Kaur v Minister for Immigration

[2020] FCCA 2872

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2872

Catchwords:
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the first applicant was not enrolled – whether the applicants were denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 360, 476

Migration Regulations 1994 (Cth), cls.500.212, 500.311

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Pandey [2014] FCA 640
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVHC [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
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 v Jia Legeng (2001) 178 ALR 421
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

First Applicant: AMANDEEP KAUR

Second Applicant: HARPREET SINGH MUKER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 472 of 2019

Judgment of: Judge Kendall

Hearing date: 21 October 2020

Date of Last Submission: 21 October 2020

Delivered at: Perth

Delivered on: 22 October 2020

REPRESENTATION

Applicants: In person

Counsel for the First Respondent: Ms J Tran

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 472 of 2019

AMANDEEP KAUR

First Applicant

HARPREET SINGH MUKER

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of India. The first applicant arrived in Australia in 2014 as a dependent of her husband (the second applicant – who was the holder of a Temporary Work Visa) (Court Book (“CB”) 49).

2. On 15 June 2017, the first applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-39). The second applicant was included as a member of the family unit. The first applicant intended to study a Diploma of Social Marketing and a Diploma of Project Management.

3. On 10 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa. The delegate was not satisfied that the first applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied the first applicant was a genuine temporary entrant. As the first applicant did not meet the primary criteria, the second applicant could not be granted the visa.

4. On 23 August 2017, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 53-55).

5. On 13 March 2019, the Tribunal invited the applicants to provide evidence of a current confirmation of enrolment and evidence relevant to whether the first applicant met the genuine temporary entrant criterion (CB 63-69).

6. On 27 March 2019, the applicants responded to the invitation to provide information (CB 70-83).

7. The applicants attended a hearing before the Tribunal on 6 May 2019 (CB 92-95).

8. On 24 September 2019, the Tribunal sent the applicants an invitation to comment or respond to information (CB 99). The particulars of that information were as follows:

   • Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.

   This information is relevant to the review because you have applied for a Student visa and the PRISMS record indicates that you are not currently studying and do not have an enrolment to study in the future.

   If we rely on this information in making our decision, we may find that you are not currently enrolled and therefore you do not meet the criterion in clause 500.211. If we make this finding we may conclude that you are not entitled to the grant of a Student visa.

9. On 8 October 2019, the applicants’ migration agent requested an extension of time to respond to the invitation to comment.  It was explained that this request arose because of the first applicant’s “current medical condition and enrolment application.” (CB 102-116). The correspondence indicated that the first applicant was 21 weeks pregnant and that she was preparing an application for enrolment in a Diploma of Nursing at the Institute of Health and Nursing.

10. On 9 October 2019, the Tribunal agreed to a 15 day extension of time to respond to the invitation to comment (CB 121). The applicants were provided until 23 October 2019 to respond.

11. On 23 October 2019, the applicants’ migration agent responded as follows (CB 122-132):

    Referring to the invitation to comment or respond to information for my client Mrs Amandeep Kaur and her husband Mr Harpreet Singh Muker, my client has stated she made numerous attempts verbally over the phone and via emails to follow up and get enrollment into Institute of Health & Nursing Australia (IHNA). However, the college is willing to give her the enrollment only if she achieves IELTS 7 bands in each or PTE academic equivalent. The college informed her that her most recent PTE reports lack the required score mark for nursing course enrolment. The evidence of the correspondence between IHNA and Mrs Kaur is attached herewith.

    She further confirms that she has immediately booked her PTE test for 21 Dec as this is the earliest available date. Evidence of PTE booking confirmation is attached herewith.

    She is determined to get 65 in each in PTE academic which will result in a positive outcome of her enrollment application. She has dedicated her past academic years in Nursing. Her degree in Science with honours in Nursing Study is attached to this email. She genuinely intends to study what interests her and also relates to her past study and experience. She believes that this career choice will certainly be a boost to her employment opportunities here or overseas.

    She lastly requests you to kindly allow her to attempt the PTE test she is scheduled for on 21 Dec 2019, so that she can enroll in IHNA. As IHNA has already assessed her application and related documents, therefore they would not take long to issue a COE post PTE results.

    I hope you will consider and accept the above request and allow Mrs Kaur to provide the COE for nursing studies after she satisfies the institute with a score of 65 in each in her upcoming PTE academic test.

12. On 30 October 2019, the Tribunal advised that it would not grant an adjournment or delay making the decision.  The Tribunal provided the following reasons for that decision (CB 135-136):

    • you were not enrolled at the time of providing your form to the Tribunal setting out your information, nor at the time of your hearing, and you are not enrolled now. You have had over 5 months to rectify this situation, and have not done so;

    • your attempts at enrolment occurred at the same time as the Tribunal asking you about your enrolments, and

    • you have had an extension of time to respond to the Tribunal with information about your enrolments, due to a medical issue. It is noted that you have not suggested in your request on 23 October 2019 that the medical issue is ongoing, or that that is now causing the delay in enrolment.

13. On 31 October 2019, the Tribunal affirmed the decision to refuse the applicants the visa (CB 140-144).

14. On 2 December 2019, the applicants applied for judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance, the applicants must show that the Tribunal has fallen into jurisdictional error.

Tribunal’s Decision

1. The Tribunal’s decision is five pages long and spans 28 paragraphs.

2. The Tribunal began by identifying the type of visa the applicants sought.  It then outlined why the delegate had refused the visa, confirmed that the applicants had appeared before the Tribunal at a hearing and were represented and itemised the materials that had been provided to the Tribunal (at [1]-[6]).

3. The Tribunal then stated that the issue before it was whether the first applicant was enrolled in a course of study (at [8]). The Tribunal then summarised the relevant visa criteria, as follows:

   9. 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.

   10. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

4. The Tribunal noted that the first applicant had indicated on

   
   

   27 March 2019 that she was not enrolled in a course of study (at [11]).

5. The Tribunal then referred to the hearing that took place on 6 May 2019 and noted as follows:

   12. At the hearing of the application for review on 6 May 2019, I explained to the applicants that one of the primary requirements for the grant of a student visa was that the applicant was enrolled in a registered course of study. The primary applicant said that she understood that requirement, but that she was not so enrolled at the time of the hearing. The primary applicant explained that when her student visa application was refused in 2017, she was placed on a Bridging visa. Her friends told her that she could not study on a Bridging visa. The college in which she wanted to enrol told her, she told the Tribunal, that she needed a valid Student visa to be able to enrol. However, she said her agent told her that she could work, so she continued to work.

   13. At the hearing I showed the applicant the letter that was sent to her with her Bridging visa on 15 June 2017, a copy of which is on the Department file. The primary applicant acknowledged that she had received that letter. I showed her the final substantive paragraph contained on page 3 of that letter. It is headed “Permission to study” and reads “When your Bridging visa (class WA) is in effect, you will have full permission to study.” The primary applicant agreed that that was clear and she understood that that meant that the Bridging visa enabled her to study. She told the Tribunal that she must have only paid attention to the first page of the letter of 15 June 2017, and to her friends and the college.

6. The Tribunal explained that, following the hearing, it had checked the Provider Registration and International Student Management System for an update on the first applicant’s enrolment. That check revealed that, as at 20 September 2019, the first applicant was not enrolled in a course of study. Further, the last courses that the first applicant had been enrolled in were a Diploma of Project Management and a Diploma of Social Media Marketing (which had both been cancelled on 4 October 2017) (at [14]-[15]).

7. The Tribunal accepted that the cancellation of the social media course appeared to have been because there was “no valid student visa” (which corroborated her evidence at hearing) (at [15]). However, the Tribunal continued:

   16. Be that as it may, as is described above, the letter sent to the applicants in June 2017 clearly states that on the Bridging visa, the applicant could study. It is for the applicant to ensure they are aware of the permissions and restrictions of the relevant visa. As also explained, the applicant agreed that she received that letter, and that the permission was clear, and that she understood that for the grant of a Student visa, she must be enrolled in a course. In any event, cl. 500.211 requires that at the time of making the decision, the applicant must be enrolled in a course of study. As at 20 September 2019, the applicant was not.

8. The Tribunal then noted that it had sent an invitation to comment to the applicant pursuant to s.359A of the Act (at [17]). The Tribunal then detailed the correspondence that had been sent to the Tribunal on

   
   

   8 October 2019 and 23 October 2019 (at [18]-[21]).

9. The Tribunal then explained its reasons for not delaying its decision, as follows:

   22. By the email to the Tribunal dated 23 October 2019, the applicant requested further time for her to complete the PTE test and gain an enrolment. Having considered that request as an application to delay making a decision, I have had regard to the request, the documents provided to the Tribunal on 23 October and 8 October, and the documents previously provided to the Tribunal by the applicant in preparation for the hearing in May. I am not satisfied that there are valid grounds for any further time for the applicant to gain an enrolment. Leaving aside the medical condition the applicant told the Tribunal of on 8 October, the applicant was well aware at the completion of the hearing in May 2019 that she was able to enrol in study under the Bridging visa, and that an enrolment was a requirement for the granting of a visa, or, as is relevant to the tribunal proceedings, for a remission to the department for further consideration of the student visa application. The emails as set out above suggest that the applicant only attempted an enrolment towards the end of October 2019, after the Tribunal had written to her asking her to confirm any current enrolments. Therefore, even with the medical condition brought on by a pregnancy, the applicant has had ample time to enquire about enrolments, and complete any required further tests or study to so enrol. On that basis, the Tribunal considers that the applicant has had more than sufficient time to seek enrolment, and has not done so. The extension of any further time will not be granted.

10. The Tribunal then found:

    23. None of the documents provided to the Tribunal either before the hearing in May or in response to its invitation show that the applicant is currently enrolled in a course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the primary applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

11. As the first applicant did not meet the primary criteria, the Tribunal found that the second applicant could not meet cl.500.311 of the Regulations (at [25]-[26]).

12. Accordingly, the Tribunal affirmed the delegate’s decision and refused to grant the applicants the visa (at [28]).

Proceedings in this Court

1. The application for judicial review filed 2 December 2019 contains three lengthy “grounds of review” as follows:

   1. I, Amandeep Kaur, Passport number [omitted] Date of Birth: [omitted] along with my husband Mr Harpreet Singh Muker, passport number [omitted], made an application for a Student Visa subclass 500 on 15 June 2017. I was the primary applicant and my husband was the secondary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of a secondary dependant subclass 457 holder. I wanted to study in Australia and I did enrol for Diploma of Project Management and Diploma of Social Media Management. The reason behind this intention was that we worked in a restaurant for a long time and had an aspiring dream of opening a restaurant of our own either in Australia or overseas. However, my lack of knowledge in management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or immigration history. Based on the information given by us, without any request for further documents or clarification, we received a notice of refusal of student visa application by Department of Immigration and Border Protection on 10 August 2017, which stated that I did not satisfy clause 500.212 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant me and my husband the Student Visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.212 and also the ministerial direction no 69 which describes the eligibility criteria for a genuine tempora1y entrant keeping factors in mind such as circumstances at home country, travel history, intentions to study as a genuine student. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the student visa application. As my I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. The officer raises concerns over regulation direction no 69 not being satisfied, whereas; I strongly believe that I have satisfied the same rule. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too. As stated above, I was enrolled for the said courses, however I have also had a nursing background back home and in England too. I am also currently working as a Care Aide. Therefore, being mentally unhappy with the refusal from Immigration Department, I decided to begin an academic career in Nursing. I was invited for a hearing at the AAT office in Perth. I was not given a chance to speak or explain further and provide any explanation or make request at the Tribunal to grant me permission to study Nursing as this is very much relating to my work experiences and previous studies. I formally requested for time to confirm my enrolment at the Institute of Health and Nursing Australia for Diploma of Nursing course. I wasn’t provided the natural justice by the Tribunal member who made the final decision.

   2. After the department refused my visa, we applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I was not even heard at the AAT, although I was invited to provide further information, I believe that the information I provided was not carefully acknowledged. After a hearing, I wanted to provide the COE for nursing, however the colleges take their time for assessing students. In the meanwhile, the member made a decision without considering my claims for approval. The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.

   3. The main reason behind filing this appeal application at the Federal Circuit Court is that we believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I belong to the nursing background and also work in medical or hospital environment and I had strong claims for the enrolment and student visa and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study, I still satisfy the clause 500.212 and ministerial direction no 69. I request the Federal Circuit Court to please shed some light in our case and provide justice to us. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I am currently 29 weeks pregnant. I have been facing difficulties towards approaching to the final trimester in my pregnancy. I have been recommended by the doctor to examine my pregnancy further as I fell in the toilet on Saturday night. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.

1. The first applicant also filed an affidavit affirmed 1 December 2019 in which she stated:

   The AAT Decision Maker has not made a fair decision

2. The applicants were given an opportunity to file an amended application, further supporting affidavits and an outline of submissions. No further materials were filed.

3. Shortly prior to the hearing on 21 October 2020, the first applicant emailed documents to the Court described as “documents to support case as I was not been able to progress my studies due to lack of knowledge and health issues”. The documents included a letter dated 19 October 2020 which stated that the first applicant had a “Conditional Offer” in a course. The Court marked this as Exhibit 2. Also included was a bundle of medical documents (including physiotherapy invoices and hospital progress reports) relating to the first applicant. All of these documents were dated in 2020. The Court marked these documents as Exhibit 3.

4. The materials before the Court thus include those described above, a Court Book numbering 144 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 7 October 2020.

5. The applicants appeared before the Court without legal representation. The first applicant and the second applicant both provided oral submissions to the Court. They confirmed that they had received a copy of the Court Book and the Minister’s written submissions and had a copy of both documents with them.

6. Noting that the applicants were unrepresented, the Court gave them an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns they had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

7. To assist the applicants, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, they most commonly include (but are not limited to) 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 at [2]; and

   f)where the decision is illogical, irrational or unreasonable: 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] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

8. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa 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.

9. Against this background, the first applicant explained that she “wanted to study” and she chose the course that she chose because “she thought it was a good course at the time”. The second applicant also explained that “at all times between the Tribunal hearing and the Tribunal’s decision (he and his wife) were searching for courses”. He added that there were a number of complications with the first applicant’s pregnancy and she has only recently “finished her treatment”. Finally, both the first applicant and the second applicant stressed that the course referred to in Exhibit 2 will greatly assist the first applicant going forward.

10. Unfortunately, the first applicant’s oral submissions relate to the merits of the Tribunal’s decision and the merits of the visa generally. They do not identify any error on the part of the Tribunal.

11. The second applicant’s oral submissions detailed the applicants’ efforts to find a suitable course of study. The Court does not doubt that the applicants did what they could do to find a suitable course throughout what were clearly difficult personal circumstances. The second applicant also advised the Court that, while there was no formal offer and acceptance before the Tribunal, the applicants did provide emails that indicated that an English test had been scheduled and they were endeavouring to enrol in a course (referencing CB 124-132). The Court will address this issue below in relation to ground 1.

12. Having heard from the applicants, the Court queried whether they had anything further that they wanted considered. The applicants indicated that they had nothing further to say. The Court reserved judgment and indicated that it would deliver judgment the following day (being

    
    

    22 October 2020).

13. At 7.38pm on 21 October 2020, the applicants emailed a letter to Chambers. The Court will address the contents of the letter below.

Consideration

Exhibits

1. Prior to addressing the judicial review application, the Court will briefly address Exhibit 2 and Exhibit 3.

2. Exhibit 2 is a conditional offer of enrolment in a Diploma of Early Childhood Education and Care. This course is due to start on

   
   

   5 April 2021. This letter post-dates the Tribunal’s decision. It was thus not before the Tribunal. It appears that the purpose of the letter is to invite the Court to engage in impermissible merits review. It is not relevant to whether or not the applicant is presently enrolled (or conditionally enrolled) in a course. 

3. Exhibit 2 does not identify any jurisdictional error.

4. Exhibit 3 contains a bundle of medical documents which all appear to relate to the first applicant’s post-natal medical treatment. Again, these documents were not before the Tribunal. The applicant suggests that these documents explain why she has been unable to study. Unfortunately, that is also not relevant to this Court on review. The Court is concerned only with any error arising from the Tribunal’s decision. Matters which have prevented the first applicant from studying after the Tribunal’s decision are not relevant.

5. Exhibit 3 does not identify any error.

6. The Court notes that nothing in Exhibit 3 indicated that the first applicant was unable to participate in the hearing before this Court. While the first applicant appeared to be receiving physiotherapy treatment, there was nothing to indicate that the first applicant could not understand or participate in the hearing before this Court.

Grounds of Review

1. Given the length of the applicant’s grounds of review, the Court will extract a particular portion and address it in turn.

Ground 1

1. Ground 1 begins by stating:

   I, Amandeep Kaur, Passport number [omitted] Date of Birth: [omitted], along with my husband Mr Harpreet Singh Muker, passport number [omitted], made an application for a Student Visa subclass 500 on 15 June 2017. I was the primary applicant and my husband was the secondary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of a secondary dependant subclass 457 holder.

2. This is factual background. It does not identify jurisdictional error.

3. Ground 1 continues:

   I wanted to study in Australia and I did enrol for Diploma of Project Management and Diploma of Social Media Management. The reason behind this intention was that we worked in a restaurant for a long time and had an aspiring dream of opening a restaurant of our own either in Australia or overseas. However, my lack of knowledge in management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into.

4. This statement appeals to the merits of the visa application. On review, the Court is not concerned with the first applicant’s intentions or why she chose her course of study.

5. No jurisdictional error arises in this regard.

6. Ground 1 then states:

   However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or immigration history. Based on the information given by us, without any request for further documents or clarification, we received a notice of refusal of student visa application by Department of Immigration and Border Protection on 10 August 2017, which stated that I did not satisfy clause 500.212 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant me and my husband the Student Visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.212 and also the ministerial direction no 69 which describes the eligibility criteria for a genuine tempora1y entrant keeping factors in mind such as circumstances at home country, travel history, intentions to study as a genuine student. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the student visa application. As my I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. The officer raises concerns over regulation direction no 69 not being satisfied, whereas; I strongly believe that I have satisfied the same rule.

7. These statements refer to the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4)

8. Further, the delegate was not obliged to invite the applicants to comment or to provide any further information: the Act, Part 2, Div.3, Sub-Div.AB. In any event, even if the delegate should have invited the applicant to comment or provide further information, this does not impugn the Tribunal’s decision. The Tribunal conducts a fresh review and “cures” any defect in the delegate’s decision: Minister for Immigration & Border Protection v SZVHC [2016] FCAFC 127 at [37]-[38].

9. Finally, the applicants’ statement that they believe that they met the requirements of cl.500.212 amounts to no more than disagreement with the delegate’s decision.

10. No jurisdictional error arises in this regard.

11. Ground 1 continues:

    I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too.

12. It is unclear what the applicants are referring to when they say that they were “repeatedly misguided by friends”. The applicants were represented at all times by a migration agent in relation to the visa application. The fact that the applicants may have taken advice from friend (as opposed to their migration agent) was a matter for them. There is nothing to suggest that any “misguidance” stultified the Tribunal’s decision making function: as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.

13. Insofar as reference is made to a “fair chance”, this will be considered further below.

14. Ground 1 continues:

    As stated above, I was enrolled for the said courses, however I have also had a nursing background back home and in England too. I am also currently working as a Care Aide. Therefore, being mentally unhappy with the refusal from Immigration Department, I decided to begin an academic career in Nursing.

15. Again, this is factual material which is uncontested. It also fails to identify jurisdictional error.

16. Ground 1 then states:

    I was invited for a hearing at the AAT office in Perth. I was not given a chance to speak or explain further and provide any explanation or make request at the Tribunal to grant me permission to study Nursing as this is very much relating to my work experiences and previous studies.

17. The applicants complain that they were not given a chance to speak, explain or make any requests before the Tribunal.

18. The Court does not accept this to be the case.  Relevantly:

    a)the applicants were invited to provide information to the Tribunal pursuant to s.359 of the Act. They did so;

    b)the applicants were invited to attend a hearing before the Tribunal in accordance with s.360 of the Act. The applicants had the assistance of an interpreter at that hearing.

    c)at the hearing, the Tribunal explained to the applicants that it was a requirement that the first applicant be enrolled in a course of study. The first applicant indicated that she understood this. She was, therefore, on notice of the determinative issue and no error of the kind identified in SZBEL v Minister for Immigration &Multicultural & Indigenous Affairs [2006] HCA 63 is identified here;

    d)the Tribunal hearing lasted for over one hour. The Court does not accept that the applicants would not have had the chance to speak, explain or make requests given the length of the hearing;

    e)the Tribunal’s decision specifically records the first applicant’s evidence that she provided at the Tribunal hearing (at [12]-[13]). This demonstrates that the first applicant had the opportunity to “speak” and “explain” her circumstances; and

    f)the Tribunal invited the applicants to comment on information considered adverse to their case. The applicants requested, and were granted, an extension of time to respond, to that information. The applicants’ migration agent responded on 23 October 2019 and provided a detailed explanation of the relevant circumstances.

19. On the basis of the above, it is apparent that the applicants had ample opportunity to speak, explain and make requests of the Tribunal.

20. The Court is satisfied that the Tribunal did not breach any procedural fairness obligations and that the applicants had a real and meaningful opportunity to participate before the Tribunal.

21. Ground 1 concludes:

    I formally requested for time to confirm my enrolment at the Institute of Health and Nursing Australia for Diploma of Nursing course. I wasn’t provided the natural justice by the Tribunal member who made the final decision.

22. Here, the applicants take issue with the fact that the Tribunal refused to adjourn the matter. Although not entirely clear, it appears that the applicants are suggesting that the failure to adjourn or delay the decision was “unreasonable” (in the sense described in Li).

23. Here, the Tribunal did provide its reasons for not adjourning.  It did so twice.  It first did so in a letter dated 30 October 2019, wherein the Tribunal explained that it would not adjourn because:

    • you were not enrolled at the time of providing your form to the Tribunal setting out your information, nor at the time of your hearing, and you are not enrolled now. You have had over 5 months to rectify this situation, and have not done so;

    • your attempts at enrolment occurred at the same time as the Tribunal asking you about your enrolments, and

    • you have had an extension of time to respond to the Tribunal with information about your enrolments, due to a medical issue. It is noted that you have not suggested in your request on 23 October 2019 that the medical issue is ongoing, or that that is now causing the delay in enrolment.

24. In its decision, the Tribunal then stated:

    22. By the email to the Tribunal dated 23 October 2019, the applicant requested further time for her to complete the PTE test and gain an enrolment. Having considered that request as an application to delay making a decision, I have had regard to the request, the documents provided to the Tribunal on 23 October and 8 October, and the documents previously provided to the Tribunal by the applicant in preparation for the hearing in May. I am not satisfied that there are valid grounds for any further time for the applicant to gain an enrolment. Leaving aside the medical condition the applicant told the Tribunal of on 8 October, the applicant was well aware at the completion of the hearing in May 2019 that she was able to enrol in study under the Bridging visa, and that an enrolment was a requirement for the granting of a visa, or, as is relevant to the tribunal proceedings, for a remission to the department for further consideration of the student visa application. The emails as set out above suggest that the applicant only attempted an enrolment towards the end of October 2019, after the Tribunal had written to her asking her to confirm any current enrolments. Therefore, even with the medical condition brought on by a pregnancy, the applicant has had ample time to enquire about enrolments, and complete any required further tests or study to so enrol. On that basis, the Tribunal considers that the applicant has had more than sufficient time to seek enrolment, and has not done so. The extension of any further time will not be granted.

25. In effect, the Tribunal’s reason for refusing to adjourn was that it had determined that the first applicant had had ample time to secure an enrolment and did not attempt to do so until October 2019.

26. In Minister for Immigration & Border Protection v Pandey [2014] FCA 640 (“Pandey”), it was stressed that, when considering legal unreasonableness, the following is of note:

    The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?

27. In Pandey, the first applicant applied for and was refused a student visa by a delegate as she did not meet the financial criterion. The first applicant appealed to the Tribunal and continued her studies while doing so. She completed her intended studies in January 2013. The applicants were sent an invitation to attend a hearing at the Tribunal. That invitation stated that the first applicant should provide evidence of enrolment.

28. The Tribunal refused the request for an adjournment on the basis that the applicants had had ample opportunity to provide the evidence.

29. The Court stated that the refusal of the adjournment was “borderline” legal unreasonableness (at [51]). However, it was within the area of “decisional freedom” (at [52]). The Court explained as follows:

    53. Whilst the Tribunal’s reasons are short and could perhaps have been expressed in clearer terms, the decision could not be described as lacking in an evident and intelligible justification. Ms Pandey was pursuing a review application in respect of a student visa in circumstances where she was no longer enrolled as a student.  She had already completed the courses listed as intended courses in her visa application.  She had been put on notice that she was required to provide certain information, including a certificate of enrolment, before the hearing.  She was put on notice that if she did not provide that information, the Tribunal would require “good reason” to grant additional time.

    54. The Tribunal found, in effect, that Ms Pandey did not provide a good reason. She and her husband had been focusing on obtaining a different visa. The advice apparently provided by her migration agent must be understood in that context. It was open to the Tribunal to find that this was not a good reason, that Ms Pandey had been given ample opportunity to produce the requested information and that she should not be given more time in which to do so.

1. In this matter, the Tribunal’s reasons are not short and they are clearly expressed. Simply put, the Tribunal here had decided that “enough is enough”.

2. In particular circumstances, it is open to the Tribunal to state that “enough is enough”: Li at [82]. Those circumstances arise here.

3. The Court considers the Tribunal’s refusal to delay making the decision in this matter to be within its area of decisional freedom. It is not arbitrary, capricious, without common sense or plainly unjust. It does not lack evidence and intelligible justification. Relevantly:

   a)there was nothing to suggest that the first applicant would pass the requisite test on 21 December 2019 and would therefore be able to enrol (and it is noted that, at the hearing, the applicants advised that the first applicant did not achieve the requisite test result); 

   b)the applicants attended a hearing before the Tribunal on 6 May 2019. There is nothing to suggest that the applicants requested additional time to enrol in a course at that hearing. It is also the case that the applicants’ migration agent made two calls to the Tribunal for an update on the status of the matter – implying that the applicants did not intend to provide any further information;

   c)as the Tribunal noted, the first applicant was aware from the date of the hearing (on 6 May 2019) that she was required to be enrolled in a course of study and that she could enrol in courses (she previously believed that she could not). Over five months had elapsed since the Tribunal hearing and the first applicant had not provided any evidence of a confirmation of enrolment (despite this being an issue that was discussed at the Tribunal hearing);

   d)there was no explanation provided about why the first applicant had not attempted to apply in the previous five months. It was not suggested that the “medical issue” was the reason why the first applicant had not previously been able to enrol or that it had prevented her from undertaking any tests previously (which the Tribunal referred to at [22]). At the hearing in this Court, the second applicant submitted that the applicants had made attempts to find a course (for example, they went to Murdoch University) but were unable to enrol in a course. There was nothing submitted to the Tribunal that stated that this was the case;

   e)the lack of enrolment some five months after the hearing prompted the Tribunal to issue the s.359A invitation on 24 September 2020. The applicants requested additional time. They did not indicate how long they required. Accordingly, the Tribunal granted an additional 15 days; and

   f)it appears, as the Tribunal stated, that the first applicant attempted to enrol only in response to the Tribunals s.359A invitation. The evidence shows that the first applicant sought to enrol “a few days” prior to 21 October 2019 (CB 128). That is, the first applicant only made steps to apply to enrol in the course (at most) in the week prior to the invitation to comment expiring.

4. Here, like in Pandey, the Tribunal found that the first applicant had not provided a good reason about why she required additional time to enrol. She had already had ample time and had not provided any evidence about the steps she had taken to enrol prior to the Tribunal prompting her in late September.

5. In the Court’s view, the particular circumstances of this case are such that the Tribunal’s decision not to delay making the decision did not fall outside the area of decisional freedom.

6. The Tribunal’s reasons do not lack an evident and intelligible justification. They are well reasoned. The decision was not arbitrary, capricious, lacking in common sense or plainly unjust. It was sensible and appropriate in the context of the particular circumstances of this case.

7. No legal unreasonableness is identified.

8. Ground 1 is, accordingly, dismissed.

Ground 2

1. Ground 2 commences:

   After the department refused my visa, we applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I was not even heard at the AAT, although I was invited to provide further information, I believe that the information I provided was not carefully acknowledged.

2. For the reasons given at [63]-[67] above, the Court does not accept that the applicants were not “heard” before the Tribunal.

3. To the extent that the applicants suggest that the information that they provided was not carefully acknowledged, the Court observes as follows:

   a)the Tribunal made specific reference to the information that the applicants had provided prior to the Tribunal hearing (at [6]). While the Court accepts that these documents were not considered substantively, this is because they were not relevant to the issue on review – namely, whether the first applicant was enrolled. Accordingly, the information was “acknowledged” to the extent that it was necessary to do so;

   b)the Tribunal made specific reference to the applicants’ answer in the response to the s.359 invitation (at [11]). This response was the “catalyst” for the issue on review (i.e., the first applicant’s non-enrolment). Accordingly, the information was properly considered;

   c)the Tribunal referred to the evidence that the first applicant had provided at the hearing (at [13]-[15]) and made appropriate findings in light of that evidence (at [16]). Accordingly, the applicants’ oral evidence was properly considered; and

   d)the Tribunal had close regard to the applicants’ responses to the s.359A invitation dated 8 October 2019 and 23 October 2019. These responses were considered in detail by the Tribunal when determining whether to grant an adjournment.

4. Accordingly, no error arises.

5. Ground 2 continues:

   After a hearing, I wanted to provide the COE for nursing, however the colleges take their time for assessing students. In the meanwhile, the member made a decision without considering my claims for approval.

6. For the reasons discussed above at [68]-[83], the Tribunal’s refusal to delay making the decision and wait for a confirmation of enrolment was not unreasonable.

7. No jurisdictional error arises in this regard.

8. Ground 2 continues:

   The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study.

9. The issue before the Tribunal was not whether there was a “genuine intention to study”. The “issue” was the first applicant’s failure to produce any evidence of further enrolment.

10. No error arises in this regard.

11. Ground 2 concludes:

    Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application

12. The Court does not have jurisdiction in relation to the “Immigration Department”: the Act, s.476(2) and (4).

13. For the reasons expressed above at [63]-[67], the applicants were afforded procedural fairness before the Tribunal. The Tribunal complied with all of the procedural fairness obligations provided in div.5 of pt.5 of the Act.

14. Ground 2 is, accordingly, dismissed.

Ground 3

1. Ground 3 begins:

   The main reason behind filing this appeal application at the Federal Circuit Court is that we believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case.

2. For the reasons outlined above at [63]-[67], the applicants were treated “fairly” by the Tribunal and provided “natural justice”.

3. Ground 3 continues:

   I have a strong view that AAT should have considered the fact that I belong to the nursing background and also work in medical or hospital environment and I had strong claims for the enrolment and student visa and had a fair chance of approval.

4. The applicants are simply disagreeing with the Tribunal’s decision.

5. The fact that the first applicant “belongs” to a nursing background and works in a medical environment was irrelevant to whether or not she was enrolled.

6. To the extent that it can be suggested that by “fair chance of approval” the applicants are suggesting that there was a “fair chance” that the first applicant would pass the English Language Test and be able to enrol, the Court accepts that that may have been the case. However, for the reasons given above at [68]-[83], it was reasonable for the Tribunal to proceed without waiting further.

7. No error arises in this regard.

8. Ground 3 continues:

   I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study, I still satisfy the clause 500.212 and ministerial direction no 69.

9. Clause 500.212 is not in issue. It was not considered by the Tribunal. Hence, the fact that the applicants believe that the first applicant satisfied cl.500.212 is irrelevant to this Court on judicial review.

10. No error arises in this regard.

11. Ground 3 concludes:

    I request the Federal Circuit Court to please shed some light in our case and provide justice to us. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I am currently 29 weeks pregnant. I have been facing difficulties towards approaching to the final trimester in my pregnancy. I have been recommended by the doctor to examine my pregnancy further as I fell in the toilet on Saturday night. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.

12. The applicants are simply pleading with the Court for a different outcome. While their personal circumstances are undoubtedly difficult, these are not matters that are relevant to the Court on review.

13. The applicants do not identify any jurisdictional error in this passage.

14. Ground 3 is, accordingly, dismissed.

First Applicant’s Affidavit

1. The first applicant’s affidavit alleges that the applicants were not provided a “fair decision”.

2. For the reasons given at [63]-[83] above, the Tribunal provided the applicants with procedural fairness and acted in a reasonable manner throughout the conduct of the review.

3. The Tribunal’s decision was open to be made on the evidence. There was no evidence of enrolment. The Tribunal was entitled to refuse the visa on that basis.

4. The first applicant’s affidavit fails to identify any jurisdictional error.

Email to Chambers

1. As noted, the applicants sent an email to Chambers after the hearing of this matter. That email (sent to Chambers at 7.38pm on 21 October 2020) attached a letter which provides:

   I refer to our conversation earlier this morning. You stated that you would look into any jurisdictional error there may have been in this case. I would like to address that the jurisdictional error can also occur on the basis of the decision maker’s frame of mind or thinking in regards to the genuineness to be a student in Australia. As in many of the immigration decision maker’s and AAT Tribunal Member’s statements, he has often stated “I am not satisfied with the reasons” I believe that my visa was refused on unreasonable grounds and merely because of the decision maker’s thinking or assumptions in the matter. The GTE rule is satisfied and I have stated in the AAT hearing about my future plans, circumstances and ties to home country and my reasons for gaining quality education from Australia.

   I went to England in 2007 to gain quality education with Degree of Bachelor’s of Science with Honors, Class III in Nursing Studies. As I have mentioned above after finishing my study at “LIVERPOOL JOHN MOORES UNIVERSITY”, I lived in England till 2012 before my Visa expired as I had enough time to gain experience and culture in England. I did work in India on the basis of my overseas studies.

   I also request you to please consider my recent pregnancy period, postnatal complications and state of being unfit and hence on human grounds to allow me to gain qualification and education I desire in Australia. The qualification I am enrolled for will help me in my future to be settled in India or overseas with my husband and baby.

   I further request the respected Judge to please provide orders for the decision of the Australian Immigration Assessment Authority and be quashed.

   I guarantee that if you allow and give me time, I will produce the confirmation of enrolment for early childhood course and shall continue to study and complete the said course. I also guarantee that I will remain as a student and finish my course and leave Australia prior to the visa expiry date.

2. The first paragraph of this letter appears to suggest “bias” on the part of the Tribunal.

3. It is well accepted that to prove bias, the applicants must establish that:

   a)in the case of actual bias, the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

   b)in the case of apprehended bias, the Tribunal conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].

4. There is nothing in the Tribunal’s decision record that indicates that the Tribunal had a “closed mind”. The Tribunal gave the applicants every opportunity to present evidence and advance arguments. It clearly had not “made up its mind” prior to hearing from the applicants. It gave the applicants ample opportunity to answer any questions put to them. Nor did the Tribunal make “assumptions”. Its reasoning was logical and flowed rationally from a gap in the applicants’ evidence – i.e., there was no confirmation of enrolment.

5. Further, on the facts of this case, it cannot be said that jurisdictional error arose on the basis of the Tribunal’s frame of mind or thinking in relation to “the genuineness to be a student in Australia” (as was put by the applicants) as this was not the basis of the Tribunal’s decision. The fact that there was no enrolment was the reason that the applicants were not ultimately successful.

6. The first paragraph does not identify jurisdictional error. The Tribunal remained impartial and open to persuasion throughout its review.

7. As for the remaining paragraphs in the letter from the applicants, these matters are irrelevant to the Court’s task. They do not identify any jurisdictional error or relate to the Tribunal’s decision. They refer to the applicants’ personal circumstances and appeal to the merits of their claims.

8. The email to Chambers from the applicants received 21 October 2020 at 7.38pm fails to identify any jurisdictional error.

Conclusion

1. The judicial review application and the first applicant’s affidavit have failed to identify any jurisdictional error. The Court is otherwise satisfied that no error arises.

2. The application is, accordingly, dismissed.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 22 October 2020