Kalsi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 929
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalsi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 929
File number(s): SYG 290 of 2022 Judgment of: JUDGE LAING Date of judgment: 20 October 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) visa – where enrolment was a criterion for the grant of the visa – where the applicant was not enrolled at the time of the Tribunal’s decision – whether the Tribunal erred by denying the applicant a hearing or sufficient opportunity to present his case – application dismissed Legislation: Migration Act 1958 (Cth) ss 359, 359A
Migration Regulations 1994 (Cth) Schedule 2 cll 500.111, 500.211, 500.212
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 1 September 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms J. Strugnell of Minter Ellison Lawyers Appearing for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 290 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULDEEP SINGH KALSI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
20 OCTOBER 2023
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 LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of India who applied for the student visa that is the subject of these proceedings on 27 September 2019.
On 31 January 2020, the Delegate refused to grant the applicant a student visa on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 20 February 2020, the applicant applied for review by the Tribunal.
On 3 September 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) notifying him of visa requirements that he be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The applicant was invited to provide information regarding his ability to meet these requirements by 17 September 2021. The applicant was warned:
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.
On 23 November 2021, the Tribunal wrote to the applicant, pursuant to s 359A of the Act, inviting him to comment on or respond to the following:
•A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.
This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).
If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.
Any comments or response were required by 7 December 2021. A similar warning to that contained in the s 359(2) letter was included regarding the consequences of not responding.
No response was received to these letters.
On 28 January 2022, the Tribunal affirmed the Delegate’s decision.
TRIBUNAL’S DECISION
The Tribunal outlined the background to its decision at [1]-[10], including the correspondence sent to the applicant, the applicant’s lack of response, and the information before the Tribunal. The Tribunal observed that the issue before it was whether the applicant was enrolled in a course of study as required by cl 500.211(a) (at [3]). The Tribunal found that the applicant was not enrolled in a course of study at the time of its decision and, as such, affirmed the decision of the Delegate.
The Tribunal set out its reasons at [12]-[16] as follows:
12.Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211.
13.‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full time registered course’. ‘Registered course’ is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (ESOS Act), to provide the course to overseas students.
14.According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the ESOS Act. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
15.It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.
16.The Tribunal finds that the applicant is not currently enrolled in a course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is not met.
RELEVANT CRITERION
The criterion in issue before the Tribunal was cl 500.211 of Schedule 2 to the Regulations, which relevantly provided:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study…
“Course of study” was relevantly defined in cl 500.111 as a “full-time registered course”.
“Registered course” was defined in reg 1.03 by reference to a course provided by an institution, body or person relevantly registered under the Education Services for Overseas Students Act 2000 (Cth).
PROCEEDINGS BEFORE THE COURT
The applicant commenced proceedings before this Court through an application filed on 25 February 2022. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.I believe there a jurisdictional error in the decision of the AAT. First, I was not given opportunity/hearing to submit written or oral submission in support of the case. Secondly, I was holder of a bridging visa which does not prescribe that I must be enrolled in a Course of study while waiting for the decision of the AAT. I was waiting for the decision of the tribunal and was intending to enrol when I am holder of a student visa. I believe it would be a waste of time and money, if I am enrolled in a course of study and halfway through the course an AAT decide to affirm Department of Immigration's decision and I have to leave my study halfway and head home. If it was expected that students must enrol in a course of study while waiting for the review decision from the AAT, the bridging visa would have a condition attached making it compulsory. I believe the decision has jurisdictional error and I must be given an opportunity to state my case in the court.
The ground raised two contentions. The first was that the applicant was not given an opportunity or hearing in which to make written or oral submissions in support of his case. The second was that enrolment should not have been a requirement, without it also being a condition of his bridging visa.
A difficulty with the applicant’s first contention is that he was invited in writing under s 359 of the Act to provide written information, as well as under s 359A of the Act to provide comments or a response to particular information.
The s 359 invitation complied with the requirements of s 359(3) of the Act, in that it was given by one of the methods specified in s 379A i.e., by email to the last address the applicant had provided to the Tribunal in connection with the review. The applicant was therefore taken to have received the invitation by the end of the day on 3 September 2021: s 379C of the Act. He was provided with the minimum prescribed notice period of 14 days: r 4.17 of the Regulations. The invitation otherwise appears to have complied with the requirements of s 359B of the Act. The applicant did not respond to the invitation.
As was observed by the Tribunal at [6] of its decision:
6… 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
As the Tribunal therefore had no power to invite the applicant to attend a hearing, it did not relevantly err by not doing so.
The applicant was nonetheless, pursuant to s 359A of the Act, given the opportunity to comment on or respond to the PRISMS information indicating that he was not enrolled. That invitation was sent by one of the methods specified in s 379A of the Act (to the same email address), with the result that the applicant was taken to have received it on 23 November 2021: s 379C of the Act. This meant that he was given the requisite notice period of 14 days in which to respond. He did not do so.
As the applicant did not respond within the requisite period, the Tribunal had a discretion allowing it to proceed to a decision. Such discretion had to be exercised reasonably. I see no basis for finding that this did not occur, in circumstances where the applicant had lost his entitlement to a hearing and had not responded to two written invitations to provide information, comments or response that had been sent to him by the Tribunal.
At the hearing before the Court, the applicant submitted that he had not properly understood the requirements for the visa. Noting that the Tribunal decided the matter on a different basis to the Delegate, I have considered whether the applicant was adequately on notice of the issues in the review. I accept the Minister’s submission that he was adequately on notice, in circumstances where the Tribunal had identified the requirement of enrolment in its correspondence dated 3 September 2021 and 23 November 2021.
I am therefore unable to accept the applicant’s contention that the Tribunal relevantly erred by not giving him a hearing or further opportunity to provide submissions in the circumstances of this case.
The applicant’s second contention under the ground relied upon is also unable to succeed. I can understand the applicant’s concern about commencing a course in circumstances where he had not been granted a student visa. However, without a current enrolment at the time of the Tribunal’s decision, the applicant was unable to meet the enrolment criterion in cl 500.111 of Schedule 2 to the Regulations. This was a mandatory criterion for the grant of the visa. The Tribunal had no power to waive it, notwithstanding the absence of such a condition attaching to the applicant’s bridging visa. The applicant may well disagree with this criterion for the visa. However, that disagreement does not provide a basis upon which this Court is able to set aside the Tribunal’s decision.
CONCLUSION
For the above reasons, I am obliged to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 20 October 2023
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