Khan v Minister for Immigration
[2014] FCCA 532
•3 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 532 |
| Catchwords: MIGRATION – Review of a decision of the Migration Review Tribunal – Applicant failed to appear – Applicant failed to provide evidence of enrolment, or current offer of enrolment in a course as specified by the Migration Regulations 1994 – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.31, 41(1), 360, 360A, 362B, 379A Migration Regulations 1994 (Cth), regs.2.01, 2.02 |
| Craig v State of South Australia (1995) 184 CLR 163 SZHKI v Minister for Immigration & Multicultural Affairs [2006] FCA 1517 SZQGC v Minister for Immigration & Citizenship [2012] FCA 598 |
| Applicant: | MUHAMMAD ZUBAIR AHMAD KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 910 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 3 March 2014 |
| Date of Last Submission: | 3 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 3 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by the Applicant |
| Counsel for the Respondents: | Ms Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed 25 June 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 910 of 2013
| MUHAMMAD ZUBAIR AHMAD KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
Introduction
The Applicant has failed to appear in these proceedings today. I have taken the view that, on the material before the Court and given the grounds as set out in the application that the Court should proceed to deal with the matter on the basis of the material before it, including the submissions that have been provided in writing by the First Respondent in this matter.[1]
[1] Outline of the First Respondent’s submissions filed 24 February 2014.
Background
This is an application for judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 23 May 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) visa. The Applicant now seeks an order that the decision of the Tribunal be quashed. I note that such a form of relief would not finalise the matter, but nevertheless, that is the application that has been made.
The Applicant is a citizen of Pakistan. On 23 March 2010, he made an application to the then Department of Immigration and Citizenship (“the Department”) and, in his visa application, he provided confirmation of enrolment in respect of the course that he intended to study. On 29 April 2010, the Applicant provided the Department with various documents in support of his visa application, including a Certificate of Enrolment in a Certificate III in Automotive Mechanical Technology to commence on 26 April 2010, and to conclude on
15 April 2011, and a Certificate of Enrolment in a Diploma of Management, commencing on 25 April 2011, and to conclude on
11 November 2011.
On 28 May 2010, a delegate wrote to the Applicant seeking further documents, including current certificates of enrolment, as the certificates of enrolment previously provided had been cancelled. On 11 June 2010, the Applicant replied enclosing a Certificate of Enrolment in the Certificate III in Automotive Mechanical Technology to commence on 5 July 2010, and to conclude on 24 June 2011, and a Certificate of Enrolment in the Diploma of Management to commence on 4 July 2011, and to conclude on 3 February 2012.
On 30 July 2010, after determining that all of the Applicant’s certificates of enrolment had been cancelled, the delegate attempted to contact the Applicant by phone, but received no answer. On
3 August 2010, the delegate refused to grant the visa. The basis of the delegate’s decision was that the Applicant did not meet the criteria, as there was no evidence that he was currently enrolled in any course of study.
The Applicant made an application to the Tribunal for a review of the delegate’s decision. The Tribunal, having consulted the Department of Education, Employment and Workplace Relations Provider Registration and International Student Management System (“PRISMS”), confirmed that the Applicant now held a Certificate of Enrolment and remitted the application for the visa to the Department for reconsideration.
On 28 June 2012, the Department sent an email to the Applicant, in which it sought certain evidence that he satisfied the criteria for the grant of a visa. In addition, adverse information was put to the Applicant for his comment. That information was that he had not undertaken any studies between the period from 31 July 2010 to
21 May 2012. The Applicant was required to provide that information within 28 days. Other than to confirm that he had made an appointment for a medical examination, the Applicant did not respond to the Department’s correspondence.
On 30 October 2012, the delegate refused to grant the visa. The basis of the decision was that the Applicant had studied for a total of only
33 days in the period from 15 December 2007 to 21 May 2012, including for a period when he held a student visa which required as a condition that he maintain enrolment in a course. The delegate was therefore satisfied that the Applicant had not complied with the conditions of his previous visa, and that he was not a genuine applicant for entry and stay as a student for the purposes of the Migration Regulations 1994 (“the Regulations”). The Applicant again sought a review by the Tribunal and provided a copy of the delegate’s decision, and gave as his address “4 View Street Glenroy”.[2]
[2] Court Book filed 12 November 2013 at p.111.
On 20 November 2012, the Tribunal sent a letter to the Applicant in which it noted, among other things, that if the Applicant wished to provide material or written argument in support of his application for review, he should do so as soon as possible. By letter dated
18 April 2013, the Tribunal invited the Applicant to appear before it to give evidence and present argument at a hearing on 23 May 2013. The invitation was sent by registered post to the Applicant’s address and the Tribunal also invited the Applicant to provide evidence of the following:
·That he was enrolled in, or was the subject of, a current offer of enrolment in a registered course;
·His academic achievements and evidence of his enrolment since his arrival in Australia in 2007;
·That he had adequate arrangements for health insurance during the period that he intended to stay;
·That he met the English language requirements; and
·That he met the financial capacity requirements.
The Tribunal’s letter, dated 18 April 2013, also noted it would only change the scheduled hearing date for good reason, and explained that if he failed to appear, the Tribunal might make a decision without taking any action to allow him to appear before it. The Applicant did not respond to the invitation and did not attend the hearing.
The Tribunal’s decision
On 23 May 2013, the Tribunal affirmed the decision of the delegate not to grant the visa. The Tribunal:
·Identified compliance with the current enrolment criteria as being an issue;
·Found that there was no evidence before it that the Applicant was currently enrolled in or was the subject of a current offer of enrolment in any course of study;
·Found that the Applicant did not satisfy the current enrolment criteria, and therefore did not meet the criteria for any subclasses 570 to 575 student visas; and
·Found that there was no evidence to suggest that the Applicant met the criteria for either a subclass 576 visa or a subclass 580 visa.
The Tribunal noted that it had invited the Applicant to provide evidence and to attend a hearing, and found that the invitation complied with the notice requirements of s.360A of the Migration Act 1958 (Cth)
(“the Act”). It also noted the effect of s.362B of the Act, and determined that, in the circumstances, it would not exercise its discretion to reschedule the Applicant’s appearance, but would instead make a decision without taking any further steps to allow the Applicant to appear before it.
On 25 June 2013, the Applicant lodged this application for judicial review.
Grounds
The grounds for review state:
1. Applying for the Judicial review as trinbunal (sic) decision has Judicial error
2. Applying for Judicial review in 35 days time frame (Section 477 A)
3. I am subject to the tribunal decision (Section 478)[3]
[3] Application filed 25 June 2013 at p.2.
The Applicant has not filed or served any submissions in support of his application.
The First Respondent’s submissions
The First Respondent submits that, if the Tribunal was not satisfied that the Applicant met the applicable visa criteria, it was obliged to affirm the delegate’s decision to refuse to grant the visa. The Tribunal concluded that it was not so satisfied. That conclusion was open to the Tribunal on the material before it. The First Respondent also addressed the following issues:
·Whether the Applicant was afforded procedural fairness; and
·Whether the Tribunal made an error of law such that it committed a jurisdictional error.
The First Respondent submits that the Tribunal’s decision was not affected by any jurisdictional error. The First Respondent submitted that the Tribunal complied with its obligations under s.360 and s.360A of the Act. The Tribunal invited the Applicant to attend a hearing and to present evidence and arguments relating to issues arising in relation to the decision under review. Section 360A of the Act provides that the letter of invitation sent under s.360 of the Act contain certain information about the day, time and place at which an applicant is invited to appear, and requires that the notice be given in accordance with s.379A of the Act. The letter of invitation sent by the Tribunal conformed with the requirements of s.360A and s.379A of the Act.
Section 362B of the Act confers a discretion upon the Tribunal to exercise its statutory powers in one of two ways.
·It may make a decision to review without taking any further action to allow or enable the applicant to appear before it; or
·It may reschedule an applicant’s appearance or delay its decision in order to enable the applicant’s appearance before it to be rescheduled.
The pre-conditions to the exercise of the discretion were satisfied in this case, so the Tribunal was at liberty to proceed by either of the two means contemplated.
The First Respondent referred the court to the decision in SZHKI v Minister for Immigration & Multicultural Affairs [2006] FCA 1517 (“SZHKI”) where Middleton J stated, with reference to provisions equivalent to s.362B of the Act, that:
The scheme ... expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.[4]
[4] [2006] FCA 1517 at para.16.
The Tribunal elected, in this case, to make a decision on the review without rescheduling the Applicant’s appearance because the Applicant did not respond to the hearing invitation, or otherwise indicate his inability to appear, and the hearing invitation was not returned to the Tribunal. The decision by the Tribunal to take this course does not constitute jurisdictional error. The Tribunal clearly had the power under s.362B of the Act to proceed in the absence of the Applicant; therefore it was entitled to make the decision without taking any further steps.
The First Respondent also submits that the Tribunal’s decision accorded with the applicable law. The First Respondent referred the court to Craig v State of South Australia (1995) 184 CLR 163, with respect to what constitutes an error of law by an administrative Tribunal, and also referred to the comments of Griffiths J in SZQGC v Minister for Immigration & Citizenship [2012] FCA 598 (“SZQGC”). His Honour’s comments in SZQGC reflected the acceptable proposition that errors of law that are immaterial to a decision-maker’s conclusions are errors within jurisdiction.[5]
[5] [2012] FCA 598 at para.28.
The First Respondent noted that the Tribunal’s letter of 18 April 2013 stated that, “the Tribunal will make its decision under the Regulations as they stood on the date of your visa application”.[6]
[6] Court Book filed 12 November 2013 at p.137.
The Tribunal was in error to state that the applicable law is that which applied at the time the visa application was lodged. Rather, the general rule is that the law to be applied is that which is in force at the date that the decision is reviewed or, if the Applicant has accrued any rights under the repealed legislation, the law in force immediately before the repeal.
This error, however, was not material to the Tribunal’s decision because the current enrolment criteria as at the date on which the visa application was lodged, and at the date of the Tribunal’s decision, consistently required the Applicant to give evidence that he was enrolled in or was the subject of a current offer of enrolment in a course of study that is a ‘principal course’ and is of a type that is specified by the Minister for the particular subclass.
Accordingly, the Tribunal had regard to the applicable law. Moreover, the Tribunal’s decision accorded with the only decision that was open to it on the evidence. The Tribunal had requested the Applicant to provide evidence of current enrolment. The Applicant was clearly on notice that the current enrolment criteria were in issue, and at no time did the Applicant provide such evidence.
Conclusions
The only ground set out in the application in this matter which could give rise to the Court granting the relief claimed is the claim that “trinbunal (sic) decision has Judicial error”.[7] By that, I take it to mean that the Tribunal committed an error of law and that such an error was a jurisdictional error. The task of the Tribunal was to determine that it was satisfied that the Applicant met the applicable visa criteria. If it was not so satisfied then it was obliged to affirm the delegate’s decision to refuse to grant the visa.
[7] Application filed 25 June 2013 at p.2.
Section 31(3) of the Act provides that the Regulations may prescribe criteria for the grant of a visa, and s.41(1) provides that these visas may be subject to particular conditions. Regulation 2.01 states, that for the purposes of s.31 of the Act, the prescribed classes of visas are such classes as are set out in the respective items in Sch.1 of the Regulations. The visa in this case, a Student (Temporary) (Class TU) visa is set out in item 1222 of Sch.1.
Regulation 2.02 provides that, in respect of each class of visa, there may be one or more subclasses. These subclasses and their respective criteria are set out in Sch.2 of the Regulations. For the relevant subclasses there is a requirement the applicant be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a ‘principal course’ and of a type that is specified for the subclass in question by the Minister.
The Applicant therefore had to satisfy the Tribunal that he was enrolled in, or had a current offer of employment in, a course of study that met the requirements for the grant of a Student (Temporary) (Class TU) visa. Section 360(1) of the Act requires the Tribunal to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 360A of the Act requires the notice of the invitation to appear to:
·Specify the date on which and the time and place at which the applicant is scheduled to appear; and
·Be given to an applicant who is not in detention by one of the methods specified in section 379A.
One of those methods is dispatching the invitation by prepaid post to the last address provided by the Applicant to the Tribunal:
·Contain the prescribed period of notice.
At the relevant time, the prescribed period started when the Applicant received the invitation and ended at the end of seven working days after the date on which the notice was received. Where a document is sent by prepaid post, an applicant is taken to have received the document seven working days after the date of the document.
·Contains a statement of the effect of s.362B, relevantly, that if the Applicant did not attend the scheduled hearing the Tribunal might make a decision without taking any further action to allow or enable the Applicant to appear before it.
I am satisfied that the Tribunal met the requirements of s.360(1), s.360A and s.362B(1) of the Act in that:
·The Applicant was invited to appear before the Tribunal;
·The invitation met the statutory requirements; and
·The Applicant failed to appear or to provide evidence that he was enrolled in, or was the subject of a current offer of enrolment in, a registered course.
The Tribunal exercised its discretion to proceed to make a decision without taking any further action to allow or enable the Applicant to appear. In exercising its discretion, the Tribunal did not act capriciously or unreasonably.
While the First Respondent has pointed out to the Court that the Tribunal did make an error in identifying the applicable Regulations as those applying at the date of the visa application, rather than at the date of the decision being reviewed, this made no difference to the outcome. Under either Regulation, the Applicant was required to provide evidence of his enrolment, or of a current offer of enrolment, in a course of study which was a ‘principal course’ and of the type specified by the Minister. This he failed to do. In the absence of such evidence, the Tribunal was obligated to affirm the delegate’s decision not to grant the visa. For those reasons the application in this matter must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 19 March 2014
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