Kalapala v Minister for Home Affairs
[2019] FCA 1318
•19 August 2019
FEDERAL COURT OF AUSTRALIA
Kalapala v Minister for Home Affairs [2019] FCA 1318
Appeal from: Application for leave to appeal: Kalapala v Minister for Home Affairs & Anor [2019] FCCA 859 File number: NSD 570 of 2019 Judge: DAVIES J Date of judgment: 19 August 2019 Catchwords: MIGRATION – application for leave to appeal decision of Federal Circuit Court affirming decision of Administrative Appeals Tribunal – Tribunal not satisfied applicant satisfied criteria for grant of Student (Temporary) (Class TU) visa – s 359A of Migration Act 1958 (Cth) complied with – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 16.05
Migration Act 1958 (Cth) ss 359A, 359AA
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Date of hearing: 19 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr C O’Sullivan of the Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 570 of 2019 BETWEEN: VICKY KALAPALA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
19 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant is to pay the first respondent’s costs of the application, fixed in the amount of $2,193.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicant has applied for leave to appeal the decision of the Federal Circuit Court of Australia (“FCC”) dismissing a reinstatement application made by the applicant pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth). By that reinstatement application the applicant sought to reopen his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed a decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”). The FCC dismissed his application for reinstatement, holding that his judicial review application had no prospects of success.
The applicant is a citizen of India. He applied for the visa for the stated purpose of undertaking study in Australia. The criteria for such a visa include that the applicant “is a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily”: cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). The Tribunal was not satisfied that the applicant met this criterion. In reaching that conclusion, the Tribunal took into account the applicant’s Provider Registration and International Student Management System record (“PRISMS Record”). The Tribunal also took into account that the applicant had not attended any classes for a course which he asserted he was undertaking in the then current 2018 semester or provided the Tribunal with any documentary or other reliable evidence to show that he had paid his fees for the course.
Before the FCC the ground of review upon which the applicant relied was that he had not been provided with the PRISMS Record relied on by the Tribunal, and that the Tribunal thereby failed to comply with the obligations imposed under s 359AA of the Migration Act 1958 (Cth) (“the Act”). Section 359AA provides:
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.
(2)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).
Section 359AA must be read in conjunction with s 359A of the Act which provides:
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).
Section 359AA provides a method by which the Tribunal can comply with its obligations arising under s 359A of the Act: s 359A(3). As the FCC correctly stated, the relevant provision is s 359A, not 359AA. The relevant question therefore was whether the PRISMS Record was information to which s 359A applied. The primary judge found that it was not and, accordingly, that there was no serious question to be tried. The FCC accordingly dismissed the application for reinstatement.
The applicant’s proposed notice of appeal relies on two grounds:
(a)the Tribunal failed to comply with the requirements of s 359A of the Act by failing to provide the applicant with an opportunity to produce the fee paid receipts; and
(b)the Tribunal relied on the PRISMS Record but failed to provide a copy of the same to the applicant in violation of s 359A of the Act.
In order to obtain leave to appeal, the applicant must satisfy the Court that the decision of the FCC was attended by sufficient doubt to warrant its reconsideration in an appeal and that, even if it were attended by sufficient doubt, substantial injustice would result if leave were refused. For the reasons that follow, the Court is not satisfied that the decision below is attended by sufficient doubt.
First, as the primary judge correctly reasoned, PRISMS records can constitute information for the purposes of s 359A but, in this case, s 359A(4) was engaged in that, as the reasons of the Tribunal record at [17], the information contained in the PRISMS Record was consistent with what the applicant had told the Tribunal regarding his past academic history, which the Tribunal had accepted. Secondly, as the FCC correctly stated, the PRISMS Record did not contain information that amounted to a rejection, denial or undermining of the applicant’s claims. Rather, it corroborated his evidence of courses he had been enrolled in, and as such was not information that “would be” the reason, or a part of the reason, for affirming the decision under review.
Finally, the reliance on s 359A with respect to the claim that he should have been given an opportunity to provide documentary evidence showing that he had paid his fees is misconceived. Insofar as the ground might more properly be characterised as claim of denial of procedural fairness by not being given an opportunity to provide that documentary evidence, there is nothing to indicate that he was not afforded full and proper opportunity to present his case. To the contrary, the reasons of the Tribunal record that the applicant received a written invitation to attend the hearing before the Tribunal, which included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing whether he is a genuine applicant for entry and stay as a student. Having been put on notice of the need to support his case, there is no substance in the claim that he should have been provided with a further opportunity to present documentation demonstrating that he had paid his fees.
There is no arguable error on the part of the primary judge and the application for leave to appeal should therefore be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 21 August 2019
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