Kumar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1448
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1448
File number: PEG 56 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 23 December 2024 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal complied with its procedural fairness obligations – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 and 25 in Schedule 16
Migration Act 1958 (Cth), ss 357A, 359AA, 360, 360A & 476 and Division 5 of Part 5
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.10
Migration Regulations 1994 (Cth), Public Interest Criterion 4020 in Schedule 4 and cll 500.211, 500.217 & 500.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
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
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 20 August 2024 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 56 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURENDER KUMAR
First Applicant
NANHI DEVI
Second Applicant
ARMAAN SHEOKAND
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.The application be dismissed.
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 KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 23 January 2024 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Court notes that the Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicants’ migration history
The applicants in this matter are citizens of India (Court Book (“CB”) 2-7). The first and second applicants are husband and wife respectively (CB 3-5). The third applicant is their minor son (CB 6).
The first applicant first arrived in Australia in 2014 as the holder of a student visa (CB 156 & 171) and claims to have completed a Diploma and an Advanced Diploma of Business, an Advanced Diploma of Marketing, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (CB 171).
On 6 January 2021, the first applicant applied for the Student (Class TU) (Subclass 500) visa (the “visa”) the subject of this review (CB 1-24). The second and third applicants were included in that visa application as members of the first applicant’s family unit (CB 4-7). The first applicant was assisted with that visa application by a registered migration agent (the “representative”) and asked the Department of Home Affairs (the “Department”) to send all correspondence to his representative via email (CB 10 & 37-39). At the time of his visa application, the first applicant proposed studying a Bachelor of Business course commencing on 8 March 2021 (CB 170).
Later that same day (being on 6 January 2021), the Department acknowledged receipt of the first applicant’s visa application (CB 40-41).
The first applicant provided the Department with a “statement of purpose” (CB 42-77).
On 6 February 2021, the Department asked the first applicant (through his representative) to provide more information in relation to his visa application (CB 78-84). In particular, the Department asked the first applicant to provide a police clearance certificate from the Australian Federal Police (CB 83-84).
On 22 March 2021, the first applicant provided the Department with a National Police Certificate (the “NPC”) (CB 85-86).
On 21 April 2021, the Department asked the first applicant (through his representative) to comment on or respond to adverse information relating to the offences detailed in his NPC (CB 86-89). That invitation letter relevantly stated (CB 86-87).
On 06 January 2021, you lodged a Student (subclass 500) visa application. In your application form you declared ‘no’ to the following questions under the Character declaration section:
•Has any applicant ever been charged with any offence that is currently awaiting legal action?
•Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?
•Has any applicant ever been the subject of an arrest warrant or Interpol notice?
On 22 March 2021, you provided an Australian Federal Police (AFP) clearance certificate to the Department dated 03 March 2021. This AFP clearance certificate lists multiple offences including possession of stolen or unlawfully obtained property, gaining benefit by fraud, and a traffic related offence, dating from October 2018 to February 2020.
On the basis of the Department's investigations, I have serious concerns that the information provided with regard to your visa history is false or misleading in a material particular. Specifically, the information raises concerns about your character as well as your motivation to obtain a Student visa and remain in Australia temporarily, and that you therefore may not meet 500.212 - the Genuine Temporary Entrant criteria.
Please see this as an opportunity to comment on this information.
On 14 May 2021, the first applicant provided the Department with a letter and supporting documents responding to that invitation (CB 90-101).
On 1 June 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (the “first delegate’s decision”) (CB 108-114). The delegate found that the first applicant had given information that was “false or misleading in a material particular” and, as such, was not satisfied that he met Public Interest Criterion (“PIC”) 4020 in Schedule 4 of the Migration Regulations 1994 (Cth) or cl 500.217 in Schedule 2 of the Regulations (CB 110-112). The delegate was also not satisfied that the second or third applicants met the requirements set out in cl 500.311 in Schedule 2 of the Regulations (CB 112-114).
On 17 June 2022, the applicants applied for review of the first delegate’s decision by the Tribunal (CB 115-122). The applicants again appointed their representative to assist them with that review application (CB 120).
On or shortly after 2 May 2023, the first applicant provided the Tribunal with submissions and additional documentation in support of his review application (CB 123-150).
On 9 May 2023, the first applicant appeared at a hearing before the Tribunal to give evidence and present arguments. He was assisted at that hearing by his representative (CB 155).
On 10 May 2023, the Tribunal remitted the applicants’ visa applications to the Department for reconsideration with directions that the first applicant met PIC 4020 in Schedule 4 of the Regulations (for the purpose of cl 500.217(1) in Schedule 2 of the Regulations) and with directions that the second and third applicants met cl 500.311 in Schedule 2 of the Regulations (the “first Tribunal’s decision”) (CB 154-161).
On 17 May 2023, a delegate of the Minister again refused to grant the applicants the visas (the “second delegate’s decision”) (CB 168-176). The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (CB 173). The delegate was also not satisfied that the second or third applicants satisfied cl 500.311 in Schedule 2 of the Regulations (CB 174-175).
On 6 June 2023, the applicants applied for review of the second delegate’s decision by the Tribunal (CB 177-184). The applicants again appointed their representative to assist them with that review application (CB 182).
On 23 October 2023, the Tribunal obtained a search of the first applicant’s Provider Registration and International Student Management System (“PRISMS”) records (CB 189-198).
On 9 November 2023, the Tribunal invited the applicants (through their representative) to attend a hearing before it on 23 January 2024 (by video link) (CB 199-203).
On 16 January 2024, the first applicant provided a completed “Change of Contact Details” form in which he withdrew his previous authorisation for his representative to assist with the review application (CB 210-211).
On 23 January 2024, the first applicant appeared at the Tribunal hearing to give evidence and present arguments (CB 212-214).
The Tribunal made an oral decision at the completion of the hearing (on 23 January 2024) affirming the delegate’s decision refusing to grant the applicants the visa (the “Tribunal’s second decision”) (CB 217).
The applicants were notified of the outcome of the review via email on 25 January 2024 (CB 215-216).
On 23 February 2024, the applicants applied to this Court for judicial review of the Tribunal’s second decision.
On 20 March 2024, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 218-220).
THE TRIBUNAL’S SECOND DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s second decision in this matter is three pages long and spans 16 paragraphs (CB 218-220).
The Tribunal began by detailing that a delegate of the Minister had refused to grant the applicants the visas because he did not satisfy the genuine temporary entrant requirements (as set out in cl 500.212(a) in Schedule 2 of the Regulations). The Tribunal confirmed that the first applicant had sought review of that decision and that he had appeared at a hearing before it on 23 January 2024 to give evidence and present arguments. The Tribunal also confirmed that an oral decision was made at that hearing (at [1]-[5]).
The Tribunal explained that the issue before the delegate was whether the first applicant was a genuine temporary entrant, however, based on the first applicant’s PRISMS records, the issue before the Tribunal was whether the first applicant met the enrolment requirement set out in cl 500.211(a) in Schedule 2 of the Regulations (requiring that, at the time of its decision, the first applicant be enrolled in a course of study). The Tribunal confirmed that the first applicant acknowledged understanding that the determinative issue before the Tribunal had changed and that it had put the information contained in the PRISMS records to him at the Tribunal hearing (pursuant to s 359AA of the Act). The Tribunal noted that the first applicant had elected to rely upon his oral evidence and did not seek any further time to respond to the information. The Tribunal also explained that the first applicant was given an opportunity to provide enrolment evidence but no such evidence was forthcoming. Further, the first applicant confirmed that no current enrolment existed and there was thus no evidence before the Tribunal that the first applicant was enrolled in any approved course of study (at [6]-[12]).
The Tribunal found that the first applicant did not meet the requirements set out in cl 500.211 in Schedule 2 of the Regulations and the second and third applicants did not satisfy cl 500.311(a) in Schedule 2 of the Regulations. The Tribunal determined that the criteria for the grant of the visas was not met and affirmed the delegate’s decision refusing to grant the applicants the visas (at [13]-[16]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 23 February 2024 contains two “grounds of review”, as follows (without alteration):
1. Applicant want the review of AAT decision.
2. Applicant believe that AAT decision is not made as per her consideration.
The applicants also filed an affidavit in support of that judicial review application (affirmed on 21 February 2024 and filed on 23 February 2024). That affidavit annexed a copy of the confirmation of the Tribunal’s oral decision and associated notification letter and information sheet.
On 26 March 2024, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, written submissions and any additional evidence.
The first applicant appeared before this Court (on 20 August 2024) without legal representation. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the third applicant in the proceeding was still a minor (being born in November 2010). On that basis, the Court explained to the first applicant that, because his son was a minor, it was appropriate for a litigation guardian to be appointed on his behalf. The first applicant agreed to act as the litigation guardian for his son and the Court made orders (pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”)) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 23 February 2024 (the affidavit being taken as read and in evidence at the hearing on 20 August 2024), a Court Book numbering 221 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 17 July 2024.
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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].
It was also explained that this Court cannot review the merits of the Tribunal’s second decision or grant the applicants the visas that they seek. 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.
Against this background, the first applicant told the Court that when he appeared at the first Tribunal hearing (in relation to the Tribunal’s first decision), he had a Confirmation of Enrolment (“COE”) and was “ready to go to the college to study”. Then, he explained, the matter was sent back to the Department. The first applicant thought that he would be granted the visa but “a week or so later”, the visa was refused and the money he “had spent was wasted”. The first applicant further explained that “the second time”, he did not want to waste his money so he thought that he “would wait to enrol”.
Unfortunately, the first applicant’s comments do not raise any issue of jurisdictional error of the sort that this Court can address.
This leaves the Court to assess the applicants’ grounds of review without further assistance from the first applicant. Noting, however, that the applicants do not have legal assistance, the Court will, in its duty to them as unrepresented litigants, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
CONSIDERATION
Ground one
As outlined above, ground one provides as follows:
1. Applicant want the review of AAT decision.
By ground one, the applicants simply make a plea for relief and do not raise any issue of jurisdictional error or any error of the sort that this Court can address.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2. Applicant believe that AAT decision is not made as per her consideration.
It is not entirely clear what the applicants are seeking by ground two.
As outlined above, the first applicant did not raise any matters in oral submissions which clarified the applicants’ concerns. Noting that the applicants are unrepresented, the Court will therefore consider the ground as broadly as possible and assess whether the Tribunal complied with its procedural fairness obligations in this matter: MZAIB.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes as follows:
(a)the Tribunal invited the applicants to attend a hearing before it and the first applicant did so (CB 199-203 & 212). The first applicant gave evidence at that hearing in support of the applicants’ review application. Accordingly, the Tribunal complied with s 360 and s 360A of the Act;
(b)the Tribunal exercised its powers under ss 359AA of the Act to disclose adverse information to the first applicant and invited him to comment on or respond to that information (CB 219). The Tribunal’s invitation complied with the requirements set out in s 359AA(b) of the Act and the first applicant elected to respond to that invitation orally at the hearing (without seeking additional time to do so);
(c)the dispositive issue before the Tribunal (being whether the first applicant was enrolled in a course of study as required by cl 500.211 in Schedule 2 of the Regulations) was different to the issue before the delegate (being whether the first applicant was a genuine applicant for entry and stay in Australia) – which led to the refusal of the applicants’ visas. However, the Tribunal notified the first applicant of that difference and he confirmed that he understood that the “determinative issue before the Tribunal had changed” (CB 219). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(d)the Tribunal questioned the first applicant, listened to his responses and actively sought information from him about his circumstances and whether he was enrolled in a course of study. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court also notes that the first applicant gave evidence to the Tribunal confirming that he was not enrolled in a registered course of study. There is no evidence before this Court to suggest that the first applicant sought additional time to provide a COE or to enrol in any course of study. Further, the first applicant did not claim (in his oral evidence before this Court) that he had asked for any additional time to arrange for his enrolment. Instead, the first applicant told this Court that he had not enrolled in any course of study because he did not want to waste his money and, on that basis, he had decided to wait to enrol.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness and that the decision made by the Tribunal was open to it on the evidence before it.
No jurisdictional error arises in relation to ground two.
CONCLUSION
The application for judicial review filed by the applicants on 23 February 2024 has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 December 2024
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