Kothakapu v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 933
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kothakapu v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 933
File number(s): BRG 262 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 24 September 2024 Catchwords: MIGRATION – Visitor (Tourist) (Class FA) (subclass 600) visa –– Administrative Appeals Tribunal –– judicial review –– no jurisdictional error –– futility –– application dismissed. Legislation: Migration Act 1958 (Cth) s 476(1)
Migration Regulations 1994 (Cth) cl 600.223 of Schedule 3600.411
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 13 September 2024 Date of hearing: 13 September 2024 Place: Brisbane Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Satyendra. ORDERS
BRG 262 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHASHI VARDHAN REDDY KOTHAKAPU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed
3.The applicant is to pay the first respondent’s costs $5900.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of Minister of Home Affairs, as the Minister was then called, (“the delegate”) to refuse to grant the applicant’s application for a Visitor (Tourist) (Class FA) (subclass 600) visa (“Visitor visa”).
BACKGROUND
Application for a visitor visa
The applicant is a citizen of India. The applicant last arrived in Australia on a Student visa on 19 January 2019 and has held further Student and Bridging visas since then. The applicant’s most recent Student visa ceased on 30 July 2020.
On 26 August 2020, the applicant applied for the Visitor visa (Court Book (“CB”) 24 - 36).
On 26 February 2021, the delegate refused to grant the applicant the Visitor visa. The delegate found that the applicant did not meet cl 600.223(2)(b) in the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate was not satisfied that the applicant did not hold a substantive visa at the time of application due to factors beyond his control (CB 103 - 104).
Application to Administrative Appeals Tribunal
On 17 March 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 106). The applicant appointed a registered Migration Agent as his representative.
On 22 March 2021, the Tribunal acknowledged receipt of the application for review and advised the applicant’s representative that, should the applicant wish to provide material or written arguments for the Tribunal to consider he should do so as soon as possible (CB 115).
On 27 April 2022, the Tribunal invited the applicant to appear before it on 26 May 2022 to give evidence and present any arguments relating to the issues arising in relation to the decision under review (CB 124 - 132). The Tribunal asked the applicant to provide all documents he intended to rely on, to support his case and referred the applicant to the reasons for the decision under review.
On 27 April 2022, the applicant completed the Response to hearing invitation advising that he and the Migration Agent would take part in the hearing (CB 133 – 136).
On 10 May 2022, the applicant’s Migration Agent provided written submissions to the Tribunal with various academic records, bank statements and medical records attached (CB 138 – 168).
The applicant appeared before the Tribunal on 26 May 2022, to give evidence and present arguments. The applicant’s representative also appeared at the hearing. The applicant was assisted by an interpreter in the Telegu and English languages.
On 30 May 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant the Visitor visa. The Tribunal provided written reasons for its decision (CB 178 – 185).
THE TRIBUNAL’S DECISION
The Tribunal identified that the only issue on review was whether the applicant met the requirements of cl 600.223(2)(b) of the Regulations which required that the applicant satisfied criterion 3004. The Tribunal then went on to state that criterion 3004 required that if the applicant ceased to hold a substantive visa, the Minister be satisfied that: the reason for not holding a substantive visa is because of factors beyond the applicant’s control; there are compelling reasons for granting the visa; and the applicant has substantially complied with the conditions of entry permits and visas.
The Tribunal found that the applicant’s evidence confirmed that he was in Australia at the time of applying for the Visitor visa, that he did hold a substantive visa and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular stream) ([21]). Accordingly, the Tribunal stated that the applicant must satisfy Schedule 3 criteria 3001 and 3004 ([21]).
The applicant's evidence established that he was in Australia when he submitted his application for the Visitor visa on 25 August 2020, and that his Student visa had expired on 30 July 2020 ([21]).
The Tribunal found that the applicant met criterion 3001 because the applicant’s last substantive visa ceased on 30 July 2020 and the application for the Visitor visa was lodged within 28 days thereafter ([23]).
The Tribunal then considered whether the applicant met criterion 3004(c) which requires that the Minister be satisfied that the applicant is not the holder of a substantive visa at the time the visa application was made because of factors beyond the applicant’s control ([25]).
The Tribunal summarised the explanations the applicant had given in his visa application as to the factors which led to his not holding a substantive visa at the time he applied for the Visitor visa ([26] – [30]).
The Tribunal then asked the applicant questions about the circumstances surrounding the applicant’s application for the Visitor visa to which the applicant responded:
a. the applicant was asked why he applied for the Visitor visa. He stated that he believed his Student visa expired on 30 August 2020. He said he had made a mistake about the visa expiry date because of confusion and stress caused by the university holding up one of his results and not providing a Confirmation of Enrolment for one subject [32] – [33];
b. the Tribunal clarified with the applicant that he was mistaken about the Student visa expiry date, thinking it ended in August when it Actually expired at the end of July. The applicant confirmed this understanding was correct [32];
c. that when he realised his mistake he applied for the Visitor visa [32];
d. that he did not apply for the Visitor visa before the expiry of the Student visa because he had no money [34];
e. the Tribunal noted that in his letter to the Department dated 8 February 2021, the applicant mentioned health issues and his father’s financial hardship which the applicant had set out in his letter to the Department . The Tribunal asked how these issues prevented him from applying for the Visitor visa before his Student visa expired. The applicant responded that due to stress, he forgot everything, and the university was pressuring him to join another program, causing him to panic and preventing him from applying [34];
f. that he did not completely forget the expiry date of the Student visa but he did not know what he was doing and was stressed [35];
g. there were no other reasons [33].
The Tribunal then asked the applicant’s representative if he wished to make any submissions. The representative reiterated the information contained in the written submission relating to the difficulties the applicant had experience with the University administration and the applicant’s financial hardship. He also stated that stress pushed the applicant to forget the expiry date of his visa, and that Covid-19 made everything difficult, and it was all out of the applicant’s control ([36]).
In considering whether there were reasons which constitute factors beyond the applicant's control, the Tribunal had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 ([37]). The Tribunal noted that two useful points emerge from that decision. The Tribunal said that the first is that the assessment of whether an event was beyond a person's control requires an examination of whether, given their specific circumstances, the person could have taken steps to prevent the event from occurring. The Tribunal observed that the test is "subjective," focusing on the individual's capacity to act rather than on what might have been within the control of an abstract or "reasonable" person. The second point is that the determination of what is "beyond control" should be made by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense ([39]).
The Tribunal considered the evidence of the applicant and accepted:
a. the applicant was mistaken about or forgot that his Student visa expired on 30 July 2020, rather than 30 August 2020 [40];
b. the applicant's reason for forgetting the correct date was, at least in part, due to stress caused by the problems he was having with his exams and university administration [40];
c. the applicant's documentary evidence regarding his hospitalisation for sinusitis in early July 2020 but did not accept that the applicant's sinusitis prevented him from applying for the Visitor visa before his Student visa expired [41];
d. the applicant's father in India had financial problems during the Covid-19 pandemic but did not accept that these financial problems prevented the applicant from applying for the Visitor visa before his Student visa expired [42].
The Tribunal stated that during the hearing the applicant had not mentioned financial problems as a reason for not applying for the Visitor visa until prompted by the Tribunal. The Tribunal put to the applicant its concern that the applicant had changed his evidence about whether the reason for not applying for the Visitor visa in time was because of financial problems or because he had forgotten the expiry date of the Student visa. The applicant responded that he had not totally forgotten and he was stressed. The Tribunal did not accept this response and said it did not explain the discrepancy in the applicant’s evidence ([42]).
The Tribunal examined the applicant’s bank statements and evidence he had given about borrowing money from friends and his father having sent him money in August 2020. The Tribunal concluded that it did not accept that financial problems prevented the applicant from applying for the Visitor visa before his Student visa ceased ([42]).
The Tribunal concluded that the applicant's failure to apply for a Visitor visa while holding a Student visa was not caused by factors beyond his control. The Tribunal stated that it was within the applicant’s control, as the holder of a Student visa, to take steps to inform himself about the visa requirements, including the correct expiry date, and to ensure he complied with them. The Tribunal did not accept that the applicant being stressed around the time his Student visa expired meant that it was beyond his control, in a practical sense, to keep track of the expiry date of his visa and ensure compliance ([45]).
Accordingly, the Tribunal found that the applicant did not satisfy the requirement in criterion 3004(c). The Tribunal stated that as the applicant did not satisfy criterion 3004(c), it was unnecessary to assess whether he would have fulfilled the other requirements set out in that criterion ([45]).
The Tribunal affirmed the delegate’s decision and gave written reasons.
APPLICATION TO THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”) by an application filed on 24 June 2022.
The grounds set out in the application are (without alteration):
1. I am citizen of lndia. lodged application for a FA600 Visitor-Tourist Stream visa via form 1419 on 25/08/2020 through the post. I have stated my reasons in the application.
2. 26th February 2021, I was notified of the delegate's decision to refuse to grant the visa. The delegate was not satisfied that the Applicant met cl.600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) ('the Regulations') because he did not satisfy the Schedule 3 criteria to the Regulations ('criterion 3001'). The Applicant did not satisfy criterion 3001 as he applied for the visa more than 26 days after 30th July 2020, being the date on which the last substantive visa he held ceased.
3. 17 March 2021, I have applied to the Tribunal for review of the delegate's decision. I have been continued to be represented by my migration agent. A copy of the delegate's decision was attached to the application to the Tribunal.
4. On 10th May 2022, My Migration agent has done written submissions with reasons and various documents in support of the visa application. And I and my representative have attended the hearing on 26th May 2022.
5. Now, I wish to apply for Judicial review, I am writing the grounds with my heartfelt tears
6. I have given evidence and present arguments to the tribunal. The Tribunal hearing was telephonic conducted with the assistance of an interpreter in the Telegu and English languages. I was represented in relation to the review by my registered migration agent. Then Tribunal affirmed the decision not to grant 600 Subclass visa, later on 30th May 2022.
7. The Tribunal did not correctly set out the issue in the case before it, which was whether the Applicant satisfied cl.600.223 of the Regulations. further Tribunal did not assess my exceptional circumstances against the criterion 3001, and criteria 3003, 3004 or 3005 of Schedule 3.
8. There is error in the Tribunal's approach because, Tribunal member continuously suspecting me whether claims are correct or not , also Tribunal member did not find any mistake from my university side.
9. The Tribunal rejected all my exceptional circumstances occurred in peak of COVID -19 pandemic crisis in Australia, this was either procedurally unfair or legally unreasonable. Also questions raised by Tribunal were unreasonable.
10. Before the Tribunal, I have raised matters in relation to factors I said were beyond my control. The Tribunal found that the factors did not lead to his not lodging an application for a substantive visa at the relevant time. these conclusions and the findings that informed them were all not reasonably open to the Tribunal, seems decision made by Member personal views rather than against rules and regulations.
11. The Tribunal decision does have legal en-or. As the Tribunal took into account an irrelevant consideration and failed to take a relevant consideration into account while assessing my review application.
12. "The Tribunal did not understand that I was in stress and depression all this while which ultimately indicates that I had been through hard times in the past." The Tribunal has been insensitive in interviewing me and considering my claims. University was holding the results , visa was going to expired on 30th July 2020, no money to lodge the Student visa as I could not afford the COE for another Masters program because of my father wasn't in situation to send the money to Australia due to COVID-19 pandemic crisis in India.
13. Therefore I believe that breach of natural justice has occurred in connection with making a decision by Tribunal. Misconceived the meaning of "factors beyond control" under the Migration Regulation 1994, Schedule 3, Criterion 3004
14. "The Tribunal did not consider, understand and accept that I was severely in Depression and big confusion while visa being expired at end of July 2020. I have provided the medical certificate and the prescription from the general practitioner, but it was not considered by the tribunal member in assessing the case.
15. “The Tribunal did not understand that the applicant was in stress, depression and injured all this while which ultimately indicates that he had been through hard times in the past. The Tribunal did not accept that I had difficult financial circumstances, and Tribunal did not consider that this was a factor beyond his control which caused him not to be the holder of a substantive visa, Further I have felt that Tribunal has been insensitive in interviewing which is not acceptable.
16. The Tribunal put to me its concerns that given my history, personal circumstances, my evidence that I did not want to return to India and the length of my proposed stay, it had concerns that I did not intend to stay temporarily in Australia. I have stated that I am happy to go back to India but I want study further here which is masters program. Then I could lodge the Post study visa , the opportunity was missed due to University administration error in holding the results. This reason has been taken in different way by the Tribunal.
17. "I have concerns on Delegate decision and Tribunal Decision that there is an arguable jurisdictional error in assessing my review application, therefore I beg the Honourable judge to review the Tribunal decision and kindly serve the right justice to me.
Despite an order of the Court, permitting him to do so, the applicant did not file an Amended Application.
The applicant also filed an Affidavit sworn or affirmed (it is not clear which) on 24 June 2022. The Affidavit sets out some background matters and annexes a copy of the Tribunal’s decision.
The applicant did not file any written submissions or any additional evidence.
The applicant appeared before the Court in person via Microsoft Teams. The applicant was unrepresented. He was assisted by an Interpreter in the Telugu and English languages.
The material before the Court included the application for judicial review and supporting Affidavit filed by the applicant on 24 June 2022, the Court Book, the first respondent’s written submissions and an Affidavit of Lily Joelle Butterfield filed on behalf of the first respondent on 20 August 2024.
The applicant said that he did not have with him his application, his Affidavit, the Court Book or the first respondent’s submissions with which he had been served. Accordingly, the Court ensured that the applicant had a copy of the material. Before the hearing commenced, the applicant was given time with the Interpreter to review the materials. At the commencement of the hearing, the applicant confirmed to the Court that he understood the first respondent’s written submissions.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [13] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (“LPDT”)).
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The Court agrees with the written submission of the first respondent that the first six paragraphs of the application are background information and that the grounds of review are articulated in paragraphs [7] to [17].
The applicant was given an opportunity by the Court to make oral submissions as to his grounds of review.
The applicant explained to the Court that he had been served with a plagiarism notice by the University and because of that he was not issued with a Certificate of Enrolment and his Student visa expired. The Court understood the applicant’s submission to be that his Migration Agent had advised him to apply for the Visitor visa while waiting for the University to issue a new Certificate of Enrolment, that the applicant said that this advice was incorrect because he said that during August he could have applied for a Student visa based on a new Certificate of Enrolment issued by the University.
The applicant told the Court that ‘this is all happening’ because the consultant (which the Court takes to be a reference to the Migration Agent) went to the Tribunal instead of him. The Court took the applicant to the Tribunal’s hearing record which recorded that both the applicant and the Migration Agent attended the hearing. The applicant agreed that he attended the hearing by audio link but said that the consultant answered the questions from the Tribunal and gave false answers.
The Court does not find this submission to be credible. It is not borne out by the Tribunal’s decision. It is evident from the Tribunal’s decision that the Tribunal put questions to the applicant and that the applicant answered those questions ([32] to [35]). After putting questions to the applicant, the Tribunal asked the Migration Agent if they had any submission to make and the Migration Agent responded [36].
The Court then took the applicant to the grounds of judicial review in his application. The applicant said that the application was written by the consultant and that he did not read the application until afterwards. He told the Court that the consultant had misled him. He further told the Court that he wanted to ‘take back those things’. The applicant then told the Court that he did not rely upon the grounds set out in paragraphs 7 to 17 of the application.
The Court then asked the applicant to explain what he says was the legal error or procedural error made by Tribunal. The applicant replied that he is saying that the Tribunal is ‘right in their decision’.
The Court is satisfied that the applicant does not now rely upon any of the grounds of judicial review in his application and does not now assert that the Tribunal made a jurisdictional error.
The first respondent submitted that the applicant was present at the Tribunal hearing and at the call over hearing in July 2024 before the Registrar and understood that the application contained his grounds of review and that he was given an opportunity to file an amended application but did not do so. The first respondent submitted that to the extent that the applicant was now submitting that the consultant had represented him at the Tribunal and had completed his application, this could not give rise to a jurisdictional error by the Tribunal.
The Court agrees, to the extent that the applicant now asserts that he applied for the Visitor visa because of incorrect advice from the Migration Agent and that the Migration Agent gave false answers to the Tribunal, and prepared grounds of review in these proceedings without his instructions, these complaints cannot demonstrate jurisdictional error on the part of the Tribunal.
No jurisdictional error has been established.
The first respondent further submitted that even if jurisdictional error were to have been established the granting of relief by this Court would be futile because the applicant is currently offshore without a visa permitting him to return to Australia.
Clause 600.411 of the Regulations provides that if the applicant is in Australia at the time of the application, the applicant must be in Australia at the time of the grant.
The first respondent read and relied upon the Affidavit of Lily Joelle Butterfield filed on 20 August 2024. Annexure LJB2 to that Affidavit included a screenshot of the Department’s internal records which show that the applicant is offshore and a full list of visas granted to the applicant which shows that all of the applicant’s visas are ceased. The applicant confirmed to the Court that he was not in Australia.
The Court agrees that as the applicant is offshore and does not have a visa any relief by this Court would be futile because he cannot satisfy the requirement in cl 600.411 of the Regulations.
Accordingly, even were the Court to have found that the Tribunal fell into jurisdictional error, the grant of any relief by this Court would be futile.
CONCLUSION
The application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 24 September 2024
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