Kahlon v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 856
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kahlon v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 856
File number(s): MLG 2937 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa – whether applicant satisfied cl 500.212 – whether Tribunal failed to consider relevant facts – whether applicant denied procedural fairness Legislation: Migration Act 1958 (Cth) ss 359, 359C, 360, 499.
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
NWWJ v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 11 October 2022 Date of hearing: 11 October 2022 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms Leonard ORDERS
MLG 2937 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVDEEP SINGH KAHLON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changes to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
The applicant is a citizen of India. He first arrived in Australia on 21 January 2014 as the holder of a Student (Subclass 573) Higher Education visa valid until 15 March 2017. On 28 February 2017, the applicant applied for a Student (Subclass 500) visa (‘Student visa’).
On 9 June 2017, a delegate of the Minister for Immigration (‘the delegate’) refused to grant the applicant his Student visa on the basis that the delegate was not satisfied that the applicant satisfied the genuine temporary entrant criterion in clause 500.2212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant sought merits review to the Administrative Appeals Tribunal (‘the Tribunal’). On 6 August 2018, the Tribunal invited the applicant to provide information pursuant to
s 359(2) of the Migration Act 1958 (Cth) (‘the Act’). The information sought was contained in a form titled “Request for Student Visa Information.” The request was sent via email to the last known email address of the applicant, it having been provided in the application for review. The applicant did not respond to the request to provide information by the date set out in the invitation, or at all.
In the request for information, the applicant was warned in the following terms if no information was received by the relevant date:
[the Tribunal]may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement it might otherwise have had under the migration act to appear before us to give evidence and present arguments
As the applicant had failed to respond to the s 359 invitation, the Tribunal found that it could proceed to make a decision without taking any further action to obtain the information pursuant to s 359C(1) of the Act and that the applicant had lost his entitlement to a face to face hearing: s 360(2)(c) and (3) of the Act.
The Tribunal considered the matter on the material that it has before it and affirmed the delegate’s decision not to grant the applicant a further visa.
The applicant now seeks judicial review of the Tribunal decision.
The administrative appeals Tribunal Decision
The Tribunal decision is relatively short. It correctly sets out that it is required to consider the criteria set out in cl 500.212 of Schedule 2 to the Regulations and in so doing, must have regard to Direction No 69 “Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications”, made under s 499 of the Act.
At paragraph 13 of the decision record, the Tribunal noted that the applicant’s Confirmation of Enrolment to study a Bachelor of Information Technology course had been cancelled due to unsatisfactory progress in the course on 5 December 2014. The Tribunal noted that one of the primary criteria for the grant of the particular Student visa was that the applicant be enrolled in, or is the subject of a current offer of enrolment in, a principal course. That is, the applicant needed to maintain enrolment in a higher education course at a similar level to the one for which the original visa had been granted.
Instead, the applicant maintained enrolment in vocational education. The Tribunal was not satisfied that the applicant had provided reasonable reasons for not undertaking this study in his home country as similar courses are already available there. He had not effectively addressed the extent of his personal ties to his home country and whether those circumstances would serve a significant incentive from to return home. The Tribunal found the applicant did not have a significant personal incentive to return to his home country.
The applicant had not addressed any military service commitments that might present as an incentive for him not to return home. He did not address any of the economic circumstances that would present as a significant incentive for him not to return to his home country. The Tribunal found that the applicant was using the Student visa program to circumvent the intention the migration program and was not a genuine applicant for entry and stay as a student. The Tribunal concluded the applicant was in breach of condition 8516 on his original visa as he was not enrolled in a principal course from 5 December 2014. Accordingly, it affirmed the decision under review.
Grounds of Judicial Review
The applicant relies on a single ground of judicial review contained in the Initiating Application filed with the Court on 1 October 2018. It is as follows verbatim:
Member made an error in establishing that there was a ground for refusal. In any case, I have satisfied the condition of Genuine Temporary Entrant (cl.500.212) from my previous records too. Even though, there was a ground for refusal, the member did not properly look at the relevant facts. I believe that member had made an error in judgement.
If this application is not accepted that I would be denied procedural fairness.
On top of that, I request that the court accept on the ground of fair justice as my whole life depends on the decision. It is more than a career.
The respondent submits that, read at their highest, the contentions raised above are as follows:
1. The applicant did satisfy cl 500.212.
2. The Tribunal did not “properly look at the relevant facts”.
3. The Tribunal denied the applicant procedural fairness.
The Court agrees with this “interpretation” of the material contained within the applicant’s statement as set out above.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. He did not request the assistance of an Interpreter. He appeared via a video conferencing facility and told the Court that he had returned home to India as a result of family circumstances.
The applicant was asked if he wished to discontinue the proceedings. There was some evidence produced by the first respondent of a desire on the applicant’s part to adopt that course, however at the hearing the applicant said that he was unsure. After some consideration, the Court determined to proceed with a hearing and consider his application for judicial review in full.
At the commencement of the hearing, the Court asked if the applicant was in possession of a copy of the relevant Court Books and the first respondent’s written submissions. He replied ‘No’. The first respondent’s legal representative indicated they had been served on the applicant. The Court determined that to ensure procedural fairness, it would take a short adjournment to enable the first respondent’s written submissions to be read to the applicant.
Following the short adjournment, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that he came to Australia to study at University. He failed semester one and two at University, resulting in his enrolment being cancelled
Following that, the applicant sought advice from Migration Agents and enrolled in some Diploma level courses so as to obtain some qualifications that might enable him to later undertake study at University level.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wish to state anything in reply. He reiterated a few matters that he had raised in his initial submissions.
Consideration
The first contention in the applicant claims is that he did satisfy cl 500.212 of Schedule 2 to the Regulations. This assertion does not identify any jurisdictional error on the part of the Tribunal and appears to simply be a disagreement with the findings and conclusions of the Tribunal. This complaint simply invites the Court to undertake impermissible merits review: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]. Ground 1 has no merit.
The second contention is that the “member did not properly look at the relevant facts”. No particulars are provided as to what relevant facts were not looked at. The absence of any particulars or any substantive submissions provides a basis to dismiss this ground: NWWJ v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] and [52].
In any event, the Court is satisfied that the Tribunal properly identified the relevant matters that it was required to consider, those being the matters contained within cl 500.212 of Schedule 2 to the Regulations and Direction No 69. In its decision record, the Tribunal set out each of those considerations and proceeded to address them by reference to the material that was before it. The Court is satisfied that no relevant matter was overlooked and that the conclusions the Tribunal came to were open to it on the evidence that was before it. The Court is satisfied there is nothing legally unreasonable, illogical or irrational in those findings. Ground 2 has no merit.
The third contention is that the applicant was denied procedural fairness. In this case, the Tribunal made a request for information pursuant to s 359 of the Act. The applicant was advised in that request for information, that if he did not respond by the prescribed time, he could lose his entitlement to a face-to-face hearing and that the Tribunal could proceed to finalise the matter on the basis of the information that was before it.
The applicant did not provide any information within the timeframe requested or indeed any information at all. Accordingly, pursuant to s 359C of the Act the Tribunal made a decision on the review without taking any further action to obtain the applicant’s views on the information. Further, pursuant to ss 360(2) and 360(3) of the Act, the applicant lost his right to a face-to-face hearing. Whilst this may be considered as harsh, the legislation clearly provides for the Tribunal to take this course of action. It was within the legitimate decisional freedom of the Tribunal to proceed in the way that it did. Accordingly, there is no procedural fairness in the manner in which the Tribunal dealt with the matter to conclusion. Ground three has no merit.
As the applicant is unrepresented, the Court has perused the Tribunal decision record and other papers but is unable to ascertain any unarticulated jurisdictional error.
The application is dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 October 2021
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