Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 931
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 931
File number: SYG 2184 of 2019 Judgment of: JUDGE STREET Date of judgment: 5 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant did not have a current course of enrolment – no arguable jurisdictional error – amended application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Number of paragraphs: 8 Date of hearing: 5 May 2021 Place: Sydney Solicitor for the Applicant: Mr H R Bhatta, Residency Legal Solicitor for the First Respondent: Ms S Wright, Mills Oakley ORDERS
SYG 2184 of 2019 BETWEEN: SANJEEV KANYAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the amended application filed on 18 March 2021.
2.The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
3.The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 July 2019, affirming the decision of a delegate of the first respondent not to grant the applicant a Student visa.
The Court adopts the background from paragraph 3, together with the grounds and argument set out into paragraph 23, of the first respondent’s submissions as follows:
Background
(3)The applicant is a male citizen of India who arrived in Australia on 1 December 2014 as the holder of Student (Subclass 573) visa (CB 59).
(4)On 15 August 2017, the applicant lodged application for a Student (Subclass 500) visa, proposing to study a Bachelor of Tourism and Hospitality Management (CB 1-17). The application was accompanied by various supporting documents including: a Form 956 appointing a registered migration agent (CB 35-37); and a statement dated 9 August 2017 addressing the genuine temporary entrant criteria (CB 38-39).
(5)On 22 September 2017, a delegate refused to grant the applicant the Student visa on the basis that the applicant was not a genuine applicant for entry and stay as a student required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 52-63).
The Tribunal
(6)On 6 October 2017, the applicant applied to the Tribunal for review of the delegate’s decision, appointed a registered migration agent as their representative and provided a copy of the delegate’s decision (CB 64-65).
(7)On 5 April 2019, the applicant was invited pursuant to s 359(2) of Act to provide information in writing about the course of study he was intending to undertake. He was asked to complete a Request for Student Visa Information form. He was notified that it was a requirement for the grant of the visa 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 required to provide a response to the invitation by 23 April 2019 and he was notified that if he failed to respond by that date and no extension of time was granted, he may lose any entitlement he may otherwise have had to attend a hearing and the Tribunal may proceed to make a decision on the review (CB 74-82).
(8)On 23 April 2019, the applicant’s representative requested an extension of time to respond to the invitation (CB 83-84). The Tribunal acceded to the applicant’s request and allowed him until 8 May 2019 to respond (CB 90-92).
(9)On 7 May 2019, the applicant provided a completed Request for Student Visa Information form (CB 93-102). In that form, in response to the question “does the main applicant have a current confirmation of enrolment (CoE) in a registered course of study” the applicant answered “no” (CB 96). Under that answer, the form stated “Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.” In that form, the applicant also consented to the Tribunal deciding the review without a hearing (CB 94).
The Tribunal’s decision
(10)On 25 July 2019, the Tribunal affirmed the delegate’s decision on the basis that the applicant was not enrolled in a course of study as required by cl 500.211 of the Regulations (CB 109-114).
(11)The Tribunal found that the issue before it was whether the applicant was enrolled in a course of study at the time of decision as required by cl 500.211 (CB 110, [8]). The Tribunal found there was no evidence before it that the applicant was enrolled in a registered course. The Tribunal was not satisfied that cl 500.211 was met (CB 110, [11]) and affirmed the decision under review (CB 111, [12]).
The application for judicial review
(12)By orders made by consent on 18 September 2019, the applicant was given leave to file and serve any amended application, affidavit evidence and written evidence by 31 October 2020. Further orders were made on 3 March 2021 permitting the applicant to file and serve any amended application and written submissions on or before 2 April 2021.
(13)On 18 March 2021, the applicant filed an amended application pleading two grounds of review. Despite being legally represented by Residency Legal, written submissions were not filed until 6 April 2021 and accordingly, the applicant will require leave to rely on the submissions.
(14)The supporting affidavit filed with the originating application on 20 August 2019 merely annexes the Tribunal’s decision. It fails to advance the applicant’s case in any meaningful way.
Ground one
(15)Ground one alleges the Tribunal constructively failed to exercise its jurisdiction or alternatively was “procedurally unfair including under section 358, 359, 359A and 360 of the Act”. The particulars variously assert that the Tribunal: failed to consider documents and submissions provided by the applicant; “did not foreshadow the course of action” that it took; and was required to invite the applicant to a hearing once he responded to its “request for documents under s 359”. The applicant’s submissions (AS) appear to contend that the Tribunal was required to invite the applicant to comment on the information he provided in his s 359(2) response that he was not enrolled (AS, [21]-[28]) and that it was required to invite the applicant to a hearing, despite the fact that he consented to the Tribunal making a decision without a holding a hearing (AS, [29]-[34]).
(16)Firstly, the Tribunal was not required to invite the applicant to a hearing. In response to the question “[d]o you and any other applicants consent to the Tribunal deciding the review without a hearing?” the applicant responded “Yes, I/we consent to the Tribunal deciding the review without a hearing.” As the applicant consented to the Tribunal deciding the application without a hearing, the Tribunal was entitled to proceed to determine the matter on the materials before it: s 360(2)(b). The combined effect of s 360(3) and s 363A was that the Tribunal no longer had the power to permit the applicant to appear at an oral hearing.[1] Accordingly, the Tribunal did not err by deciding the application on the papers.
[1] Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40.
(17)Secondly the Tribunal’s obligations under s 359A(1) were not enlivened by the information provided by the applicant in response to the s 359(2) invitation. The Tribunal relied on the applicant’s evidence in the s 359(2) questionnaire to determine that he was not enrolled (CB 94). The fact that the applicant himself confirmed that he was not enrolled in a registered course also meant that the exception in s 359A(4)(ba) applied.[2] The Tribunal has no general duty to inquire,[3] and these are not circumstances which would enliven such an obligation by raising an obvious inquiry about a critical fact, the existence of which could be reasonably ascertained. Rather, it was for the applicant to make his case before the Tribunal.[4]
[2] Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 at [74], citing Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241.
[3] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
[4] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169]-[170].
Ground two
(18)Ground two complains that the Tribunal failed to exercise its jurisdiction as it did not review the decision “as to clause 500.212” and failed to obtain “real and meaningful consent” from the applicant under s 360(2)(b).
(19)The applicant’s complaint is fundamentally misconceived. The Tribunal was required to conduct a de novo review of the merits of the application based on the evidence before it at the time of its decision. The Tribunal was not restricted to assessing whether the applicant met cl 500.212 and was entitled to consider whether cl 500.211 was met.
(20)To the extent that the applicant’s complaint is that he was not on notice of the dispositive issues on review, this fails on facts. The Tribunal’s Request for Student Visa Information form requested the applicant provide evidence of his enrolment in a registered course (CB 76). The form also expressly stated that “not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker” (CB 96-97).
(21)The form stated that (underlining in original) (CB 94):
Note: If you consent to us deciding your review without a hearing:
•You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
•We may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once our decision has been made.
•You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed. Additional information may also be given at the end of this form.
•If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
(22)Accordingly, the applicant was on notice from at least the date of the invitation to provide information (5 April 2019) that satisfaction of cl 500.211 was an issue on the review, and he was not entitled to assume that the issues the delegate considered dispositive were also the issues arising in relation to the decision under review.[5]
(23)There is nothing in the materials or evidence before the Court to suggest that the applicant’s consent was not effective. The applicant declared that the information was correct (at CB 102) and there is nothing before the Court to suggest that the applicant wanted to attend a hearing.[6]
[5] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [37].
[6] Murni & Ors v Minister for Immigration & Anor [2020] FCCA 579 at [35]-[37].
BEFORE THE COURT
Mr Bhatta, the solicitor who appeared on behalf of the applicant, correctly acknowledged that the Court had dealt with a similar ground advanced on behalf of the applicant in the amended application filed on 18 March 2021, in a separate matter yesterday, and that the Court found that those grounds were not reasonably arguable.
In those circumstances, the Court raised with Mr Bhatta the question of whether he wished to press the grounds, in respect of which leave was granted by the Court to rely upon the amended application. The Court raised with Mr Bhatta concerns that if the application was pressed in that regard, an issue may arise both under Part 8B of the Act in respect of an appropriate costs order under that provision, as well as the issue of whether or not there could be an order made in respect of the legal costs that could be imposed upon the applicant.
In those circumstances, Mr Bhatta acknowledged that the grounds identified are not ones consistent with the ruling that was made yesterday, and could not be said to be reasonably arguable. That was a proper and appropriate course for Mr Bhatta to take.
The Court adopts the reasons of the first respondent as set out above and is not satisfied that the grounds identified in the amended application raise any arguable case for the relief claimed.
The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Accordingly, the amended application is dismissed under r 44.12 of the Rules.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 11 June 2021
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