KHOKAR v Minister for Immigration

[2019] FCCA 3343

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHOKAR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3343

Catchwords:
MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – decision of the Administrative Appeals Tribunal – where applicant did not a hold a current conformation of enrolment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.357A, 359A, 360

Migration Regulations 1994 (Cth), cll.500.211, 500.212 of sch.2

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
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
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATI v Minister for Immigration & Border Protection [2015] FCA 923

Applicant: SUNNY KHOKAR

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 209 of 2019

Judgment of: Judge Kendall

Hearing date: 14 November 2019

Date of Last Submission: 14 November 2019

Delivered at: Perth

Delivered on: 14 November 2019

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms G Ellis

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,000

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 209 of 2019

SUNNY KHOKAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

Introduction

1. By application filed in this Court on 11 June 2019 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 7 May 2019.

2. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”).

3. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

4. The materials before the Court include the applicant’s judicial review application, an affidavit affirmed 11 June 2019, a Court Book (“CB”) numbering 72 pages (which was marked as Exhibit 1) and an outline of written submissions from the Minister dated 1 November 2019.

5. The applicant appeared before this Court without legal representation. The Minister was represented by Ms Ellis.

6. At the start of the hearing, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s outline of submissions. He confirmed that he had both.

Background

1. The Minister’s submissions (at [3]-[9]) accurately summarise the factual background to this matter. The Court adopts the summary provided as its own. It provides as follows.

2. The applicant, a citizen of India, first arrived in Australia on 19 February 2014 on a Student (Subclass 573) visa in order to study a Bachelor of Business. This visa was granted under the streamlined visa processing arrangements. Provider Registration and International Management System records before the delegate showed that this course was cancelled on 23 June 2014 due to non-commencement of studies. Despite this, the visa was not cancelled and ran until its expiry on 15 March 2017 (CB 26). On 15 March 2017, the applicant lodged the application for the visa (CB 1-16). The application indicated that he was enrolled in a Certificate III in Commercial Cookery (course dates 18 November 2016 – 17 November 2017) and a Certificate IV in Commercial Cookery (course dates 4 December 2017 – 3 June 2018) (CB 1 and 17-18).

3. On 9 August 2017, a Ministerial delegate refused to grant the visa. The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia and, as a result, found that cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) was not met (CB 24-29).

4. On 29 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 30-40).

5. On 13 March 2019, the Tribunal wrote to the applicant inviting him to provide information about the course(s) of study he was undertaking and his entry and stay in Australia as a student (CB 44-46). The invitation recorded that, as the applicant applied for the visa on the basis of undertaking a course of study in Australia, it was a requirement for the applicant to be:

   a)enrolled in a registered course of study; and

   b)a genuine applicant for entry and stay as a student.

6. The invitation provided a link to a “Request for Student Visa Information” questionnaire and requested that the applicant provide the information requested in the questionnaire by 27 March 2019.

7. On 26 March 2019, the applicant provided the Tribunal with a completed questionnaire (CB 47-56). In response to the question “Does the Main Applicant have a current Confirmation of Enrolment (“CoE”) in a registered course of study?” the applicant responded “No”. Directly beneath the question was the statement: “Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker” (CB 51-52).

8. On 3 April 2019, the Tribunal wrote to the applicant inviting him to a hearing before it (CB 57-60). On 7 May 2019, the applicant appeared before the Tribunal with the assistance of an interpreter (CB 61-63). By written decision the same day, the Tribunal affirmed the decision under review (CB 66-68).

Tribunal’s decision

1. The Tribunal’s decision is three pages long and spans 16 paragraphs. The key paragraphs of the Tribunal’s decision are at [5]-[15]. Those paragraphs provide as follows:

   5. The Tribunal formally wrote to the applicant on 13 March 2019 pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.

   6. The applicant responded to the Tribunal’s request by written instrument lodged with the Tribunal on or about 26 March 2019. By that instrument the applicant informed the Tribunal, materially, that the applicant does not hold a current confirmation of enrolment (CoE) in a registered course of study in Australia.

   7. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments.

   8. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant's response to the Tribunal’s request for information, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.

   9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant.

   10. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

   11. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered cours’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

   12. At the hearing the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate. No such evidence was forthcoming.

   13. The applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.

   14. Therefore cl.500.211 is not met by the applicant.

   15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. For these reasons, the Tribunal has concluded that the decision under review should be affirmed.

Proceedings in this Court

1. The application for judicial review contains two “grounds of review” as follows:

   1. JURISDICTIONAL ERROR – wish to Appeal further

   2. further investigation in my documentation.

   (Without alteration)

2. The applicant’s affidavit annexed copies of two certificates and accompanying completion letters that indicated that the applicant had completed the Certificate III in Commercial Cookery on 26 July 2017 and the Certificate IV in Commercial Cookery on 25 September 2017. The applicant also annexed a copy of his passport. The Court will address these materials below when assessing ground 2.

3. Orders were made by a Registrar of this Court on 10 July 2019 providing the applicant an opportunity to file an amended application, any further supporting affidavits and an outline of submissions prior to the hearing. No documents were filed.

4. Noting recent remarks in the Federal Court (in a non-protection visa context) in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] that unrepresented applicants should be given an opportunity to explain orally their grounds of review, and highlight any other matters they take issue with in the Tribunal’s decision, the Court asked the applicant to explain what he thought the Tribunal “did wrong”.

5. The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap.  It was explained that 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 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and

   f)where the decision is illogical, irrational or unreasonable: 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].

6. It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now seeks.  Rather, the role of the Court is restricted to determining if 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 (“Wu Shan Liang”).  

7. Against this background, the Court invited the applicant to make any submissions he wished to make.

8. Unfortunately, the applicant was unable to provide any information that either clarified his grounds of review or addressed jurisdictional error generally.  His primary concern was that the Tribunal had taken far too long to undertake the relevant review (some 18 months).  The applicant also explained that he simply wanted an opportunity to prove to the Court that “he is a genuine student”.

9. While the Court is sympathetic to the concerns the applicant raises, for the reasons that follow the Court cannot assist the applicant as he has not been able to identify jurisdictional error on the part of the Tribunal.

Consideration

Ground 1

1. Ground 1 is a bald and unparticularised assertion that places the Court and the Minister in the difficult position of having to identify what error the applicant says has been made but with limited assistance from the applicant.

2. The Court has, in its duty to assist self-represented litigants, undertaken a review of the Tribunal’s decision to determine if any error can be identified.

3. The Court is not satisfied that any error arises.

4. It is noted that the delegate’s decision was decided on a different basis to the assessment evident in the Tribunal’s decision. This begs the question: did the applicant have adequate notice of the determinative issue before the Tribunal?

5. Here, the applicant clearly had adequate notice that he needed to provide evidence that he met the enrolment criterion and that if he did not do so this could be a reason for refusing to grant him the visa.

6. The Court notes in particular:

   a)in the invitation to provide information sent to the applicant by the Tribunal on 13 February 2019, it was stated that it was a requirement of the visa that he be “enrolled in a registered course of study” and that he should provide “information about the course(s) of study you are undertaking” to the Tribunal (CB 45-46);

   b)in his response to the request for information, the applicant was asked whether he had a current CoE in a “registered course of study”, to which he answered “No”. Immediately beneath that question was written the following (CB 54):

   Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.

   c)in the invitation to attend a hearing before the Tribunal, the applicant was asked to provide a number of documents including “A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa”. Further, he was asked to provide “Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.” (CB 59) (While an issue does arguably arise with the latter statement, the Court will address this when assessing ground 2 below); and

   d)at the hearing it appears that the applicant was advised, and acknowledged, that the determinative issue before the Tribunal had changed and the issue now was whether he met cl.500.211(a), in relation to which the applicant was given an opportunity to comment (it appears after an adjournment) (CB 67 at [8] and [12]).

7. The Court is satisfied that the applicant was adequately notified of what was required of him in order to meet the criteria for the visa.

8. Further, there is nothing to suggest the Tribunal breached the exhaustive procedural fairness obligations provided in pt.5, div.5 of the Act (s.357A). To summarise:

   a)the applicant was invited to a hearing before the Tribunal to provide evidence and arguments: s.360 of the Act. As indicated above, the applicant was adequately notified of the issue on review and no breach of s.359A or an error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 is apparent;

   b)a Hindi interpreter assisted the applicant at the Tribunal’s hearing and there do not appear to have been any difficulties or issues raised by the applicant during the hearing with the interpretation provided; and

   c)there is nothing in the decision record that would lead a reasonable fair-minded lay observer to believe that the Tribunal was displaying bias or prejudgment.

9. The Court does acknowledge that the applicant applied for review of the delegate’s decision on 29 August 2017 and that at that time he was enrolled in a course of study. It is regrettable that the Tribunal was unable to complete the review until some 18 months after the applicant had applied. This, regrettably, reflects the significant work load currently undertaken in the Tribunal.

10. However, the fact that the Tribunal did not complete the review for some time (and that the applicant’s enrolment ceased during that period, or the courses he was enrolled in were completed by the time of the Tribunal’s decision) is of no assistance within the context of this Court’s assessment of whether there is jurisdictional error in the Tribunal’s decision.

11. Clause 500.211 is a “time of decision” criterion. While the delay here is not attributable to the applicant, and is most regrettable, the legislation required that the Tribunal be satisfied at the time of its decision that the applicant was enrolled. By his own concession, the applicant was clearly not enrolled.

12. The only decision open to the Tribunal in these circumstances was to affirm the decision not to grant the visa, as the applicant did not satisfy a mandatory criterion.

13. Ground 1, accordingly, must be dismissed.

Ground 2

1. Ground 2 is unclear. The Court understands it to be an assertion that the Tribunal may not have taken into account the applicant’s “documentation”. The Court also infers that the applicant may be suggesting that the “documentation” in his affidavit should be investigated and the Tribunal’s decision be considered in light of this documentation.

2. The documents the applicant provided to the Tribunal consisted of the delegate’s decision and the response to the invitation to provide information.

3. The Tribunal clearly considered both of those documents (CB 67 at [4]-[6]).

4. To the extent that the applicant is suggesting that the Tribunal did not consider the CoE that was provided to the delegate, this was irrelevant to the Tribunal’s task. The Tribunal needed to be satisfied at the time of the decision that the applicant had a CoE. The enrolment documents submitted to the delegate indicated that the course ended on 3 June 2018; hence, the CoE was not current.

5. The Minister acknowledged that in the invitation to attend a hearing before the Tribunal, the applicant was asked to provide:

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

6. This statement is, in fact, incorrect. Clause 500.211(a) reads as follows:

   One of the following applies:

   (a) the applicant is enrolled in a course of study;

7. An offer of enrolment in a registered course would not have been sufficient to meet cl.500.211(a). Nonetheless, it cannot be said that this error had any material effect on the outcome or resulted in any practical unfairness, in circumstances where:

   a)the invitation to provide information clearly indicated that “not being enrolled” was a reason for, or part of a reason, the visa may not be granted;

   b)the applicant did not provide any further information to the Tribunal in relation to his application following the invitation to hearing being provided;

   c)at hearing the Tribunal indicated that cl.500.211(a) required the applicant to be enrolled in a course of study and the applicant acknowledged that he understood this; and

   d)nothing on the decision record indicates that the applicant stated to the Tribunal that he had an offer of enrolment such that the Tribunal may then have been required to consider adjourning the hearing. Rather, the evidence was that the applicant was not enrolled and that evidence of enrolment was not “forthcoming”.

1. Again, the applicant was aware of the determinative issue and, in any event, provided nothing further to the Tribunal such that it could be said incorrect information had any impact on the application.

2. Turning to the applicant’s affidavit, the documents the applicant provided are of no relevance to these proceedings. They were not before the Tribunal and are thus inadmissible in this Court: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70].

3. Nonetheless, for the reasons already explained, the fact that the applicant had completed his courses was not relevant to the Tribunal’s decision. What was relevant was whether the applicant was currently enrolled. If it was the case that having completed the courses the applicant did not wish to pursue the application, he had an opportunity to withdraw his application and did not do so (CB 45-46).

4. Ground 2, and the documents in the applicant’s affidavit, fail to identify any error in the Tribunal’s decision.

Conclusion

1. The applicant’s grounds of review have failed to identify any error. 

2. While the Court is sympathetic to the concerns the applicant raises, particularly in relation to the delay evident here between the filing of the application and the hearing of that application by the Tribunal, the Court has otherwise been unable to identify any error in the Tribunal’s decision.

3. The application, accordingly, must be dismissed.

4. The Minister’s seeks costs fixed in the sum of $5,000.

1. In the circumstances, noting that the amount sought is well below the set scale, the Court agrees that an order will be made to the effect that the applicant pay the Minister’s costs fixed in the sum of $5,000.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 20 November 2019