Khaling v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 573
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 573
File number: MLG 2146 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 28 June 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – reinstatement application – where no satisfactory explanation provided by the applicants for the failure to appear at the scheduled extension of time hearing – where there would be no prejudice to the Minister should the matter be reinstated – where no arguable case of jurisdictional error identified – application for reinstatement dismissed. Legislation: Migration Act 1958 (Cth), ss 357A, 359, 359AA, 359A, 359B, 359C, 360, 363A, 379A, 379C, 477 & 494C and Division 5 of Part 5
Migration Regulations 1994 (Cth), cll 500.211, 500.212 & 500.311 and reg 4.17
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Haque v Minister for Immigration and Citizenship [2010] FCA 346
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152
Kajal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 280
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 420
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Kim [2014] FCA 390
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZLRP v Minister for Immigration & Anor (No.2) [2008] FMCA 1445
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Vo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 447
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of hearing: 6 June 2024 Place: Perth Applicants: Applicants appeared in person Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2146 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURAJ RAI KHALING
First Applicant
RIYA RAI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The application in a proceeding (filed on17 May 2024) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first and second applicants are citizens of Nepal (Court Book (“CB”) 2-6). They are husband and wife (respectively) (CB 3-5 & 27).
On 11 May 2020, the first applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-22). The visa was sought to enable the first applicant to study a Diploma of Leadership and Management (CB 43). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 4-6). The first applicant provided copies of the applicants’ identity documents, marriage certificate, confirmation of health cover and the first applicant’s educational records with that visa application (CB 23-33).
On 21 October 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 41-46). The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 44). Consequently, the delegate also found that the second applicant did not meet the requirements set out in cl 500.311 in Schedule 2 of the Regulations (CB 46).
On 11 November 2021, the applicants sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 47-53). In that application, the applicants requested that all correspondence be sent to them directly. They provided a postal address and the first applicant’s email address so that the Tribunal could do so (CB 50-52).
On 12 November 2021, the Tribunal wrote to the applicants (via email) acknowledging receipt of the review application and requesting copies of the delegate’s decision record and the associated notification letter from the Department of Home Affairs (CB 54-56).
On 22 November 2021, the first applicant provided the Tribunal with copies of those documents as requested (via email) (CB 57).
On 25 March 2022, the Tribunal wrote to the applicants (via email) and invited them to provide additional information (pursuant to s 359(2) of the Migration Act 1958 (Cth) (the “Act”)) addressing the genuine temporary entrant criterion and confirming the first applicant’s enrolment in a registered course of study (the “s 359 letter”) (CB 58-65). The applicants were also asked to complete a “Request for Student Visa Information” form.
The s 359 letter relevantly stated (CB 59-60):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 8 April 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 8 April 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 8 April 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicants did not provide any response or additional information to the Tribunal (CB 74 at [9]).
On 3 May 2022, the Tribunal conducted a search of the first applicant’s Provider Registration and International Student Management System (“PRISMS”) records (CB 66).
On 10 May 2022, the Tribunal wrote to the applicants (via email) and invited them to comment (pursuant to s 359A of the Act) on the information contained in the first applicant’s PRISMS records (the “s 359A letter”) (CB 67-69).
Relevantly, the s 359A letter stated (CB 68-69):
•A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that the main applicant, Mr Suraj Rai Khaling, does not hold a current Confirmation of Enrolment in a course of study.
This information is relevant to the review because you have applied for Student visas and it is a requirement for the grant of a Student visa that one of the applicants is enrolled in a course of study at the time of decision (clause 500.211 ). A course of study is defined as a full-time registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).
If we rely on this information in making our decision, we may find that the main applicant, Mr Suraj Rai Khaling, is not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you Student visas.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 24 May 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 24 May 2022, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 24 May 2022 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Again, the applicants did not provide any response or additional information to the Tribunal (CB 76 at [16]).
On 9 August 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 73-77).
The applicants were notified of the Tribunal’s decision by letter dated 16 August 2022 (sent to the applicants via email to their nominated email address that same day, being on 16 August 2022, together with a copy of the Tribunal’s decision) (CB 71-72).
On 16 September 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application was accompanied by an affidavit annexing copies of the Tribunal’s decision (dated 9 August 2022) and the Tribunal’s notification letter (dated 16 August 2022).
Unfortunately, the applicants judicial review application was filed approximately three days outside of the 35-day time limit specified in s 477 of the Act.
Accordingly, the applicants required an extension of time to pursue their substantive application in this Court.
This matter was initially listed for a hearing of the application for an extension of time on 7 May 2024 (via video link). When the matter was called, there was no appearance by or on behalf of the applicants. The Court dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) and ordered that the applicants pay the Minister’s costs.
On 17 May 2024, the applicants filed an application in a proceeding with a supporting affidavit seeking to have the proceeding reinstated.
On 6 June 2024, the Court heard submissions from the parties (via video link) in relation to whether the application should be reinstated.
The Court had before it the applicants’ judicial review application (including the application for an extension of time within which to make that application) and supporting affidavit (the supporting affidavit being taken as read and in evidence at the hearing on 6 June 2024), both filed on 16 September 2022, a Court Book numbering 77 pages (marked as Exhibit 2), written submissions filed on behalf of the Minister on 16 April 2024, the affidavit of service of Amron Rath filed on 17 April 2024 (taken as read and in evidence at the hearing of the application for an extension of time held on 7 May 2024) (the “Rath affidavit”) and the application in a proceeding and accompanying affidavit filed by the applicants on 17 May 2024 (that affidavit being taken as read and in evidence at the hearing on 6 June 2024).
This judgment addresses whether the application should be reinstated.
For the reasons that follow, the Court has determined that the application should not be reinstated.
DISMISSAL FOLLOWING APPLICANT’S FAILURE TO APPEAR AT SCHEDULED HEARING
As noted above, the applicants did not appear at the hearing of the application for an extension of time listed on 7 May 2024. The matter was dismissed and a judgment was published outlining the reasons why the matter was dismissed: Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 420 (“Khaling”).
The Court outlined some of the procedural background to this matter in Khaling. That background is relevant to this decision and is repeated below (with some minor amendments).
On 7 December 2022, orders were made by Registrar van der Westhuizen of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 29 December 2023, chambers notified the parties (by email) that the matter had been listed for a hearing of the application for an extension of time (by video link) at 2.00pm (AEST) / 12.00pm (AWST) on 7 May 2024.
On 3 May 2024, the parties were reminded by my chambers of the date and time of the hearing. They were also provided with instructions in relation to how they could attend that hearing by video link (using Microsoft Teams).
On 6 May 2024, the parties were advised (by email) that the hearing start time had changed and that the matter would instead commence at 3.30pm (AEST) / 1.30pm (AWST) on 7 May 2024. The parties were also advised that the remainder of the hearing arrangements remained unchanged.
As outlined above, when the matter came before this Court (at 1.38pm (AWST) on 7 May 2024), there was no appearance by or on behalf of the applicants. Ms Kristina Petrovski (“Ms Petrovski”) from Sparke Helmore appeared (by video link) at the hearing of the extension of time application on behalf of the Minister.
The Court confirmed that it had before it correspondence from chambers to the parties (as set out above). That correspondence (which included notice from my chambers as to the delayed hearing start time) was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it the Rath affidavit. The material annexed to that affidavit confirmed service of various documents on the applicants and put them on notice that, should they not appear at a scheduled hearing (of the application for the extension of time), the Minister may seek to have the matter dismissed with costs. The Rath affidavit was taken as read and in evidence.
The Court asked Ms Petrovski how the Minister wished to proceed in the circumstances.
Ms Petrovski advised the Court that the Minister sought to have the matter dismissed on the basis of the applicants’ non-appearance pursuant to r 13.06(1)(c) of the Rules. She also sought the Minister’s costs, fixed in the sum of $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Rath affidavit, the Court was satisfied that the applicants had been properly notified of the hearing date and time. They were also advised of how they could appear at that hearing (via video link using Microsoft Teams) and of the possible costs consequences should they not appear.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Petrovski was prepared to make oral submissions, as required, in relation to the application for an extension of time.
The parties were sent a copy of the Court’s orders (via email) on the afternoon of the hearing of the application for an extension of time (being on 7 May 2024).
Chambers received a response to that email (later in the afternoon of 7 May 2024) from the first applicant which simply stated: “What is this?”
Noting the contents of the applicants’ email to chambers, the Court provided the applicants with instructions in relation to how they could apply to this Court to have their matter reinstated (pursuant to r 17.05 of the Rules).
REINSTATEMENT APPLICATION
The applicants sought reinstatement of their substantive judicial review application (including the application for an extension of time) via an application in a proceeding.
That application in a proceeding relevantly stated (without alteration):
1.In a proceeding, MLG2146/2022, order 3 made on 07 May 2024 be set aside and vacated.
2.In a proceeding, MLG2146/2022, Order 4 made on 07 May 2024 be set aside and the respondent should be given an opportunity to appear before the court. The applicants could not attend the hearing listed on 07 May 2024 due to unavoidable circumstances which will be explained at the time of appearance in front of the honourbale court.
3.The substantive application for judicial review of a migration decision filed on 16 September 2022 by the applicants in proceeding MLG2146/2022 be reinstated.
4.Proceedings in MLG2146/2022 be listed for a hearing.
5.The substantive application for review of a migration decision filed on by the applicants in proceedings MLG4110/2020 be set aside under r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The supporting affidavit (deposed by the first applicant and filed with the application in a proceeding) relevantly stated (without alteration):
1.I SURAJ RAI KHALING of 1/16 PARK STREET, BRIGHT VIC 741 affirm that
I am the applicant in these proceedings
2.I do declare that I (Primary Applicant) and the secondary applicant could not attend the hearing listed on 07 May 2024 due to unavoidable circumstances that will be explained later.
3.It is humbly requested to kindly reinstate the Migration Application MLG2146/2022 filed on 16/09/2022 for the sake of natural justice and providing me an opportunity to appear before the honourable court.
The reinstatement application came before the Court for a hearing on 6 June 2024. The applicants appeared via video link without legal assistance. A Nepali interpreter was made available (via video link) to assist the applicants at that hearing. The first applicant also confirmed that he would be speaking on behalf of his wife (the second applicant) at the hearing.
Ms Petrovski appeared via video link on behalf of the Minister.
The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The power to set aside a judgment or an order of the Court is discretionary. It requires the Court to consider whether it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]-[52].
Noting that the applicants were unrepresented, the Court explained to the first applicant that the matters which are generally considered in a reinstatement application include, but are not limited to:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the application for an extension of time within which to seek judicial review was dismissed;
(b)the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
(c)whether the applicant has a reasonably arguable prospect of success in relation to the application for an extension of time that was dismissed.
See: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530.
The Court also notes the comments made by Justice North in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 as follows (emphasis added):
18.The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
The Court invited the first applicant to address each of the factors outlined above (where relevant or necessary) and to highlight anything that he considered relevant to the applicants’ request for reinstatement. The first applicant’s responses are discussed in the consideration that follows.
The Court also asked Ms Petrovski to respond to the first applicant’s submissions and she did so. Ms Petrovski submitted that the Minister opposed the applicants’ matter being reinstated. Ms Petrovski’s submissions will also be discussed (where appropriate) below.
CONSIDERATION
Explanation
When asked to explain to the Court why the applicants did not appear at the hearing of the application for an extension of time (listed on 7 May 2024), the first applicant first confirmed that he had received the notification for the hearing and then explained that he had made up his mind to attend, however, “at that very time, [his] father and [his] sons were very sick in Nepal and then, because of that stress, [the applicant] actually forgot the scheduled hearing”.
The Minister in turn submitted that the reason provided by the first applicant in relation to the applicants’ failure to attend the extension of time hearing (being that he “forgot”) was insufficient. Further, the Minister submitted that no evidence was provided to the Court by the applicants in support of any illness suffered by the first applicant’s family members at that time.
The Court is sympathetic to the situation that the applicants found themselves in and understands that the applicants were very upset and concerned for their family members at the time of the hearing. However, “forgetting” a hearing date is not a satisfactory explanation for a failure to appear at a scheduled hearing: SZLRP v Minister for Immigration & Anor (No.2) [2008] FMCA 1445 at [5].
This weighs against reinstatement.
Prejudice
In oral submissions before this Court, Ms Petrovski (for the Minister) submitted that the Minister would not suffer any prejudice beyond the public interest in the finality of administrative decision making.
The Court agrees and is satisfied that any such prejudice could be mitigated by a costs order in the Minister’s favour.
This weighs in favour of reinstatement.
Merits
The most critical factor for consideration when determining whether to reinstate an application is whether that application for an extension of time within which to seek judicial review has any “arguable prospect of success”.
In this regard, the Court references comments made by then Justice Mortimer (now Chief Justice Mortimer) in CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (in the context of considering the merits of an application for reinstatement) as follows:
4.…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5.However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6.The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
Noting that the applicants in this matter were unrepresented, the Court gave the first applicant an opportunity to explain orally any concerns that he might have in relation to the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court is whether there is an arguable case (viewed impressionistically) that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or to grant the applicants the visas that they now seek. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that he was under stress at the time and did not attend the Tribunal hearing in person. He went on to explain that he had difficulty balancing study and work and that he had made the application to this Court so that he could go back to the Tribunal and have another hearing and be granted the visa (or at least that was his hope).
The first applicant also stressed that he could not attend the Tribunal hearing in person and was not given a second chance to have his voice heard or to put any arguments forward. He stressed that “the Tribunal simply made its decision”.
The first applicant also pleaded with the Court, claiming that he knew that they had made a lot of mistakes but he was simply asking for “one and only chance” to get the visa and to continue his studies and “do things right”.
The first applicant’s oral submissions (to the extent that they raise any arguable case of jurisdictional error on the part of the Tribunal) will be addressed with the applicants’ grounds of review below.
The Tribunal’s decision
In order to properly determine whether the application for an extension of time within which to seek judicial review has “merit” (viewed impressionistically) – such that reinstatement is appropriate – it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision in this matter is five pages long and spans 31 paragraphs (CB 73-77).
The Tribunal began by explaining that the applicants had applied for the visas the subject of the review on 11 May 2020 and that a delegate of the Minister refused to grant the applicants those visas on 21 October 2021. The Tribunal noted that the delegate had found that the first applicant did not satisfy the requirements set out in cl 500.212 of Schedule 2 of the Regulations on the basis that he “was not a genuine applicant for entry and stay as a student”. The Tribunal also noted that, because the first applicant did not satisfy cl 500.212 in Schedule 2 of the Regulations, the second applicant did not satisfy cl 500.311 in Schedule 2 of the Regulations (at [1]-[4]).
The Tribunal explained that it had written to the applicants (pursuant to s 359(2) of the Act) on 25 March 2022 inviting them to provide information. The Tribunal also noted that the correspondence sent to the applicants indicated that, if they did not provide the requested information within the period allowed (or as extended), the Tribunal may make a decision without taking any further action to obtain information and the applicants would also lose any entitlement they might otherwise have had to appear at a Tribunal hearing. The Tribunal stated that the applicants were given until 8 April 2022 to provide the requested information but did not do so. The Tribunal noted that, as a result, the applicants had no entitlement to a hearing before it and the Tribunal had no power to permit them to appear (at [5]-[9] & [19]-[20]).
The Tribunal outlined that, because no information had been provided in relation to whether the first applicant was enrolled in any course of study, the Tribunal conducted a search of the first applicant’s PRISMS records. The Tribunal explained the nature of information contained in the PRISMS database and noted that those records indicated that, as at 3 May 2022, the first applicant “did not hold a current confirmation of enrolment in a registered course of study (at [10]-[13]).
The Tribunal explained that it had also written to the applicants (pursuant to s 359A of the Act) on 10 May 2022 to bring the contents of the PRISMS records to the applicants’ attention and to invite them to comment on that information. The Tribunal noted that the applicants were given until 24 May 2022 to comment on or respond to that information but did not do so. The Tribunal further noted that, at the time of its decision, no evidence of any current enrolment had been provided by the applicants (at [14]-[17] & [21]).
The Tribunal then set out the criteria for the grant of a Subclass 500 visa (noting, in particular, that cl 500.211 in Schedule 2 of the Regulations requires that an applicant be enrolled in a course of study at the time of the Tribunal’s decision). The Tribunal explained the relevant definitions related to that criterion and that it had raised the requirement to be enrolled with the applicants by way of the s 359A letter (sent on 10 May 2022) and had notified them that the PRISMS records before the Tribunal indicated that the first applicant was not currently enrolled in a course of study. The Tribunal noted that no evidence had been provided to suggest that the first applicant was enrolled in a course of study and, on the evidence before it, the Tribunal was not satisfied that the first applicant was so enrolled. On that basis, the Tribunal found that the first applicant did not meet cl 500.211 in Schedule 2 of the Regulations and, as such, the second applicant did not meet cl 500.311 in Schedule 2 of the Regulations (at [22]-[29]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [31]).
Proposed substantive application for judicial review
The application for judicial review (filed by the applicants on 16 September 2022) contains six “grounds of review” as follows (without alteration):
1. The decision of the Administrative Appeals Tribunal:
(a) Is affected by an error of law.
(b) Denied the applicant procedural fairness.
(c)The AAT has committed jurisdictional error by not providing fair opportunity to present the evidence as the first applicant did not receive any correspondence from the AAT directly neither through electronic or postal methods.
2.The AAT could not make an objective assessment of matter without providing an opportunity to the first applicant and the decision lacks merits.
3. The AAT wrongly assessed the criteria for the grant of visa under the law.
4.The AAT made an error by deciding the matter in haste and the justice has not been served.
5.The AAT has failed to follow the criteria mention in law and decision lacks merits and requires further interpretation and constitutes an error in law.
6.I have made an application for Judicial review of the decision and I am waiting for a hearing and decision in this matter.
Having considered all of the materials before the Court (including the applicants’ proposed grounds of review and the first applicant’s oral submissions before this Court) and noting that the applicants were unrepresented in this matter, the Court has interpreted the applicants’ concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391).
On that basis, the Court considers the applicants to have raised the following concerns:
(a)whether the Tribunal erred by failing to comply with s 359(2) and s 359A of the Act;
(b)whether the Tribunal erred by failing to invite the applicants to attend a hearing as required by s 360 of the Act;
(c)whether the Tribunal wrongly assessed the criteria for the grant of the visa; and
(d)whether the Tribunal erred by failing to afford the applicants procedural fairness.
These issues will be considered below.
Whether the Tribunal erred by failing to comply with s 359(2) and s 359A of the Act
The Court notes that proceedings before the Tribunal are inquisitorial in nature only. Further, it is for the applicants to advance whatever evidence or argument they wish to advance in support of any contention that they are entitled to the visa. It is then for the Tribunal to decide whether that claim is made out: Abebe v The Commonwealth [1999] HCA 14 at [18] per Gummow and Hayne JJ.
As previously explained by this Court in Vo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 447 (“Vo”) (citing Kajal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 280), the Tribunal has a discretionary power, pursuant to s 359 of the Act, to seek information that it considers may be relevant to the review, however, there is no duty placed upon the Tribunal (by s 359 of the Act) to do so.
That section of the Act relevantly provides as follows:
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Any invitation sent pursuant to s 359 of the Act must be given to the applicants by one of the methods specified in s 379A of the Act, which relevantly provides as follows:
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
…
In this matter, the Tribunal wrote to the applicants on 25 March 2022 and invited them to provide additional information (pursuant to s 359 of the Act) (CB 58-65) confirming the first applicant’s enrolment in a registered course of study and addressing the genuine temporary entrant criterion.
That correspondence relevantly stated (CB 59-60):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 8 April 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 8 April 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 8 April 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
That invitation letter was sent to the applicants via email (on 25 March 2022) using the email address provided to the Tribunal by the applicants in their Tribunal review application (dated 11 November 2021) (CB 50 & 58). That nominated email address was the last email address provided by the applicants in connection with the review: s 379A(5)(d) of the Act.
The applicants did not provide any additional information to the Tribunal in response to that request before the 8 April 2022 deadline (or at all). Nor did they request an extension of time within which to do so (CB 74 at [9]).
On the basis of the information set out above, the Court is satisfied that the Tribunal complied with the requirements set out in s 359 of the Act.
Section 359A of the Act requires the Tribunal to put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, as an alternative, s 359AA of the Act).
Section 359A of the Act relevantly provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
In this matter, the Tribunal invited the applicants (on 10 May 2022 and after conducting a search of the PRISMS records relating to the first applicant on 3 May 2022 (CB 66)) to comment on or respond to the information contained in the PRISMS records (pursuant to s 359A of the Act) (CB 67-69).
That invitation letter relevantly stated (CB 68-69):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that the main applicant, Mr Suraj Rai Khaling, does not hold a current Confirmation of Enrolment in a course of study.
…
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 24 May 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The letter was sent to the applicants via their nominated email address (on 10 May 2022) (CB 67). As set out above, that nominated email address was the last email address provided by the applicants in connection with their Tribunal review: s 379A(5)(d) of the Act.
Again, the applicants did not respond to that request, either by the required date or at all (CB 76 at [16]).
The applicants also raise concerns about not receiving communications sent to them by the Tribunal electronically (via email) or by post.
There is no evidence in the Court Book or otherwise before the Court to suggest that the applicants had notified the Tribunal that their contact details (either email or postal addresses) had changed or that the email correspondence sent to the applicants by the Tribunal was unable to be transmitted or unable to be delivered.
The Court also notes that the applicants responded to correspondence from the Tribunal on 22 November 2021 (sent to them at their nominated email address and responding using that same email address), providing copies of the delegate’s decision record and associated notification letters (CB 57).
As set out above, transmission of documents to the applicants via email is a valid method of distribution specified in s 379A of the Act. Whilst the applicants did also provide a postal address in their review application (and dispatching documents by prepaid post is another method specified in s 379A of the Act), the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship [2010] FCA 346 at [13] & [62] per Jacobson J.
Further, where a document is provided by electronic means (including by email, as was the case here), the person is taken to have received the document at the end of the day on which the document was transmitted: s 379C(5) of the Act. The applicants here are thus taken to have received the Tribunal’s invitation letters at the end of the day on 25 March 2022 and 10 May 2022 respectively. Further, if the document is sent via one of the methods set out in s 379A of the Act, the person is taken to have received that document at the time specified in s 379C of Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J (in relation to s 494C of the Act which is in similar terms).
The Court is satisfied that the applicants were properly invited to provide or comment on information pursuant to s 359 and s 359A of the Act.
No arguable case of jurisdictional error arises in this regard.
The issue of whether the Tribunal was required to invite the applicants to appear at hearing before it will be addressed by the Court below.
Whether the Tribunal erred by failing to invite the applicants to attend a hearing as required by s 360 of the Act
The applicants also appear to take issue with not being able to attend a Tribunal hearing.
As explained by this Cour in Vo (citing Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152), the Tribunal is required (by s 360(1) of the Act) to invite an applicant to appear before it to give evidence and present arguments. However, there are some exceptions to this requirement, which are set out in s 360(2) and s 360(3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section relevantly provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 25 March 2022, the Tribunal invited the applicants to provide information to the Tribunal (CB 58-65). That invitation letter:
(a)invited the applicants to give the Tribunal (in writing) information relevant to the first applicant’s current enrolment status and addressing the genuine temporary entrant criterion: s 359(2) and s 359B(1) of the Act;
(b)was sent to the applicants via email (being a method specified in s 379A of the Act) at the last known email address provided in connection with the review: s 359(3) of the Act; and
(c)gave the applicants 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
The invitation complied with the relevant requirements set out in s 359 and s 359B of the Act.
The applicants do not appear to dispute that they did not provide any information as requested in the s 359 letter.
On that basis alone, s 359C(1) of the Act was enlivened. This meant that the Tribunal was not required to invite the applicants to attend a hearing (as the exception in s 360(2)(c) of the Act applied).
Further, because s 360(2) of the Act applied, by virtue of s 360(3) of the Act the applicants were not entitled to appear before the Tribunal. Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear.
Section 363A states:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person
The operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant’s failure to provide information in response to a request from the Tribunal (made pursuant to s 359 of the Act).
Put simply, the applicants were not invited to attend a hearing as they were no longer entitled to attend a hearing. The Tribunal had no power to allow the applicants to attend a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [29]. If the Tribunal had invited the applicants to attend a hearing, it would have done so in excess of its power and, accordingly, exceeded its jurisdiction.
This was made clear to the applicants in the invitation to provide information, which relevantly stated (CB 60):
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicants were, accordingly, on notice of what would occur if they did not provide a response to the Tribunal.
The Tribunal did fall into jurisdictional error by not inviting the applicants to attend a hearing and give them a chance to present their case. The applicants had lost that right.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal wrongly assessed the criteria for the grant of the visa
Insofar as the applicants claim that the Tribunal wrongly assessed the criteria for the grant of the visa, the Court disagrees.
The dispositive issue before the Tribunal was whether the first applicant satisfied cl 500.211 in Schedule 2 of the Regulations.
At the time of the Tribunal’s decision in this matter, Schedule 2 of the Regulations provided that:
500.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
The first applicant in this matter was thus required to be enrolled in a course of study at the time of the Tribunal’s decision: cl 500.211(a) in Schedule 2 of the Regulations. The only evidence before the Tribunal in this regard (obtained from a search of the first applicant’s PRISMS records) was that the first applicant was not enrolled in any course of study. In the absence of any evidence to the contrary, the Tribunal correctly determined that the first applicant did not satisfy the criteria for the grant of the visa. As a result, the second applicant was also unable to be granted the visa as she could not satisfy the requirements of cl 500.311 in Schedule 2 of the Regulations (being that she was not the member of the family unit of a person who had satisfied the primary criteria for the grant of the visa).
In the circumstances, the Tribunal made the only decision available to it on the evidence before it (in accordance with the legislative requirements for the grant of the visa).
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by failing to afford the applicants procedural fairness
The applicants also suggest that the Tribunal failed to afford them procedural fairness.
The Court disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this case and notes that:
(a)the Tribunal exercised its power under s 359 of the Act (on 25 March 2022) to invite the applicants to provide information (CB 58-65);
(b)the applicants did not respond to that invitation and consequently lost their entitlement to appear at a hearing before the Tribunal (CB 74 at [9]);
(c)the Tribunal also exercised its power under s 359A of the Act (on 10 May 2022) to invite the applicants to comment on or respond to information (CB 67-69);
(d)the applicants did not respond to that invitation (CB 76 at [16]);
(e)the Tribunal notified the applicants that, in addition to being satisfied that the first applicant was a genuine applicant for entry and stay as a student (being the issue before the delegate), it also needed to be satisfied that the first applicant was enrolled in a registered course of study (as required by cl 500.211 in Schedule 2 of the Regulations). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(f)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal complied with its procedural fairness obligations in this matter.
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the proposed substantive application
The applicants’ proposed “grounds of review” and the first applicant’s oral submissions in this matter, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against reinstatement.
CONCLUSION
The Court considers that the lack of a satisfactory explanation for the applicants’ failure to appear at the extension of time hearing (on 7 May 2024) together with a lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level) are such that it is not in the interests of the administration of justice for the Court to reinstate the application for an extension of time within which to seek judicial review.
The application in a proceeding (filed on 17 May 2024) is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 June 2024
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