Kyunde v Minister for Immigration
[2020] FCCA 2221
•13 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KYUNDE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2221 |
| Catchwords: MIGRATION – Student (Class TU) Higher Education Sector (Subclass 573) visa – decision of the Administrative Appeals Tribunal – substantive application filed 20 days late – application for an extension of time – no reasonably arguable case – extension of time dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.116, 477, Condition 8202 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | KELVIN MWENDWA KYUNDE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 426 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 11 August 2020 |
| Date of Last Submission: | 11 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 13 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting notice, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 426 of 2019
| KELVIN MWENDWA KYUNDE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Kenya. On 16 October 2015, he was granted a Student (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) (Court Book (“CB”) 1-3).
On 9 May 2018, the then Department of Home Affairs sent the applicant a Notice of Intention to Consider Cancellation (the “NOICC”) (CB 6-10). The NOICC stated that it appeared that the applicant had not complied with Condition 8202 as he had not been enrolled in a registered course of study since 24 July 2017. The applicant was provided five days to respond to the NOICC. No response was received from him.
On 28 May 2018, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (the “Act”)(CB 11-19). The delegate was satisfied that grounds for cancellation existed and that there were no grounds for not cancelling the visa.
On 29 May 2018, the applicant emailed the Minister’s Department notifying them that he had not received any mail in relation to the cancellation of his visa (CB 20).
On 4 June 2018, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 21-22). The applicant was represented by a migration agent.
On 15 April 2019 and 16 April 2019, the applicant’s migration agent forwarded written submissions and supporting documents to the Tribunal (CB 36-48).
The applicant attended a hearing before the Tribunal on 16 April 2019 (CB 49). He was given a further opportunity to provide supporting documents. On 7 May 2019, the applicant provided further documents to the Tribunal. This included a letter from Curtin University, an English Language Test result paper and a letter of conditional offer and acceptance in a Diploma of Building and Construction Management (CB 53-67).
On 4 September 2019, the Tribunal affirmed the decision to cancel the applicant’s visa (CB 71-76).
On 15 October 2019, the applicant emailed the Tribunal asking it to reconsider his case (CB 77). On the same date, the Tribunal advised that it did not have any power to reopen the case (CB 79).
On 29 October 2019, the applicant filed an application seeking judicial review of the Tribunal’s decision in this Court. Unfortunately, the substantive application was filed late – that is, outside of the 35-day time limit prescribed by s.477 of the Act. In the circumstances, the applicant must obtain from this Court an order extending time to allow him to pursue his substantive application for judicial review. He has requested an order of that sort. Whether the Court should grant it is the subject of these reasons for judgment.
Tribunal’s Decision
The Tribunal’s decision is six pages long and spans 29 paragraphs.
The Tribunal began by setting out the background to the application before it. It noted the delegate’s decision, explained that the applicant had appeared before the Tribunal at a hearing and noted that the applicant was represented (at [1]-[5]).
The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 and explained that, if the applicant had done so, his visa might be cancelled (at [7]).
The Tribunal then set out the requirements of Condition 8202 (at [8]) and noted that the applicant’s visa in this case had been cancelled on the basis that he was not enrolled in a registered course (at [9]).
The Tribunal noted that the NOICC had been sent on 9 May 2017 and that the applicant had confirmed at the hearing before the Tribunal that he had received the email containing the NOICC. On that basis, the Tribunal was satisfied that the applicant had received the NOICC (at [10]).
The Tribunal then referred to Departmental records that indicated that the applicant had not been enrolled in a registered course of study since 24 July 2017 (at [11]).
The Tribunal then found as follows (at [12]):
On the evidence before the Tribunal, the applicant was not enrolled in a registered course at the time of the Department’s decision and at the time of the hearing before the Tribunal. The Tribunal gave the applicant extra time to provide information and he submitted an unsigned conditional offer of enrolment approximately 1 month after the hearing. The applicant has provided the unsigned conditional offer to the Tribunal but he was not enrolled in a Course at the time of the hearing and the decision of the Department. Accordingly, the applicant has not complied with condition 8202(2) before the visa was cancelled.
Having found that a ground for cancellation existed, the Tribunal considered whether it should exercise its discretion to not cancel the visa. In this regard, the Tribunal confirmed that it had had regard to the matters listed in the Minister’s Procedures Advice Manual (“PAM”) about “General visa cancellation powers” (at [13]).
The Tribunal noted that the applicant had not returned to Kenya since his arrival in Australia and that he had stated that none of his family have visited Australia (at [14]).
The Tribunal then referred to the applicant’s evidence that he had attended his enrolled course in the first trimester but did not pass. The Tribunal explained that the applicant had indicated that he had been asked to repeat this course but could not do so as he did not pay the course fees, he could not obtain credit and, as verified by the letter from Curtin University, he deferred the course for one year (at [15]).
The Tribunal also referred to evidence provided to the Tribunal in the form of an unsigned letter of offer for a course due to commence on 11 October 2017 which would lead to a Bachelor of Commerce. Further, at the hearing the applicant explained that his parents had told him to enrol in this course but he did not attend because “it would be a waste of money” (at [16]).
The Tribunal noted that it had provided the applicant additional time to provide documentary evidence that he had, in fact, completed one trimester of study in 2015 but could not obtain credit due to unpaid fees (at [17]). The applicant provided the letter from Curtin University.
The Tribunal continued, as follows:
18. He told the Tribunal that his family had the money to pay the fees but they did not pay on time. It was confusing to the tribunal as the submission from the migration agent in writing provided to the Tribunal prior to the hearing on the15 April 2019 stated that he had paid for his tuition fees for one year prior to his arrival to Australia. The submission from the migration agent was different to the applicant’s oral evidence at the hearing. He also said that he completed the first trimester but did not pass so he had to start all over again. He stated that he had deferred for one year. The applicant may have had an approved period of non-attendance by the College. Whilst the College is at liberty to approve a period of nonattendance, it is the applicant’s responsibility to ensure that he is compliant with conditions of his visa. The education provider is not responsible for the applicant’s adherence to conditions outside of its area of authority. Whilst technically enrolled he did not attend or progress through the courses. I give this factor significant weight in favour of the visa being cancelled.
19. The applicant did provide a letter from Curtin College to the Tribunal following the hearing as requested by the Tribunal but that information did not shed any light on the matter but confirmed that the applicant was not enrolled at the time that the visa was cancelled. The letter stated that the Applicant commenced his studies on 19 October 2015 and did not reenrol for the first study period of 2016.The applicant re-applied to continue his studies later in the third trimester of 2016.He did not re-enrol for the second trimester in 2017.The College cancelled the Applicant’s confirmation of Enrolment and withdrew the student from Curtin College. The Tribunal finds that the applicant has not fully explained his behaviour in stopping studying and not maintaining enrolment and gives this significant weight towards the visa being cancelled.
The Tribunal noted that the purpose of the applicant’s travel and stay in Australia was to complete a Bachelor of Commerce (at [20]).
At [21], the Tribunal continued:
He was not enrolled in a course of study at the time of the hearing and said that his parents wanted him to wait for the outcome of the Tribunal’s decision before committing to a Course. He presently lives with family friends. He says that he does not work. He says that he is now interested in pursuing a degree in Building and Construction. The applicant could not articulate at the hearing what he planned to do in the Building Industry other than managing workers. He gave vague answers to the questions put to him about his reasons for choosing this path of study. He said that he did not have any experience in the building industry. He said that he picked the path as he has walked past building sites and considered that he would be interested in that pathway. He said that he wanted to return to his home country after the completion of his studies and for his parents to be proud of him. He said that the systems in Kenya involve a lot of corruption and it would be difficult for him to get a job without a degree. The reality is that he has lived in Australia since 2015 and has not progressed in any course and was last enrolled or attended a course in the last semester of 2016. He has provided to the Tribunal an unsigned Offer of conditional Offer and acceptance from Everthought College of Construction PTY LTD on the 30 May 2019(after the deadline). The Tribunal is mindful of the seriousness of obtaining a student visa and remaining in Australia and breaching a condition such as non- enrolment. Whilst appreciating the hardship that the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight. The Tribunal has taken that information into consideration but has placed limited weight on the unsigned conditional offer of acceptance as contained in this paragraph in arriving at the decision to affirm the decision of the Department.
The Tribunal noted that the applicant had not returned to Kenya since 2015 and that, during the hearing, the applicant had indicated that there were problems with violence in his home country and this was a part of the reason why his fees could not be paid on time. He explained, however, that there were no current concerns regarding political violence in Kenya (at [22]). The Tribunal placed some weight on the evidence that there was a person who was willing to sponsor the applicant and assist him with the payment of his fees (at [23]).
The Tribunal found that the circumstances surrounding the cancellation of the applicant’s visa were not beyond his control as he could have consulted the Minister’s Department or his college during the period in which he was not studying (which was “quite some time”). The Tribunal found that the applicant was aware that he had to be enrolled in a registered course as he said that he had spoken to the Minister’s Department, who had advised him to keep his PRISMS record up to date (at [24]).
The Tribunal continued:
25.He now says that the Course of study being the Bachelor of commerce was not suitable for him and he wanted to be studying in the Building and Construction Industry. He was asked to explain that the Construction industry is varied and the sort of trade that he was considering. He stated that he would like to manage people on the site. He did not and had not made enquiries as to what specifically he could do on a site and has never previously worked in the Industry. The Tribunal does not accept his explanations. If he was keen on that pathway he should have made the necessary enquiries as soon as he was not enrolled. The Tribunal considers that the breach of the condition 8202(2) is significant having been for a long period. The Tribunal gives the lengthy breach of condition 8202 some weight towards the visa being cancelled.
The Tribunal concluded as follows:
27. The Tribunal has weighed all of the evidence and information before the Tribunal. The Tribunal is not satisfied by his evidence and the information as it fails to explain the reasons for the breach, as he stopped attending and studying for a significant period of time prior to the breach. Ultimately student visas are provided for the purpose of study. The Applicant studied only for several months, did not complete any courses, and remained in Australia, unenrolled for a year without taking any action. He did not study for long and the Tribunal has no confidence that, were he to have his visa reinstated, he would do so.
28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
On the basis of the above, the Tribunal affirmed the delegate’s decision to cancel the visa (at [29]).
Proceedings in this Court
The applicant’s application for judicial review was filed outside of the 35-day time limit specified in the Act. In his application for judicial review filed on 29 October 2019, the applicant indicated that he required an extension of time. His grounds for an extension of time were as follows:
Involved in an accident where I was required to seek medical treatment and also the recovery of my injury.
Due to abovementioned accident, injury & other personal problems (eg. Visa), I am currently under a lot of stress which is causing me to have severe depression & anxiety.
I tried to submit application for appeal on 11th October but was then notified I was 2 days late and needed to apply for an extension of time. Reception advised it was better that I seek legal advice before submitting application. On the 11th Oct I was taken by surprise as I was under the impression that I was still within my 35 days. I started seeking legal advice immediately and was booked in for an appointment with Janette a legal aid lawyer at the…
The latter part of the grounds for an extension of time are “cut off”. In the applicant’s supporting affidavit affirmed 29 October 2019, the applicant does not state anything that is relevant to his request for an extension of time.
The Minister takes issue with the applicant’s affidavit affirmed 29 October 2019. The Minister states that the applicant has failed to adequately explain the delay and, as such, the extension of time should be dismissed on the basis of non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Court disagrees. The applicant is unrepresented and his grounds of review in favour of an extension of time, in effect, provide an explanation for the delay. Further, the Minister will not suffer any prejudice if the Court dispenses with r.44.05(2)(c). Accordingly, the Court has proceeded on this basis.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court are thus limited to the judicial review application, the affidavit of the applicant affirmed 29 October 2019, correspondence exchanged between the Minister, Chambers and the applicant confirming the service of the Court Book and written submissions (marked as Exhibit 1), a Court Book numbering 81 pages (marked as Exhibit 2) and an outline of submissions filed by the Minister on 21 July 2020.
Prior to the hearing, correspondence was exchanged between the applicant, the Minister’s solicitor and Chambers. In one email, the applicant suggested that he did not wish to proceed with the hearing because he was not “okay at the moment”.
Despite that email, the applicant did appear before the Court on 11 August 2020. He did so without legal representation. At that time, the applicant did not request an adjournment of the hearing (other than for the purpose of seeking evidence that he had, in fact, been in an accident – which, he stated, is why he filed his substantive application late. The Court will address this issue below). The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Before this Court, the applicant was articulate and entirely credible. The Court thanks the applicant for the clarity of his oral submissions as they particularised his proposed grounds of review.
Toward the conclusion of the hearing, the applicant asked if he could have an “extension of time” to provide evidence of his accident. The Court indicated that it would not grant him an “extension of time” (by which both the Court and the applicant meant “adjournment”) to provide such evidence because, as is explained further below, the Court accepts that he was in an accident as he claims and accepts that the accident contributed to his failure to file his substantive application on time.
Extension of Time
In light of the fact that the applicant was unrepresented, the Court explained to him that he needed to satisfy the Court that it is in the interests of the administration of justice to extend time: the Act, s.477(2)(b). The Court explained that the factors to be considered in relation to an extension of time are not exhaustive. However, in determining whether it is necessary in the interests of the administration of justice to extend time, the Court will generally look at the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The Court then invited the applicant to comment on these matters and any other matters he considered relevant. His submissions, and the Minister’s submissions, are referred to where necessary below.
Consideration
Delay and Prejudice
The delay in this matter is not significant. It is 20 days. This weighs in favour of an extension of time being granted.
The Minister does not claim any prejudice beyond the finality of litigation. This also weighs in favour of an extension being granted.
Overall, the minimal length of the delay and the lack of significant prejudice weighs in favour of an extension of time being granted to the applicant.
Explanation
The applicant’s explanations for the delay appear to be that:
a)he had an accident which required medical attention;
b)he has been under significant stress which has caused mental health issues; and
c)he tried to submit his application within what he thought was 35 days and was told he should get legal advice, which he did.
The Minister submits that these explanations are not satisfactory.
The Court disagrees. At the hearing, the applicant stated that “the month before” (which the Court assumes to be the month before his application to this Court was due to be filed) he was required to attend hospital after he was hit in the head and he also had to pay medical bills following this accident.
The applicant indicated that he could get medical evidence that proved that he had been in an accident. The Court indicated that this was not necessary as the Court accepted that he was involved in an accident at some time prior to 29 October 2019 and that this had contributed to the substantive application being filed outside of the time limit.
The applicant also says that he had been under significant stress which resulted in mental health issues. There is no evidence before the Court to verify that the applicant suffered from anxiety or depression. The Court does not doubt, however, that an accident of the sort described by the applicant would have been stressful and may have contributed to him filing his application late. His life at the relevant time is perhaps best described as “chaotic”.
In relation to the applicant’s third explanation above that he did try to file the application within time and thought he had done so, it is evident that the applicant originally sought to file his application in this Court two days after the time to apply expired. He did so as he believed that the time period did not start until the day after he received the Tribunal’s decision.
The Court accepts the applicant’s explanation as to why he filed his substantive application late to be entirely reasonable. This weighs in favour of granting the extension of time.
Merits
On a review of this sort, any merits in the grounds of review as articulated need only be “reasonably arguable” and any assessment as to merit should only be made at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585. This was explained to the applicant.
The application for judicial review contains three grounds as follows:
1. I believe the assessment wasn’t fair because I don’t think my age or personal circumstances were taken into consideration while making a decision on my visa and ultimately my future here in general. I think due to my age and potential for improvement the AAT should have given me the chance to prove myself & my capabilities.
2. I also believe the decision was unfair as I was lacking in experience, finances and wasn’t informed that when my visa was cancelled and I applied for a bridging visa that I could apply for working rights or enrol in study while waiting for the decision to be made by the tribunal. This information came to my attention after the decision was already made by the tribunal based on me not being enrolled in any college.
3. At the time of the tribunal hearing AAT had told me they needed evidence of my chosen college and course of study, past results, course information and any costs involved in my studies. While gathering this information I was only able to provide what I had then at the time and also getting quite frustrated with the miscommunication from my college of choice, past college & agent. After all the miscommunication and almost at the end of my enrolment the tribunal had then notified me of their decision not to grant me another visa.
(Without alteration)
In his affidavit affirmed 29 October 2019, the applicant also states:
I want the decision to be reviewed because I think they review was unfair due to circumstances that were not kept into consideration.
(Without alteration)
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concern that he had with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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 at [2]; and
f)where the decision is illogical, irrational or unreasonable: 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 decision or grant him the visa he seeks: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal did not consider the political situation back in Kenya. He stated that his parents could not work (and, as such, afford to pay his fees) and this was why he was not enrolled at the relevant time. The applicant also explained that his migration agent did not properly advise him. The Court will address these submissions below.
Ground 1
Ground 1 provides:
I believe the assessment wasn’t fair because I don’t think my age or personal circumstances were taken into consideration while making a decision on my visa and ultimately my future here in general. I think due to my age and potential for improvement the AAT should have given me the chance to prove myself & my capabilities.
In effect, ground 1 argues that the Tribunal did not take into account the applicant’s:
a)age;
b)personal circumstances; and
c)potential for improvement.
The applicant argues that, in light of the above, he should have been given the chance to “prove himself”. The applicant explained to the Court that when he arrived in Australia he was young and it was a “bit difficult to sponsor” himself.
There are no mandatory considerations that the Tribunal must take into account when considering whether to exercise the discretion not to cancel the visa. The Tribunal’s considerations are largely moulded by the matters in PAM and the applicant’s own submissions as to why the visa should not be cancelled.
In the applicant’s submissions to the Tribunal it was stated:
a. Mr Kyunde is an ambitious young man who wants to pursue education in Australia to improve the quality of his life and make a difference in his home country Kenya. He wants to acquire knowledge and skills from one of the best countries of learning in the world. He has had the opportunity and privilege to study in Australia. He loved it and want to continue his studies.
b. This unfortunate situation of his student visa cancellation happened because of his ignorance and lack of guidance. He has learnt his lesson and has been able to build a network of people he can consult for help and guidance when needed. He has been through a lot of stress and will do everything he can to make sure he does not find himself in this unfortunate situation again.
While these submissions refer to the applicant as being “young”, it cannot be said that it was advanced that the applicant’s young age was a reason why his visa should not be cancelled. Further, it was not argued that the applicant’s age or personal circumstances were a reason for his non-compliance. Rather, it was his ignorance and lack of guidance. Neither of these factors were attributed to the applicant’s age or personal circumstances and it cannot be said that an implied connection clearly arose.
Before this Court, the applicant referred to the fact that there had been political issues in Kenya which meant that his parents could not provide the funds to pay the fees he needed to pay in order to remain enrolled. When asked by the Court if this was the “personal circumstances” he was referring to in ground 1, the applicant indicated that it was.
It is evident that during the hearing before the Tribunal the applicant had indicated that the political violence in Kenya was “one of the reasons” why his course fees were not paid in 2016 (at [22]). However, the applicant confirmed that this violence had ended. The Tribunal then took into account the applicant’s ability to pay fees as one issue that weighed in favour of not cancelling the visa (at [23]). Accordingly, the Tribunal did consider the applicant’s evidence on this particular issue.
Here, the Tribunal’s reasons for not exercising the discretion are sound. The Tribunal determined that the evidence provided by the applicant failed to adequately explain why he had not been enrolled since 24 July 2017. The Tribunal determined that the applicant was aware that he needed to be enrolled, found that the breach was lengthy (nearly one year) and concluded that the applicant could have consulted the Department or his college prior to the NOICC being issued.
In effect, the applicant is disagreeing with the Tribunal’s decision or, alternatively, arguing that the Tribunal should have placed more weight on particular matters. It is a matter for the Tribunal what weight it gives to particular circumstances and evidence: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
Ground 1 does not identify any reasonably arguable basis of jurisdictional error.
Ground 2
Ground 2 provides:
I also believe the decision was unfair as I was lacking in experience, finances and wasn’t informed that when my visa was cancelled and I applied for a bridging visa that I could apply for working rights or enrol in study while waiting for the decision to be made by the tribunal. This information came to my attention after the decision was already made by the tribunal based on me not being enrolled in any college.
Ground 2 raises concern with matters that are unrelated to the Tribunal’s decision. The fact that the applicant was not aware of his “rights or entitlements” when applying for his bridging visa does not vitiate the Tribunal’s decision.
Further, the applicant’s explanation to the Tribunal for why he was not presently enrolled was that his parents wanted him to wait for the outcome of the Tribunal’s decision before making any further commitment. This contradicts what he now says – which is that he did not know he could be enrolled. In any event, it was a matter for the applicant to ensure that he knew what his entitlements were and to determine what he needed for a successful application.
Before this Court, the applicant indicated that his migration agent failed to advise him that he had certain rights while on his bridging visa. Unfortunately, this is irrelevant to the decision under review. If the applicant is stating that his migration agent did not advise him of his study rights while he was on a bridging visa, this too contradicts the evidence he gave to the Tribunal – i.e., that he did not enrol because his parents did not want him to commit to a course until the Tribunal’s review had been decided (at [21]). Furthermore, the failure to provide advice rises no higher than a claim of negligence: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. Negligence does not amount to jurisdictional error.
If the applicant has concerns with the services provided by his migration agent, he should contact the Offices of the Migration Agents Registration Authority. That entity can assist with complaints in relation to migration agents.
Ground 2 does not identify any reasonably arguable basis of jurisdictional error
Ground 3
Ground 3 provides:
At the time of the tribunal hearing AAT had told me they needed evidence of my chosen college and course of study, past results, course information and any costs involved in my studies. While gathering this information I was only able to provide what I had then at the time and also getting quite frustrated with the miscommunication from my college of choice, past college & agent. After all the miscommunication and almost at the end of my enrolment the tribunal had then notified me of their decision not to grant me another visa.
Ground 3 is unclear. It appears that the applicant is suggesting that the Tribunal asked him to provide further documents and that he had difficulty doing so. When asked at the hearing whether he had anything further to add to this ground, the applicant stated that he did not.
At [17], the Tribunal records as follows:
The Tribunal gave him extra time to provide his documentary evidence as he stated that he had in fact completed one trimester of the course at Curtin College starting 2015 but could not get credit for it as his fees were not paid to the College and he was asked to repeat the first trimester. The Tribunal extended the time for him to provide further documentation to prove the facts. He could not meet the deadline and asked for an extension of time. The deadline was the 1 May 2019 and it was extended to the 8 May 2019.He did not provide the information as sought by the Tribunal on the 7 May which is the letter from Curtin College referred to in paragraph 15 above.
At [15], the Tribunal confirms that the information that the applicant provided was consistent with the applicant’s evidence (i.e., it “proved the facts”). In circumstances where the information the applicant was asked to provide was accepted as “consistent” it is difficult to determine how any error exists in this regard.
The Tribunal gave the applicant 14 days to provide additional information. It then extended that period for a further seven days. At no time did the applicant or his agent seek further time. At no time was it suggested that the applicant was having difficulty obtaining documents. In any event, the applicant provided further information after the date and the Tribunal expressly took that information into account (at [21]).
While the applicant may have felt frustrated by the fact that he needed to obtain more information, he was able to provide more information and that information was considered by the Tribunal.
Ground 3 does not raise any reasonably arguable error.
Applicant’s Affidavit
The applicant’s affidavit affirmed 29 October 2019 states that the Tribunal’s decision was unfair due to circumstances that were not “kept into consideration”. The Court takes this to be a claim that the Tribunal did not take into account the applicant’s circumstances. For the reasons given in ground 1, the Tribunal’s considerations, and the weight it placed on those, were entirely sound.
No reasonably arguable error arises from the applicant’s affidavit.
Conclusion as to the Merits of the Substantive Application
The applicant’s proposed grounds of review as contained in his application and in his affidavit do not identify any reasonably arguable case of error. This is so even on a reasonably impressionistic level. The Court has otherwise reviewed the Tribunal’s decision and is satisfied that no reasonably arguable error arises.
Conclusion
While the minimal delay in filing the substantive application, the satisfactory explanation provided for the delay and the lack of prejudice resulting from the delay weigh in favour of an extension of time being granted, the Court does not consider that these matters outweigh the fact that the judicial review application raises no arguable case of jurisdictional error.
Accordingly, the application for an extension of time is refused.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 August 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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