Kaur v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 920
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 920
File number(s): SYG 1629 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 September 2024 Catchwords: MIGRATION – review of registrar’s decision – summary dismissal – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act 1976 (Cth) s 31A
Migration Act 1958 (Cth) ss 65, 359, 359A, 359C, 379A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Federal Court Rules 2011 (Cth) r 26.01
Migration Regulations 1994 (Cth) cll 500.211, 500.212
Cases cited: Bechara v Bates [2021] FCAFC 34
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Spencer v Commonwealth of Australia (2010) CLR 118
SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 12 September 2024 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person on behalf of the Applicants Solicitor for the First Respondent: Mr S Knuckey of Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1629 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALJIT KAUR
First Applicant
BHUPINDER SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Application for review of the Registrar’s decision is 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 Kaur-Bains
On 8 August 2024, a Registrar of this Court in the exercise of delegated power, summarily dismissed the Applicant’s application for judicial review pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
By application dated 29 August 2024, the Applicant sought a review of the exercise of the power by the Registrar, which was 14 days outside the time prescribed by r 21.02(1) of the GFL Rules. The First Respondent (Minister) consented to an order being made, pursuant to
r 21.02(2)(b) of the GFL Rules, extending time for the Applicant to bring the review application, which order was made.
PROCEDURAL HISTORY
On 1 December 2017 the Applicant applied to the Second Respondent (Tribunal) for review of the delegate’s decision dated 14 November 2017, refusing to grant the Applicant’s student (Temporary) (Class TU) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act) (Court Book (CB) 64-65). The delegate refused the visa on the basis that the Applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate found the Applicant did not intend to stay temporarily in Australia.
On 14 August 2019 the Tribunal affirmed the decision under review. The Tribunal concluded there was no evidence before it that the Applicant was currently enrolled in a registered course of study. Therefore, cl 500.211(a) of the Regulations was not satisfied (CB 87-90) (First Tribunal Decision).
Remittal of Matter to Tribunal
The Applicant applied for judicial review of the First Tribunal Decision to this Court. On
4 November 2019, by consent, orders were made by this Court remitting the matter to the Tribunal for reconsideration. The Court found the Tribunal’s conclusion in relation to the Applicant’s non-satisfaction of cl 500.211 was not a conclusion open to be reached on the available evidence before the Tribunal (CB 94-95).
The Tribunal’s Decision Differently Constituted
On 9 June 2020 the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the Applicant the visa (Second Tribunal Decision) (CB 108-111). The Tribunal had regard to the Provider Registration and International Management System (PRISMS), which recorded that at the time of the Second Tribunal Decision, the Applicant was not currently enrolled in a course of study and did not have an enrolment to study in the future. Therefore, the Tribunal found the Applicant did not satisfy the requirement of cl 500.211(a), which required that at the time of the Tribunal’s decision the Applicant is enrolled in a course of study, relevantly in a full-time registered course.
Registrar’s Decision
On 7 July 2020 the Applicant filed an application in this Court seeking judicial review of the Second Tribunal Decision.
On 24 July 2024 the Minister sought orders by way of Amended Response seeking summary dismissal of the matter with costs, pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13(a) of the GFL Rules. The Minister sought such orders on the basis that the Applicant had no reasonable prospects of successfully prosecuting the proceeding.
The hearing in relation to the Minister’s summary dismissal application was set down for
8 August 2024. Both parties attended the hearing. On the day of the hearing, orders were made by the Registrar summarily dismissing the application for judicial review pursuant to r 13.13(a) of the GFL Rules with costs.
On 29 August 2024 the Applicant filed an application for review of the Registrar’s decision.
RELEVANT LAW
Pursuant to r 21.04(1) of the GFL Rules, the overriding legal principle that applies to reviews of decisions of Registrars in this Court is that reviews must proceed by way of a hearing de novo. That is, for such hearings to be conducted afresh and not concerned with correcting error in the decision making process of the Registrar. The validity of the exercise of delegated judicial power by a Registrar of this Court is dependent upon this principle and the right for parties to seek review of the exercise of delegated judicial authority: Bechara v Bates [2021] FCAFC 34 (Allsop CJ, Markovic and Colvin JJ) at [2]; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (Burley J) at [11].
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the GFL Rules provides:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
When considering a summary dismissal application, the Court is not required to determine whether the Tribunal’s decision is affected by jurisdictional error, but rather whether the application for judicial review filed by the Applicant has no reasonable prospects of success. Section 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), are similar to the provisions applied in this Court as set out in [12] and [13] above.
In Spencer v Commonwealth of Australia (2010) CLR 118, the High Court, regarding the phrase “no reasonable prospect of successfully prosecuting the proceeding”, said that no paraphrase of the phrase should be adopted to explain its operation. Hayne, Crennan, Kiefel and Bell JJ stated at [60]:
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. …
As said in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 (Mortimer J (as her Honour then was)) at [19] “like other judicial guidance in relation to statutory discretions expressed in an unconfined way, or expressed by reference to broad considerations, it is critical that such guidance not be taken as exhaustive. Nor must it be applied as if it is a code.”
PROCEEDINGS BEFORE THE COURT
The Applicant appeared before the Court at the hearing unrepresented, assisted by a Punjabi interpreter. I ensured the Applicant was in possession of all relevant documents being the Application for Judicial Review filed on 7 July 2020, Application for Review of the Registrar’s Decision filed on 29 August 2024, the two Affidavits in support of the originating application and review application filed by the Applicant on 7 July 2020 and 29 August 2024, the Court Book and the Minister’s Written Submissions. The Applicant partly communicated with the Court in English and confirmed she could speak, read and write in English. However, she said when the Court used legal terminology she would require the assistance of the interpreter, which assistance was provided.
Mindful of the Court’s duties to a litigant in person, I explained to the Applicant the procedural history outlined in [3] to [9] of this judgment and that the Applicant needed to explain to me why the Tribunal who made the Second Tribunal Decision on 9 June 2020 was wrong.
At the hearing, without objection from the Minister, two documents were tendered into evidence by the Applicant, which evidenced that the Applicant had enrolled in two courses namely a Graduate Diploma of Management (Learning) and an Advanced Diploma of Leadership and Management on 3 September 2024. The Applicant acknowledged that at the time of the Second Tribunal Decision on 9 June 2020 she was not enrolled in any relevant course.
CONSIDERATION
The Application for review identified two grounds for review.
Ground 1
In relation to Ground 1, the Applicant says there was an error in the decision of the delegate dated 14 November 2017, when the delegate found, the Applicant did not intend to stay temporarily in Australia. The Applicant alleges she was denied procedural fairness.
At the hearing, I explained to the Applicant the Court has no jurisdiction to review a delegate’s decision and the Tribunal on 9 June 2020 had decided for itself whether the visa should be granted to the Applicant. The Applicant confirmed that she had not understood that before my explanation.
Ground 1 has no reasonable prospects of success as the Court has no jurisdiction to review the delegate’s decision as it is a “primary decision” for the purposes of s 476(2)(a) of the Act: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 at [23].
Ground 2
Ground 2 raises two matters. First, the Applicant says the Tribunal quoted a different reason for refusing to grant the visa, being the fact that the Applicant was not enrolled in a course of study as required by cl 500.211(a), whereas the delegate had refused to grant the visa on the basis it found the Applicant did not intend to stay temporarily in Australia. Second, the Applicant says she did not enrol in study as she did not know how long the Tribunal would take to decide the matter and decided she would only enrol after the Tribunal had given her a decision.
At the hearing before me, the Applicant submitted she was not informed by the Tribunal who determined the matter on 9 June 2020, of the requisite condition of enrolment in a course of study. Given the Applicant was a litigant in person and to ensure I properly understood the Applicant’s arguments as to any legal error and the Applicant had an opportunity to respond (MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392), I drew the Applicant’s attention to two letters sent by the Tribunal as set out in [26] and [28] below.
In a letter dated 7 May 2020, the Tribunal invited the Applicant to provide information pursuant to s 359 of the Act (CB 100-101). The letter relevantly said:
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clinking the link below.
The letter sought the information by 21 May 2020, or invited the Applicant to seek an extension of time.
The Applicant’s attention was also drawn to a second letter dated 25 May 2020 (CB 104) sent by the Tribunal pursuant to s 359A of the Act to comment or respond to certain information, which the Tribunal considered would, subject to comment, be the reason, or part of the reason, for affirming the decision under review. The letter relevantly stated:
The particulars of the information are:
•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.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 8 June 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 8 June 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 8 June 2020 and you must state the reason why the extension of time is required.
At the hearing before me the Applicant acknowledged the email address on both letters was her email address and recalled receiving the first letter, but not the second letter. She said she did not respond to the Tribunal’s requests for further information by email letter dated
7 May 2020, owing to her pregnancy associated with sickness that rendered her incapable of responding and a difficult financial situation brought about by the COVID-19 pandemic, which made obtaining appropriate assistance in relation to these proceedings a challenge.
Given the Applicant was a litigant in person, I raised with the Minister that I would consider whether there was any denial of procedural fairness. The Minister did not oppose that course and made submissions. I accept the Minister’s submissions that the Tribunal who determined the matter on 9 June 2020, complied with the requirements of the Act. By letters dated
7 May 2020 and 25 May 2020, issued pursuant to s 359 and s 359A of the Act, the Applicant was on notice that she needed to be enrolled in a registered course as at the time of the Tribunal decision. The letters were sent in accordance with a method specified in s 379A(5) of the Act by email to the last email address provided. Therefore, s 359C(5) operated and the Applicant was taken to have received the invitations at the end of the day the invitation was transmitted. Further, the Tribunal was entitled to proceed under s 359C of the Act to decide the matter. Therefore, there was no denial of procedural fairness.
Further, in relation to Ground 2, the Tribunal was reconsidering for itself whether to grant the visa. The fact that the Tribunal quoted a different reason for refusing to grant the visa in circumstances where the Applicant was accorded procedural fairness (as she was for the reasons set out in [26] to [30] above), would not amount to a jurisdictional error.
CONCLUSION
I am satisfied the Minister has established that the Application for judicial review lacks reasonable prospects of success and should be summarily dismissed. Therefore, the application seeking to set aside the orders of the Registrar on 8 August 2024 is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 September 2024
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