2 to the Migration Regulations being relevantly in the same terms).
In Lamichhane at [14] per Judge Raphael the Federal Circuit Court found that (emphasis added):
14.The first thing to point out in distinguishing this case from the present one is that Regulation 572.22 is a criteria to be satisfied at the time of decision. This means that the applicant can provide the certificate at any time up to the time of decision and the certificate has to be looked at at the latest point in time. The certificate relates particularly to the course of study for which the visa is about to be granted. It establishes that the applicant is enrolled in that course. Although the applicant had given the COE to the Minister it no longer existed at the time the Minister came to consider it. It did not relate to the applicant undertaking a course of study.
In Lamichhane at [15]-[16] per Judge Raphael reference was made to Singh v Minister for Immigration & Anor [2009] FMCA 1149; (2009) 236 FLR 384 (“Singh”) and its effect, as follows (emphasis added):
15.This very matter was considered by Turner FM, as he then was, in Singh v Minister for Immigration & Anor [2009] 236 FLR 384. His Honour dealt with the matter at [40] et seq of his decision:
“[40] Mr Felman submits that it is critical that cl 572.222 is a ‘time of decision’ criteria. As stated above, the Court agrees. Mr Felman submits that cl 572.222 refers to the applicant ‘undertaking’ a course of study. The Court accepts that this requires that at the time of decision the applicant is ‘undertaking’ a course of study.
[41] Mr Felman submits that a CoE is defined is reg 1.03 as a confirmation that an applicant ‘is enrolled’ in a registered course. That is correct.
…
[45]Mr Felman submits that of the two constructions open on cl 572.222 the Court should have regard to a construction that promotes the purpose of the Act (s 15AA of the Acts Interpretation Act 1901 (Cth)). The Court accepts that submission.
[46] Mr Felman argues, and the Court accepts, that s 15AB of the Acts Interpretation Act, allows the Court to have regard to extrinsic material in interpreting an Act. He refers to the Explanatory Statement to the amendments that introduced cl 572.222. Under the heading ‘New Clause 572.222’ it is stated that:
‘The purpose is to ensure that an applicant provides evidence that he or she is enrolled in a full-time course of study.
The Court accepts that the provision requires evidence to be provided that the applicant is enrolled at the time of decision.
[47] The Court accepts the submission that to accept that an applicant can rely on an expired CoE at the time of decision would defeat the purpose of cl 572.222. The Court asks itself ‘If that was allowed, why would the applicant need a student visa when he had no course to study?’.
[48] The Explanatory Statement to the amendment refers to the changes being to:
‘better target those markets that attract genuine overseas students.
See also cll 572.221(2)(b)(i)(A), 572.223(1) and (2)(a)(ii). Without proof at the time of decision that the applicant is enrolled, or is the subject of an offer of enrolment, genuineness cannot be proved.
16. This reported decision has not been challenged on appeal or doubted in any other court. Comity requires me to follow it unless I can be satisfied that it is clearly wrong. It is clear from that case that it was the intention of the legislation was that there be a valid COE in existence at the time of decision. In this case there was not. The applicant argues that this does not matter because if one adopts the literal interpretation of the clause that he suggests then his failure to be enrolled can be given as a reason for him to be considered not to be a genuine applicant for entry and stay as a student under Clause 572.223. But as Turner FM indicates this would lead one to ask what was the purpose of Clause 572.222? I cannot see that his Honour’s acceptance of the submissions of the Minister in that case and his consequent findings to be clearly wrong and I would follow them.
Judicial comity requires that unless the Court as presently constituted considers Lamichhane and Singh to be plainly wrong, then those judgments ought to be followed: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Ko v Minister for Immigration and Border Protection [2019] FCCA 2176 at [15] per Judge Lucev; Lamichhane at [16] per Judge Raphael.
For the reasons set out in Singh and Lamichhane, albeit there in relation to the identically worded cl 572.222 of Sch 2 to the Migration Regulations, the plain meaning of cl 573.222(1) of Sch 2 of the Migration Regulations is therefore that an applicant is required to be undertaking a course of study at the time of the Tribunal Decision. Singh and Lamichhane are not, in the Court’s view, plainly wrong, and should therefore be followed. That interpretation is also consistent with the wording of cl 573.222 of Sch 2 to the Migration Regulations read as a whole. Clause 573.222(2) and (3) of Sch 2 to the Migration Regulations refer to an applicant who “is enrolled in an acceptable course”, and therefore the reference in cl 573.222(1) of Sch 2 to the Migration Regulations to “undertaking a course of study” must mean something different to, and narrower than, “is enrolled” in a course in cl 573.222(2) and (3) of Sch 2 to the Migration Regulations. In this case that different and narrower meaning is that set out in Lamichhane and Singh. The fact that the meaning of “undertaking a course of study” in cl 573.222(1) of Sch 2 to the Migration Regulations does not simply mean being enrolled in a course or having a COE for a course is confirmed by consideration of cl 573.223(1A) of Sch 2 to the Migration Regulations which at the relevant time (it has since been repealed) referred to an “applicant who is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student”. If, as Ms Joshi contends, simply having a COE for the relevant course was sufficient to satisfy the criteria in cl 573.222(1) of Sch 2 to the Migration Regulations then the words “who has a confirmation of enrolment” which appeared in the neighbouring cl 573.223(1A) of Sch 2 to the Migration Regulations, or perhaps the words “having undertaken”, would likely have been used in cl 573.222(1) of Sch 2 to the Migration Regulations rather than the words “who is undertaking a course of study”. It follows that the issue for the Tribunal in Ms Joshi’s case was whether she was currently (at the time of the Tribunal Decision) “undertaking” a course.
Whilst Ms Joshi had a COE it did not therefore follow that Ms Joshi was “undertaking a course of study” at the time of the Tribunal Decision. In fact, on her own admission, she was not doing so at that time, because she had “completed” the MPA course, and could therefore no longer be “undertaking” it, and was therefore unable to meet the criteria for the Student Visa prescribed in cl 573.222(1) of Sch 2 to the Migration Regulations. This is the obverse of a student who has enrolled, and has a COE, but has never commenced the course of study for which they were enrolled: in which circumstances they could not be said to be “undertaking” the course of study in which they were enrolled. The Tribunal was therefore correct to find that it was not satisfied that Ms Joshi met the criteria prescribed for the Student Visa.
Judicial Review Application and Further Proposed Amended Judicial Review Application
Noting that the five grounds of the Judicial Review Application are replicated as five of the 12 grounds of the Further Proposed Amended Judicial Review Application it is convenient for the Court to first consider the Judicial Review Application, as filed, before going on to consider whether leave ought to be granted to file the Further Proposed Amended Judicial Review Application.
Grounds - Judicial Review Application
The Judicial Review Application contained grounds numbered 4 to 8 which are set out below at [36] (ground 4), [42] (ground 5), [49] (ground 6), [57] (ground 7), and [59] (ground 8).
Ground 4
Ground 4 is as follows:
The Tribunal did not place sufficient weight on the loss and suffering that would occur if I was not given another opportunity to continue with my studies.
At the time of the Tribunal Hearing Ms Joshi had already been studying in Australia on temporary student visas for some eight years: CB 113-117.
The Minister’s submission that Ms Joshi never contended before the Tribunal that she sought an opportunity to continue her studies is wrong. In fact, Ms Joshi:
(a)provided evidence that she had completed her MPA: CB 93-94;
(b)indicated that she had been looking for job offers in her home country: CB 122;
(c)told the Tribunal that she had “completed” her studies: CB 163-164 at [11];
(d)specifically sought that the Tribunal “remit her application to remove the refusal from her profile”: CB 122 and 163-164 at [11]; and
(e)was understood by the Tribunal to be seeking to have the Delegate’s refusal to grant her the Student Visa removed, and that she “would apply for a 485 visa or something else in the future”: CB 163-164 at [11].
At hearing before this Court Ms Joshi contended that she did not tell the Tribunal that she wanted the “refusal” removed from her record. But there is no evidence before the Court to support Ms Joshi’s contention, and it cannot therefore now be accepted because, in the absence of a transcript of the Tribunal Hearing, the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision itself: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 (“NAOA”) at [21] and [24] per Beaumont, Merkel and Hely JJ; SZTBR v Minister for Immigration and Border Protection [2014] FCA 582 (“SZBTR”) at [6] per Pagone J; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 (“Brar (No 2)”) at [15] per Judge Lucev. Further, what was said by the Tribunal in respect of Ms Joshi’s comments concerning removing the refusal from her record is consistent with what was put by Ms Joshi’s migration agent in written submissions to the Tribunal prior to the Tribunal Hearing: CB 122, namely that (without alteration):
As she has completed her degree in Professional Accounting she is looking forward to the Tribunal to remit her application to remove the refusal from her profile.
The reference by Ms Joshi to a “485 visa”, being a Subclass 485 Temporary Graduate visa under cl 485 of Sch 2 to the Migration Regulations is indicative of Ms Joshi’s apparent desire to undertake further study, and although the Tribunal expressly acknowledged Ms Joshi’s position that she effectively wanted to quash the Delegate’s Decision and apply for a Subclass 485 visa, it also, and correctly, noted that its task on review was to take a “fresh look” at the Student Visa application and consider whether Ms Joshi met the requirements for the grant of the Student Visa: CB 163 at [10].
The question for the Tribunal to determine was if, on the evidence before it, Ms Joshi affirmatively satisfied the criteria for the grant of the Student Visa, and if she did not, s 65(1) of the Migration Act imposed a mandatory obligation on the Tribunal to refuse the Student Visa: see [24]-[25] above, and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ; Kemei v Minister for Immigration and Border Protection [2019] FCCA 1735 (“Kemei”) at [29] per Judge Lucev. It follows that Ms Joshi’s submission that the Delegate’s Decision be reconsidered so as to allow her to lodge a further visa application is misconceived. Ms Joshi told the Tribunal that she was not enrolled in a course, and had completed her studies (that is, the MPA course), and did not have a current offer of enrolment. In the circumstances the Tribunal was bound to affirm the Delegate’s Decision to refuse to grant Ms Joshi a Student Visa, but to do so not because she did not meet the GTE criterion, but because of the operation of s 65(1) of the Migration Act and the criteria in cl 573.222 of Sch 2 to the Migration Regulations, as explained at [24]-[33] above. The question of loss and suffering if Ms Joshi was not granted a further opportunity to study was therefore irrelevant to the question to be determined by the Tribunal. Further, and in any event, questions of weight to be given to the evidence are, generally speaking, matters for the Tribunal to determine in its assessment of factual matters, and as such do not generally give rise to jurisdictional error in a Tribunal decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [61] per McKerracher, Griffiths and Rangiah JJ.
It follows that ground 4 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 5
Ground 5 is as follows:
5.The Tribunal showed apprehended bias in applying Ministerial Direction No 53 and the issues in that direction to my case. The Tribunal also showed apprehended bias in applying clause 572.222 of Migration Regulations to my case.
Bias is a serious allegation that must be “distinctly made and clearly proved”: Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001); 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (“SZNPG”) at [18] per North and Lander JJ. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal Decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2007] 77 ALD 23 at [21] per Kenny J; SCAA v Minister for Immigration [2002] FCA 668 (“SCAA”) at [38] per von Doussa J; WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3] per Hill J.
In determining whether a decision of an administrative decision-maker such as the Tribunal is affected by apprehended bias the Court observes that:
(a)it need not be established that the Tribunal was devoid of any pre-disposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal Member to be open to persuasion: Jia Legeng at [72] and [86] per Gleeson CJ and Gummow J;
(b)such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917; CLR at 352 per Mason J; SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [22] per Flick J;
(c)apprehended bias in the context of an administrative decision-making is not attended with the restrictions that apply to a case of judicial pre-judgment: Jia Legeng at [179]-[187] per Hayne J and [244]-[245] per Callinan J. In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] per Allsop J, the Federal Court observed in this regard that:
The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
There is no evidence before the Court to establish apprehended bias. There was, for example, no transcript of the Tribunal Hearing put before the Court by Ms Joshi. In the absence of a transcript the best evidence of what occurred before the Tribunal is the Tribunal Decision itself: NAOA at [21] and [24] per Beaumont, Merkel and Hely JJ; SZTBR at [6] per Pagone J; Brar (No 2) at [15] per Judge Lucev.
Ministerial Direction No 53 (“Direction 53”) is applied by decision-makers in determining whether an applicant for a Student Visa meets the GTE criterion in cl 572.223 of Sch 2 to the Migration Regulations. The Tribunal at CB 163 at [11] noted that the Delegate had refused the Student Visa on the basis that the GTE criterion was not met. The issue before the Tribunal, however, was whether Ms Joshi was currently undertaking a course of study: see [32] above. Ms Joshi’s reference to Direction 53 is therefore misconceived as Direction 53 was not relevant to the determinative issue before the Tribunal. Accordingly, there is no proper or relevant basis for Ms Joshi’s complaint that the Tribunal Decision was affected by apprehended bias by way of its application of Direction 53.
Insofar as ground 5 alleges that the Tribunal was biased because “in applying” cl 572.222 of Sch 2 to the Migration Regulations (which relevantly was in the same terms as cl 573.222 of Sch 2 to the Migration Regulations), this also is misconceived. The Tribunal Decision merely adverts to cl 572.222 of Sch 2 to the Migration Regulations, it does not apply it, and merely adverting to it is not, in the circumstances, evidence of apprehended bias. If, however, it was intended to allege that the Tribunal was biased because “in applying” cl 573.222 of Sch 2 to the Migration Regulations, such an allegation cannot be made. All that the Tribunal did was to apply the relevant criterion in the relevant clause of Sch 2 of the Migration Regulations to the facts of Ms Joshi’s case. That was not apprehended bias, but rather the undertaking of the very task with which the Tribunal had been charged under s 65(1) of the Migration Act. Thus, in circumstances where the Tribunal was simply applying a matter of fact – that Ms Joshi was not currently undertaking a course of study because she had “completed” the MPA course in which she was enrolled – to the relevant criteria, it is difficult to understand how it is that the Tribunal Decision might be affected by apprehended bias. Ms Joshi has therefore not firmly established (or, indeed, at all) that the Tribunal Decision was affected by apprehended bias.
It follows that ground 5 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 6
Ground 6 is as follows:
6.The Tribunal displayed bias towards me by refusing to hear me. The Tribunal it seems had made up its mind that I would not be successful.
The law with respect to bias generally is set out at [44]-[45] above. With respect to actual bias, which may be being alleged in ground 6, it has been said that it will be a “rare and exceptional case” where actual bias can be demonstrated solely from the published reasons of an administrative decision-maker: SCAA at [38] per von Doussa J.
A refusal to hear a party might evidence actual or apprehended bias, but is more likely a denial of procedural fairness by reason of a failure to fulfil the requirements under s 360(1) of the Migration Act. Section 360(1) of the Migration Act provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal:
(a)was required to invite Ms Joshi to appear before it to give evidence and present arguments relating to the issues arising on the Tribunal’s review of the Delegate’s Decision: Migration Act, s 360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(b)was required to put Ms Joshi on notice of the determinative issues in the review in order that she may have an opportunity to present arguments or evidence on those issues; and
(c)in circumstances where specific aspects of a matter may be referred to in the Tribunal Decision and may be open to doubt, the Tribunal must at least ask for an explanation or expansion of the evidence in relation to those specific aspects: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ,
and as is evident from the Tribunal Hearing Invitation at CB 99-100, the Tribunal Hearing record at Supplementary CB 1-2, and the Tribunal Decision at CB 163-164 at [9]-[11], the Tribunal did what it was required to do.
Ms Joshi’s assertion that the Tribunal refused to “hear” her is undermined by:
(a)the fact that the Tribunal invited Ms Joshi, in accordance with s 360(1) of the Migration Act, to the Tribunal hearing for the purpose of her giving evidence and presenting arguments to the Tribunal relating to the issues in her case: CB 99;
(b)the Tribunal Hearing Invitation requesting Ms Joshi, amongst other things, to provide evidence of a current COE and documents “that show you are currently enrolled in a course, or have an offer of enrolment in a registered course”: CB 100;
(c)the Tribunal Decision which records that “[w]e [the Tribunal and Ms Joshi] have discussed your long enrolment history”: CB 163 at [9], and that Ms Joshi had “told” the Tribunal she had “completed” her MPA, and that she now wanted a visa so she did not have a refusal on her record: CB 163 at [9];
(d)the Tribunal Hearing record which indicates that the Tribunal Hearing went for more than an hour, from 9.30am to 10.36am on 21 September 2017, and that the Tribunal’s oral decision was then given, commencing at 10.36am: Supplementary CB 1-2; and
(e)Ms Joshi’s failure to produce a transcript of the Tribunal Hearing, in the absence of which the best evidence of what occurred before the Tribunal is the Tribunal Decision itself: NAOA at [21] and [24] per Beaumont, Merkel and Hely JJ; SZTBR at [6] per Pagone J; Brar (No 2) at [15] per Judge Lucev.
Ms Joshi otherwise provided no evidence to the Court capable of establishing that:
(a)the Tribunal had a pre-existing state of mind which disabled the Tribunal from undertaking, or rendered the Tribunal unwilling to undertake, any proper assessment of relevant materials: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
(b)a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of the materials and the relevant issues: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
It follows that:
(a)Ms Joshi has not established the factual basis for her allegation of bias, that is that she was not heard by the Tribunal, and therefore her allegation of bias cannot succeed; and
(b)in the alternative, there is no basis for concluding that:
(i)the Tribunal Decision was otherwise affected by actual or apprehended bias; or
(ii)Ms Joshi was denied procedural fairness by the Tribunal.
Ground 6 is therefore not made out and fails to establish jurisdictional error in the Tribunal Decision.
Ground 7
Ground 7 provides as follows:
7. The Tribunal failed to accord procedural fairness to me by refusing to allow me to explain my position. I wanted to properly explain my circumstances but the Tribunal would not listen to me.
Ground 7 is effectively the same as ground 6, and for the same reasons (and see especially [54] above) fails to establish jurisdictional error in the Tribunal Decision.
Ground 8
Ground 8 provides as follows:
8. I seek that my case be sent back to the AAT for a fresh fair hearing.
Ground 8 is not a proper ground of judicial review. It requests that the matter be remitted to the Tribunal for a “fresh fair hearing”. It therefore does no more than seek the relief available if jurisdictional error is established in the Tribunal Decision, and does not of itself establish jurisdictional error in the Tribunal Decision.
Conclusion - Judicial Review Application
In circumstances where grounds 4 to 8 do not establish jurisdictional error it follows, subject to the application to amend the Judicial Review Application in terms of the Further Proposed Judicial Review Application, that the Judicial Review Application must be dismissed.
Further Proposed Amended Judicial Review Application
Leave to amend
Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth) (“GFL Rules”) the Court has the power to allow amendments to documents, including originating applications such as the Judicial Review Application. Rule 7.01(1) of the GFL Rules provides as follows:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
Rule 7.01(1) of the GFL Rules (then r 7.01(1) of the Federal Magistrates Court Rules 2001 (Cth) but identically worded) has been described as a discretionary power which is “extensive” and capable of exercise at any stage of proceedings, although earlier is better than later: SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443 at [33]-[34] and [36] per Graham J (from which an application for special leave to appeal was refused by the High Court: SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639). In SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 (“SZSRR”) at [47]-[48] per Gleeson J the Federal Court (dealing with r 7.01(1) of the then Federal Circuit Court Rules 2001 (Cth) but still identically worded to r 7.01 of the GFL Rules) stated:
47. At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48. Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile …. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out …. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding ….
[Citations omitted].
In addition to consideration of the prospects of success of any proposed amendment: SZSRR at [47] per Gleeson J, considerations relevant to the exercise of the discretion to allow an amendment pursuant to what is now r 7.01 of the GFL Rules have been held to include:
(a)the nature and importance of the amendment to the applicant, and if it is in the interests of justice to grant leave to amend the application;
(b)whether the party seeking the amendment is acting in good faith and not unnecessarily delaying proceedings, and in particular if an explanation is to be given for any delay in making the amendment: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
(c)whether any injustice, with particular focus on the stage in which the proceedings are at, cannot be adequately compensated for; and
(d)case management issues (with particular reference to AON Risk at [30] per French CJ and at [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell J).
See: Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 at [23] per Judge Lucev.
Prospects of success
The Court will commence by considering the prospects of success of the Further Proposed Judicial Review Application.
Further proposed grounds in three parts
The Further Proposed Amended Judicial Review Application contains twelve proposed grounds. The further proposed grounds fall naturally into three parts as follows:
(a)further proposed grounds 1-7 which are entirely new proposed grounds;
(b)further proposed grounds 8 and 9 which have been struck through by Ms Joshi, but which, save for that, are in the same terms as grounds 4 and 5 of the Judicial Review Application; and
(c)further proposed grounds 10, 11 and 12 which are in the same terms as grounds 6, 7 and 8 of the Judicial Review Application.
Further proposed grounds 8-12
It is convenient to commence with further proposed grounds 8-12. As indicated at [67(b)] above further proposed grounds 8 and 9 have been struck through, seemingly indicating they are not being pursued. If, however, they are pursued they can be considered together with grounds 10-12. Grounds 8-12 are identical to grounds 4-8 of the Judicial Review Application considered above, and which the Court has found do not establish jurisdictional error in the Tribunal Decision. These grounds cannot therefore succeed.
It follows that further proposed grounds 8-12 have no prospect of success, and to grant the further proposed amendments with respect to these grounds would be “obviously futile”: SZSRR at [48] per Gleeson J.
Further proposed grounds 1 to 7
Further proposed ground 1
Further proposed ground 1 is as follows:
That the Tribunal has committed a jurisdictional error by erroneously holding that the tribunal was of the opinion that the applicant did not hold a valid COE for a course at the time of hearing in the tribunal. Respectfully, the tribunal gravely erred on this issue and completely lost sight of the fact that the applicant had successfully completed all the courses she was earlier enrolled in Australia and also held a valid COE at the time when her application was refused by the delegate of the Minister and also at the time when the final hearing took place in the tribunal and the impugned order was passed by the AAT. Therefore, it was wrong on the part of the Tribunal to conclude that the applicant did not have a valid COE at the time of the decision.
Ms Joshi therefore contends that the Tribunal erred by:
(a)finding that she did not hold a current COE; and
(b)overlooking the fact she did in fact hold a valid COE at the time of the Tribunal Decision.
In the Proposed January and February 2022 Affidavits Ms Joshi annexes a COE for the MPA that she had completed at the time of the Tribunal Hearing with a course start date of 16 November 2015 and end date of 30 November 2017. The Minister objects to these affidavits on the basis that they annex material that was not before the Tribunal.
The Court notes that Tribunal Hearing Invitation (dated 18 August 2018) specifically requested that Ms Joshi provide a “copy of your current [COE]” and “documents that show you are currently enrolled in a course”, “as required for the grant of a student visa”: CB 100. There is no evidence that Ms Joshi provided a current COE to the Tribunal in response to the Tribunal Hearing Invitation.
It is not generally open to the Court on a judicial review application to consider material which was not before the relevant administrative decision-maker: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per Nicholson J; Kemei at [23] per Judge Lucev, unless it bears upon some jurisdictional error: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J, but otherwise a jurisdictional error is not made by the Tribunal if it does not consider relevant material if that material is not actually put before it by an applicant, and for this Court to have regard to such material would entail this Court undertaking impermissible merits review contrary to long-standing principle that it cannot do so in judicial review proceedings under the Migration Act: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is trite law that this Court does not sit to determine the factual merit of Ms Joshi’s claim: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.
Even if the evidence of the COE was before the Tribunal, it would have made no difference because:
(a)for reasons explained at [27]-[33] above cl 573.222(1) of Sch 2 to the Migration Regulations required Ms Joshi to be undertaking a course of study, and:
(i)Ms Joshi confirmed, in written submissions to the Tribunal, that she had completed the MPA: CB 122, and provided a letter from her education provider confirming that the MPA course was completed on 10 July 2017: CB 93; and
(ii)Ms Joshi told the Tribunal Hearing that she had “completed” her studies: CB 163 at [11]; and
(b)whilst the COE Ms Joshi now seeks to rely on suggests that the MPA course had an end date of 30 November 2017, it is clear that Ms Joshi completed the MPA course well before this date. It would make a nonsense of the ordinary meaning of cl 573.222(1) of Sch 2 to the Migration Regulations if a course that had already been completed could form the basis upon which the grant of a further student visa for that very course could be considered.
It follows that further proposed ground 1 has no prospect of success.
Further proposed grounds 2 and 3
Further proposed grounds 2 and 3 both relate to s 359AA of the Migration Act, and are as follows (original emphasis):
2.The Tribunal committed a jurisdictional error by failing to comply with s.359AA of the Migration Act 1958. (the Act). As required by law under s359AA (1)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii) invite the applicant to comment on or respond to it; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the application [sic] reasonably needs additional time to comment on or respond to the information.
The Tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. A review of the decision will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant. The examples of when the Tribunal committed these jurisdictional errors are listed below.
3. The Tribunal made a jurisdictional error under s.359AA of the Act by failing to give the applicant sufficient particulars and an opportunity to respond to the Tribunal’s conclusion that the applicant’s present COE was not valid and if in the tribunal’s opinion it was not then what was the basis for forming that opinion. The main reason for refusal of the merits review was:
As you are not currently enrolled or do not hold a current offer of enrolment, you do not satisfy clause 573.222 which is a pre-requisite for the grant of a student visa.
The tribunal completely lost sight of the fact that the applicant had earlier made detailed submissions in which she had explained that the present course will benefit her a lot. The tribunal has miserably failed in its duty by not even mentioning the submissions covering all the aspects of Ministerial Direction 69 which is the basis of the tribunal’s decision. The tribunal gravely erred in holding that applicant did not hold a valid COE without even confirming this fact. Admittedly, the tribunal decided the matter on the 21st of September 2017 and a bare look at the COE of the applicant would show that it was valid until the 30th of November 2017. No details were given to the applicant as to what particulars were taken into account when forming the highlighted conclusion, nor was the applicant given the opportunity to respond to or comment on these adverse inferences which were taken into account. The order passed by the tribunal is liable to be quashed on this ground alone.
Ms Joshi’s contention is that the Tribunal breached s 359AA of the Migration Act, or otherwise denied her procedural fairness, by failing to put to her for comment, findings and concerns that were critical to the review by failing to provide particulars of “many of the provisions, evidence, conclusions and facts” taken into account, and by failing to give her an opportunity to respond to the Tribunal’s conclusion that her COE was “not valid”. It is necessary to read s 359AA of the Migration Act in conjunction with s 359A of the Migration Act. The former provision confers a power which, if exercised, relieves the Tribunal of the duty imposed by the latter provision: see s 359A(3) of the Migration Act. It follows that any failure to exercise the power in s 359AA of the Migration Act is not a jurisdictional error. Any failure to exercise the power in s 359AA of the Migration Act will simply cast the Tribunal back to s 359A of the Migration Act: see, for example, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415.
Sections 359AA and 359A of the Migration Act are relevantly as follows:
Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so-the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non disclosable information.
Section 360(1) of the Migration Act is set out at [52] above.
“Information” for the purposes of s 359A of the Migration Act does not include the existence of doubts, inconsistencies or the absence of evidence. Nor does it “encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471 at [24(iii)] per Finn and Stone JJ, cited with approval in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
No information has been identified which enlivened the Tribunal’s obligations under s 359A of the Migration Act. There is no evidence that Ms Joshi provided the Tribunal with a copy of her COE. Despite the Tribunal having accessed the Provider Registration and International Student Management System (“PRISMS”) records for Ms Joshi on 24 August 2017: CB 113-114, under s 359A(1) of the Migration Act the PRISMS records had no relevant application because the Tribunal ultimately relied on Ms Joshi’s own evidence that she was not enrolled in a course of study: CB 163 at [9]; 163-164 at [11] and 164 at [14]-[15], and that evidence fell within s 359A(4)(b) of the Migration Act. In any event, the PRISMS record shows that, as at 24 August 2017, Ms Joshi had “Finished” the MPA course: CB 114, a fact consistent with the evidence that Ms Joshi gave the Tribunal, and therefore, on the basis of the PRISMS records, there would have been no reason for the Tribunal to doubt Ms Joshi’s evidence given to the Tribunal that she had “completed” the MPA course: CB 163 at [9].
Ms Joshi’s contention that the Tribunal should have looked at the COE to satisfy itself that it was valid until 30 November 2017 is misconceived. Ms Joshi’s evidence to the Tribunal on 21 September 2017 was that she had completed the MPA course “a couple of months ago”: CB 163 at [9], and the COE could therefore plainly not have satisfied the requirements for the grant of the Student Visa that she be “undertaking” a course. The Tribunal relied, and was entitled to rely, on Ms Joshi’s own evidence that she had completed the MPA course, and that she was not presently enrolled in a course: CB 163-164 at [11].
Insofar as further proposed ground 3 might be said to assert that the Tribunal should have, under ss 359AA or 359A of the Migration Act, put to Ms Joshi its view that the COE was “not valid”, there is no basis for such a claim as the Tribunal did not ever find that the COE was “not valid”. The Tribunal rather found that Ms Joshi did not satisfy cl 573.222(1) of Sch 2 to the Migration Regulations because she was not currently enrolled in a course or did not hold a current offer of enrolment: CB 164 at [14]. It follows that there is no factual basis to Ms Joshi’s assertion in ground 3 that the Tribunal should have, under ss 359AA or 359A of the Migration Act, put to her its view that the COE was “not valid”.
In further proposed ground 3 in relation to procedural fairness Ms Joshi asserts that a review of the Tribunal Decision “will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant”. This aspect of further proposed ground 3 fails for the same reasons as the claims in respect of s 359AA (and by extension s 359A) of the Migration Act dealt with at [81]-[84] above failed. Further, for the reasons set out at [54] above there was, in any event, no denial of procedural fairness for the purposes of s 360(1) of the Migration Act, or otherwise. The only basis for the Tribunal Decision was that Ms Joshi did not satisfy the requirement in cl 573.222(1) of Sch 2 to the Migration Regulations that she be “undertaking” a course: CB 164 at [11]-[14], based on what Ms Joshi “told” the Tribunal, namely that she had “completed” the MPA course: CB 163 at [9].
It follows Ms Joshi has no prospect of establishing any breach of s 359AA of the Migration Act, as alleged, or by extension of s 359A of the Migration Act, or that she was otherwise denied procedural fairness in relation thereto, and that further proposed grounds 2 and 3 therefore have no prospect of success.
Further proposed grounds 4 and 5
Further proposed ground 4 is as follows:
4.That the tribunal asked itself a completely wrong question as to whether the applicant was eligible to be granted a student visa or not because she did not have a valid COE. The tribunal had put the cart before the horse by jumping to the conclusion that she did not have a valid COE without even first looking at the actual COE.
Further proposed ground 5 is as follows (original emphasis):
5. That the Second Respondent erred in holding that the applicant did not meet clause 573.222 of the regulations by holding:
As you do not meet cl.573.222 and are therefore not eligible for the grant of a student visa, the Tribunal does not intend to consider whether you meet the Genuine Temporary Criteria.
Clause 573.222 is reproduced below for the kind perusal of this Honourable Court.
…. [Clause 573.222 of Sch 2 to the Migration Regulations has been omitted as it appears at [26] above]
Therefore the only requirement of Clause 573.222 is that a COE with a valid date was to be given to the delegate/AAT at the time of the decision wherein the education provider was not a suspended provider. Admittedly, the COE pertaining to the applicant was valid until the 30th of November 2017 and the decision was given by the tribunal on the 21st of September 2017. Thus it was a valid COE and the provider Melbourne Institute of Technology was never suspended by the department.
The decision of the tribunal is liable to be quashed on this ground.
As set out at [84] above the suggestion that the Tribunal considered the question of whether Ms Joshi had a “valid COE” has no factual basis, and is misconceived. Further, the argument now put by Ms Joshi that her COE was valid, despite the MPA course having being completed, is not the case that Ms Joshi put before the Tribunal. Before the Tribunal Ms Joshi argued that as she had completed the MPA course she wanted the Tribunal to remit the matter to the Delegate for reconsideration because “she has completed her studies as a genuine student and the reason for refusal was not right”: CB 122, and she did not want a refusal on her record: CB 163 at [9].
As set out at [25] above, under s 65(1) of the Migration Act above the question for the Tribunal to determine was if, on the evidence before it, Ms Joshi affirmatively satisfied the criteria for the grant of the Student Visa, and if she did not, s 65(1) of the Migration Act imposed a mandatory obligation on the Tribunal to refuse to grant the Student Visa (or to affirm the Delegate’s Decision to do so). In relation to the criteria to be applied, for reasons set out at [27]-[33] above, the plain meaning of cl 573.222(1) of Sch 2 of the Migration Regulations is that an applicant is required to be “undertaking” a course of study at the time of the Tribunal Decision. The Tribunal correctly found, on Ms Joshi’s own evidence, that she was not currently enrolled in a course and had no offer of enrolment, and therefore did not meet the criteria in cl 573.222(1) of Sch 2 of the Migration Regulations. The Tribunal therefore:
(a)correctly affirmed (albeit for different reasons) the Delegate’s Decision to refuse Ms Joshi the Student Visa; and
(b)did not ask itself the wrong question.
It follows from [89]-[90] above that further proposed grounds 4 and 5 have no prospect of success.
Further proposed ground 6
Further proposed ground 6 is as follows (original emphasis):
The tribunal has committed a jurisdictional error by basing its decision on assumptions and presumptions by observing:
As you have heard me explain to another applicant here today it is only when someone is enrolled in a course is it possible to work out other evidence required like the financial evidence which includes course fees and overseas health cover which is required for the duration of the intended course.
Shockingly, the tribunal has denied “Procedural Fairness” to the applicant and has based the decision on the likelihood factor without supporting its conclusion with any cogent evidence. How could the tribunal reach this strange conclusion that the applicant would have understood everything that was explained to another applicant by the Member? A duty is cast on the tribunal to explain the requirements and the reasons which would be the reasons for not granting the visa if those requirements were not met by the applicant.
In the Tribunal Decision at CB 164 at [12] the Tribunal made the observation set out in the emphasised paragraph in further proposed ground 6. Ms Joshi now says that by assuming that Ms Joshi understood what was explained to another applicant she was denied procedural fairness.
Section 357A(1) and (3) of the Migration Act provides as follows:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
and s 360(1) of the Migration Act is set out at [52] above.
As this was a case to which s 357A of the Migration Act applied, the Tribunal was not required to afford Ms Joshi normal common law procedural fairness in relation to the matters dealt with in Div 5 of Pt 5 (including therefore s 360(1)) of the Migration Act: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 at [34]-[42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412. In any event the Tribunal complied with the statutory obligation under s 360(1) of the Migration Act by reason of:
(a)the Tribunal Hearing Invitation inviting Ms Joshi to attend the Tribunal Hearing for the purpose of her giving evidence and presenting arguments to the Tribunal relating to the issues in her case: CB 99-101;
(b)the Tribunal Hearing Invitation requesting Ms Joshi, relevantly, to provide evidence of a current COE and documents “that show you are currently enrolled in a course, or have an offer of enrolment in a registered course”: CB 100; and
(c)the Tribunal Decision which records that Ms Joshi’s “long enrolment history” was discussed: CB 163 at [9], and that Ms Joshi had “told” the Tribunal she had “completed” the MPA course: CB 163 at [9].
It is relevant to observe that the Tribunal Hearing record indicates that the Tribunal Hearing took more than an hour, from 9.30am to 10.36am on 21 September 2017: Supplementary CB 1-2. The length of the Tribunal Hearing, together with the matters referred to in the preceding paragraph, make it clear that the question of whether or not Ms Joshi was, as at the time of the Tribunal Decision, currently “undertaking” a course (or at least the MPA course) was discussed at the Tribunal Hearing. That fact renders irrelevant, for the purposes of the question to be considered by the Tribunal (as to which see [25]-[33] above), any assumption (as asserted by Ms Joshi) made by the Tribunal as to what Ms Joshi might have heard prior to the Tribunal Hearing. Any such assumption was further irrelevant for the purposes of the question, and in particular the criteria under cl 573.222(1) of Sch 2 to the Migration Regulations, to be considered by the Tribunal because the undisputed evidence, indeed Ms Joshi’s own evidence, was that she had completed the MPA course. The alleged assumption was therefore factually and legally irrelevant to the question to be considered by the Tribunal, and therefore incapable of constituting jurisdictional error in the Tribunal Decision.
Procedural fairness is a practical concept concerning itself with the avoidance of practical injustice: Re Minister for Immigration and Multicultural ad Indigenous Affairs: Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ. Having regard to the matters set out at [95]-[96] above, Ms Joshi has not established that any error arising from any assumption by the Tribunal about what she heard on the day of the Tribunal Hearing prior to the Tribunal Hearing involves practical injustice in that there is no evidence that there was a failure to accord her an opportunity to present evidence or make submissions about the merits of the Tribunal’s evaluative process: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398 at [47]-[49] per Gageler J and [80]-[81] per Gordon J.
It follows from [95]-[97] above that further proposed ground 6 does not have any prospect of success.
Further proposed ground 7
Further proposed ground 7 is as follows:
That the Second Respondent erred in failing to consider relevant material, being the COE that has not been taken into consideration by the AAT while deciding the matter. The tribunal could have easily obtain the COE through PRISM and the present situation would not have arisen. The AAT has gravely erred in reaching a conclusion without any material basis.
The assertion in this ground that the “present situation would not have arisen” had the Tribunal considered the COE is fallacious. The PRISMS record shows that, as at 24 August 2017, Ms Joshi had “Finished” the MPA course: CB 114, a fact consistent with the evidence that Ms Joshi gave the Tribunal that she had “completed” the MPA course: CB 163 at [9]. The PRISMS records would therefore (as the Court has already found at [82] above) have provided no reason for the Tribunal to doubt Ms Joshi’s evidence of completion of the MPA course. The PRISMS records could not therefore have assisted Ms Joshi in satisfying the criteria under cl 573.222(1) of Sch 2 to the Migration Regulations. It follows that further proposed ground 7 does not have any prospect of success.
Conclusion – Further Proposed Grounds – prospects of success
It follows from [68]-[100] above that none of the further proposed grounds have any prospect of success. This factor weighs heavily against the Court exercising its discretion to grant leave to amend the Judicial Review Application as the proposed amendments are “obviously futile”: SZSRR at [48] per Gleeson J.
Delay
Pursuant to Order 3 of the Registrar’s 2017 Orders Ms Joshi was not required to file an amended Judicial Review Application until 28 days before the hearing which was to be listed on a day to be advised, but which was never advised. In that respect there was, technically, no delay prior to the Registrar’s 2017 Orders being set aside by the September 2021 Orders, but it is the case that Ms Joshi had more than three years prior to the making of the September 2021 Orders in which to file any amended Judicial Review Application.
Order 2 of the September 2021 Orders provided for Ms Joshi to file “any amended application with particulars” by 2 November 2021. Ms Joshi did not comply with this order, but almost three months later, on 27 January 2022, she sought to file the Proposed Amended Judicial Review Application. Order 1 of the Consent Orders (dated 7 February 2022) provided for any Proposed Amended Judicial Review Application to be filed by 8 February 2022. Again, Ms Joshi did not comply with this order, but on 24 February 2022 sought to file the Further Proposed Judicial Review Application. It is relevant to observe that the Further Proposed Judicial Review Application is in the same terms as the Proposed Amended Judicial Review Application, a copy of which had seemingly been provided to the Minister’s lawyers at or about the time of the attempt to file the Proposed Amended Judicial Review Application on 27 January 2022.
Whilst technically there was no delay in the time between the Registrar’s 2017 Orders and the September 2021 Orders the Court notes that there was a more than three year window in which Ms Joshi did not avail herself of the opportunity to file an amended Judicial Review Application. When the opportunity to file an amended Judicial Review Application was afforded to Ms Joshi by the September 2021 Orders she did not take that opportunity, and when almost three months later she was afforded the opportunity by the Consent Orders to file the Proposed Amended Judicial Review Application Ms Joshi also failed to take that opportunity, resulting in the necessity to now seek leave to amend in terms of the Further Proposed Judicial Review Application. The delays, or more correctly, the failures to comply, were not explained by Ms Joshi.
The failure to comply with the September 2021 Orders or the Consent Orders ultimately, however, had no effect upon either:
(a)the hearing of the matter, which proceeded on 1 March 2022 as per the September 2021 Orders, and there being therefore no “irreparable element of unfair prejudice in unnecessarily delaying [the] proceedings”: AON Risk at [5] per French CJ; or
(b)the matters to be considered, as had either the September 2021 Orders or the Consent Orders been complied with the grounds to be considered by the Court would have been the same as the further proposed grounds ultimately considered on the application for leave to amend in terms of the Further Proposed Judicial Review Application.
In the circumstances set out above delay does not weigh against the Court exercising its discretion to grant leave to amend the Judicial Review Application.
Prejudice and case management
The Minister did not assert any prejudice if leave to amend the Judicial Review Application were granted. Having particular regard to what is said at [105] above the Court is unable to discern any particular prejudice to the Minister if leave to amend the Judicial Review Application were granted, save that arising from having to deal with grounds that have no prospect of success, but as the parties (and the Court in these Reasons for Judgment) have, in essence, already dealt with them on the application for leave to amend that prejudice goes nowhere. It also follows from this that no issue as to case management arises as the proposed further amended grounds have, in essence, been addressed by both parties in submissions, and by the Court in these Reasons for Judgment.
In the circumstances set out above prejudice and case management do not weigh against the Court exercising its discretion to grant leave to amend the Judicial Review Application.
Interests of justice
In relation to the interests of justice it suffices to observe that it is not in the interests of justice to allow an amendment to the Judicial Review Application which:
(a)has no prospect of success: SZSRR at [48] per Gleeson J; or
(b)which does not bring forward for consideration the real question in controversy: Oswal v Apache Corporation (No 3) [2014] FCA 835 at [5] per Gilmour J.
In this matter the proposed amendments in the Further Proposed Judicial Review Application do not have any prospect of success for the reasons set out at [68]-[100] above, and otherwise do not bring forward for consideration the real question for consideration in relation to whether the Tribunal erred jurisdictionally in finding that Ms Joshi did not meet the criteria for the grant of the Student Visa under cl 573.222(1) of Sch 2 of the Migration Regulations, and it is therefore not in the interests of justice for leave to be granted to file an amended Judicial Review Application.
It follows that this factor weighs against the Court exercising its discretion to grant leave to amend the Judicial Review Application.
Conclusion – leave to amend
The Court has weighed the various factors in relation to leave amend. In circumstances where the proposed amendments have no prospects of success and it would not be in the interests of justice for leave to be granted to file an amended Judicial Review Application those critical factors outweigh the other factors considered by the Court (delay, prejudice and case management). It follows that whilst leave to file the Further Proposed Judicial Review Application ought to be granted, the application for leave to amend the Judicial Review Application in terms of the Further Proposed Judicial Review Application must be dismissed.
CONCLUSION AND ORDERS
In conclusion, and for the reasons set out above, the Court has concluded that:
(a)leave will be granted to file the Further Proposed February 2022 Affidavit and the Further Proposed Judicial Review Application; and
(b)the:
(i)application for leave to amend the Judicial Review Application in terms of the Further Proposed Judicial Review Application; and
(ii)the Judicial Review Application,
must be dismissed,
and there will be orders accordingly.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 May 2023
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