Kajal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 280
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kajal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 280
File number: PEG 142 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 28 March 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the conduct of the applicants’ “agent” amounted to a fraud on the Tribunal – whether the Tribunal failed to properly invite the applicants to provide or comment on information pursuant to s 359 or s 359A of the Migration Act 1958 (Cth) – whether the Tribunal failed to invite the applicants to attend a hearing before it – whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information – whether the Tribunal failed to afford the applicants procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 357A, 359, 359A, 359AA, 359B, 359C, 360, 363A, 379A, 476 and Part 5
Migration Regulations 1994 (Cth), reg 4.17 and cll 500.212 & 500.311 in Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 13 February 2024 Place: Perth Applicants: Applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 142 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAJAL KAJAL
First Applicant
GAGANDEEP SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicants are both citizens of India (Court Book (“CB”) 2-5). They are wife and husband respectively (CB 3-5). The applicants arrived in Australia in July 2018 as the holders of student visas (CB 113). Those visas were valid until 15 September 2020. The applicants were granted further visas on 9 November 2020 (which were due to expire on 1 January 2022) (CB 117).
On 18 August 2021, the first applicant applied for the Student (Class TU) (Subclass 500) visa (the “visa”) the subject of this proceeding (CB 1-19 & 112). The second applicant was included in that visa application as part of the first applicant’s family unit (CB 4-6). The applicants were assisted with that visa application by a migration agent (the “representative”) (CB 7 & 26-28). With that visa application, the first applicant provided a “statement of purpose” (CB 20-25) and a completed “Form 956 – Appointment of a registered migration agent, legal practitioner or exempt person” document (CB 26-28). In her statement of purpose, the first applicant indicated that she had been studying a Master of Management Information System course at Edith Cowan University but that she had been “unable to develop interest in the course” and that she instead “started to develop interest in [the] hospitality industry” (CB 20). On that basis, the first applicant also stated that she was instead studying Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management (CB 21).
On 22 September 2021, the Department of Home Affairs (the “Department”) wrote to the first applicant (through her representative) and asked for more information in relation to her visa application (CB 31-37). In particular, the Department asked the first applicant for evidence of her enrolment and information relating to any gap in her studies (CB 36-37).
On 22 September 2021, the applicants’ representative provided the Department with three “Overseas Student Confirmation-of-Enrolment” documents (“COEs”) relating to the first applicant’s hospitality courses (being Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management) (CB 38-42).
On 19 December 2021, the applicants’ representative again provided the Department with a copy of the first applicant’s COE relating to a Certificate III in Commercial Cookery (CB 43).
On 11 January 2022, the Department asked the first applicant (through her representative) to comment on adverse information in relation to her visa application (CB 48-52). In particular, the Department’s correspondence stated (CB 48-49):
The department has consulted the Provider Registration and International Student Management System (PRISMS) website to verify your study history in Australia. The findings in PRISMS raises serious concerns regarding your potential circumstances in Australia and the value of the courses to your future and consequently your genuine intentions in Australia.
Provider Registration and International Student Management System (PRISMS) records contain the following Confirmation of Enrolments (CoEs) for you.
•COE 98F7B857 Master of Cyber Security 30 July 2018 to 15/07/2020. Cancelled Prisms states Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original.
•COE A5335548 - Master of Management Systems 25/02/2019 to 31/12/2020. Cancelled. Prisms states: Deferment/Suspension - Compassionate or compelling circumstances.
•COE BCAOB362 Master of Management Information Systems 22/02/2021 to 31/12/2021. Cancelled. Prisms states: Deferment/Suspension - Compassionate or compelling circumstances.
•COE C2A98446 Master of Management Information Systems 26/07/2021 to 31/12/2022. Cancelled. Prisms states: Student Notifies Cessation of Studies.
•COE C51BEB15 Certificate III in Commercial Cookery 31/01/2022 ends 03/02/2023 - Approved.
•COE C5BA6488 Certificate IV in Commercial Cookery 06/02/2023 ends 30/06/2023 - Approved.
•COE C5BE4B94 Diploma of Hospitality Management 03/07/2023 ends 08/03/2024 - Approved.
Visa condition 8202 (attendance and course progress) is mandatory for all student visas granted to primary applicants. Condition 8202 requires the student to be enrolled in a full time, registered course, achieve satisfactory course progress, achieve satisfactory course attendance and maintain enrolment in a course at the same level or higher Australian Qualifications Framework level for which they obtained the visa.
You have not provided any supporting documentation to account for the study gaps for the period 14 June 2021 to the commencement of COE 31/01/2022.
This raises serious concerns about your intention to comply with the conditions attached to any further student visa that may be granted.
On 6 February 2022, the applicants’ representative provided a letter from the first applicant and medical information relating to a third party (“Mr R”) (CB 53-59). In the letter, the first applicant stated as follows (without alteration) (CB 54):
After that I start studying Masters of Information systems and completed nearly 3 semester and paid $35000 for my studies so it was not my intention to waste my money and time unfortunetly my cousin brother got brain stroke who is very close to me and live in Perth and his condition was worsening day by day, he was not able to use legs and arms and became wheelchair bound which makes me stressed and unfocused again. I was involved in his care and could not focus on my studies and went in to depression. I am enclosing his medical reports for your reference.
On 14 February 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 64-70). The delegate was not satisfied that the first applicant “genuinely intended to stay in Australia temporarily” and, as such, did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 68-69). The delegate also found that the second applicant was not a member of the family unit of a person who satisfied the primary criteria for the grant of the visa (as required by cl 500.311 in Schedule 2 of the Regulations) (CB 69-70).
On 24 February 2022, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 71-78). The applicants provided the Tribunal with an email address to receive correspondence from the Tribunal ([omitted]@yahoo.in (the “applicants’ nominated email address”)) (CB 74). The applicants also answered “no” when asked if a representative had been appointed to act on the applicants’ behalf (CB 76).
On 14 March 2023, the Tribunal wrote to the applicants and invited them to provide additional information (pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”)) addressing the genuine temporary entrant criterion and confirming the first applicant’s enrolment in a registered course of study (the “s 359 invitation letter”) (CB 82-89). The s 359 invitation letter relevantly stated (CB 84):
The written information requested in the Request for Student Visa Information form should be received by 28 March 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 28 March 2023, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 28 March 2023 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No additional information was provided to the Tribunal (CB 113).
On 10 May 2023, the Tribunal invited the applicants to comment on or respond to information obtained from a search of the Department of Education’s Provider Registration and International Student Management System (“PRISMS”) records (pursuant to s 359A of the Act (the “s 359A invitation letter”)) (CB 96-100). The s 359A invitation letter relevantly stated (CB 97-98):
The particulars of the information from the Department of Education's records are that:
•You enrolled in a Master of Cyber Security, due to be completed between 30 July 2018 and 15 July 2020. Your enrolment was cancelled due to “Change to a course in the same sector, gap created either at the start or end of course, OR the study period of the new CoE is shorter than the original”.
•You enrolled three times in a Master of Management Information Systems, due to be completed between 25 February 2019 and 31 December 2020, and 22 February 2021 and 31 December 2021. The first two enrolments were cancelled due to “Deferment/Suspension - Compassionate or compelling circumstances”. The third enrolment was cancelled due to “Student Notifies Cessation of Studies”.
•You enrolled three times in a Certificate III in Commercial Cookery. Two enrolments were due to be completed between 5 July 2021 and 3 July 2022. These enrolments are currently inactive. You completed the course in your third enrolment, between 31 January 2022 and 2 February 2023.
•You are currently enrolled in a Certificate IV of Commercial Cookery. You are presently studying this course, and are due to complete it on 30 June 2022.
•You are also enrolled in the following courses, which you are approved to study in the future: a Certificate IV in Kitchen Management due to be completed between 1 May 2023 16 August 2024, a Diploma of Hospitality Management due to be completed between 3 July 2023 and 8 March 2024, and another Diploma of Hospitality Management, due to be completed between 19 August 2024 and 6 December 2024.
A document with screenshots of the results of this PRISMS search accompanies this letter.
This search discloses that you have held eleven enrolments since commencing study in Australia in 2018, but have only completed one. Four of your enrolments have been cancelled, and two are inactive. You have changed the direction of your study from cyber security to management information systems, to cookery and hospitality management. You commenced studying a master's level, and have since taken up diploma-level study.
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.
If we rely on this information in making our decision, we may find that you are not a genuine applicant for entry and stay as a student. Further, we may find that you are not currently enrolled in an approved course of study. We may therefore find that you do not meet cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which are primary criteria for the grant of a student visa.
These may be the reasons, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
On 11 May 2023, the Tribunal notified the applicants that, because they had not responded to the Tribunal’s s 359 invitation letter (dated 14 March 2023) within the requisite time period (being by 28 March 2023), they had lost their entitlement to attend a hearing (see Annexures 1 and 2 of the affidavit of Aatika Ismailjee affirmed and filed on 13 February 2024 (the “Ismailjee affidavit”)).
Later that same day (being on 11 May 2023), the first applicant called the Tribunal “to dispute [the] loss of hearing rights”. The first applicant also advised the Tribunal that the email address included in the Tribunal review application belonged to “her friend” and that she had not received correspondence from the Tribunal (including the s 359 invitation letter sent to the applicants at the applicants’ nominated email address on 14 March 2023) (CB 127).
Also on that date (being on 11 May 2023), the Tribunal sent courtesy copies of all of its previous correspondence to the applicants at their new email address (as provided by the first applicant to the Tribunal in her earlier telephone call to the Tribunal) (CB 101-102).
On 16 May 2023, the applicants provided additional documents to the Tribunal, including confirmation of completion of a Certificate III in Commercial Cookery, a COE for a Certificate IV in Kitchen Management and a statement from the first applicant (CB 101-108). The first applicant’s statement relevantly stated that (CB 106):
(a)while she originally intended to study a Master of Cyber Security course, her “friend” advised her that there were limited job prospects in that field and, as a result, she decided to change her course of study;
(b)her “cousin brother” suffered from a stroke resulting in him becoming “wheelchair bound” and, because the first applicant was “involved in his care”, she was unable to focus on her studies;
(c)she is now back on track and fully focused on her studies (having completed a Certificate III in Commercial Cookery and pursuing a Certificate IV in Kitchen Management and a Diploma of Hospitality); and
(d)upon completion of the courses above, she will be a qualified chef and will also be qualified to secure leadership roles in the future. Further, the first applicant stated that she was planning to return to India to seek a role in a major international (luxury) hotel.
On 19 June 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 111-126).
On 15 July 2023, the applicants sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 16 pages long and spans 46 paragraphs (CB 111-126). The final six pages contain a copy of Ministerial Direction No 69 (made under s 499 of the Act) (“Direction 69”) (CB 121-126).
The Tribunal began by explaining that the applicants had applied for the visas on 18 August 2021 and that a delegate of the Minister had refused to grant them those visas on 14 February 2022 because the delegate had found that the first applicant was not a genuine temporary entrant (at [1]-[3]).
The Tribunal continued:
4.On 14 March 2023 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 28 March 2023 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
5.The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
The Tribunal identified that the issue for consideration in this matter was whether the first applicant was a genuine temporary entrant. The Tribunal explained that in considering that issue, it was required to have regard to the relevant provisions in cl 500.212 of the Regulations and Direction 69 (noting that Direction 69 was not intended to be used as a checklist but, instead, was intended to guide decision-makers when considering an applicant’s circumstances as a whole) (at [7]-[10]).
The Tribunal noted that, without a hearing, the evidence before it was quite limited. The Tribunal also recorded that on 14 March 2023, it had invited the applicants to provide information to the Tribunal (by completing a questionnaire) but they did not do so (at [11]).
The Tribunal explained that it had conducted a search of the first applicant’s movement records (which indicated that she had departed Australia once since her arrival) and her study history in Australia. The Tribunal documented that it had invited the first applicant to comment on adverse information arising from those searches and to provide any information in support of her review application. The Tribunal noted that the first applicant was also again invited to complete the questionnaire. The Tribunal confirmed that while the questionnaire was still not completed, the first applicant did provide further documents to the Tribunal (including documentation relating to completed courses and planned future study). The Tribunal noted, however, that there was a “gap in the [first] applicant’s study between 30 March 2023 and 1 May 2023” (at [12]-[14]).
The Tribunal then outlined the contents of a letter from the first applicant (provided with the materials referenced above) and found that her decision to abandon her masters degree course based on “vague advice from an unnamed person, apparently not a person in the business of giving such advice” was not the conduct of a genuine student or a genuine temporary entrant. The Tribunal also found that there was “no evidence that the [first] applicant applied for [any] consideration” to defer or extend her course of study on the basis of the hardships she claimed to face relating to her “brother” who had “suffered a stroke which left him significantly incapacitated”. The Tribunal also found that the first applicant had not explained “the change in direction or level of her studies from masters level to vocational courses and information systems to commercial cookery and hospitality” (at [15]-[16]).
The Tribunal had regard to documents provided by the applicants to the Department (including identity documents for the applicants, academic records relating to the first applicant and medical records regarding Mr R) (at [17]). The Tribunal noted that some of the medical records (including reports from a neurologist and radiologist) were “highly technical in nature and unintelligible to the Tribunal”. The Tribunal also referenced a “narrative report” from a “stroke consultant” relating to Mr R and explained that, while the report was also extremely technical, it concluded that “it was highly likely that the patient had a stroke”. The Tribunal acknowledged that the medical records may be presumed to relate to the applicant’s brother but observed that they were in respect of a person with a different name and birthdate to the details included in the passport labelled in the Departmental file as the “brother[‘s] passport”. Further, the Tribunal noted that the first applicant had not explained why those documents “prove that the medical circumstances of this person contributed to her poor study history” and to what extent, if any, those circumstances impacted upon the first applicant. For those reasons, the Tribunal gave the documents “extremely little weight” (at [18]).
The Tribunal also had regard to the first applicant’s statement provided to the Department and found that it did not explain why she had “abandoned the cyber security masters degree or provide any details of her vague career aspirations” (at [19]).
The Tribunal also summarised the first applicant’s evidence (at [20]-[27]) and concluded as follows:
(a)the first applicant provided limited evidence of social ties to her home country which may act as an incentive for her to return. Whilst the Tribunal accepted that she was born in and studied in India and was married to an Indian citizen, given the time spent in Australia and the intended period of future stay in Australia, the Tribunal was not satisfied that there was a significant incentive for her to return (at [29]);
(b)the first applicant’s proposed study would extend her stay in Australia until at least March 2024 and that the length of the stay suggested that she was “studying for the purposes of staying in Australia” (at [30]);
(c)the first applicant had “given extremely vague evidence” in relation to the value of her proposed courses to her future (including regarding remuneration and career prospects). Further, the first applicant had provided no career path details and, based on her poor study history and the change in level and direction of her study, the Tribunal found that there was “reasonable doubt” as to whether she would complete her studies on time or at all (at [31]);
(d)the first applicant’s study pathway (at the time of the Tribunal decision) was inconsistent with her qualifications obtained in India and with her plans when she arrived in Australia (at [32]);
(e)the Tribunal was not satisfied that the first applicant had established that the proposed study would provide a significant benefit to her proposed career plan and the Tribunal was not satisfied it would provide significant value to her career (beyond her existing qualifications) (at [33]);
(f)given the disparity in economic circumstances between India and Australia, the Tribunal was not satisfied that the first applicant had a significant incentive to return to India (at [34]);
(g)the Tribunal was concerned that the first applicant’s stay in Australia may have been motivated by factors other than study, noting that she had not demonstrated any clear or substantial improvements arising from her proposed study which would outweigh the significant time any monetary commitment the course would require (at [36]); and
(h)the first applicant was granted two previous student visas to enable her to achieve her study goals, however, she had changed the direction and level of her study on numerous occasions and only managed to complete one vocational course in Australia (at [38]).
Having considered all of the evidence and information before it, the Tribunal was not satisfied that the information provided by the first applicant was sufficient to demonstrate that she was a genuine temporary entrant. Further, the evidence suggested that the first applicant had enrolled in the current course for the purpose of securing a further student visa (rather than because of a genuine interest in study). The Tribunal found that the first applicant was using the student visa programme as a means to maintain an ongoing residence in Australia and that she did not have a genuine intention to stay in Australia temporarily (at [39]-[40]).
The Tribunal was ultimately not satisfied that the first applicant genuinely intended to stay in Australia temporarily and, on that basis, found that she did not meet cl 500.212 in Schedule 2 of the Regulations. The Tribunal also determined that, given the first applicant had been unsuccessful, it followed that the second applicant’s application must also fail (at [42]-[45]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [46]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 15 July 2023) contains one ground of review as follows (transcribed verbatim):
1.The Second Respondent’s decision was affected by jurisdictional error because the Second Respondent did not afford the Applicant procedural fairness.
On 30 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
The day prior to the hearing, the first applicant provided submissions and supporting documents to the Court for consideration. Those materials were (together) marked as Exhibit 2 (at the hearing before this Court). The first applicant’s “submissions” essentially stated that:
(a)her former migration agent assisted with the preparation of the Tribunal application and the first applicant did not provide her “friend’s email address” for use in that application;
(b)the Tribunal erred by failing to invite the applicants to attend a hearing (as required by s 360 of the Act);
(c)in circumstances where an applicant fails to provide information to the Tribunal, s 359C of the Act provides that the Tribunal may make a decision on the review without taking any further action but it is not required to do so. In that regard, the first applicant suggested that the Tribunal ought to have given another opportunity to “organise the hearing again”;
(d)she received a phone call from the Tribunal (whilst she was driving her car) on 11 May 2023 during which she was told that there was “a miscommunication” in relation to her being required to send an email to the Tribunal regarding her hearing rights; and
(e)given that there were “so many confusions and miscommunications”, the Tribunal ought to have given her a further opportunity to present her case.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicants on 15 July 2023, a Court Book numbering 128 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 31 January 2024, the Ismailjee affidavit (taken as read and in evidence at the hearing) and the documents contained in Exhibit 2.
On 13 February 2024, the applicants appeared before this Court. They did so without legal representation. Ms Georgina Ellis (“Ms Ellis”) appeared at the hearing on behalf of the Minister. The first applicant told the Court that she would speak on behalf of herself and her husband. The Court confirmed that the applicants had received copies of the Court Book, the Minister’s written submissions and the Ismailjee affidavit.
Noting that the applicants were not represented, the Court gave them an opportunity to explain orally what they thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that she thought that the Tribunal’s decision was “unfair” because she did not receive any information about her hearing. Instead, the Tribunal phoned her on 11 May 2023 to notify her that she had “lost her hearing” and they sent an email to her “friend’s email address” that same day (but she did not receive any information at all). When asked by the Court who had provided the email address to the Tribunal, the first applicant explained that her former migration agent had assisted them with completing the form but that she had only given her friend’s email address as “an emergency contact email address”.
The first applicant also told the Court that there had been so many miscommunications and confusions in her case. Further, s 359 of the Act provides that the Tribunal may make a decision but this is not a must and the Tribunal should have “just given [her] one fair chance to explain all of [her] circumstances”.
Following the hearing (later in the afternoon), the first applicant emailed the Court and provided the following additional information (without alteration):
Thank you for considering my point, but because I was nervous, I would like to mention a few more answers to the lawyer’s allegations.
I was not aware that my migration agent never included his name in the AAT application.
Regarding the opposition lawyer’s discussion of my study and course change circumstances and how AAT makes the decision, I have a lot of proof and other documents to provide if I am given the chance to have a hearing.
I have invested a significant amount of money and time into my studies. I do not want to be punished for the mistakes of the AAT and my migration agent.
Additionally, I was not sure before that when the lawyer said that I called AAT, but my husband just reminded me that we first received a call from AAT and then we called them back.
The Minister’s representative was asked if the Minister wished to respond to that correspondence or make any further submissions. Ms Ellis told the Court that the Minister did not wish to do so.
The applicants’ ground of review, oral submissions and written “submissions” (provided both prior to and following the hearing) will be considered below.
CONSIDERATION
Having considered all of the materials before it (including the applicants’ ground of review, the information included in Exhibit 2, the issues raised in the first applicant’s oral submissions to this Court and the email correspondence provided to the Court after the hearing) and noting that the applicants were unrepresented before this Court, the Court has interpreted the applicants’ concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicants to raise the following concerns:
(a)whether the conduct of the applicants’ “agent” amounted to a fraud on the Tribunal;
(b)whether the Tribunal failed to properly invite the applicants to provide or comment on information pursuant to s 359 or s 359A of the Act;
(c)whether the Tribunal failed to invite the applicants to attend a hearing before it (as required by s 360 of the Act);
(d)whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information; and
(e)whether the Tribunal failed to afford the applicants procedural fairness.
These issues will be addressed by the Court below.
Whether the conduct of the applicants’ “agent” amounted to a fraud on the Tribunal
The applicants claim that they did not “authorise” their agent to provide their “friend’s email address” to the Tribunal (and, instead, only provided the email address to be used as “an emergency contact email address”).
The Court notes that there is no evidence in the Court Book (or otherwise before this Court) to suggest that an agent was appointed by the applicants to assist them with their Tribunal review. In particular, the Court references the applicants’ Tribunal review application form in which the applicants answered “no” to the question of whether a representative was being appointed to act on their behalf (CB 76). Further, in the application form, the applicants included the nominated email address (which they now claim belongs to a friend) (CB 74).
To the extent that the applicants claim that they did not complete the application form or were not aware of its contents, the application form includes a “declaration and email confirmation” section in which the applicants are required to confirm that, inter alia, if they change their contact details and do not inform the Tribunal of the new contact details, the Tribunal “may proceed to make a decision” even if the applicants cannot be contacted (CB 78). The applicants also “accept[ed] responsibility” for the information contained in the review application form by completing that declaration.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
Here, there is no evidence to suggest that an agent was assisting the applicants with their Tribunal review. Further, the applicants appear to have received some of the Tribunal’s correspondence and were able to (at least partially) engage with the Tribunal’s review process.
The Court considers that the conduct of any representative in providing an incorrect email address would only amount to negligence or incompetence. The Court does not consider that it would amount to a fraud on the Tribunal.
To the extent that the applicants have concerns in relation to the conduct of any agent who may have assisted them with completing their Tribunal review form, the applicants may wish to consider raising their concerns with the Office of the Migration Agents Registration Authority (being the appropriate regulatory authority to assist with these issues).
No jurisdictional error arises in this regard.
Whether the Tribunal failed to properly invite the applicants to provide or comment on information pursuant to s 359 or s 359A of the Act
To the extent that the applicants claim that they were not properly invited to provide information or to comment on information (pursuant to either s 359 or s 359A of the Act), the Court disagrees for the reasons that follow.
The Tribunal has a discretionary power, pursuant to s 359 of the Act, to seek information that it considers may be relevant to the review, however, there is no duty placed upon the Tribunal (by s 359 of the Act) to do so. That section of the Act relevantly provides as follows:
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
As set out above, the s 359 invitation letter must be given to the applicants by one of the methods specified in s 379A of the Act, which relevantly provides as follows:
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
…
In this matter, the Tribunal wrote to the applicants on 14 March 2023 and invited them to provide additional information (pursuant to s 359 of the Act) addressing the genuine temporary entrant criterion and confirming the first applicant’s enrolment in a registered course of study (CB 82-89). Relevantly, the s 359 invitation letter stated (CB 84):
The written information requested in the Request for Student Visa Information form should be received by 28 March 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 28 March 2023, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 28 March 2023 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
That s 359 invitation letter was sent to the applicants via email (on 14 March 2023) using the email address provided to the Tribunal by the applicants in their Tribunal review application (dated 24 February 2022) (CB 74 & 82). That nominated email address was the last email address provided by the applicants in connection with the review: s 379A(5)(d) of the Act.
The applicants did not provide any additional information to the Tribunal in response (nor did they request an extension of time to do so) before the 28 March 2023 deadline (or at all) (CB 113).
No jurisdictional error arises in this regard.
Section 359A of the Act requires the Tribunal to put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, as an alternative, s 359AA of the Act). Section 359A of the Act relevantly provides as follows:
359A 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.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(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.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Here, the Tribunal invited the applicants (on 10 May 2023) to comment on or respond to information obtained from a search of the Department of Education’s PRISMS records (pursuant to s 359A of the Act) (CB 96-100). The s 359A invitation letter relevantly stated (CB 97-98):
The particulars of the information from the Department of Education's records are that:
•You enrolled in a Master of Cyber Security, due to be completed between 30 July 2018 and 15 July 2020. Your enrolment was cancelled due to “Change to a course in the same sector, gap created either at the start or end of course, OR the study period of the new CoE is shorter than the original”.
•You enrolled three times in a Master of Management Information Systems, due to be completed between 25 February 2019 and 31 December 2020, and 22 February 2021 and 31 December 2021. The first two enrolments were cancelled due to “Deferment/Suspension - Compassionate or compelling circumstances”. The third enrolment was cancelled due to “Student Notifies Cessation of Studies”.
•You enrolled three times in a Certificate III in Commercial Cookery. Two enrolments were due to be completed between 5 July 2021 and 3 July 2022. These enrolments are currently inactive. You completed the course in your third enrolment, between 31 January 2022 and 2 February 2023.
•You are currently enrolled in a Certificate IV of Commercial Cookery. You are presently studying this course, and are due to complete it on 30 June 2022.
•You are also enrolled in the following courses, which you are approved to study in the future: a Certificate IV in Kitchen Management due to be completed between 1 May 2023 16 August 2024, a Diploma of Hospitality Management due to be completed between 3 July 2023 and 8 March 2024, and another Diploma of Hospitality Management, due to be completed between 19 August 2024 and 6 December 2024.
A document with screenshots of the results of this PRISMS search accompanies this letter.
This search discloses that you have held eleven enrolments since commencing study in Australia in 2018, but have only completed one. Four of your enrolments have been cancelled, and two are inactive. You have changed the direction of your study from cyber security to management information systems, to cookery and hospitality management. You commenced studying a master's level, and have since taken up diploma-level study.
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.
If we rely on this information in making our decision, we may find that you are not a genuine applicant for entry and stay as a student. Further, we may find that you are not currently enrolled in an approved course of study. We may therefore find that you do not meet cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which are primary criteria for the grant of a student visa.
These may be the reasons, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
That s 359A invitation letter was sent to the applicants via their nominated email address (on 10 May 2023) (CB 96). As outlined above, that nominated email address was the last email address provided by the applicants in connection with their Tribunal review: s 379A(5)(d) of the Act.
On 16 May 2023, the applicants provided documents to the Tribunal, including confirmation of completion of a Certificate III in Commercial Cookery, a COE for a Certificate IV in Kitchen Management and a statement from the first applicant (CB 101-108).
The Tribunal confirmed the materials provided by the applicants and considered that information (see, for example, [14]-[16] in its written reasons).
The Court is satisfied that the Tribunal properly invited the applicants to provide or comment on information pursuant to s 359 and s 359A of the Act and no jurisdictional error arises in this regard.
Whether the Tribunal failed to invite the applicants to attend a hearing before it (as required by s 360 of the Act)
The applicants also appear to take issue with not being invited to attend a hearing before the Tribunal hearing.
As explained by this Court in Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390, the Tribunal is required (by s 360(1) of the Act) to invite an applicant to appear before it to give evidence and present arguments. However, there are some exceptions to this requirement, which are set out in s 360(2) and s 360(3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section relevantly provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 14 March 2023, the Tribunal invited the applicants to provide information to the Tribunal pursuant to s 359 of the Act (CB 82-89). That s 359 invitation letter:
(a)invited the applicants to give the Tribunal (in writing) information relevant to the first applicant’s current enrolment status and addressing the genuine temporary entrant criterion: ss 359(2) and 359B(1) of the Act;
(b)was sent to the applicants via email (a method specified in s 379A of the Act) sent to the nominated email address, being the last known email address provided in connection with the Tribunal review: s 359(3) of the Act; and
(c)gave the applicants 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
Critically for the applicants here, the s 359 invitation letter required a response be provided to the Tribunal by no later than 28 March 2023. Further, any request for an extension of time within which to respond to that invitation letter also had to be received by 28 March 2023 (CB 84).
The applicants did not provide any response to the Tribunal.
Section 359B of the Act provides:
359B Requirements for written invitation etc.
…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
Here, no extension request was made (either on or prior to 28 March 2023) for further time to respond. As outlined by the Full Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”), the Tribunal thus had no power to extend time within which the applicant could respond to the invitation letter.
The effect of the applicants’ failure to respond to the Tribunal’s s 359 invitation letter (or to request an extension of time within which to respond) by 28 March 2023 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicants lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicants to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it.
No jurisdictional error arises in relation to the Tribunal not inviting the applicants to attend a hearing before it.
Whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information
The applicants in this matter suggest that the Tribunal ought to have exercised its discretion and allowed the applicants “a fair chance” to “explain all of their circumstances”. The Court understands that the applicants to be saying that, despite losing their entitlement to attend a hearing, the Tribunal ought to have allowed them to do so in any event.
The Court disagrees for the reasons that follow.
As outlined above, the applicants (having failed to respond to the s 359 invitation letter sent to them by the Tribunal on 14 March 2023) lost any entitlement they might otherwise have had to appear at a hearing before the Tribunal.
Section 363A of the Act expressly provides that, where a person is not entitled to do something under Part 5 of the Act, the Tribunal “does not have the power to permit the person to do that thing”. In full, s 363A of the Act states:
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The Court also notes the comments made by the Full Court of the Federal Court in Hasran, as follows:
25.In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M.
26.As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it.
27.Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
28.This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
29.The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
30.As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A.
31.Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.
Whilst Hasran dealt with the failure to respond to a letter sent under s 359A of the Act, the principles apply equally to this case (where the applicants failed to respond to an invitation under s 359 of the Act: see s 360(2)(c) and s 359C(1) of the Act).
Unfortunately, because the applicants did not respond to the Tribunal’s s 359 invitation letter, the applicants were not entitled to appear before the Tribunal and the Tribunal did not have the power to permit the applicants to do so: s 363A of the Act and Hasran at [28]-[29].
On the basis of the legislative provisions and authority above, the Court is satisfied that no error arises in relation to the Tribunal proceeding to determine the matter on the materials before it.
Whether the Tribunal failed to afford the applicants procedural fairness
To the extent that the applicants suggest that the Tribunal failed to afford them procedural fairness, the Court disagrees.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this case and notes that:
(a)the Tribunal exercised its power under s 359 of the Act (on 14 March 2023) to invite the applicants to provide information (CB 82-89);
(b)the applicants did not respond to that invitation and consequently lost their entitlement to appear at a hearing before the Tribunal (Ismailjee affidavit, pp 7-8);
(c)the Tribunal also exercised its power under s 359A of the Act (on 10 May 2023) to invite the applicants to comment on or respond to information (CB 96-100);
(d)the applicants provided additional material to the Tribunal on 16 May 2023 in support of their review application (CB 101-108);
(e)the Tribunal considered that additional material in its written reasons (at [14]-[16]);
(f)the dispositive issue before the Tribunal (being whether the first applicant genuinely intended to stay in Australia temporarily, as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(g)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness in this matter.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicants on 15 July 2023), submissions provided by the applicants (both prior to and following the hearing) and the first applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 March 2024
2
19
2