KUMAR v Minister for Home Affairs
[2020] FCCA 266
•12 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 266 |
| Catchwords: MIGRATION – Application for student visa – failure on the part of the applicant to satisfy fundamental criteria pre-conditions for the grant of the visa – no procedural unfairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359 |
| Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 |
| Applicant: | NITIN KUMAR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 100 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 11 February 2020 |
| Date of Last Submission: | 11 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2020 |
REPRESENTATION
| Applicant: | Self-represented |
| Solicitors for the Respondents: | Mr Hawker, Solicitor of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application for review filed on 4 February 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 100 of 2019
| NITIN KUMAR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who first arrived in Australia as the holder of a Student (Subclass 572) Visa on 13 July 2009.
Between 2009 and 2017 the applicant held a number of student visas, completing a number of courses at the certificate and diploma level during that time. He also held a Graduate (Subclass 485) Work Visa. The applicant applied for the Student (Temporary) (Class TU) (Subclass 500) Visa on 27 February 2017. He was assisted by a migration agent for that purpose.
On 19 May 2017, the delegate refused to grant the visa. On 7 June 2017 the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. At the time of the making of such application for review, the application was accompanied by a statement addressing the genuine temporary entrant criterion.
On 28 November 2018 the Tribunal sent a letter to the applicant’s nominated email address listed in his application for review before the Tribunal. The letter invited the applicant to attend a hearing before it scheduled for 9 January 2019. [1] In part, the letter asked the applicant to provide to the Tribunal, within seven (7) days, certain information as follows:
“1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.”
[1] Court Book (CB) pp. 84 – 86 inclusive.
The applicant did not respond to the Tribunal’s letter. On 2 January 2019, the Tribunal sent an SMS message to the applicant reminding him of the proposed hearing date. On 4 January 2019, the applicant called the Tribunal to ask for the time and address for the hearing, his stating that he was unable to open the attachment to the hearing invitation of 28 November 2018. On 8 January 2019, the applicant emailed the Tribunal and asked for an adjournment of the hearing for a period of one (1) – three (3) months on the basis that he needed more time to obtain legal advice. He stated that he thought he was to receive a s.359 Migration Act 1958 (Cth) (‘the Act’) letter explaining the issues relevant to the review.
On 9 January 2019, the applicant appeared before the Tribunal. On that day, the Tribunal orally advised the applicant that it intended to affirm the delegate’s decision. On 21 January 2019, the Tribunal handed down written reasons for its decision. At [18] of its reasons, the Tribunal found that the applicant had not met the criteria for the grant of a Sub-class 500 Student Visa at the time of the decision. At [16] of its reasons, the applicant confirmed that at the time of the hearing before the Tribunal he was not enrolled in any course of study in Australia. The applicant appeared on his own behalf today when he also confirmed to the Court that at the time of the hearing before the Tribunal he was not relevantly enrolled in any course of study in Australia.
On 4 February 2019, the applicant filed an application for review of the decision of the Tribunal. The two (2) grounds for review were as follows:
“Grounds of application
1. The Tribunal erred in making a determination without affording an opportunity to the Applicant to respond to a letter from the Tribunal which was not received by the Applicant.
2. The Tribunal refused the Applicant’s request for adjournment sought on the basis that he needed time to provide the information requested by the Tribunal which he became aware of at the time of the hearing only.”
At [5] of its reasons, the Tribunal confirmed that the issue before it was whether the applicant, at the time of the decision, met the enrolment requirements for a student visa. The relevant criteria for the grant of a Sub-class 500 Student Visa, as set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), were as follows:
“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.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
It is to be noted that cl. 500.211(a) requires the applicant to be enrolled in a course of study. The term “course of study” is defined in cl. 500.111 as follows:
“500.111
"course of study" means the following:
(a) in relation to a secondary exchange student--a full-time course of study under a secondary school student exchange program administered by a State or Territory education authority;
(b) in relation to a Foreign Affairs student--either:
(i) a full-time course of study or training under a scholarship scheme approved by the Foreign Minister; or
(ii) a full-time course of study or training under a training program approved by the Foreign Minister;
(c) in relation to a Defence student--either:
(i) a full-time course of study or training under a scholarship scheme approved by the Defence Minister; or
(ii) a full-time course of study or training under a training program approved by the Defence Minister;
(d) in any other case--a full-time registered course.”
On the applicant’s own admission, made both before the Tribunal and this Court, the applicant was not enrolled in any course of study at the time of the decision. The applicant, in those circumstances, clearly did not satisfy the relevant criteria for the grant to him of the visa.
As to Ground 1 of the application for review, the applicant asserts that the Tribunal erred in making a decision without affording an opportunity to the applicant of responding to its letter of 28 November 2018 which was emailed to him. Quite apart from the appropriateness or inappropriateness of the Tribunal sending documentation to the applicant by email to his nominated email address, and irrespective of whether the applicant could or could not open any attachment to an email sent to him, no jurisdictional error could possibly arise in circumstances where any failure on the part of the Tribunal to give any opportunity to the applicant to respond could not have affected the applicant’s underlying failure to satisfy a fundamental criteria for the grant to him of the visa. Even if the actions of the Tribunal were found to be a denial of procedural fairness, no jurisdictional error could be demonstrated because any such denial was not material to the outcome of the determination by the Tribunal of the applicant’s application for the visa.
As was said by Edelman J in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [69] – [72]:
“[69] The decision in SZIZO illustrates a common manner in which this concept of materiality is part of the implication that a decision will not be invalid or beyond authority where the error could not have affected the result of the decision. Another example was contemplated in the joint judgment in this Court in Kirk v Industrial Court (NSW). In that case, the erroneous reversal of the onus of proof was a jurisdictional error. However, the joint judgment observed that there may be some departures from the rules of evidence that would not warrant the grant of relief in the nature of certiorari. In other words, the joint judgment contemplated that a non-material departure from the rules of evidence might not be either a jurisdictional error or a material error of law on the face of the record.
[70] This approach to materiality as part of the implication concerning when an action by a decision maker will go beyond power can also be seen in the classic description by this Court of the range of possible jurisdictional errors in Craig v South Australia. In that case, the Court gave examples of errors of law by an administrative tribunal that could be jurisdictional errors: identifying the wrong issue; asking the wrong question; ignoring relevant material; relying upon irrelevant material; and, in some circumstances, making an erroneous finding or reaching a mistaken conclusion. Speaking of the usual implication that arises from the statute, the Court said that if one of these errors is made:
"and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
[71] In Minister for Immigration and Multicultural Affairs v Yusuf81, McHugh, Gummow and Hayne JJ reiterated the usual implication that for an error to be jurisdictional, what "is important" is that the error is made "in a way that affects the exercise of power". More recently, in a context relevant to the availability of relief under s 75(v) of the Constitution in light of s 474 of the Migration Act, Gageler and Keane JJ described jurisdictional error as "a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act"82.
[72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.”
Further, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] and [46], Bell, Gageler and Keane JJ said:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Any breach of procedural fairness in the subject matter on the part of the Tribunal could not have realistically resulted in a different decision. There is no merit to Ground 1 of the application for review.
The same reasons for rejection of the applicant’s Ground 1 claims apply to the claims as set out in Ground 2 of the application for review. Both are without merit. Even if the Tribunal denied the applicant procedural fairness in his request for an adjournment, such breach could not have realistically resulted in the Tribunal arriving at a different decision. A fundamental aspect of the applicant’s entitlement to seek the relevant visa had not been met. There is no merit to Ground 2 of the application for review.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has not established any jurisdictional error on the part of the Tribunal.
The application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 12 February 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Procedural Fairness
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Judicial Review
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Natural Justice
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