Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 68
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 68
File number(s): MLG 2706 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 1 February 2024 Catchwords: MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) (Subclass 500) visa – where applicant concedes not enrolled in course of study at time of the Tribunal’s decision – oral submissions raised at hearing – whether Tribunal failed to make enquiries as invited to do so by documents provided by applicant – whether the Tribunal denied the applicant procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359A(4)(b), 274, 476.
Migration Regulations 1994 (Cth), sch 2, cl 500.211, cl 500.212.
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Kaur & Ors v Minister for Immigration & Anor [2015] FCAA 2465
Kwatra v Minister for Home Affairs [2019] FCA 1308
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Shabbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 22 January 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Plitsch of Australian Government Solicitor ORDERS
MLG 2706 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMANDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 10 September 2018 be dismissed
2.The Applicant pay the First Respondent’s costs in the fixed amount of $6,000.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 10 September 2018 for judicial review of a decision made by the second respondent (Tribunal) on 14 August 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to not grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).
BACKGROUND
The applicant is a citizen of India.
The applicant arrived in Australia on 3 December 2013 on a Student visa (TU 573), which was granted offshore on 26 November 2013 and valid until 15 March 2017, to study a Diploma of Computing and Information Technology and Bachelor of Information Technology.
On 8 March 2017 the applicant applied for the Visa.
On 1 May 2017, the Delegate refused the applicant’s application for the Visa. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal of the Visa was on the basis that the Delegate was not satisfied the applicant was a genuine temporary entrant for the purposes of study as required by cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
On 18 May 2017 the applicant applied to the Tribunal for review of the Delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx16”.
On 23 May 2017, the Tribunal sent the applicant confirmation of receipt of her application. The applicant was advised if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to her contact details.
On 17 July 2018 the Tribunal emailed the applicant enclosing an invitation for the applicant to attend a hearing on 14 August 2018 at 9.30am with an information sheet attached. The Tribunal requested the applicant provide the following documents at least 7 days before the hearing date: a copy of her current Confirmation of Enrolment (COE); documents evidencing her past studies in Australia; and a written statement addressing the issue of whether she was a genuine temporary entrant (GTE). The hearing invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 14 August 2018 the applicant attended the hearing before the Tribunal with the assistance of an interpreter in the Punjabi and English languages. At the hearing, the applicant provided the following documents to the Tribunal:
·various medical records relating to the applicant;
·a document issued by the Institute of Training and Further Education dated 11 August 2016 certifying that the applicant had fulfilled the requirements for ‘Use hygienic practices for food safety’ and an associated tax invoice;
·a letter to the applicant from the Vocational Training Institute dated 13 August 2018 offering her a place in an Advanced Diploma of Leadership and Management commencing on 15 September 2018, enclosing an Acceptance of Offer and Enrolment Agreement (VTI Agreement); and
·three COE’s relating to courses of study in which the applicant had previously been enrolled.
Immediately following the conclusion of the hearing, the Tribunal gave an oral statement of reasons to the applicant and affirmed the decision of the Delegate to refuse to grant the applicant the Visa.
Tribunal’s decision
On 11 September 2018, the Tribunal provided the applicant with a statement of reasons dated 10 September 2018 (Tribunal Decision).
At paragraph [10] of the Tribunal Decision, the Tribunal identified that while the issue before the Delegate was whether the applicant was a GTE, the issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations.
At paragraph’s [15] – [16] of the Tribunal Decision, the Tribunal referred to its correspondence of 17 July 2018, and recorded that the applicant had failed to provide a COE, either prior to the hearing as requested, or at the hearing.
At paragraph’s [17] – [25] of the Tribunal Decision, the Tribunal referred to the documents provided by the applicant at the hearing. In relation to the VTI Agreement, at paragraph’s [17] and [19], the Tribunal observed that the document was undated and unsigned, and nothing before the Tribunal indicated payment of any tuition fees.
At paragraph [28] of the Tribunal Decision, the Tribunal noted that the applicant confirmed in her sworn evidence that she was not currently enrolled in a registered course of study and did not have a valid offer of enrolment in any course of study in Australia. Further, the Tribunal noted at paragraph [29] that there was no evidence before it that the applicant was enrolled in or had any current COE in any course of study.
Accordingly, the Tribunal was not satisfied that, at the time of its decision, the applicant was enrolled in a course of study and therefore cl 500.211 of the Regulations was not met.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s Decision on 10 September 2018.
The Application contains the following grounds for judicial review (without amendment):
1.AAT decision is not acceptable. AAT member didn’t consider my immigration history and bona fide study records in Australia. As per the GTE criteria, I fulfil the GTE terms and conditions. Decision is full of discrepancies.
2.AAT decision was not taken in fairly manner. AAT decision is legally unreasonable.
3.I am not happy the decision of AAT. In decision AAT didn’t consider my bona fide intention to complete my study plan of advanced Diploma of Management.
The applicant also filed the following:
(1)an affidavit filed on 10 September 2018, annexing the decision outcome of the Tribunal, a letter from the Tribunal to the applicant attaching a copy of the hearing audio and a copy of the Delegate’s decision; and
(2)an affidavit filed on 13 September 2018, annexing the Tribunal’s Decision; and
(3)an affidavit filed on 17 January 2024 annexing a letter from her treating General Practitioner (GP). In summary, the Letter provides details of the applicant’s current and previous medical conditions and the medical specialists she is and has attended. The Letter provides that the applicant “has been unable to work or study due to the stress, anxiety, panic attacks and trauma she has endured over the past several years due to one on one [sic] health issues.” The Minister objected to this further affidavit on the basis of relevance.
The Minister filed a Response on 21 September 2018. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the decision under review is not affected by jurisdictional error.
The Minister also filed written submissions on 15 January 2024.
THE HEARING
The hearing took place on 22 January 2024.
The applicant was self-represented and assisted by an interpreter in the Punjabi and English languages.
At the hearing the applicant was invited to elaborate on the grounds of review contained in Application. In response to this invitation, the applicant provided the following for consideration of the Court:
(1)at the hearing before the Tribunal, the applicant provided the Tribunal with a letter from her GP, which the applicant said invited the Tribunal to contact them to obtain further information regarding the applicant’s medical conditions (Document);
(2)the Tribunal’s decision was not acceptable (per Ground 1), taken in an unfair manner and legally unreasonable (per Ground 2) and the basis of the applicant’s unhappiness with the Tribunal’s Decision (per Ground 3) because the Tribunal did not make enquiries with the applicant’s GP and seek further information as to her medical conditions as invited to do so in the Document;
(3)the applicant could not enrol in a new course because Cambridge College delayed in providing her with a certificate of completion;
(4)the Court should provide her with another chance as the delay by Cambridge College and the failure by the Tribunal to contact that applicant’s GP as invited to do so in the Document were not her fault.
This final submission is of no assistance to the applicant. The role of the Court is not to undertake general review of the Tribunal’s Decision. I address the other matters below.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Delegate’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
As set out above, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
To the extent that Ground 1 submits that applicant satisfies the GTE criterion, this ground is misconceived. The issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations. Having found the mandatory requirement under cl 500.211(a) of the Regulations was not satisfied, the Tribunal was not required to engage with the GTE criteria in cl 500.212(a) of the Regulations: Kwatra v Minister for Home Affairs [2019] FCA 1308 (Kwatra) at [20] per Berley J. Further, the Tribunal’s Decision demonstrates that it did not do so. The Tribunal considered the applicant’s evidence. The applicant had not provided the Tribunal with a current COE either prior to the hearing, or at the hearing. Further, the applicant concedes that she was not enrolled in a course of study as at the date of the Tribunal’s Decision. Accordingly, the Tribunal correctly determined that the applicant did not meet the requirements of cl 500.211(a) of the Regulations and no other considerations were relevant to that determination.
To the extent that Ground 1 asserts that the Tribunal’s Decision “is not acceptable”, the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang).
As to the submissions made by the applicant that the decision “is not acceptable” because the Tribunal did not make enquiries with the applicant’s GP as invited to do so in the Document, those submissions must be rejected. Firstly, there is no independent, probative evidence before the Court of the Document nor its contents. Further, it is not referred to in the Tribunal’s Decision nor is it identified in paragraph [17] of the Tribunal’s Decision where the Tribunal lists the documents provided by the applicant to the Tribunal at the hearing. Secondly, even if it be the case that the applicant did provide the Document to the Tribunal, in the present circumstances no error arises from the Tribunal’s failure to make enquiries regarding the applicant’s medical conditions as invited to do so by the Document. The only question before the Tribunal was whether the applicant was “enrolled in a course of study” as required by cl 500.211(a) of the Regulations. The Regulations provide that “all criteria must be satisfied at the time a decision is made on the application.” The enrolment criteria therefore impose mandatory, objective criteria for the grant of the Visa that could not be “waived by reference to [an] applicant’s previous study or personal circumstances”: Shabbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24]. There was no evidence before the Tribunal that the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations at the time of the Tribunal’s Decision and she confirmed both before the Tribunal and at the hearing before this Court that she was not. The reasons why the applicant was unable to satisfy the requirements of cl 500.211(a) of the Regulations are not relevant in the absence of any discretion to grant the Visa: Kaur & Ors v Minister for Immigration & Anor [2015] FCAA 2465 at [31] per Perry J; Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149 at [9] per Jagot J.
Finally, as to the assertion that the Tribunal’s decision is “full of discrepancies”, any such discrepancies are entirely unparticularised. Further, the applicant provided no further articulation or particularisation of these alleged discrepancies at the hearing.
Ground 1 therefore discloses no jurisdictional error by the Tribunal.
Ground 2
Ground 2 is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
To the extent that Ground 2 asserts that the applicant was not afforded procedural fairness, this submission must also be rejected.
On 23 May 2017, the Tribunal emailed the applicant acknowledging receipt of the applicant’s application for review and invited the applicant to provide “material or written arguments”. The applicant did not provide any material or written arguments prior to the Tribunal hearing. Further, on 17 July 2018, the Tribunal requested the applicant provide the following documents at least 7 days before the hearing date: a copy of her current COE; documents evidencing her past studies in Australia; and a written statement addressing the issue of whether she was a GTE. The applicant did not provide the Tribunal with any of the requested documents. The Tribunal proceedings were conducted under Part 5 of the Act. Division 5 of Part 5 of the Act exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard. The applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 360 and 360A of the Act. As stated above, the applicant attended the hearing on 14 August 2018 and gave evidence with the assistance of an interpreter in the Punjabi and English languages.
Accordingly, the Tribunal complied with the requirements of Division 5 of Part 5 of the Act. There was no failure to accord procedural fairness to the applicant.
The decision does not indicate that the Tribunal put to the applicant the applicant’s PRISMS records which indicated she was not enrolled. I accept the Minister’s submission that in circumstances where the Tribunal recorded at paragraph [28] of the Tribunal Decision that the evidence was that she was not enrolled in a court of study, the obligation under s 359A of the Act was not engaged as a result of the exclusion in s 359A(4)(b) of the Act. Accordingly, no jurisdictional error on the Tribunal’s behalf is disclosed as a result of not putting the PRISMS records to the applicant.
Finally, as to the submissions that the Tribunal’s Decision was unfair and legally unreasonable because the Tribunal did not make enquiries with the applicant’s GP as invited to do so, for the reasons set out in paragraph [30] above, those submissions must be rejected.
Ground 2 therefore discloses no jurisdictional error by the Tribunal.
Ground 3
To the extent that Ground 3 expresses dissatisfaction with the Tribunal’s Decision, the applicant seeks impermissible merits review. As already set out, merits review is beyond the jurisdiction of this Court: Liang.
Further, to the extent that Ground 3 asserts that the applicant failed to consider whether the applicant satisfied the GTE criterion or evidence going to the criterion, this ground is misconceived for the reasons set out in relation to Ground 1 above.
Finally, the submission that the applicant is unhappy with the Tribunal’s decision because the Tribunal did make enquiries with the applicant’s GP as invited to do so in the Document, must also be rejected for the reasons set out in paragraph [30] above.
Accordingly, Ground 3 also discloses no reasonably arguable jurisdictional error by the Tribunal.
Other grounds
As to the Letter and the matters raised in it regarding the applicant’s health, none of these matters were before the Tribunal at the time it made its decision. Accordingly, neither the Letter nor its contents can give rise to any jurisdictional error on the Tribunal’s behalf. Further, the only question before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.212(a) of the Regulations. For the reasons set out at paragraph [30] above, matters going to the applicant’s health were not relevant to that question.
For the same reasons (as set out in paragraph [30] above), the alleged delay in Cambridge College providing the applicant with a certificate of completion does not give rise to any jurisdictional error on the Tribunal’s behalf. The reasons why the applicant was unable to satisfy the requirements of cl 500.211(a) of the Regulations are not relevant in the absence of any discretion to grant the Visa: Kaur at [31] per Perry J. Further, the applicant was provided with a certificate of graduation and statement of attainment in a Diploma of Management dated 4 August 2016 and the Tribunal’s hearing was not until 14 August 2018. In such circumstances it is difficult to see how there was, in fact, any relevant delay in any event.
CONCLUSION
For the above reasons, the Application discloses no jurisdictional error on the Tribunal’s behalf.
The Application must therefore be dismissed.
The Minister seeks that the applicant pay it costs in the fixed amount of $6,000. I note that this amount is below the scale amount. I shall order that the applicant pay the Minister’s costs as sought.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 1 February 2024
0
9
2