Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 593

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 593    

File number(s):	PEG 246 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	20 July 2022
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation:	Migration Act 1958 (Cth): s 363
Division:	Division 2 General Federal Law
Number of paragraphs:	30
Date of last submission/s:	20 July 2022
Date of hearing:	20 July 2022
Place:	Brisbane
Counsel for the Applicant:	Mr Jones
Solicitor for the Applicant:	Nandan Vaityte
Solicitor for the Respondents:	Sparke Helmore

ORDERS

PEG 246 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MOHIT KUMAR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	20 JULY 2022

THE COURT ORDERS THAT:

1.The Decision of the Administrative Appeals Tribunal made on 12 October 2021 be quashed.

2.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring them to determine the applicant’s application according to law.

3.The First Respondent pay the Applicant’s costs of and incidental to the application fixed in the sum of $7853.00.

NOTATION:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.  

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
(EX TEMPORE)

JUDGE VASTA

1. On 12 October 2021 the Administrative Appeals Tribunal (“the AAT/ the Tribunal”) affirmed a decision of the Minister not to give the Applicant, Mohit Kumar, a student visa.  Those reasons were transcribed into written form on 20 October 2021.  On 12 November 2021, the Applicant asked this Court to review that decision. 

2. The background to the matter is that the Applicant is a citizen of India.  He arrived in Australia on 31 July 2019 on a visitor visa.  He had already obtained a Bachelor of Commerce at a university in India.

3. On 19 October 2019 he applied for a student visa in order to study a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Overhauling and a Diploma of Automotive Technology.  That final course, the Diploma of Automotive Technology, had an end date of 8 October 2021.  

4. On 6 December 2019 the delegate refused to grant the visa because the delegate was not satisfied that the Applicant intended to genuinely stay in Australia temporarily and so, therefore, he did not meet the criteria.

5. Upon the Applicant receiving that decision by the delegate, the Applicant applied to the Administrative Appeals Tribunal.  He was granted a bridging visa.  The bridging visa allowed him to continue to study.  So, notwithstanding the fact that his visa had been declined, he was still able to study the Certificate III in Light Vehicle Mechanical Technology, the Certificate IV in Automotive Mechanical Overhauling and the Diploma of Automotive Technology.

6. Having made that application to the AAT on 19 December 2019, the Applicant was not notified again until 20 July 2021.  I make no criticism of the Tribunal for that delay; that is simply illustrative of the incredibly huge workload that this Tribunal is undertaking in the migration jurisdiction. 

7. Nevertheless, the letter was very clear that, quite prominently and emboldened by dot points, the requirements are that the Applicant be enrolled in a registered course of study and he be a genuine applicant for entry and stay as a student. He was told that he needed to provide sufficient information to satisfy the Tribunal that he met both of these visa requirements.  He had to give that information to the Tribunal by 3 August 2021. 

8. He did give the information to the Tribunal on 3 August 2021; it included his current certificate of enrolment which showed that he was enrolled in the diploma course which would finish on 8 October 2021.  The letter is reproduced at CB 54, and the reply by the Applicant is at CB 61. 

9. On 27 August 2021, the Tribunal invited the Applicant to a hearing.  That invitation is reproduced at CB 89; it says there that the Tribunal hearing will occur on 12 October 2021.  It may have been evident to the Tribunal, or it may not have been evident to the Tribunal; it may have been evident to Mr Kumar, or it may not have evident to Mr Kumar, that, by 12 October 2021, the certificate of enrolment would have expired, but there is no mention made of this fact at all in the letter of 27 August 2021.

10. The Applicant accepted the invitation through his migration agent on 3 September 2021.  As I had recounted, the delegate had found that the Applicant was not a genuine entrant to Australia.  It was understandable that the Applicant thought that this issue would have been the issue that was the subject of the hearing; however, it was made clear in the material that was sent to the Applicant that if there was no certificate of enrolment, that the Tribunal could make the decision to refuse the visa notwithstanding that this may not have been the reason that the delegate had refused the visa in the first place. 

11. At the hearing the AAT member gave an oral decision.  In that, the Member made it clear that the delegate refused the visa because he had not been satisfied that the Applicant was a genuine temporary entrant.  The member then said:

    …I have considered everything that you put before the Department, everything that your representative – and by association, you – have provided to the tribunal, the evidence that you gave before me today… and I have considered arguments raised by you about things that I raised with you, particularly the requirement to have a confirmation of enrolment at the time of decision. In making this decision, I am doing so as if I am the original decision-maker. And I have to follow exactly the same rules and exactly the same regulations that the delegate was required to.

    …in preparing for the hearing today I had checked certain records. And they are called PRISIMS records.  In particular, I had reason to believe your history is that you studied the Certificate III …between 14 October 2019 and 9 October 2020, so 12 months. You finished that course.  You then studied the logical progression – that is, the Certificate III in Automotive Mechanical Overhauling. You did that between 12 October 2020 and 9 April 2021. And to your credit, you finished that. You cancelled a course –Certificate IV in Automotive Mechanical Diagnosis…

    …there was a course that you have just finished – it is the Diploma of Automotive Technology… and you studied that for six months between 12 April 2021 and 8 October 2021. 

12. I should add that, according to the calendar, 8 October 2021 was a Friday, and 12 October, the day of the hearing, was the following Tuesday which means that from the date of the lapse of the certificate of enrolment to the hearing there was one business day only, that being 11 October 2021.  The AAT member said:

    Now, having been made aware of that information, I consider that subject to what you would say or what you could say, that would be information – so, it would be the reason or part of the reason for affirming the decision under review. 

13. The Member then went through the background of the Applicant’s visa history, the letter to provide information on 20 July 2021 and the material that was then given to the Tribunal.  Again, the member said this:

    You did acknowledge, however, on that document your enrolment in the Diploma of Automotive Technology expired, or ends on 8 October 2021.  So clearly you knew that.  You knew that it was expiring on that date.  You told me today that results from that study you have just finished may come in the next few weeks. I accept that.

    So the situation we had was this – that you had come here today thinking that you were going to argue your case on the basis of whether you are a genuine temporary entrant.  What happened, however, is that the issue was “switched”. It was switched from a genuine temporary entrant to the issue about you having no confirmation of enrolment.  I raised with you that under the law –in particular section 359AA – there are serious obligations on me – well, major obligations – to notify you where I am aware of information that I consider would be the reason, or part of the reason, for affirming the decision that is under review.  Affirming really means confirming. In other words, agreeing with the delegate’s decision.

    And the law tells me that I must give you clear particulars of any information that I consider would be the reason, or part of a reason, for affirming the decision under review. During your evidence today, I did explain about the PRISMS records, and that record indicated that four or so days ago your confirmation of enrolment expired, in the sense that there was no enrolment as from 8 October.  I explained to you that if that was accepted by me… I would have no other option but to affirm the decision under review. And that is because that is a pivotal requirement as at the time of my decision.  I must, as far as reasonably practicable, ensure that you understood why it was relevant to me, and the review, and the consequences of it being relied on in affirming the decision that is under review. 

    …

    In effect, you were asking for an adjournment so that you could go away and comply with what you were required to have complied with today in any event – and that is you should have been enrolled.  I gave that consideration.  I did not think that that was an appropriate course for me to take. In effect, adjourning a hearing which had been set down for quite some time, to enable you to go out and comply with a pivotal provision of the law.  I did not grant any further adjournment.  I consider that you have had reasonable opportunity, as far as reasonably practicable, to comment or respond to that information. 

14. The Tribunal then, finding that there was no certificate of enrolment, found that the Applicant did not comply with the requirements for the visa and so affirmed the decision not to grant the visa. 

15. The application today has been somewhat truncated. There had been a number of grounds of appeal; however, the only one that was actually argued was a ground that was that it was legally unreasonable for the AAT to refuse the adjournment request.

16. There is little doubt that the Tribunal had the power to adjourn; that power comes from s 363(1)(b) of the Migration Act 1958 (Cth) (“the Act”) which, relevantly, states:

    (1)For the purpose of the review of a decision, the Tribunal may …

    (b)    adjourn the review from time to time.

17. In this case we have a matter where the Applicant was asked for information on 20 July 2021.  There was no hearing set at this stage.  The Applicant was asked for proof that he had a current confirmation of enrolment; he did that.  He also ticked the questionnaire which said, “Do you have a current confirmation of enrolment?” He ticked the box as being yes – that he did have it. 

18. This was a statement of truth as at 3 August 2021 when the Applicant sent his material to the Tribunal.  The invitation to attend the hearing was sent on 27 August 2021.  At the time that invitation was sent, it was still true that the Applicant had a current confirmation of enrolment.  The Applicant did have a current confirmation of enrolment at a time one business day before the hearing of the AAT.

19. Now, as I said during the course of argument, one would have thought that the Applicant, knowing that his visa was to study these three subjects which he had now completed, would understand that his circumstances had now changed from when he first made the application for the visa. And that if he wished to study other courses, then one would have expected him to have explored those courses and come up with another plan as to what it was that he wished to study. 

20. However, one does have to take into consideration that there had only been one business day that had elapsed between the end of the course and the hearing.  There had not yet been results given to the Applicant to see whether he had passed the course; that is, had he successfully completed it and did not fail it which might mean that he would have to complete it again if it were that he wished to have that educational diploma. 

21. The Tribunal did set that date of the hearing one business day after the lapse of the COE. I make no criticism of the Tribunal for doing that given that it is a very busy body trying to deal with quite a number of matters that are put before it in the migration section of its jurisdiction. 

22. However, if the hearing had been scheduled for 5 October, which is one week before, or even 8 October, which was the day of the certificate, this matter simply would not have arisen.

23. What the Applicant asked for was an adjournment, it would seem on the material I have, for about a week so that he could get another confirmation of enrolment, given that there had been that one-business-day lapse. 

24. It may have been that he may have been given information that he had failed the course and the confirmation of enrolment might have been for the same course, extended, because he had yet to complete that diploma having failed the course. 

25. It may be that he had passed the course or it may be that those results were not known, but he could have made the necessary inquiries to proceed with another course and thereby have a confirmation of enrolment so that the matter could have proceeded on the basis that the AAT member conceded it was going to be dealt with on; that is, whether he was a genuine temporary entrant. 

26. The Member made the statement that the hearing had been set down for quite some time; it had been set down for, realistically, some six weeks, and it just so happened that it was set down for one business day after the lapse of the certificate. 

27. In all of those circumstances I am of the view that it was legally unreasonable not to grant an adjournment to the Applicant and that it was simply not open to the AAT member to insist on proceeding with the matter in the circumstances that he did. 

28. I make it very clear I am not criticising the Member for doing what he did; however, in all of the circumstances, looking at the matter objectively, the Applicant was owed the opportunity, given that the lapse had only just occurred one business day before, to get another confirmation of enrolment. 

29. For those reasons I find that there has been proved, to my satisfaction, a jurisdictional error. 

30. I therefore issue the writs of certiorari and mandamus and remit the matter back to the Administrative Appeals Tribunal to be dealt with according to law.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       11 August 2022