Kemei v Minister for Immigration
[2019] FCCA 1735
•24 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEMEI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1735 |
| Catchwords: MIGRATION – Judicial review – citizen of Kenya – student visa – whether visa criteria met – no confirmation of enrolment – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Migration Legislation Amendment Regulations 2012 (No.1) (Cth) |
| Cases cited: Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal & Anor [2009] FCA 1514; (2009) 181 FCR 515; (2009) 51 AAR 132 Minister for Immigration & Border Protection v Singh & Anor [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97 Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 |
| Applicant: | CHARLES KIPTOO KEMEI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 395 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 June 2014 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Stapleton |
| Solicitors for the Applicant: | MyVisa Lawyers |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 395 of 2013
| CHARLES KIPTOO KEMEI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Charles Kiptoo Kemei (“Mr Kemei”), seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection to not grant Mr Kemei a Student (Temporary) (Class TU) visa (“Student Visa”). The Tribunal Decision is at Court Book (“CB”) 124-126.
After judgment was reserved it was discovered that the Delegate had issued a non-disclosure certificate pursuant to s.375A of the Migration Act (“Certificate”) which was not disclosed to Mr Kemei by the Tribunal. Following the delivery of Minister for Immigration & Border Protection v Singh & Anor [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97 (“Singh”), the parties (through the Minister’s lawyers) made a further submission (by email) to the Court on 19 July 2017 indicating that they had agreed that no jurisdictional error of the kind identified in Singh had arisen as the document the subject of the Certificate was irrelevant to the Tribunal’s review, and there was no practical injustice to the applicant, and citing: AVO15 v Minister for Immigration & Border Protection [2017] FCA 566 at [84]-[91] per Barker J; BEG15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 2778; (2016) 315 FLR 196 at [64] per Judge Smith. The Court concurs with that view, and there is therefore no further requirement for the Court to address the issues that arose in Singh.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reason for that is the case load in the Western Australian Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and considered the following materials in the preparation of these Reasons for Judgment:
a)the Judicial Review Application filed 20 December 2013 and the amended Judicial Review Application filed 6 June 2014 (“Amended Judicial Review Application”);
b)the affidavits of Mr Kemei:
i)sworn 20 December 2013 annexing the Tribunal Decision; and
ii)affirmed 23 June 2014 (“Kemei 2014 Affidavit”) annexing documentation from Edith Cowan University (“ECU”) concerning Mr Kemei’s enrolment in a Masters of Project Management course;
c)the affidavit of Ms Robyn Margaret Burdett affirmed 12 June 2014, annexing a transcript of the hearing before the Tribunal held on 12 November 2013 (“Tribunal Transcript”);
d)lengthy written submissions filed by both Mr Kemei (some 20 pages), and the Minister’s much shorter (5 pages) written submissions; and
e)the 37 page transcript of the hearing on 24 June 2014 (“Court Transcript”), at which hearing both parties made extensive oral submissions, but no oral evidence was given.
Having had regard to the above materials the delay, which the Court very much regrets, has had no effect upon the Court’s rationale in these Reasons for Judgment.
Background
The background prior to the filing of the Judicial Review Application is as follows:
a)Mr Kemei is a citizen of Kenya who first arrived in Australia on 24 February 2008 as the holder of a Student Visa, and lodged the Student Visa application the subject of the Judicial Review Application on 15 March 2011: CB 1, 4, 20 and 95;
b)on 17 May 2011 Mr Kemei’s enrolment at ECU was cancelled as a result of a failure to pay tuition fees;
c)Mr Kemei’s brother purportedly paid the fees toward the end of July 2011, however ECU did not release Mr Kemei’s final mark which would enable him to graduate as they allegedly claimed he had “refused to pay fees on time”: CB 84;
d)upon being contacted by the Delegate on 9 August 2011 Mr Kemei advised there was a “misunderstanding”, and the Delegate allowed Mr Kemei until close of business on 10 August 2011 to provide a confirmation of enrolment (“CoE”) and a letter from ECU regarding his fee status and academic standing: CB 31;
e)following a meeting with ECU to discuss his reinstatement as a student, Mr Kemei further wrote to the Delegate on 10 August 2011 requesting further time to settle the matter with ECU, with whom an agreement had not yet been reached: CB 32-33, and further indicated that, he had written to the “deen” (sic) seeking further consideration of his case: CB 82;
f)on 17 August 2011 the Delegate’s Decision was to refuse Mr Kemei the Student Visa on the basis that his CoE to study for a Bachelor of Computer Science degree at ECU had been cancelled on 25 May 2011, and that as at the date of the Delegate’s Decision Mr Kemei had not provided a new CoE, therefore the Delegate was not satisfied that Mr Kemei met cl.573.223(2)(a)(ii)(A) of Sch.2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 53;
g)on 12 September 2011 Mr Kemei made an application to the Tribunal for review of the Delegate’s Decision: CB 70-85;
h)on 28 August 2013 Mr Kemei was invited to attend a hearing before the Tribunal (“Tribunal Hearing”) and asked to provide all documents intended to be relied upon to establish he met the criteria for the Student Visa, and copies of a current CoE or, relevantly, documents confirming an offer had been extended to enrol in a registered course: CB 101-102;
i)on 29 September 2013 Mr Kemei forwarded to the Tribunal a number of documents in support of his Student Visa application including:
i)his Bachelor of Computer Science degree from ECU and letter of course completion dated 12 December 2012: CB 113-116;
ii)a CoE in the Bachelor of Computer Science degree at ECU from 1 July 2012 until 31 December 2012: CB 117; and
iii)a completed response to the Tribunal Hearing invitation requesting that the Tribunal contact his brother in the United States of America who was responsible (as his guardian) for paying Mr Kemei’s fees: CB 118-119;
j)on 12 November 2013 Mr Kemei attended the Tribunal Hearing by teleconference, with the Tribunal Hearing commencing at 4.08pm and concluding at 4.19pm: CB 121-123; and
k)on 15 November 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Kemei a Student Visa: CB 124 and 126 at [14]-[15].
Tribunal Decision
In the Tribunal Decision, the Tribunal set out preliminary information concerning Mr Kemei’s visa history: CB 125 at [2]. The Tribunal noted the Delegate’s Decision was to refuse the Student Visa on the basis Mr Kemei did not satisfy cl.573.223 of Sch.2 of the Migration Regulations, because, as at the time of the Delegate’s Decision, there was no record of Mr Kemei having a current enrolment to study and records indicated he had not done so for the previous three months, and the Delegate was therefore not satisfied that Mr Kemei met the genuine student criterion: CB 125 at [2]-[3].
When considering Mr Kemei’s claims and evidence the Tribunal Decision stated as follows at CB 125-126 at [6]-[14]:
6. The issue before the delegate was whether the applicant met the criterion in cl.573.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
7. With limited exceptions not relevant to this case, cl.570.232, 571.232, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application.
8. The applicant told the Tribunal he had completed a Bachelor of Computer Science course and provided an academic record dated 17/12/2012 confirming his course completion.
9. He told the hearing he was not currently enrolled and had no plans for further studies. He said it was his intention to gain a 2-year internship program where he could gain experience in his chosen field.
10. He found himself in this position because it has taken over two years from his application to get a hearing in which time he had completed his studies.
11. The Tribunal explained to the applicant that a prerequisite for the grant of a student visa was that an applicant was currently enrolled or held an offer of enrolment in a registered course.
12. As this is not a matter in which the Tribunal has discretion, from the applicant’s evidence, the Tribunal finds he is not currently enrolled in or does not have a current offer of enrolment in any applicable course of study. Therefore cl…573.231…[is] not met
13. …
14. For these reasons, the decision under review must be affirmed.
Amended Judicial Review Application – grounds
The three grounds of review (grounds 1, 2 and 3 respectively) in this Court are those contained in the Amended Judicial Review Application filed on 6 June 2014, and are as follows:
1. The Second Respondent's decision was affected by jurisdictional error because the Second Respondent failed, pursuant to its obligation in section 348 Migration Act 1958, to comply with the condition of the exercise of decision-making power which was to review the decision of the First Respondent.
Particulars
a. The Second Respondent failed to review the First Respondent's decision on 17 August 2011 to refuse to grant the Applicant the Student (Temporary) (Class TU) Visa (Visa), which was the subject of a valid application;
b. The Second Respondent failed to review the applicable legislation and ignored relevant material available at the time of the First Respondent's decision which included failing to find that the First Respondent refused the grant of the Visa on evidence against Clause 573.223(2)(a)(ii)(A) in Schedule 2 of the Regulations to the Migration Act (Regulations) only and did not take into account "any other relevant matter" pursuant to Clause 573.223(2)( a)(ii)(B) of the Regulations and "Direction No.53 -Assessing the genuine temporary entrant criterion for Student visa applications" which the First Respondent was compelled to do;
c. The Second Respondent failed to identify that the First Respondent failed to take account of an "other relevant matter" pursuant to Clause 573.223(2)(a)(ii)(B) of the Regulations which included failing to consider that the Applicant may have met the "Genuine Student Criteria" in the Regulations if the Applicant could have been afforded the opportunity for the Senior Management at Edith Cowan University (ECU) to finally determine whether the Applicant's student enrolment for the period of 1 January 2011 to 21 June 2011 would be reinstated after the Applicant's fees for that period of tuition plus penalties were paid in full on 27 July 2011;
d. The Second Respondent failed to properly exercise its core function by limiting the question before it to the wrong question of whether the Applicant met the enrolment conditions for a student visa only at the time of the Second Respondent's decision; and
e. In the circumstances, the second respondent denied the applicant an opportunity for a proper review of the Delegate's decision which was an error of law.
2. The Second Respondent's decision was affected by jurisdictional error because the Second Respondent failed, pursuant to its obligation in section 353 Migration Act 1958, to comply with the condition of the exercise of decision making power which was to pursue the objective of providing a mechanism which was fair and to act according to substantial justice and the merits of the case.
Particulars
a. The Applicant repeats the Particulars to Ground 1 above; and
b. By asking only the question in sub-paragraph l(d) above, the Second Respondent ignored relevant material and failed to find relevantly that ECU did reinstate the Applicant's student record after payment of his tuition fees in July 2011, as evidenced by the Applicant producing to the Second Respondent a:
i. Confirmation of Enrolment Certificate for Edith Cowan University for the period from 1 July 2012 to 31 July 2012; and
ii. Certificate of Completion of Bachelor of Computer Science Degree as at 17 December 2012;
c. By asking only the question in sub-paragraph 1(d) above, the Second Respondent failed to take into account that the First Respondent's decision to refuse to grant the Visa unfairly and unnecessarily limited the Applicant's visa status which had the direct consequence of limiting the Applicant's future ability to enter into post-graduate study and study-related employment in Australia after completion of his degree at ECU.
3. The Second Respondent's decision was erroneous and mistaken in a way that affects the exercise and or purported exercise of the Second Respondent's power which amounts to jurisdictional error and invalidates the decision of the Second Respondent.
Particulars
a. The Applicant repeats the Particulars to Grounds 1 and 2 above.
Submissions
Applicant’s submissions
With respect to ground 1 Mr Kemei submitted that:
a)the Tribunal was bound to consider and take into account “Direction 53- Assessing the Genuine temporary Entrant Criterion for Student Visa Applications” (“Direction”);
b)the Tribunal failed to conduct any review of the Delegate’s Decision when one considers the case law on this point;
c)the Delegate refused Mr Kemei a Student Visa on the basis he did not meet cl.573.223 of Sch.2 of Migration Regulations and had the Delegate properly conducted the review it should have assessed the stated intention of Mr Kemei to comply with any conditions the subject of the Student Visa and this was an apparent lack of qualitative assessment;
d)the Tribunal’s review of the Delegate’s Decision should have been conducted as a “fresh consideration” of the application before the Delegate in light of all the evidence before the Tribunal at the time of making the Tribunal Decision, including that Mr Kemei had received a CoE and completed his course, was part of the line of enquiry and obligation to “do over again” the Delegate’s Decision;
e)the lack of inquiry by the Tribunal as to the Delegate’s process meant the Tribunal did not consider that the Delegate could, or should, have taken into account other relevant matters such as:
i)Mr Kemei taking his final exams;
ii)that the fees were paid in full sometime around 27 July 2011; and
iii)Mr Kemei was actively seeking to rectify the situation and simply required more time to do so;
f)the Tribunal limited the inquiry to the wrong question of whether Mr Kemei met the enrolment conditions for a Student Visa only at the time of the Tribunal Decision;
g)to confine s.349 of the Migration Act to an interpretation that limits relevant facts to only those that exist at the date of the Tribunal Decision is contrary to the legislative intention as it excludes the Tribunal from being able to perform the “review” that is required by s.348 of the Migration Act; and
h)the Tribunal’s method of arriving at its conclusion was divorced from the performance of its statutory powers, and so was affected by jurisdictional error.
With respect to ground 2 Mr Kemei submitted that:
a)the core review function of the Tribunal was not conducted in a way that was fair or focussed on the merits of the case, and focussed on the wrong question of how Mr Kemei could be granted a Student Visa when he had since completed his studies;
b)a “variation” of the Delegate’s Decision would be open and broad enough to allow the Tribunal to determine that the Delegate’s Decision was not a refusal and send it back to the Delegate for reconsideration in which time Mr Kemei will have a window to apply for a fresh application;
c)the Tribunal failed to consider the Certificate of Completion in the context of asking the question whether the Delegate’s Decision was appropriate considering the fees had been paid on 27 July 2011 and Mr Kemei’s re-instatement was an administrative matter to be resolved, nor did the Tribunal make inquiries and ask questions of Mr Kemei that would provide responses that would have been open for the Tribunal to have concluded the Delegate ought to have been satisfied the Student Visa criteria were met;
d)where the injustice and the merits of the case have occurred is that the Tribunal ignored certain factors such as the Tribunal Decision occurring some two years after the Delegate’s Decision, and that but for that fact Mr Kemei has lost his opportunity to continue on with a six-month bridging visa that would enable him to apply for another visa or permanent residence as he is deemed to have been “refused” a visa, and this makes it substantially harder for him to obtain another visa when one considers what is said in s.48 of the Migration Act; and
e)it is the Tribunal itself that has caused the problem as had the Tribunal Hearing been heard earlier Mr Kemei would have met the criteria, or had evidence that he met the criteria and was enrolled in a course of study.
With respect to ground 3 Mr Kemei submitted that for the reasons outlined in grounds 1 and 2 the Tribunal Decision to affirm the Delegate’s Decision was an erroneous finding because it was a result of errors of law including:
a)failing to ask the correct question, namely, how did the Delegate reach the Delegate’s Decision to refuse to grant the Student Visa?; and
b)confining the review to asking a question about the facts only at the time of the Tribunal Decision.
Minister’s submissions
The Minister submitted that:
a)the essence of Mr Kemei’s claims is that he was denied an opportunity for a proper review of the Delegate’s Decision because the Tribunal failed to carry out its review function by limiting the question before it and asking only whether Mr Kemei met the criteria for a Student Visa at the time of the Tribunal Decision;
b)in carrying out the review required of it by s.348 of the Migration Act, the Tribunal was bound to make a decision that was the correct and preferable decision based upon the evidence and material that was before it at the time of making the Tribunal Decision;
c)pursuant to s.349(1) of the Migration Act the Tribunal is able to exercise all the powers and discretions that are conferred by the Migration Act on the Delegate when making the Delegate’s Decision;
d)a reviewing authority such as the Tribunal must decide upon the evidence and material before it at the time of making the Tribunal Decision, unless the statutory context otherwise imposes a temporal limitation;
e)in reviewing a delegate’s decision to refuse a visa, the Tribunal can only exercise its powers under s.349(2) of the Migration Act to set a visa refusal decision aside and substitute a new decision if, at the date of making the new decision, the time of decision criteria for that visa are satisfied;
f)accordingly, the Tribunal here was required to, and did, consider whether Mr Kemei met the “time of decision” criteria for a Student Visa as at the time of the Tribunal Decision, and not at the time of the Delegate’s Decision; and
g)further, Mr Kemei has not made any claim that he satisfied the criteria for a Student Visa at the time of the Tribunal Decision, nor has Mr Kemei claimed that the Tribunal Decision involved jurisdictional error insofar as the Tribunal found that Mr Kemei did not satisfy the criteria for a Student Visa.
Consideration
Jurisdictional error required
A Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
A jurisdictional error may arise where it can be established that the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness by the Tribunal may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, so too where the Tribunal Decision is unreasonable or lacks any evident or intelligible justification: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li- High Court”).
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
It is well accepted, and conceded by Mr Kemei: Court Transcript, p.4, line 42, that the Tribunal Decision cannot be impugned on the basis of jurisdictional error because of a finding made in the Delegate’s Decision, as the Court’s jurisdiction is to review the Tribunal Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed & Anor [2005] FCAFC 58; (2005) 143 FCR 314 (“Ahmed”); Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 (“Martinez”) at [20] per Rares J.
Legislative provisions
Sections 348, 349 and 353 (referred to in grounds 1 and 2) of the Migration Act are as follows:
348 Migration Review Tribunal must review decisions
(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
349 Powers of Migration Review Tribunal
(1) The Tribunal may, for the purposes of the review of an MRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Student Visa criteria
The Tribunal found that Mr Kemei did not meet the criteria in cl.573.231 of Sch.2 of the Migration Regulations, however, the Delegate found Mr Kemei did not meet cl.573.223(2)(a)(ii)(A) of Sch.2 of the Migration Regulations. Those provisions read (at the time they were being considered by the Delegate and the Tribunal respectively) as follows
573.22—Criteria to be satisfied at time of decision
573.223
(2) An applicant meets the requirements of this subclause if …
(a) for an applicant who is not a person designated under regulation 2.07AO
(i) …
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and …
573.231
If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
The criteria for the Student Visa were changed between the period of the Delegate’s Decision and the Tribunal Decision, including that cll.573.223 and 573.231 of Sch.2 of the Migration Regulations were amended by the Migration Legislation Amendment Regulations 2012 (No.1) (Cth) (“Amendment Regulations 2012”). The Explanatory Memorandum for the Amendment Regulations 2012 noted as follows:
Clause 573.223 is a time of decision criterion for the grant of a Subclass 573 (Higher Education Sector) visa. Relevantly, paragraph 573.223(1)(b) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause 573.223(2)…
Substituted subclause 573.223(2) retains the requirements in previous paragraph 573.223(2)(a) and applies to an applicant who is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student…
A further effect of the amendment is that if an applicant is an eligible higher degree student at time of application, but does not have a confirmation of enrolment for each course of study for which they are an eligible higher degree student at time of decision, the applicant is no longer considered to be an eligible higher degree student…Such an applicant would be expected to meet the requirements in substituted subclause 573.223(2)…
New clause 573.231 retains the requirement in previous clause 573.231 but only applies if the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student…
If an applicant is an eligible higher degree student at time of application, but does not have a confirmation of enrolment for each course of study for which they are an eligible higher degree student at time of decision, the applicant is expected to meet the requirement in clause 573.231.
Kemei 2014 Affidavit
The admissibility of the Kemei 2014 Affidavit is in issue in these proceedings: Court Transcript, p,20, lines 21-25.
The Kemei 2014 Affidavit refers to two offers of enrolment dated 13 January 2014 and 30 September 2013 from ECU to Mr Kemei, and annexed:
a)a letter dated 13 January 2014 comprising an offer of admission to a Master of Project Management course at ECU commencing 28 July 2014 and due to be completed on 15 July 2016; and
b)a letter dated 30 September 2013 comprising an offer of admission to a Master of Project Management course at ECU commencing 24 February 2014 and due to be completed on 1 December 2017.
As conceded by Mr Kemei, the documents would have been very relevant at the Tribunal Hearing, and if they were provided the outcome may have been different, because had the letter dated 30 September 2013 been provided to the Tribunal at the Tribunal Hearing Mr Kemei would have presented evidence he was “the subject of a current offer of enrolment in, a course of study that is a principal course” and likely satisfied cl.573.231(a) of Sch.2 of the Migration Regulations. Unfortunately for Mr Kemei he did not present that letter. While it was stated he did not turn his mind to the relevance of the documents, and that he was unrepresented, neither self-representation nor oversight in the presentation of documents by an applicant is a basis for a finding of jurisdictional error: there is no right to be represented before the Tribunal, or concession made for that fact without something more: Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50 at [17] per Perram J.
In relation to the Kemei 2014 Affidavit it is relevant to observe that:
a)it is not generally open to the Court on a judicial review application to consider material which was not before the relevant administrative decision-maker: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per Nicholson J;
b)fresh evidence is however admissible if it bears upon some jurisdictional error: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J, but in this case there is no jurisdictional error in the Tribunal Decision for reasons set out below: see [25]-[49] below; and
c)a jurisdictional error is not made by the Tribunal if it does not consider relevant material, such as the 30 September 2013 letter, if that material is not actually put before it by the applicant: to have regard to that material would entail this Court undertaking impermissible merits review contrary to long-standing principle that it cannot do so in judicial review proceedings under the Migration Act: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that in the above circumstances the Kemei 2014 Affidavit is irrelevant for the purposes of the Amended Judicial Review Application, and is not admissible in these proceedings: Evidence Act 1995 (Cth), s.56(2).
Ground 1
The Delegate’s Decision was to refuse the Student Visa on the basis that Mr Kemei did not satisfy cl.573.223(2)(a)(ii)(A) of Sch.2 to the Migration Regulations: CB 53. As noted above, the applicable criteria were amended by the Amendment Regulations 2012. While the criteria for the Student Visa were slightly altered, the substance of the particular requirements Mr Kemei was required to meet was not altered.
The Tribunal discussed with Mr Kemei his eligibility for the Student Visa, and at pages 2-4 of the Tribunal Transcript the following exchange occurred:
TRIBUNAL: So have you finished your university studies?
MR KEMEI: Absolutely yes member.
TRIBUNAL… do we want or need, I mean, we can’t grant student visas to someone who’s finished studying?
MR KEMEI: I hear you. I hear you very well member, in fact but part of it is how [inaudible] works is whenever you graduate your studies you are given an opportunity to apply for a temporary visa which allows you to stay in the country to further your career by doing something like an internship…
TRIBUNAL …The difficulty is as the problem here is that it’s taken so long to get to the tribunal, that in the end of any period you have had the opportunity to complete your studies, The problem is that my role is to review a decision of the department as to whether or not to grant you a student visa. To be eligible for a student visa someones got to be studying.
MR KEMEI: It is true.
TRIBUNAL: So that creates us with a dilemma. I understand your problem here is having completed you would be keen to do an internship and therefore need some resolution to this that doesn’t send you home…
MR KEMEI… it would mean the belief I’ve graduated and finished my course it orderly removes the bar because at the moment I do believe there is a bar which doesn’t allow me to apply for another visa, so with the kind of information in place if it doesn’t doesn’t give me that opportunity to apply for the temporary visa or any other visa.
TRIBUNAL: Correct, Correct, that creates a problem, it’s not a cancellation it’s a refusal of an application and while it may be technical, in this case there is a very significant difference between the two…
I note that the situation was that your enrolment was initially cancelled in May 2009 for non payment of fees, it was cancelled again in October 2009, in June 2010, in May 2011, so it was an ongoing problem. How long was your brother posted to Afghanistan for, normally a posting would only be for twelve months?
MR KEMEI: Yeah it is supposed to be originally for twelve months but things got out of hand and there is a little part where a soldier can [not audible] actually go back in after they are pretty much recalled back, back home, and given he was holding a very important position he opted to go back and take care of his team as well and [not audible] his period of time over there…
The final fact that I had all these problems I always was sure that I always attended my classes and made sure I always was adhering to the regulations of just working on 20 hours whichever [not audible] immigration knows. I never opted to break the law just to make sure that I could ask for a cheaper packet.
In Li v Minister for Immigration & Citizenship [2008] FCA 902; (2008) 102 ALD 354 at [23] per Jessup J the Federal Court explained the nature of the Tribunal’s function under s.348 of the Migration Act, in particular confirming that an entitlement to a visa is not structured around “claims”, but rather, the elements of the case are the components and criteria objectively stated in the Migration Regulations, and that the task of the Tribunal when exercising jurisdiction under Pt.5 of the Migration Act is informed by the particular visa and criteria applicable.
It is accepted that the role of the Tribunal is to arrive at the “correct and preferable decision” based upon the material before it: Li-High Court at [93] per Gageler J. The Tribunal is not required to determine if the Delegate’s Decision was the correct and preferable decision on the material before the Delegate, nor entitled to take into account the Delegate’s views on matters of either law or fact: Baldassarra v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 239 (“Baldassarra”) at [31] per French J; Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60; (1979) 46 FLR 409, ALR at 589 per Bowen CJ and Deane J. The Tribunal’s review is “restricted to a consideration of whether or not that decision was the “correct or preferable” decision, and nothing more”: Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513; (1999) 161 ALR 53; (1999) 53 ALD 315 (“Sharma”) at [37] per Weinberg J. The “decision” in the present matter is the decision not to grant Mr Kemei a Student Visa. The Tribunal is not vested with power to determine if the Delegate has committed an error: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 82 ALJR 1147; (2008) 48 AAR 345; (2008) 248 ALR 390; (2008) 103 ALD 467 at [97] per Hayne and Heydon JJ at [117] per Crennan J and [142] per Kiefel J; Ahmed at [36] per Hely, Gyles and Allsop JJ. The Tribunal’s task was to determine if the Delegate’s Decision to refuse Mr Kemei a Student Visa was the correct and preferable decision on the materials and evidence before the Tribunal, not on the Delegate’s reasons for refusal. To the extent Mr Kemei argued otherwise, Mr Kemei is wrong.
The Tribunal had therefore to determine if, on the evidence before it, Mr Kemei affirmatively satisfied the criteria for the grant of the Student Visa, and if Mr Kemei did not satisfy the criteria, s.65 of the Migration Act imposed a mandatory obligation on the Tribunal to refuse the Student Visa: SJSB vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ.
At hearing Mr Kemei referred to s.349(2)(b) of the Migration Act, and the scope of the word “vary” therein. Mr Kemei submitted that it was broad enough to allow the Tribunal to vary or set aside the Delegate’s Decision so as to not be a refusal, and therefore to be able to send it back to be “reconsidered” (and in so doing entitling Mr Kemei to apply for a fresh visa without the bar in s.48 of the Migration Act prohibiting him from doing so). The Tribunal was restricted to setting aside the Delegate’s Decision and substituting a new decision within the same class of that the applicant has applied for: Migration Act, s.31. The Tribunal cannot substitute a different visa outside of the class of visa the applicant has applied for: Migration Act, ss.45 and 46; Sharma at [36] per Weinberg J. Neither party could refer to any authority on the Tribunal’s power to “vary the decision” under s.349(2)(b) of the Migration Act (and the Court notes that s.415(2)(b) of the Migration Act is in the same terms and absent any authority), however it is clear that the power to vary the decision must fall within the specified class and the scope of the “MRT reviewable Decision”. The Delegate’s Decision was not one which was susceptible to variation: the Tribunal either had to affirm the Delegate’s Decision to refuse the Student Visa, or if it considered that the Student Visa ought to be granted, to set aside the Delegate’s Decision and substitute its own new decision under s.349(2)(d) of the Migration Act. In this regard, the Delegate’s Decision was not susceptible to variation by being altered in part: Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal & Anor [2009] FCA 1514; (2009) 181 FCR 515; (2009) 51 AAR 132 at [28] per Collier J.
Mr Kemei submitted that s.73 of the Migration Act, relating to the grant of a bridging visa, may fall within the scope of a “variation” the Tribunal may make. Mr Kemei had not applied for a bridging visa, and the purpose of a bridging visa, relevant to these proceedings, is to ensure the lawfulness of a non-citizen while a substantive visa is being processed: Minister of State for Immigration & Multicultural Affairs v Harjanto (unreported, Federal Court, Branson J, NG 59 of 1998, 18 June 1998) – and from which an appeal by the non-citizen was dismissed: Harjanto v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 411. To the extent Mr Kemei was submitting that Student Visa applicants were often granted a bridging visa having completed their studies to make applications for further studies or permanent residence status and the Tribunal was empowered to vary the decision to grant one of these, for the same reasons as are set out at [30] above the Tribunal would be taking itself outside the “MRT reviewable decision” as the grant of a bridging visa would be a decision on a different visa requiring a different exercise of discretion.
Mr Kemei also submitted that the Tribunal failed to undertake a review in “substance” as it failed to ask proper questions, or take into account matters about which Mr Kemei says the Delegate should have made inquiries, and which, if the Delegate had done so may have led to a different outcome. As already stated, it was not the Tribunal’s task to discern error in the Delegate’s Decision, but rather the Tribunal was required to conduct the review afresh.
By reason of the Tribunal Hearing invitation Mr Kemei was on notice to provide to the Tribunal “documents that show you are currently enrolled in a course, or have an offer of enrolment in a registered course”: CB 102. The instruction in the Tribunal invitation mirrors cl.573.231 of sch.2 of the Migration Regulations. It is not for the Tribunal to obtain information or make an inquiry for an applicant to provide evidence which may satisfy a criterion for the grant of a Student Visa: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ. That Mr Kemei did not turn his mind to the fact that the 30 September 2013 letter of offer was relevant is unfortunate, but it does not amount to jurisdictional error by the Tribunal. Further, the Tribunal was not bound to consider the hypothetical question of whether Mr Kemei may wish to engage in more study, or the futile question of whether Mr Kemei had a genuine intention to study previously: Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [39] per Wigney J.
The Tribunal considered the facts of Mr Kemei’s case, expressed empathy for the situation in which he had found himself, and was aware that had the Tribunal been able to hear the matter earlier he could have adduced evidence of enrolment: however, the Tribunal was bound by the Migration Regulations. There was no “extraordinary circumstances” or “compelling reasons” qualification for the Tribunal to consider in determining if the applicant should be granted a Student Visa.
On Mr Kemei’s own evidence to the Tribunal he was not studying, and he did not reveal an intention to study at the time of the Tribunal Decision, and therefore he did not meet the criteria for the Student Visa.
To the extent it was argued the Tribunal asked the wrong question when considering the “time of decision” criteria, no error, jurisdictional or otherwise, in the Tribunal Decision is established.
The Tribunal undertook a fresh review, and found that Mr Kemei did not satisfy the criterion for the grant of a Student Visa (a finding seemingly not disputed by Mr Kemei). The submissions made by Mr Kemei that the Delegate failed to consider relevant materials and conducted an improper review do not warrant the Court remitting the matter to the Tribunal: the error must be in the Tribunal Decision, and these were circumstances in which the Amended Judicial Review Application could not succeed: Baldassarra at [2]-[3] per French J
The Court has concluded there was no error, jurisdictional or otherwise, in the substance of the review undertaken by the Tribunal.
No jurisdictional error in the Tribunal Decision is therefore established by ground 1 of the Amended Judicial Review Application.
Ground 2
Mr Kemei submitted that s.353 of the Migration Act imposes an absolute legal obligation on the Tribunal, and one that falls within the core obligations of s.348 of the Migration Act, a contention said to arise from what had been stated in Minister for Immigration & Citizenship v Li & Anor [2012] FCAFC 74; (2012) 202 FCR 387; (2012) 289 ALR 210; (2012) 127 ALD 238 (“Li-FCAFC”) at [104] per Collier J as follows:
… a failure to properly consider an application… being a failure of the Tribunal to accord with s.360 of the Act, is in turn a failure of the Tribunal to comply with a condition of the exercise of decision-making power and jurisdictional error…
In Li-High Court at [14]-[15] per French CJ the High Court explained:
… the collocation has no fixed legal meaning independent of the statutory context in which it is found. So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) "describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals. Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.
It follows that ss.353 and 357A (to the extent the latter was raised) of the Migration Act are not the source of rights for an applicant, but comprise only “facultative” or “exhortative” provisions: Khant v Minister for Immigration & Citizenship [2009] FCA 124 at [31] per Cowdroy J. Rather, ss.353 and 357A of the Migration Act condition the exercise of the operative parts of Pt.5 Div.3 of the Migration Act: Li-High Court at [58] per Hayne, Kiefel and Bell JJ. Unlike in Li- High Court and Li-FCAFC, where emphasis was placed on s.360 of the Migration Act, Mr Kemei relies upon ss.348 and 353 as the source of legal obligations. Both of these provisions are found in Div.4 of Pt.5 of the Migration Act under the heading “Tribunal powers”, and are not under the “Conduct of Review” division as s.360 of the Migration Act as considered in Li-High Court and Li- FCAFC was.
Mr Kemei, when referencing s.353 of the Migration Act, placed particular emphasis on the delay between the filing of the review application with the Tribunal and the Tribunal Hearing of the review application. Mr Kemei submitted that the delay in the Tribunal bringing the matter on for hearing was in some respects the cause of Mr Kemei failing to meet the criteria to be granted a Student Visa, and had Mr Kemei been invited to attend the Tribunal Hearing in 2012, that is within one year of the application for review being filed, Mr Kemei would have likely been able to produce the CoE, and therefore what was the determinative issue in the Tribunal Decision would not have arisen.
The delay between Mr Kemei filing his application for review and the Tribunal Hearing is regrettable when one considers that the Tribunal’s statutory objective is to provide a “fair, just, economical, informal and quick” review mechanism: Migration Act, s.353(1); But these are aspirational objects, rather than accrued substantive rights, and without more, do not give rise to a jurisdictional error: Li-High Court at [16] per French CJ.
The circumstances in which delay of itself, will vitiate proceedings, or a decision, are rare: NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257 at [5] per Gleeson CJ.
The workload of the Tribunal, set against its resources, can tend to significant delay. The Tribunal alluded to this, and was sympathetic to Mr Kemei, but expressed that it was a matter it felt it was unable to take consideration of, and in respect of which there was no remedy available before the Tribunal. The Court notes that save in respect of certain decisions under s.367 of the Migration Act (which are not applicable here), the Tribunal is under no obligation to make the Tribunal Decision within a certain timeframe.
In Baldassarra the applicant alleged he had been denied procedural fairness as there was two and a half years between the filing of his application and the hearing and determination of his review by the Tribunal, and during that time he had sold the business which, as a criterion for the grant of the particular visa, he was required to own and operate. The delegate’s decision in that matter was to refuse the visa on the basis the applicant’s business did not have the staffing requirements necessary for the grant of that particular visa. The applicant did not agree with the delegate’s decision and sought review by the Tribunal. In the time it took for the matter to proceed to the Tribunal hearing the applicant sold the business because he was concerned that if the review application to the Tribunal was unsuccessful he would have had only a few weeks to dispose of the business before having to leave Australia. The applicant alleged that upon contacting the Minister he was advised he was able to do this as he was on a bridging visa while the application was under review, and the only concern from the delegate was that he might not have employed enough staff, however he had met the other criteria necessary. The circumstances are analogous to the present proceedings, and the Court notes that the Federal Court in Baldassarra at [7], [24], [28]-[29] and [32] per French J, in dismissing the judicial review application, where the sole ground was a denial of procedural fairness as a result of the delay, said as follows:
7… While his practical concerns were understandable it was the disposal of the business that, in the end, proved fatal to his application before the Tribunal.
24. Section 65 of the Migration Act 1958 (Cth) (the Act) deals with the power of the Minister to grant or refuse applications for visas. It provides, inter alia that if the Minister is not satisfied that criteria for the grant of the visa prescribed by the Act or the Regulations have been satisfied then he or she is to refuse to grant the visa …
28… the applicants said that they had a legitimate expectation that the review of their application would be dealt with fairly and speedily. They say they relied upon the lack of action by the Tribunal in making Australia their home. Their children have now spent the bulk of their lives in Australia and have embraced the Australian culture. They say that as a result of the delay by the Tribunal in reviewing the departmental decision the decision ought, in the interests of natural justice, to be in favour of the applicants.
29. There is no legal basis for this contention. The legal obligation on the Tribunal to apply the criteria prescribed by the Act in determining whether or not to grant a visa cannot be affected or modified by delay in processing and deciding the application for review, however unfortunate and inexcusable the delay may be …
32. In this case the Tribunal’s decision turned critically upon the question whether the criterion for ownership of an established business was satisfied.
The rationale in the Federal Court’s judgment in Baldassarra is binding on this Court: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ. In this case the Tribunal Decision turned critically upon the question whether the criteria for the grant of the Student Visa had been met by Mr Kemei at the time of the Tribunal Decision. The criteria had not been met, and, therefore, there is no jurisdictional error in the Tribunal Decision established by ground 2 of the Amended Judicial Review Application.
Ground 3
Ground 3 rests upon grounds 1 and 2 having been established. The Court has already found that grounds 1 and 2 have not been made out: see [25]-[48]. Ground 3 of the Amended Judicial Review Application is therefore not made out.
Conclusion and orders
The Court has concluded that for the reasons set out above none of Mr Kemei’s grounds in the Amended Judicial Review Application have been made out. There will therefore be an order dismissing the Amended Judicial Review Application.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 June 2019
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