Magar v Minister for Immigration

[2020] FCCA 2461

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGAR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2461

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – delay in providing written reasons for an oral decision – error in stating criterion for the visa sought not going to jurisdiction – whether a breach of s.359A considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 359A, 368D, 477

Migration Regulations 1994 (Cth)

Cases cited:

Kocalioglu v Minister for Immigration [2014] FCCA 992
Sochorova v Minister for Immigration [2002] FCA 817

SZBEL v Minister for Immigration (2006) 228 CLR 152
SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: SAJAN THAPA MAGAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2070 of 2019

Judgment of: Judge Driver

Hearing date: 2 September 2020

Delivered at: Sydney

Delivered on: 2 September 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr M. Smith

Solicitors for the Respondents: Mr Merrigan of Mills Oakley

ORDERS

1. The application filed on 13 August 2019 is dismissed.

2. The applicant is to pay the first respondents costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2070 of 2019

SAJAN THAPA MAGAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant Mr Magar seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 8 July 2019.  Written reasons were provided on 20 September 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Magar a student visa.  Background facts relating to this matter set out in the Minister’s outline of submissions filed on 19 March 2020, which I adopt. 

2. Mr Magar, a citizen of Nepal, arrived in Australia in February 2015 as the holder of a student (subclass 573) visa. On 14 February 2017, that visa was cancelled under s.116 of the Migration Act 1958 (Cth) (Migration Act 1958).[1]

   [1] Court Book (CB) 65

3. Meanwhile, on 7 February 2017, Mr Magar had applied for another type of student visa.  It is that application that is the subject of the present proceedings.  He applied for the visa as a member of the family unit of his wife, who held a student visa.[2]

   [2] CB 1

4. In order to be granted the visa that was sought, it was necessary for Mr Magar to satisfy the criteria in clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). By cl 500.317(1) it was necessary for Mr Magar to satisfy Public Interest Criterion 4013 (PIC 4013).

5. On 7 June 2017, a delegate of the Minister refused to grant the visa that was sought. The delegate was not satisfied that Mr Magar had met PIC 4013 and accordingly found that Mr Magar did not meet cl 500.317(1).[3]

   [3] CB 38-42

6. Mr Magar sought review in the Tribunal.  On 8 July 2019, Mr Magar appeared at a hearing before the Tribunal.  At the end of the hearing, the Tribunal delivered oral reasons affirming the decision under review.

7. On 31 July 2019, Mr Magar requested a written record of the Tribunal’s decision,[4] which it provided on 20 September 2019.[5]

   [4] CB 126

   [5] CB 132-134

The current proceedings

1. These proceedings began with a show cause application, filed on 13 August 2019. The application was filed outside the period prescribed by s.477(1) of the Migration Act. However, on 18 September 2019 I granted an extension of time under s.477(2) of the Migration Act, taking into account among other things the time taken for the Tribunal to produce its written reasons for its decision. There are three grounds in the application:

   1. The Tribunal erred in law by failing to provide a copy of the written statement of the reasons to the applicant. This lack of procedural fairness resulted in a miscarriage of justice.

   Particulars

   The Tribunal hearing was conducted on 8^th July 2019. The applicant was self represented at the time of hearing. The member affirmed the decision of the Delegate. The applicant is a non English speaker from Nepal but an interpreter was present at the time of the hearing.

   The applicant received a copy the outcome of review which confirmed the delegate decision by way of a Oral decision at the conclusion of the hearing. The applicant on 31/7/19 requested a copy the written record of the decision as soon as he was aware that he can get a copy of the written decision. The Tribunal on 5^th August 20198 replied to the effect that no written record of the decision will be provided as the request was beyond the 14 day period. It is pertinent to note that there are several cases I which the Tribunal has provided written record of decisions even after the 14 day window (reg 4.27B). Refer para40 of Patel & Ors Vs Minister of immigration& Anor 2018 FCC 3332. In this case there was 6 days delay in seeking the request for a written record of reasons. Further Sec 368D(5) provides that if the Minister were to ask for a copy of written record then the time limit prescribed under reg 4.27B will not apply. Hence denying the applicant with a copy is unfair and prevent the applicant from raising proper grounds for judicial review.

   The manner in which the Tribunal disposed the matter in a hurry vitiated the principles of procedural fairness as enunciated and laid down by High Court in the case of Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (24 May 2012).

   2. The Tribunal erred in stating that non production of COE alone will constitute the reasons for the affirmation of the delegate decision.

   Particulars

   The applicant has applied for a student dependent visa under sub class 500 of schedule 2 to the Migration regulations. What is important in this case is the spouse/dependent relationship with the primary / sponsor applicant. The applicant need only student or be enrolled at the time of hearing before the AAT. As the decision of the AAT was also based on the fact that the applicant has not enrolled in a course of study , it is submitted that erroneous factors were taken into consideration by the AAT in forming its opinion to affirm the decision of the delegate.

   3. The Tribunal erred in law be deciding the matter without giving proper notification and information as required under Sec 359A of the Migration Act 1958 and this also violated the principles of natural justice

   Particulars

   The applicant was self represented before the AAT. The Tribunal has not provided to the applicant full and clear particulars as required by Sec 359A so as to what the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal should have given an invitation to comment communication /  notification at the time of hearing in relation to production of COE and should have told the applicant that he can seek an adjournment to produce the same . No invitation to comment was provided and this violated the provision of law.

(errors in original)

1. The matter came before me for hearing on 31 March 2020.  At that time Mr Magar sought an adjournment on account of illness and presented a medical certificate in support of that application.  On the basis of the medical certificate, I granted an adjournment until today.  Before adjourning, however, I invited Mr Magar to consider his position, given that a critical difficulty which had been facing him was the three year exclusion period following the cancellation of his earlier student visa, which had, by the time of the hearing in this court, expired.  I invited Mr Magar to consider applying for a fresh visa.

2. When the matter resumed before me today, I invited Mr Magar to tell me whether he had been able to resolve the question of a fresh visa application.  He told me that he had considered the matter, but it would be necessary for him to apply for the visa from outside Australia, and at the present time he was unable to do so because of travel restrictions relating to the COVID-19 pandemic.  Mr Magar sought additional time in order to pursue that objective.  That is a matter to which the Minister or his Department might usefully give consideration. It is, however, beyond the scope of this proceeding.

3. Mr Magar elected to continue with the hearing of this case.  I have taken into account the material in the court book filed on 25 October 2019 and the affidavit of Sivarama Krishnan Valliappan made on 15 January 2020 to augment the court book.

4. There is in my view no substance to the grounds of review advanced by Mr Magar in his application.  He was not able to expand upon those grounds orally today when given the opportunity.  The Minister’s submissions deal with the grounds raised.  I agree with those submissions and adopt them. 

First ground of review

1. In his first ground of review, Mr Magar contends that the Tribunal erred by failing to provide a copy of the written reasons to Mr Magar, which resulted in him being denied procedural fairness.

2. By s.368D(4) of the Migration Act, where a review applicant makes a request for written reasons within the time specified in the Regulations, the Tribunal is obliged to produce written reasons. Regulation 4.27B of the Regulations requires that any request for written reasons is to be made within 14 days of the decision.

3. In the present case, Mr Magar’s representative made a request for written reasons on 31 July 2019,[6] 23 days after the Tribunal had delivered oral reasons.  Given the lateness of the request, the Tribunal was not obliged to provide written reasons.  It nevertheless did.

   [6] CB 128

4. Further, even if the Tribunal had failed to provide written reasons in a timely manner, this would not have led to the Tribunal falling into jurisdictional error.  There is authority against a denial of procedural fairness in circumstances where a decision had already been made.[7]

   [7] Sochorova v Minister for Immigration [2002] FCA 817 at [11]; Kocalioglu v Minister for Immigration [2014] FCCA 992 at [19]

5. This ground of review fails.

Second ground of review

1. In his second ground, Mr Magar alleges that the Tribunal erred in stating[8] that Mr Magar’s failure to provide a certificate of enrolment meant that he could not satisfy the criteria for the grant of the visa that was sought.

   [8] CB 133 [8]

2. Mr Magar is correct in his contention that the failure to provide a certificate of enrolment was not necessarily fatal to his claims.  The primary applicant for the visa application was Mr Magar’s wife, and Mr Magar made his visa application on the basis that he was a member of his wife’s family unit.

3. This error of the Tribunal was not, however, jurisdictional in nature as it “did not undermine the essential legal basis that sustains the decision”.[9]  The “essential legal basis that sustains the decision” is the Tribunal’s conclusion that Mr Magar did not meet PIC 4013. 

   [9] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [88]

4. Although the Tribunal did not reproduce the text of PIC 4013 in its reasons, it is apparent from the Tribunal’s reasoning that it was aware that Mr Magar’s previous student visa had been cancelled such that the risk factor in PIC 4013(1a) applied to him.  This in turn meant that Mr Magar was unable to apply for a visa within three years of the date of cancellation of his student visa[10] unless the Tribunal was satisfied of the existence of compassionate or compelling circumstances that justified the granting of a visa within three years of the date of the cancellation.[11]  In the result, the Tribunal was not satisfied of the existence of such compassionate or compelling circumstances and therefore reached the conclusion that Mr Magar had not satisfied PIC 4013.

   [10] PIC 4010(1)(a)

   [11] PIC 4013(1)(b)

5. The conclusion reached by the Tribunal concerning PIC 4010(1)(a) was, moreover, the only conclusion that was open to it on the evidence.  As already noted, the documents attached to Mr Valliappan’s affidavit demonstrate that the student visa that Mr Magar had previously held had been cancelled by the Minister on 14 February 2017 on the basis that Mr Magar had not complied with a condition of the student visa.[12]  These matters were also referred to in the delegate’s decision.[13]

   [12] S.116(1)(b) of the Migration Act

   [13] CB 65

Third ground of review

1. In his third ground, Mr Magar appears to be contending that the Tribunal breached s.359A of the Migration Act because it failed to inform him that non-provision of a certificate of enrolment would be fatal to Mr Magar’s claims.

2. Mr Magar gave evidence at the Tribunal hearing that he was not currently enrolled in a course of study and could not produce a certificate of enrolment. Even assuming that such matters constituted “information” for the purposes of s.359A (it was not), s.359A did not apply to it as it had been given by Mr Magar to Tribunal.[14]  In any event, it was for Mr Magar to make good his claims, and the Tribunal was not obliged to expose his or her mental processes or provisional views about the evidence being given to comment before making the decision in question.[15]

   [14] s.359A(ba)

   [15] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [29]; [48]

3. Finally, even if it could be said that the Tribunal breached s.359A, such breach was not jurisdictional in nature given that, for the reasons explained above, “it did not undermine the essential legal basis that sustains the decision”.[16]

   [16] SZBYR at [88]

4. I conclude that Mr Magar has been unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.

5. I will therefore order that the application filed on 13 August 2019 is dismissed.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Magar queried the amount of the costs and time for payment on the basis that he would face significant difficulties in meeting the amount.  I am satisfied that the costs sought have been reasonably and properly incurred when assessed on a party and party basis.

7. I will order that the applicant is to pay the first respondents costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 8 September 2020