Khadgi v Minister for Immigration

[2020] FCCA 964

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADGI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 964

Catchwords:
MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cls.500.211, 500.212

Cases cited:

N/A

Applicant: SUMIT KHADGI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 539 of 2019

Judgment of: Judge Vasta

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Brisbane

Delivered on: 16 March 2020

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First  Respondent: Minter Ellison

ORDERS

1. That the Application filed 7 June 2019 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 539 of 2019

SUMIT KHADGI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 11 May 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the Delegate not to grant the Applicant, Mr Sumit Khadgi, a student visa.  On 7 June 2019, Mr Khadgi asked this Court to review that decision. 

2. The background to this matter is that once the Delegate had made his or her decision not to grant the Applicant the student visa, the Applicant applied to the AAT for a merits review of that decision.  In doing so, he was given a letter that asked him to give the AAT information.  That letter said that he could fill the form in online.

3. The form that is headed “Request for Student Visa Information” and is contained from pages 64 onwards in the court book.  What is at issue here is the part on page 65 that is headed “Hearing Information”.  Hearing Information has a question:

   Do you and any other Applicants consent to the tribunal deciding the review without a hearing?

4. It would seem that there is a drop box where one puts in the answer to that.  There is a notation that says:

   If you consent to us deciding your review without a hearing:

   ·    We will make a decision on your application based on the information and evidence before us and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review.  This means we may affirm or set aside the decision under review.  Please see our Information about Decisions fact sheet for more information about different types of decision and what happens once we have made our decision,

   and there is a link to the “information about decisions” fact sheet.  The next dot point says:

   ·    Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa.  We may make our decision at any time after the period for responding to this invitation has passed.  You can upload additional information at the end of this form.

5. The Applicant has entered in the drop box the answer:

   Yes, I/we consent to the tribunal deciding the review without a hearing.

6. Later on in the form, at page 67, there is a section headed Enrolment and Study in Australia. The first question asked is:

   Does the main Applicant have a current confirmation of enrolment (CoE) in a registered course of study?

7. Again, there is a drop box and the Applicant has chosen the “no” option.  The questionnaire then asks the Applicant to:

   Please give details of all courses that the Applicant has been enrolled in whilst in Australia and include cancelled enrolments, courses successfully completed, and current or future enrolments.

8. The Applicant has filled in this part of the form on page 68.  At page 69, the Applicant was asked:

   Has the main Applicant been enrolled in a registered course at all times whilst in Australia as the holder of a student visa?

9. The answer in the drop box that is selected is “no” and the Applicant has also entered in information that he was not enrolled from November 2017 to February 2018 because – and he has written this in the column:

   The institute I was studying shut down,

   and then the next line he has written that he was not enrolled from February 2018 to February 2019 and he has given as the reason, which he has typed himself:

   Didn’t get any decision from TPS from previous institute.  Couldn’t get another CoE from uni because of AAT.

10. He has then filled in the other parts of the questionnaire and has – when, on page 72, where it has asked whether he wanted to upload any other documents, he has chosen “no”. He has then made the declaration and submission on pages 72 and 73.  

11. That form was then, once submitted, part of the record for the AAT.  Therefore, the AAT had all of that information before it.  Because the Applicant had ticked that he did not wish to have a hearing, the AAT decided the matter on the papers. 

12. Whilst the matter was a review of the Delegate’s decision, the Delegate had considered cl.500.212 of the schedule of the Migration Regulations 1994 (Cth), which was whether the Applicant was a genuine entrant into Australia. 

13. However, at the time the Delegate decided the matter, it would seem that the Applicant was enrolled. As the AAT had to look at the matter afresh, it had to look at the clause preceding cl.500.212; that is cl.500.211. That clause required the Applicant to have a current certificate of enrolment. This point was made clear in the invitation letter that was sent to the Applicant that caused him to answer the questionnaire at page 64 of the court book.

14. That invitation letter is found at page 56 of the court book.  The AAT considered the claims and found, because the Applicant could not satisfy the criteria of cl.500.211, that the application must be affirmed, and it did so. 

15. There are five grounds to this application, though it would seem to me that quite a number of them overlap.  They are:

    1. The Tribunal fell into jurisdictional error when it failed to afford the procedural fairness to the Applicant.

    2. The Tribunal fell into jurisdictional error by not complying with s359A of the Migration Act 1958 (the Act).

    3. The Tribunal fell into jurisdictional error when it failed to comply with s360 of the Act.

    4. The Tribunal [sic] failure to give genuine, proper and realistic consideration to the matter including making adequate inquiry as to facts, by not making adequate inquiry as to facts. By not making adequate inquiry as to the facts, the tribunal failed to afford procedural fairness to the Applicant and therefore failed to discharge its statutory duties and fell into jurisdictional error.

    5. The Tribunal misconstrued its statutory tasks under Division 3 of the Migration Act 1958.

16. The Applicant gave particulars for these grounds which, in effect, were arguments for these matters.  The Applicant supplemented those particulars with oral submissions before me.  Notwithstanding that what the Applicant said as to what he thought is not actually before me in the form of an affidavit and, therefore, is not evidence, I have nevertheless treated what it is that he has said to me as if it were evidence. 

17. The main contention of the Applicant is that he was at all times being helped by a migration agent but, because of the way in which the invitation letter was sent to him, he felt that he had to complete the form, the one that starts at court book 64, as soon as possible.

18. This caused him to rush and to be somewhat quick to make decisions that he felt he did not have time to adequately reflect before it is that he made certain answers.  When it gets to the part on page 65 that are the notes to whether he consented to the Tribunal deciding the review without a hearing, he has said to me that he did not understand what he was clicking. 

19. He said he thought that it simply meant that he would not physically be at a hearing to give evidence, but that there would still be a hearing, either by phone or by video link conference, and, at that phone or video link conference, he could then make arguments.

20. He said to me that he did not think that it was within the spirit of law for the Administrative Appeals Tribunal to be asking him for consent.  I note that in his originating application in some of the particulars, there was also an argument that in those notes the Tribunal simply said that it could set aside the decision or affirm the decision, but it was submitted in the particulars in the application that because the Tribunal could also remit the matter back to the Delegate, that the full consequences for consenting to the Tribunal was not spelled out and, therefore, in not doing that, the Tribunal has acted unfairly.

21. Of course, the problem with that is that the two main options, obviously, of setting aside and affirming the decision, are actually correct and the Tribunal has set a link to the “Information about Decisions” fact sheet which goes into all of the options in far greater detail.  It does not seem to me that there has been any unfairness in the way in which the notes have been drafted. 

22. It also seems to me that it is very clear that if the Applicant says that he consents to the Tribunal deciding the review without a hearing that there will be no hearing, whether that be a hearing where the Applicant will be in person, or by video link, or by phone. The wording makes it very clear that there would be no hearing. 

23. The wording also makes it clear that he needed to give them all the material that he wanted them to consider.  It may be that the Applicant now regrets making the decision that he made, but it is clear that he did make that decision.  There really is insufficient in what the Applicant has said to me that could cause me to find that the wording was confusing or unintelligible.  That part of the application, therefore, fails.

24. The Applicant, in the application, has said that the tribunal has not complied with s.359A, in that it did not bring to his attention any information that would cause the Tribunal to affirm the decision. However, pursuant to s.359A the Tribunal does not have to bring to the Applicant’s attention information of that nature if the Applicant himself, or herself, provided it. In this case, the information was that the Applicant had no current certificate of enrolment. That information came from the Applicant himself. The Tribunal had no obligation under s.359A to bring that to the Applicant’s attention.

25. It is also clear that, in the invitation letter at court book 56, the Tribunal has put it very clearly that:

    As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

    ·    Enrolled in a registered course of study.

26. It would seem to me that this letter had pointed the matter out to the Applicant, so even if there were a duty under s.359A, the Tribunal had complied with it.

27. The Applicant has complained that the Tribunal did not give him a chance to put his arguments before the Tribunal.  It seems to me that the Applicant had the opportunity to put that material before the Tribunal in the form that he had filled out, as the form said “to give the Tribunal all of the material that it wished to consider”.  The Applicant himself chose not to have the hearing and so, in that respect, the Tribunal has done nothing to limit the Applicant’s ability to put arguments before it.  It seems to me that that part of the ground fails.

28. The Applicant has also argued that, because the Delegate had refused the visa on the grounds of the Applicant not satisfying cl.500.211, the Tribunal needed to also look at cl.500.212. However, as the Applicant’s circumstances had changed and the Applicant could not comply with cl.500.211, there really was no need for the Tribunal to consider that clause. Therefore, that ground also failed.

29. The only other ground that the Applicant had really argued was that he felt that the Tribunal had solicited his consent rather than he giving his consent of his own free will.

30. It is difficult for the Court to see anything that is in the electronic form that could have been a solicitation, or a circumstance that would overbear the will of the Applicant.  One thing that should not be forgotten here is that the Applicant, at all times, had a migration agent helping him.

31. The invitation was sent to the migration agent and the decision of the Tribunal was sent to the migration agent.  The Applicant himself has conceded to me today that the migration agent was helping him.  It is very difficult, in those circumstances, to think that the Applicant either misunderstood what was being asked, or had his will overborne, whether by the department or through some form of what he would consider to be pressure to fill in the form and submit it to the Tribunal, as quickly as he could.

32. I do not find that there has been any jurisdictional error there.  I do not find that there is any inherent unfairness.  That ground, therefore, also fails. 

33. It may be that it is an unfortunate consequence of the way in which the migration regulations are framed, but it is what Parliament has decreed; that is, that unless the Applicant has a current certificate of enrolment, he will not meet cl.500.211 and, therefore, he cannot be considered for the visa that he has applied for, notwithstanding that when he made the application he did have a certificate of enrolment.

34. One can feel sorry for the circumstances that the Applicant is in, but that does not give an invitation to this Court to invent a jurisdictional error simply to come to what may be a more palatable result.  The role of this Court is to review the matter properly according to law.  Having looked at the matter, I cannot find any jurisdictional error.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 May 2020