Kothapally v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 917
•4 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kothapally v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 917
File number(s): SYG 803 of 2020 Judgment of: JUDGE STREET Date of judgment: 4 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student visa- where applicant had no current course of enrolment – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error made out – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Act 1958 (Cth), s 476
Number of paragraphs: 10 Date of hearing: 4 May 2021 Place: Sydney Applicant: In person Solicitor for the First Respondent: Ms C Juarez, MinterEllison ORDERS
SYG 803 of 2020 BETWEEN: SOUMITH KOTHAPALLY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3, 737.00
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 4 March 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student visa.
The Court will have set out the background and the grounds in argument in the Minister’s submissions from paragraph 5 to 25:
B. FACTUAL BACKGROUND
(5)The applicant is a citizen of India, who first arrived in Australia on 19 November 2015 (CB 118). On 14 March 2018, the applicant applied for a student visa (CB 17).
(6)On 30 April 2018, a delegate of the Minister (the delegate) refused to grant the applicant a student visa on the basis that he did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), because the delegate was not satisfied that he was a genuine applicant for entry and stay as a student (CB 96).
(7)On 16 May 2018, the applicant applied for review of the delegate's decision by the Tribunal (CB 101).
(8)On 6 November 2019, the Tribunal invited the applicant to provide information in relation to whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student, with reference to and attaching Direction No.69 (made under section 499 of the Act (Direction No.69) (CB 120). The invitation letter noted (original emphasis) (CB 122):
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.
(9)On 20 November 2019, the applicant responded to the Tribunal's 6 November 2019 invitation in writing (359 response) (CB 128). The applicant consented to the matter being determined without a hearing (CB 129).
(10)On 4 March 2020, the Tribunal affirmed the decision under review (CB 144).
C TRIBUNAL DECISION
(11)The Tribunal identified that the applicant needed to satisfy the primary criteria in clauses 500.211–500.218 of Schedule 2 to the Regulations at the time a decision was made on the application: clause 500.2 (CB 146 at [11]).
(12)The Tribunal recorded that it had read and had regard to the applicant's 359 response, but found that he did not provide further information as requested in its 6 November 2019 letter, and in those circumstances he was not entitled to appear before it: subsection 360(3) of the Act (CB 145 at [6]–[7]).
(13)The Tribunal recorded that, by his 359 response, the applicant gave evidence that he had enrolled in and failed to complete three courses. At the time of his application for a student visa he was proposing to undertake a Diploma of Business and a Bachelor of Business (CB 146 at [18]). However, the applicant had stated that he 'never started' the Bachelor of Business and was 'not currently studying'. He responded 'no' to the Tribunal's question 'Does the main applicant have a current Confirmation of Enrolment (COE)?' (CB 146 at [19]).
(14)The Tribunal noted that there was no evidence before it that the applicant was currently enrolled in a registered course of study (CB 147 at [20]). Consequently, it was not satisfied that the applicant was enrolled in a course of study as required by paragraph 500.211(a), and affirmed the decision not to grant him a student visa (CB 147 at [21]–[23]).
D APPLICATION FOR JUDICIAL REVIEW
(15)The applicant relies on his application, filed on 31 March 2020. The application contains two grounds of review (reproduced as written):
1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to consider relevant considerations.
Particulars
a) The Applicant matter was remitted to the Second Respondent and the Tribunal decided to invite the Applicant to provide further information on 6 November 2019.
b) The Applicant submitted his circumstances before the Tribunal as part of the further information, however the tribunal failed to consider the circumstances and the reasons the Applicant was not enrolled in a registered course of study.
c) The tribunal in many paragraphs pointed out that the Applicant is not enrolled in a registered course of study but failed to allow him time to provide evidence of enrolment.
2. The Second Respondent made jurisdictional error under s361 (3) of the Migration Act 1958 in that it failed to have regard to the Applicants' circumstances and did not give him with the opportunity to provide proof of enrolment.
E CONSIDERATION
Pleaded grounds
(16)The Minister submits that, properly understood, the applicant alleges that the Tribunal failed to consider his circumstances and did not give him an opportunity to provide proof of enrolment.
(17)The Minister submits that the Tribunal considered all of the material before it, including the applicant's reasons for not being enrolled in a course of study contained in the 359 response (see CB 146 at [18]–[19]). Further, there is no evidence before the court that the applicant at any point requested a further opportunity to provide evidence of enrolment and, in fact, had provided evidence that he was not enrolled in a course of study with the brief comment 'CURRENTLY NOT STUDYING' (CB 133).
(18)Furthermore, the Minister submits that the Tribunal afforded the applicant an opportunity to provide information and was correct to find that he was not entitled to appear before it.
(19)By letter dated 6 November 2019, the Tribunal invited the applicant to provide information in relation to whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student, pursuant to subsection 359(2).
(20)The applicant's 359 response provided information that he was not enrolled in a registered course of study; however, the Tribunal found that the applicant had not provided the information requested (CB 145 at [6]–[7]).
(21)While it may be arguable that the applicant did provide the requested information because he provided information that he was not enrolled, the Minister would submit that any error by the Tribunal in this regard was not material in circumstances where the applicant had waived his entitlement to a hearing.
(22)Relevantly, section 360 of the Act provides:
1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2. Section (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.
(23)As the applicant's 359 response provided consent for the Tribunal to decide the review without the applicant appearing before it (CB 129), by operation of paragraph 360(2)(b) and subsection 360(3) of the Act, the applicant was not entitled to appear before the Tribunal.
(24)As the applicant's consent to the application being determined on the papers provided a valid and operative basis upon which he was disentitled to appear before the Tribunal, under paragraph 360(2)(b) and subsection 360(3), the Minister submits that the question of whether or not the Tribunal was correct to find that he was also disentitled on a separate and independent basis under subsection 359C(1) is moot.
(25)It follows that any error that the Tribunal may have made in respect of 359C(1) was immaterial, as it could not have resulted in a different outcome, and thus did not affect the exercise of the Tribunal's jurisdiction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30]–[31] per Kiefel CJ, Gageler and Keane JJ.
BEFORE THE COURT
These proceedings were commenced on 31 March 2020. On 4 June 2020 a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit, evidence, and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the application the nature of the show cause hearing.
The applicant made reference to his studies and, in substance, invited the Court to grant him a visa or extend time for him, none of which enlivens any power of this Court.
The applicant, at the time of decision before the Tribunal, was not enrolled in a current course of study. The applicant consented to the Tribunal determining the review without a hearing. The applicant was clearly on notice from the communication sent by the Tribunal of the need for a current course of enrolment.
Nothing said by the applicant identifies any arguable case of relevant error.
For the reasons given in the Minister’s submissions above, the grounds in the application do not identify any arguable case of relevant error. The Court is not satisfied that the application has raised an arguable case for the relief claimed.
The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Accordingly, the application is dismissed under r 44.12 of the Rules.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 11 May 2021
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