Kwiatkowska v Minister for Home Affairs
[2018] FCCA 2795
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KWIATKOWSKA & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2795 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – Student Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth) s.476(1) Migration Regulations 1994 (Cth) cls. 570.232, 571.232, 572.223(1)(a), 572.231, 572.322, 573.111, 573.231, 574.111, 574.231, 575.111, 575.231 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183 AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 Singh v Minister for Immigration & Anor [2016] FCCA 2264 Singh v Minister for Immigration and Border Protection [2017] FCA 213 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| First Applicant: | BARBARA MARIA KWIATKOWSKA |
| Second Applicant: | KRZYSZTOF TOMASZ KWIATKOWSKI |
| Third Applicant: | MARCIN ZBIGNIEW KWIATKOWSKI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 724 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 September 2018 |
| Date of Last Submission: | 20 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| The Applicant: | Appearing in person with the assistance of an interpreter |
| Counsel for the First Respondent: | Mr T. Lettenmaier |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application filed 27 December 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 724 of 2017
| BARBARA MARIA KWIATKOWSKA |
First Applicant
| KRZYSZTOF TOMASZ KWIATKOWSKI |
Second Applicant
| MARCIN ZBIGNIEW KWIATKOWSKI |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an originating application filed in the Federal Circuit Court on 27 December 2017, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 12 December 2017.
The Tribunal’s decision affirmed a decision of a Ministerial delegate dated 17 December 2015 not to grant the first applicant a Student (TU) (subclass 572) visa (“visa”). That denial had the effect of denying both the second and third applicants the relevant visas they seek.
To succeed before this Court, the Court must be satisfied that the Tribunal’s decision was affected by jurisdictional error.
Background Facts
The background to this matter is outlined in the Minister’s outline of submissions to this Court filed on 13 September 2018. The Court has had regard to these submissions and adopts the procedural and factual background to these proceedings as outlined by the Minister at paragraphs 3 to 7. These background facts were not in dispute and provide, relevantly, as follows.
The first applicant is a citizen of Poland who first arrived in Australia on 15 September 2014 (Court Book (“CB”) at 38).
On 4 November 2015, the first applicant (as the primary applicant) lodged an application for the visa (CB at 1-10). The applicant’s husband and son were included in the application as members of her family unit (CB at 2-4).
On 17 December 2017, the delegate refused to grant the visa on the basis that the first applicant did not satisfy the requirements of cl.572.223(1)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB at 35-43).
On 26 December 2015, the applicants applied to the Tribunal for review of the delegate’s decision (CB at 44-46).
On 3 November 2017, the Tribunal invited the applicants to attend a hearing before it to give evidence and present arguments (CB at 62-67). The first applicant attended a hearing on 27 November 2017 (CB at 74).
On 12 December 2017, the Tribunal affirmed the decision of the delegate not to grant the applicants the relevant visa (CB at 83).
The Decision of the Tribunal
The Tribunal’s decision has been reproduced at pages 83 to 86 of the Court Book.
The Tribunal identified that the relevant question before it was whether, at the time of its decision, the applicant met the enrolment requirements for a student visa (CB 84 at [10]).
The Tribunal noted that, subject to limited exceptions, the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application.
The Tribunal found that there was no evidence before it that the applicant was an eligible higher degree student as defined in cl.573.111 and cl.574.111 of the Regulations respectively, or an eligible university exchange student or eligible non-award student for the purposes of subclass 575 as defined in cl.575.111 (CB 85 at [11]).
The applicant confirmed to the Tribunal that she was not currently enrolled in a course of study. She claimed that following the completion of her Certificate III in Spoken and Written English she had enrolled in a Certificate IV. She further explained that she was unable to complete this course because she had experienced health problems (CB 85 at [13]).
The Tribunal noted that with the invitation to attend the hearing the primary applicant had been requested to provide evidence of her current enrolment. The Tribunal also noted that it had discussed with the applicant and her elder son Mr Bartosz Krzysztof Kwiatkowski that it was a legislative requirement for the grant of the visa that the applicant be enrolled or subject to an offer of enrolment in a course of study at the time of the hearing (CB 85 at [14]).
At the conclusion of the hearing the Tribunal advised the applicant that it would defer making a decision until 4 December 2017 to allow the applicant to submit evidence of enrolment and additionally any medical evidence addressing the impact of her claimed medical conditions on her study (CB 85 at [15]).
On 29 November 2017, the Tribunal received on behalf of the applicants the following documents (CB 85 at [16]):
a)A Confirmation of Enrolment for the first applicant in a Certificate IV in Spoken and Written English with course dates from 8 March 2017 to 18 August 2017 (“COE”);
b)A Certificate of Completion of a Certificate II in Spoken and Written English dated 6 May 2016, and academic transcript; and
c)A Certificate of Completion of a Certificate III in Spoken and Written English dated 9 February 2017, and academic transcript.
The Tribunal found that the Confirmation of Enrolment submitted was in respect of the course that the applicant gave evidence to the Tribunal that she did not complete. The Tribunal also noted that the enrolment dates for the course had passed and no further evidence had been submitted at the date of the Tribunal’s decision (CB 86 at [17]).
The Tribunal concluded that it had no evidence before it that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study (CB 86 at [17]).
On the basis of the information before it, or lack thereof, the Tribunal found that the applicant had failed to meet the requirements provided for by cl. 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 (CB 86 at [17]).
The Tribunal also found that there was no evidence that the applicant satisfied the criteria for either a subclass 576 (AusAID or Defence Sector) or subclass 580 (Student Guardian) visa (CB 86 at [17]).
As the applicant had not satisfied cl.572.231 or any similar provision of another Subclass of student visa, the Tribunal found that the second named applicants could not be granted a visa under cl.572.322 (CB 86 at [20]).
The Tribunal concluded that on the basis of the scant evidence before it, the decision under review should be affirmed (CB 86 at [22]).
Present Proceedings
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”).
The applicant seeks judicial review in this Court, relying on two grounds of review:
1. The Tribunal committed jurisdictional error.
2. There was no requirement for a confirmation of enrolment at the time of the tribunal’s decision.
The originating application was supported by an affidavit sworn by the applicant on 23 December 2017 which annexes a copy of the Tribunal’s decision.
On 28 February 2018, orders were made by this Court which included the following:
4. By 4:00pm on 20 April 2018, the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
5. By 4:00pm on 20 April 2018, the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review.
7. By 4:00pm 14 days prior to the hearing, the applicant shall file and serve written submissions in support of the application for review.
As at the date of the hearing the applicant had not filed an amended application or an outline of submissions. Nor had she filed any further affidavits.
In the circumstances, the grounds as articulated are effectively meaningless (SZNXA v Minister for Immigration and Citizenship [2010] FCA 775). The grounds remain unparticularised notwithstanding that the applicant had an opportunity to amend and particularise the grounds pursuant to the Registrar's orders. This alone provides a basis for each of the two grounds to be dismissed: AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev, approved on appeal in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J. See also WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]‑[6] per Logan J (from which an application for special leave was refused: AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183). More recently, Colvin J (in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Although this matter does not raise protection claims, the Court is nonetheless of the view that the circumstances of this case are not such that the applicant should be denied the opportunity to articulate her concerns orally before this Court. While such an approach might apply within the context of an applicant who is legally represented, it is, in the Court’s view, inappropriate in circumstances where an applicant is not legally represented and is not fluent in the English language. In those circumstances an applicant should be given an opportunity to particularise and make any submissions that she wishes to make.
Accordingly, the applicant was asked to explain what she believes the Tribunal did wrong. It was explained to her that the Court could not engage in merits review. Rather, the Court can only look at whether there is evidence of jurisdictional error on the part of the Tribunal. The applicant’s submissions, made orally with the assistance of an interpreter in the Polish language, are outlined below.
Consideration
Ground One
The Tribunal committed jurisdictional error
In relation to this ground of review, the applicant told the Court, in effect, that the Tribunal did not allow her adequate translation services. When asked whether she understood the Tribunal’s questions, the applicant stated that she did “more or less” but was not entirely clear about what was expected of her because she was “quite stressed” and suffering from poor health.
This raises two issues. The first relates to court translation and whether the applicant was treated fairly in this regard. The second relate to the applicant’s health on the day of the hearing and whether or not the hearing should have occurred on the day.
Translation Services
It is noted that at paragraph 12 of the Tribunal’s decision, the Tribunal states that (CB at 85):
The elder son of the applicant Mr Bartosz Krzysztof Kwiatkowski, initially sought to represent the primary applicant at the hearing. It was confirmed that Mr Kwiatkowski was not a registered migration agent, rather he was studying in Australia on a temporary student visa. In these circumstances the Tribunal did not accept that he could represent the applicants at the hearing, however he was provided with the opportunity to present evidence as a witness. Mr Kwiatkowski also proposed to act at the interpreter for the primary applicant. The Tribunal also refused this request. The primary applicant had earlier advised in her hearing response that she did not require an interpreter. The Tribunal offered to adjourn the hearing if the primary applicant required an interpreter and reschedule it for a later date. However, the primary applicant told the Tribunal that she wished to continue with the hearing. She confirmed at the conclusion of the hearing that she had understood the Tribunal’s questions and the Tribunal considered that she provided meaningful responses. The primary applicant also told the Tribunal that she was feeling satisfactory and that she was in sufficient health to proceed with the hearing.
It is noted that the elder son of the applicant proposed to act as the interpreter for the first applicant. The Tribunal refused this request, noting that the first applicant had earlier advised in her hearing response that she did not require an interpreter. Furthermore, in its decision, the Tribunal states that it offered to adjourn the hearing if the first applicant required an interpreter, and reschedule it for a later date. However, the first applicant told the Tribunal that she wished to continue with the hearing (CB 85 at [12]).
The Tribunal also states that the first applicant confirmed at the conclusion of the hearing that she had understood the Tribunal’s questions and the Tribunal considered that she provided meaningful responses.
The Court notes that in relation to the hearing before this Court the applicants stated that they did not require an interpreter on their originating application dated 27 December 2018. However, on 14 September 2018, six days before the hearing, the first applicant contacted the Court and requested that an interpreter in the Polish language be organised for the hearing. This was arranged.
The Court asked the applicant whether the Tribunal’s summary of what had occurred was accurate. She agreed that it was but explained that she was actually struggling to understand.
The Court can only work with the evidence it has. The applicant did not provide the Court with a transcript of the hearing before the hearing and there is nothing before the Court that indicates the there was a lack of understanding on the part of the applicant. On the contrary, her own evidence before the Tribunal was that she did understand and that she wanted to continue with the hearing.
In the circumstances and on the evidence available, it cannot be said that the applicant was treated unfairly or denied an opportunity to participate fully. The Tribunal’s decision to deny the applicant’s son (who is not a qualified translator or migration agent and whose own visa is dependent on his mother’s evidence before the Tribunal) is entirely appropriate. This is particularly so in circumstances where the applicant claims to understand English, is offered an adjournment and reject the offer made.
No jurisdictional error occurred here in relation to the provision of accurate translation and the ability of the applicant to present her evidence.
In relation to the applicant’s health issues, the Court notes [5 ]-[8] of the Tribunal’s decision as follows:
5. On 3 November 2017, the Tribunal wrote to the applicants and invited them to attend a hearing to give evidence and present arguments in support of their application on 27November 2017.
6. On 24 November 2017, the Tribunal received a request by email on behalf of the primary applicant seeking a postponement of the hearing for medical reasons. In support of the application, a copy of a referral for a MRI, dated 9 November 2017, was submitted.
7. The Tribunal refused the request for adjournment and invited the applicants to submit further evidence demonstrating that the primary applicant was unable to participate in the hearing.
8. The primary applicant only appeared before the Tribunal on 27 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the elder son of the primary applicant, Mr Bartosz Krzysztof Kwiatkowski.
In relation to the requested adjournment and the applicant’s health the Court also notes [12] of the Tribunal’s decision:
The primary applicant also told the Tribunal that she was feeling satisfactory and that she was in sufficient health to proceed with the hearing.
Before this Court the applicant stated that she was too unwell to appear at the hearing. She indicated that she had various health issues, including stress.
There was no evidence before this Court in relation to the applicant’s health issues generally and certainly no evidence that the applicant was incapable of appearing before the Tribunal on the date of the hearing.
The applicant was asked why she did not provide the Tribunal with the medical evidence in circumstances where the Tribunal specifically gave her the opportunity to do so. She stated that she didn’t have time to get the evidence together. On the evidence, the Tribunal does not appear to have been advised of this concern. What the Tribunal had was one piece of medical evidence. The Tribunal can only work with the evidence it has before it and the reality of what it faces on the day. Here, the Tribunal assessed the medical and oral evidence before it and determined that the applicant was fit to proceed. That assessment was open to it on the evidence before. There is no evidence before this Court that would raise concerns in that regard. Nothing points to a conclusion that the applicant was physically or mentally unfit on the day. The applicant was asked whether there was any evidence she wanted the Court to look at. She responded that there was not.
In the circumstances, the Court is satisfied that the applicant was treated fairly and that, on the evidence before it, the Tribunal acted reasonably in denying the requested adjournment and proceeding with the scheduled hearing.
For the reasons outlined above, ground one fails. There is no evidence of jurisdictional error here.
Ground Two
There was no requirement for a confirmation of enrolment at the time of the tribunal’s decision.
Clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require the visa applicant be enrolled in or be the subject of a current offer of enrolment in an eligible course of study at the time of the Tribunal’s decision.
As noted above, at [13] of its decision the Tribunal states that the applicant confirmed that she was not currently enrolled in a course of study. She claimed that following the completion of her Certificate III in Spoken and Written English in February 2017 she had enrolled in a Certificate IV, however she did not finish this course because she had experienced some problems with her health. The applicant provided a confirmation of enrolment for the Certificate IV, however the enrolment dates for the course, at the time of the hearing, had passed.
In this regard the Court notes the comments of Judge Riley in the case of Singh v Minister for Immigration & Anor [2016] FCCA 2264, (“Singh”) (upheld on appeal: Singh v Minister for Immigration and Border Protection [2017] FCA 213).
In Singh, the applicant had not provided the Tribunal with a certificate of enrolment prior to the hearing despite the Tribunal inviting him to do so. The Tribunal noted that, at the hearing, the applicant told the Tribunal that he was not currently enrolled. This lead the Tribunal to conclude that the applicant did not meet the criteria in any applicable student visa subclass and, for that reason alone, the delegate’s decision should be affirmed.
Judge Riley of this Court found that, in those circumstances, the Tribunal’s decision was the only decision it could have made in view of the fact that the applicant did not have a current certificate of enrolment in any appropriate course.
On appeal Murphy J said:
[12] I can see no error in the judgment of the Federal Circuit Court in respect of the appellant’s lack of enrolment in an eligible course at the time of the Tribunal hearing. Each of cl 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations require that the visa applicant be enrolled in or be the subject of a current offer of enrolment in an eligible course of study. This is complemented by the requirement in cl. 572.223(1A) that a visa applicant “…is, and was, at the time of application, an eligible vocational education and training student [and has] confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student.”
In this case, the Tribunal clearly considers the relevant regulations and applied them correctly, saying at [18] of its reasons that:
…there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
As correctly noted by the Minister at paragraph 19 of his submissions:
The Tribunal correctly set out the legislative requirements in its decision (which it referred to as “the enrolment requirements”) and imposed no requirement that the applicant be the subject of a confirmation of enrolment (CB 84, [11]; CB86, [18]). Instead, the Tribunal found that the applicant had provided no evidence to satisfy cl 572.231 of the Regulations (CB 86, [18]). Once the Tribunal was satisfied that the applicant could not meet an essential criterion necessary for the grant of the visa it was not required to consider whether the applicant satisfied other applicable criteria: Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32].
It cannot be said here that the Tribunal erred in its interpretation of the relevant legislation. It looked at the evidence it had before it and made the only finding it could make. The evidence the applicant needed, on her own evidence, simply did not exist. All relevant evidence was examined. No irrelevant evidence was assessed and relied on.
Further, lest the applicant be seen as suggesting to this Court that she was not afforded procedural fairness by the Tribunal, the Court notes that the applicant was afforded the opportunity to attend a hearing before the Tribunal, which she did. She was also afforded an opportunity to provide documentation in relation to her enrolment in an eligible course. The documents that she subsequently provided failed to establish that she was currently enrolled in an eligible course or that she was subject to an offer of enrolment.
The Court finds that the applicant was afforded procedural fairness. Further, the Tribunal’s conclusion that the delegate’s decision must be affirmed was open to it and reasonable given the factual circumstances of this case.
No jurisdictional error, of any sort, can be seen here. Accordingly, ground 2 also fails.
Conclusion and orders
The onus is on an applicant to establish jurisdictional error: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [15].
For the reasons set out above, the applicant has failed to prove that the decision of the Tribunal made on 12 December 2017 affirming a decision to not grant a Student (Class TU) (subclass 572) visa to the applicant was affected by jurisdictional error.
Accordingly, the applicant’s originating application filed 27 December 2017 is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 28 September 2018
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