KHADKA v Minister for Immigration and Anor

[2020] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADKA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1879

Catchwords:
MIGRATION – Administrative Appeal Tribunal – application for Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal erred in law by not providing adequate opportunity to the applicant to produce a COE – whether the Tribunal lacked procedural fairness, resulting in a miscarriage of justice – whether there is jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss, 65

Migration Regulations 1994 (Cth), cl.500.211

Cases cited:

Nehrupandiyan v Minister for Immigration and Border Protection [2019] FCA

123

Applicant: BINOD KHADKA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3320 of 2018

Judgment of: Judge Humphreys

Hearing date: 9 July 2020

Date of Last Submission: 9 July 2020

Delivered at: Parramatta

Delivered on: 9 July 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Zinn, Mills Oakley Lawyers

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $4,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3320 of 2018

BINOD KHADKA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURA AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Nepal. The applicant first came to Australia in 2007 to study Information Technology. Since the applicant’s arrival, he has completed courses in Information Technology, Business and Management.

2. On 26 May 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The delegate refused to grant 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) (“the Regulations”).

3. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 5 November 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.

4. The applicant now seeks judicial review of the Tribunal decision.

The Administrative Appeals Tribunal’s Decision

1. After setting out the relevant background, the Tribunal correctly identified that the criteria for Subclass 500 (Student) visa include that at the time of the decision, the applicant is enrolled in a course of study (see cl 500.211(a) of the Regulations). The applicant did not claim to meet any the alternative criteria in cl 500.211 of the Regulations.

2. At paragraph 10 of its decision, the Tribunal noted that the applicant was invited by letter dated 8 October 2018, to attend a hearing on 15 October 2018. That invitation requested the applicant to provide a copy of a current Certificate of Enrolment (“COE”) or other documents that show that he was currently enrolled in a course of study. No COE was submitted.

3. At paragraph 11 of its decision, the Tribunal indicated that at the commencement of the Tribunal hearing on 15 October 2018, the applicant was advised that in order to be eligible for a student visa, he must be enrolled in the approved course of study, at the time of the decision. The applicant said that he was enrolled in 2017 when he applied for the visa but his COE was later cancelled. The applicant said he attempted to re-enrol with an education provider, but was unable to do so.

4. The Tribunal noted that it had no discretion, as enrolment in an approved course of study, was a mandatory requirement for the grant of a student visa. Accordingly, the decision under review was affirmed.

Grounds of Appeal

1. The grounds of the application are set out in the initiating application filed with the Court on 29 November 2018. They are as follows, verbatim:

   The Tribunal erred in law by not providing adequate opportunity to the applicant to produce a COE to comply with cl500.211 of Migration Regulations. This lack of procedural fairness resulted in miscarriage of justice.

   Particulars

   The applicant was self-represented at the time of the AAT hearing. The applicant made written submissions regarding his review application which was not considered by the AAT on the sole ground that a COE was not produced. During the hearing the applicant submitted that he had a letter of offer from Group Colleges Australia dated 21 Sept 2018 for enrolment in Bachelor in Business and will secure a COE if granted time. In this connection a relevant extract from the PAM regarding a subclass 500 visa is as below:

   “Applicants in Australia – Relying on a letter of offer.

   Applicants in Australia who, at the time of lodgement, provide a Letter of Offer must, prior to decision, given the opportunity to obtain CoE’s for courses”

   Though it is a PAM clause not binding on the Tribunal, it is submitted that the Tribunal should have adjourned the hearing so the applicant had enough time to secure a valid COE. The non provision of reasonable opportunity to the applicant vitiated procedural fairness and resulted in miscarriage of justice.

The Applicant’s Submissions

1. The applicant appeared in Court unrepresented. The applicant was assisted by a Nepalese interpreter. Despite Court orders, no written submissions were filed with the Court, in support of the grounds of the application.

2. Prior to the commencement of the hearing, the Court ensured that the applicant had a copy of the Court books and had an opportunity for the first respondent’s submissions to be interpreted to him. The applicant was also provided with a pen and paper to assist him in taking notes, during the course of the hearing.

3. After the Court processes were explained to the applicant, he was asked if he wished to make any oral submissions, in support of his application. The applicant indicated he was unable to enrol in another course as his visa had been cancelled. The applicant advised the Court he had been in Australia on various visas since 2007. Following the first respondent’s oral submissions, the applicant was again asked if he had anything he wished to say in reply. The applicant chose not to make any further submissions.

4. The applicant was also advised that if an oral decision is given by the Court on the day, he could make an application to the Sydney Registry, for a copy of written reasons.

The First Respondent’s Submissions

1. The first respondent noted that the Tribunal correctly identified that the issue in the matter, was whether the applicant satisfied cl 500.211(a) of the Regulations, which require the applicant to be enrolled in a course of study, at the time of the decision.

2. The Tribunal noted that the invitation to hearing letter, requested the applicant provide a current COE but he had not submitted one. The Tribunal observed during the introduction of the hearing on 15 October 2018, the applicant was advised that he must be enrolled in an approved course of study, at the time of the decision. The Tribunal found that the applicant did not provide evidence of enrolment or other documents, to show he was enrolled in an approved course of study. The Tribunal noted that the applicant asked in his written statement, that he be allowed to continue his studies “on compassionate grounds”, due to personal difficulties. The Tribunal found that although the applicant had provided some reasons for his situation, as enrolment in a course of study was a mandatory requirement for the grant of a student visa, the Tribunal was required to affirm the delegate’s decision.

3. The sole ground of application for judicial review contends that the Tribunal failed to provide the applicant with an “adequate” opportunity to comply with cl 500.211 of the Regulations. The applicant claims he had a letter from Group Colleges Australia, dated 21 September 2018, for enrolment of a Bachelor of Business course and would provide a COE. The applicant contends the Tribunal should have adjourned the hearing, to allow the applicant to provide a current COE.

4. The first respondent notes that the hearing invitations dated 11 September 2018 on 8 October 2018, issued by the Tribunal, expressly informed the applicant that a current COE was required for the grant of a student visa. At the date of the hearing, being 15 October 2018, the applicant had still not enrolled in the course of study.

5. Further, it is submitted by the first respondent that the Tribunal did not make its decision until 5 November 2018. Despite there being a three-week period between the Tribunal hearing and the decision, there is no evidence the applicant sought to provide further documents to the Tribunal. There is no evidence that the applicant ever requested an adjournment or further time to provide a COE. The applicant effectively had opportunity by reason, of the three weeks between the hearing in and the decision to obtain a COE, but did not submit any further documents.

6. The reference made by the applicant to the PAM notes that applicants who, at the time of lodgement, provide a letter of offer must, prior to decision, be given the opportunity to obtain COE’s for courses. The first respondent submits that the applicant’s reliance on this extract of the PAM is misplaced, in circumstances where it is intended to apply the time of lodgement, not at the time of decision.

7. It is submitted by the first respondent that the sole ground of judicial review, does not establish any jurisdictional error in the Tribunal’s decision. The Tribunal correctly found that cl 500.211 of the Regulations, was mandatory and there was no power, discretionary or otherwise, for the Tribunal to dispense with the requirement for the applicant to be enrolled in a course of study (see Nehrupandiyan v Minister for Immigration and Border Protection [2019] FCA 123 at [14]).

Consideration

1. This matter turns on a relatively simple and narrow issue. As at the time of the Tribunal’s decision, the applicant had not produced a COE to show that he was enrolled in an approved course of study.

2. The applicant was clearly advised in the invitation letters to a hearing of the requirement that he produce a COE, in order for the matter to receive a favourable consideration. Absent a COE, the Tribunal had no discretion other than to affirm the decision under review.

3. The Court is satisfied that this was explained to the applicant by the Tribunal and even then, the Tribunal allowed a period of time to elapse between the hearing and when the decision was published, to allow the applicant time to produce a COE. The applicant did not do so.

4. The argument put forward by the applicant in relation to the PAM, is misplaced, in that it clearly makes reference to time being allowed for the applicant to obtain a COE, following lodgement of an application for a student visa, prior to a decision being made. The applicant had every opportunity to, that but failed to do so. As at the time of the Tribunal’s decision, the applicant had still not produced COE. The Tribunal allowed a period of time for this to be rectified and then published its decision

5. The Court is not satisfied that there has been any procedural unfairness and that the decision of the Tribunal was the only decision it could come to, in the circumstances. No jurisdictional error is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 10 July 2020