Mady v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 498
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mady v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 498
File number(s): SYG 2068 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 June 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa – whether Tribunal decision unreasonable or illogical – whether applicant denied procedural fairness. Legislation: Migration Act 1958 (Cth) ss 359, 359A
Migration Regulations 1994 (Cth)
Cases cited: Djokovic v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 16 June 2022 Date of hearing: 16 June 2022 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Zinn
Table of Corrections 23 June 2022 The value in Order 3 has been changed to $5,200. ORDERS
SYG 2068 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OSAMA NABEH ABDELHAMED MADY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the amount of $5,200.
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
(AS REVISED FROM THE TRANSCRIPT)JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Egypt who first arrived in Australia on 9 August 2007 as the holder of a Student Subclass 572 visa (“Student visa”). The applicant was subsequently granted three further Student visas.
On 23 June 2017, the applicant applied for a further student visa on the basis of his enrolment in an advanced Diploma of Leadership and Management with a college. On 4 August 2017, a delegate of the Minister for Immigration (“a delegate”) refused to grant the applicant a further Student visa on the basis that the delegate was not satisfied the applicant met the genuine temporary entrant criteria in clause 500.212 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”).
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). At the time of his application to the Tribunal, the applicant provided a Certificate of Enrolment with the Captain Cook Institute for an Advanced Diploma in Leadership and Management. In a decision dated 9 August 2019, some two years after the initial application to the Tribunal, the Tribunal affirmed the decision not to grant the applicant a further Student visa. The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision is relatively short. On 22 February 2019 the applicant was invited by the Tribunal, pursuant to s 359(2), of the Migration Act 1958 (Cth) (“the Act”), to provide information about the course of study he was undertaking as a condition of his entry and stay in Australia as a student.
On 5 August 2019, the applicant provided a completed Request for a Student Visa Information Questionnaire. The applicant also consented to the Tribunal deciding the matter without the necessity for a hearing. The applicant provided to the Tribunal a Certificate of Enrolment for an Advanced Diploma of Leadership and Management with another educational institution, the Greenwich English College. That course was due to commence on 18 March 2019 and end on 30 March 2020. The applicant attended a hearing before the Tribunal on 15 April 2019. The applicant provided the Tribunal with a statement of results for the subjects he had completed with the George Brown College for an Advanced Diploma of Leadership and Management, and gave evidence to the Tribunal that he was enrolled in a registered course of study and was still studying.
At the hearing, the Tribunal accessed the applicant’s Provider Registration and International Student Management System (“PRISMS”) records which indicated that the applicant’s enrolment with the Greenwich English College had been cancelled in April 2019 for non-commencement of studies. On 22 July 2019, the Tribunal wrote to the applicant pursuant to
s 359A of the Act, inviting him to comment on information contained in the PRISMS record. The invitation explained that the information may be reason or part of the reason for affirming the decision under review. The letter noted it was a requirement for the grant of a visa under clause 500.211 of the Regulations that the applicant be enrolled at the time of a decision in a course of study.
The applicant responded to the Tribunal on 5 August 2019 with a completed Change of Contact Details form and a handwritten letter in which he claimed that he did not comply with the previous Certificate of Enrolment because his wife was experiencing lots of problems in Egypt. The applicant stated that he was under a lot of pressure and intended to recommence his studies on 26 August 2019. The applicant also provided an unsigned letter of offer and a statement dated 2 August 2019 with the Alpha Institute, another college, for an Advanced Diploma of Leadership and Management. At paragraph 25 and 26 of the Tribunal’s decision record the Tribunal noted that, while sympathetic to the applicant’s reasons for not pursuing his previous enrolment, the applicant was required to be enrolled in a registered course of study as at the decision date.
As there was no evidence of any enrolment before the Tribunal, the Tribunal was not satisfied at the time of the decision that the applicant was enrolled as required in a course of study. Accordingly, clause 500.211 of the Regulations was not met and the applicant did not meet an essential criteria for the grant of a further student visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant a further student visa.
GROUNDS OF JUDICIAL REVIEW
The applicant relies on three grounds of judicial review contained in an Initiating Application filed with the Court on 13 August 2019. The grounds are reproduced as they appear in the Application:
1. The Tribunal acknowledged receiving a handwritten letter as well as evidence of enrolment and complained that the confirmation of enrolment had not been signed. Such comment is not logical and unreasonable as the intention is there and the Tribunal was sympathetic for not pursuing my previous enrolment but the true fact is I was enrolled and provided enrolment in a registered course of study but the Tribunal failed to act on it or request precisely to attend to any further requirement.
2. The Tribunal’s decision is a denial of natural justice and fairness and the reasons for refusal were made contrary to law.
3. I ask this honourable Court find a remedy to the problem.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in the possession of a copy of the relevant Court Books, and that he also had a copy of the first respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing if he wished to.
At the commencement of the hearing the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
The applicant was advised that if the Court gave an ex tempore judgment or an oral judgment as it is now doing, he could request a copy of the reasons for judgment in writing by contacting the Court.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that he had been working with an education agent and had paid the education agent money to ensure that he had a current enrolment. Notwithstanding that, he provided the Court with the only material that the agent had given him. The applicant had a further difficulty in that he did not wish to repeat subjects that he had already undertaken successfully, and this was the reason why he was involved with a number of different educational institutions.
However, the applicant conceded that as at the time of the Tribunal’s decision he was in between educational institutions and did not have a formal Certificate of Enrolment as required. The applicant told the Court that his wife had been pregnant in Egypt and he had been under a lot of stress, and this was the reason for him not being as attentive to the formal requirements of a Certificate of Enrolment as he might otherwise have. The applicant reiterated to the Court that all he wanted to do was to complete the study.
THE FIRST RESPONDENTS SUBMISSIONS
On behalf of the first respondent, it was submitted that ground one alleges the Tribunal’s decision was illogical or unreasonable. These complaints are unfounded.
Firstly, there was no evidence before the Tribunal that the applicant was formally enrolled in a course of study. The Tribunal correctly found that the evidence before it indicated the applicant had not been formally enrolled in a course of study since 12 April 2019. The applicant did not deny that that was not the case. Secondly, the applicant was not enrolled at the time of the Tribunal’s decision insofar as it is alleged the Tribunal should have requested the applicant to provide a Certificate of Enrolment before proceeding to make a decision. No error is apparent in the Tribunal’s approach. The applicant was plainly aware of the need to provide evidence of enrolment in a course of study, given the contents of the Tribunal’s s359A letter.
The applicant availed himself of the opportunity to respond to the invitation but did not dispute that he was not currently enrolled, did not provide any evidence that he was enrolled, but importantly did not seek any further opportunity to provide such evidence. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the required state of satisfaction: (see; Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for a review to present his or her best possible case or improve upon the evidence”: (see; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).
Ground two blandly asserts that the Tribunal’s decision was a denial of natural justice and fairness or was made contrary to law. This ground ought to fail for want of particularity alone. In any event, the Tribunal complied with all of its statutory procedural fairness obligations contained in part 5 of the Act. This included providing the applicant with a s 359A letter and inviting him to comment on the information therein. The letter explained the information could be used to affirm the decision of the delegate. The applicant was provided with the prescribed period in which to comment or respond to the information.
Having complied with its statutory obligations, it was open to the Tribunal to proceed to make a decision at any time provided that exercise of any discretion as to whether or not to proceed was undertaken in a manner that was not arbitrary or capricious, unreasonable or unjust. Further, the applicant was invited to attend the Tribunal hearing, notwithstanding the fact the Tribunal was under no obligation to invite the applicant to attend the hearing. The Tribunal ultimately determined the review on the basis of the PRISMS records it obtained at the hearing. It cannot be said that the applicant was not given every opportunity to present his best case and any evidence he would put or rely upon.
Ground three simply asks the Court to “find a remedy to the problem” and is not a proper ground of judicial review.
CONSIDERATION
In Djokovic v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the Full Court of the Federal Court said the task of a Court such as this one could be described as follows:
… An application for judicial review is one in which the judicial branch of government reviews by reference to legality or lawfulness the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
As pointed out by the first respondent’s legal representative, it was for the applicant to produce such evidence as he might wish to in order to prove his case. The Tribunal is not in the position of a contradictor. The Tribunal had no duty to grant an adjournment or bring an issue to the attention of the applicant so that he could produce additional evidence to satisfy that issue.
The Court is satisfied that the applicant’s attention was drawn to the issue that he needed to have a current Certificate of Enrolment as at the time of the decision. This was set out in the
s 359A letter, a letter that was sent to him prior to the hearing. The applicant clearly admitted during the course of the hearing before the Tribunal that he did not have a current Certificate of Enrolment. The Court has been provided with a copy of the applicant’s PRISMS record which shows that he has finished a number of courses including a Certificate IV in Frontline Management in 2013, an English language course, a Diploma of Marketing, but that as at 12 April 2019 his enrolment in an Advanced Diploma of Leadership and Management had been cancelled for non-commencement of studies.
A previous Advanced Diploma of Leadership and Management from 2016 had also been cancelled for non-payment of fees. Another enrolment in an Advanced Diploma of Marketing was cancelled on 23 May 2016 for non-commencement of studies. It was a condition precedent for the grant of the Student visa the applicant sought that the applicant had to have a current Certificate of Enrolment. In circumstances where he did not have a Certificate of Enrolment that was current. The Tribunal had no option other than to affirm the decision to refuse him a student visa. There was nothing unreasonable, illogical or irrational in the approach the tribunal took. Ground one has no merit.
Ground two is a bland assertion of denial of natural justice or fairness without any particulars. Such an assertion is not jurisdictional error in the absence of particulars: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). A review of the actions taken by the Tribunal indicates that it complied with all the procedural‑fairness requirements set out in part 5 of the Act. Further, the Tribunal invited the applicant to attend a hearing in circumstances where the applicant had actually lost the right to do so as he had consented to the Tribunal making a decision on the papers. In circumstances where the Tribunal actually invited the applicant to appear before it in circumstances where he had lost that right, it cannot be said that the Tribunal acted in a manner that was procedurally unfair or unjust. Ground two has no merit.
Ground three is not a proper ground of judicial review. It is not for the Court to find a solution to the problem posed by the applicant. The role of the Court is restricted to reviewing the lawfulness of the decision of the tribunal; that is its only function. Ground three has no merit.
CONCLUSION
As the applicant is unrepresented, the Court has carefully perused the Tribunal decision but is unable to find any unarticulated jurisdictional error. There being no jurisdictional error, the Court has no option but to dismiss the applicant’s request for judicial review.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate: Caelan Shaw
Dated: 21 June 2022
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