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

[2022] FedCFamC2G 373

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maharjan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 373   

File number:

SYG 3061 of 2019

Judgment of:

JUDGE CAMERON

Date of judgment:

19 May 2022

Catchwords:

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error for unreasonableness – Tribunal’s conduct prejudiced outcome of its review – applicants unaware.  

Legislation:

Migration Act 1958 (Cth) ss 353, 357A, 359, 474,

Migration Regulations 1994 (Cth) cls 500.211, 500.212 500.311

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

Division:

General Division

Number of paragraphs:

24

Date of hearing:

12 May 2022

Place:

Sydney

Counsel for the Applicants:

Mr J. R. Young

Solicitor for the Applicants:

Shamser Thapa & Associates

Solicitor for the Respondents:

Mr K. Jayakkumar (Clayton Utz)

ORDERS

SYG 3061 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SABINA MAHARJAN

First Applicant

SUCHINDRA MAHARJAN

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	19 MAY 2022

THE COURT ORDERS THAT:

1.A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 5 November 2019.

2.A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 4 December 2017.

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

JUDGE CAMERON

INTRODUCTION

1. The first applicant is a citizen of Nepal who arrived in Australia on 23 April 2009.  The second applicant is also a citizen of Nepal and the first applicant’s husband.  On 29 September 2017 the first applicant applied to the Department of Home Affairs for a class TU subclass 500 student visa and the second applicant was included in that application as a dependant.  On 1 December 2017 the applicants’ application was refused by a delegate (“Delegate”) of the first respondent (“Minister”).  The applicants then applied on 4 December 2017 to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

   LEGISLATION

4. Part 500 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of a subclass 500 (Student) visa and relevantly provides:

   500.211

   One of the following applies:

   (a) the applicant is enrolled in a course of study;

   …

   500.212

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)      the applicant’s circumstances; and

   (ii)     the applicant’s immigration history; and

   (iii)    if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter; and

   …

   500.311

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

   (i)     the primary person’s application under subregulation 2.07AF(3);

   …

5. The Act relevantly provides:

   353Tribunal’s way of operating

   The Tribunal, in reviewing a Part 5-reviewable decision:

   (a)is not bound by technicalities, legal forms or rules of evidence; and

   (b)shall act according to substantial justice and the merits of the case.

   …

   357AExhaustive statement of natural justice hearing rule

   (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   …

   359Tribunal may seek information

   (1)In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   …

   BACKGROUND FACTS

6. The applicants applied for a visa on the basis of the first applicant undertaking study in Australia.  The Delegate had refused to grant the visa because she was not satisfied that the first applicant intended genuinely to stay temporarily in Australia.   

7. On 20 September 2019, pursuant to s.359 of the Act, the Tribunal invited the applicants to provide further information and put them on notice that it was a requirement for the grant of the visa they sought that the first applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. They were invited to provide information showing that she met those requirements. Relevantly for present purposes, the letter said:

   …

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. …

   …

   The written information requested in the Request for Student Visa Information form should be received by 4 October 2019.  …

8. The applicants responded to Tribunal’s request on 27 September 2019 and also consented to the Tribunal deciding the review without a hearing.  Amongst the documents the applicants supplied to the Tribunal was an Overseas Student Confirmation of Enrolment form (“COE”) concerning the first applicant’s enrolment in a Diploma of Leadership and Management course which indicated that that course had commenced on 13 August 2018 and would end on 3 November 2019.  Also supplied was the COE for a Master of Business Administration (“MBA”) course that the first applicant had undertaken in 2017.  The MBA COE was printed on 11 September 2017, that is to say before the visa application was made, and indicated that the enrolment had commenced on 6 November 2017 and concluded on 31 December 2018.

   The Tribunal’s decision and reasons

9. On 5 November 2019 the Tribunal affirmed the decision of the Delegate not to grant the applicants a Class TU subclass 500 student visa.  The Tribunal found that:

   (a)there was no evidence before it that the first applicant was enrolled in a course of study and therefore did not meet cl.500.211 of the Regulations; and

   (b)the second applicant failed to meet cl.500.311 of the Regulations because the first applicant failed to satisfy the primary requirements for the grant of the visa.

10. The first applicant’s Diploma of Leadership and Management COE had expired 2 days earlier.

11. On 4 November 2019, the first applicant had commenced a Diploma of Banking Services Management course which ran until 2 May 2021 according to the COE, generated on 11 November 2019, that was annexed to the 21 November 2021 affidavit of the applicants’ solicitor, Mr Thapa, filed in support of the application initiating this proceeding.  It was not disputed that that COE had not been before the Tribunal at the time it made its decision.

    THE PROCEEDING IN THIS COURT

12. In their amended application the applicants made the following allegations:

    1.The Respondent made jurisdictional error by exercising its power under the Migration Act 1958 in a manner which was:

    a)Unreasonable, capricious …

    Particulars

    i.        At paragraphs [4] and [5], the Second Respondent found that on 27 September 2019 the Applicant responded to the Second Respondent’s invitation made on 20 September 2019 and provided her then current Confirmation of Enrolment (CoE) with an expiration date of 3 November 2019. 

    ii.       The Second Respondent also noted that the Applicant had consented to the Second Respondent making a decision without a hearing. 

    iii.      The Second Respondent failed to make a decision on or before 3 November 2019 and deliberately waited until 5 November 2019 to make its decision, making the then CoE expired by 2 days which severely prejudiced the Applicant. 

    2.The Second Respondent made jurisdictional error by failing to act according to the requirements of s 353 of the Migration Act 1958 by exercising or considering the exercise of discretionary powers to ensure that justice was observed in circumstances where a Certificate of Enrolment provided on 27 September 2019, expired on 3 November 2019 but the Second Respondent had not made a decision by that day. 

    3.The Second Respondent made jurisdictional error by breaching s.360 of the Migration Act 1958.

    Particulars

    a)The Applicant was not invited to appear before the Second Respondent to give evidence, knowing that there had been a change in circumstances that adversely affected the Applicant since the consent was provided. 

    4.The Second Respondent made a jurisdictional error by making an unreasonable decision that no reasonable decision maker would have made. 

    Particulars

    a)The Applicant’s CoE expired on 3 November 2019 and a new course was commenced on 4 November 2019.  The CoE was issued on 11 November 2019.  The time taken to obtain a new CoE is well within the time allowed. 

    b)The Second Respondent made its decision without allowing the Applicant to meet at the time of the decision the requirements under cl.500.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations).

    CHRONOLOGY

13. The relevant timeline is:

23 April 2009	The applicants arrive in Australia
2009 – 2015	The first applicant completes an Advanced Diploma of Business Management, an Advanced Diploma of Accounting and a Master of Professional Accounting degree
29 September 2017	The applicants lodge their visa application
6 November 2017 – 31 December 2018	The first applicant was enrolled in the Master of Business Administration course
1 December 2018	The Delegate refuses the visa application
4 December 2018	The applicants apply to the Tribunal for review of the Delegate’s decision
13 August 2018	The first applicant commences the Diploma of Leadership and Management course
20 September 2019	The Tribunal requests information from the applicants
27 September 2019	The applicants respond to the request for information
3 November 2019	The first applicant’s enrolment in the Diploma of Leadership and Management course ends
4 November 2019	The first applicant commences the Diploma of Banking Services Management course
5 November 2019	The Tribunal affirms the Delegate’s decision

SUBMISSIONS

1. Notwithstanding how the matter was pleaded in the amended application, the applicants’ submissions were limited to their allegation that the Tribunal’s decision was affected by jurisdictional error for unreasonableness on the basis that the Tribunal did not give them an opportunity to update the information they had provided it, that it had failed to act according to substantial justice and the merits of the case, contrary to s.353 of the Act, and that the decision was plainly unjust.

2. For his part, the Minister argued that the applicants had been put on notice by the Tribunal that it might make its decision “on any day after 4 October 2019”, which was the deadline for the applicants to respond to the request for information, and that the onus had always been on them to provide the Tribunal with all information that they would have liked it to consider.He also observed that the applicants had not told the Tribunal that they would provide a further COE after the current one had expired, that the first applicant had enrolled in a course of study commencing on 4 November 2019 or that they would like it to postpone its decision until the first applicant enrolled in a further course of study.

3. The Minister also stressed that there was no evidence before this Court from which it might be inferred that the Tribunal had deliberately waited to make its decision until after the COE expired on 3 November 2019 or anything in the Act that required the Tribunal to make its decision on or before 3 November 2019.

   CONSIDERATION

4. Part 5 of div.5 of the Act governed the application of the natural justice hearing rule (i.e. the principles of procedural fairness: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 442 [34]) to the Tribunal’s review. Part 5 is an exhaustive statement of the natural justice hearing rule to the extent of the matters with which it deals, so if it does not deal with a procedural matter arising in a Tribunal review, common law principles will apply: Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 at 415-416 [80]. In such cases the discretionary exercise of statutory power may be reviewable on the grounds of unreasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. The failure to exercise such power in those circumstances is similarly reviewable, the task being to:

   … evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense. 

   (CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] per Thawley J])

   Therefore, in the case of a discretionary decision not governed by pt.5 of div.5 and for which no reasoning has been exposed, the decision may be found to be unreasonable if it demonstrates any of the characteristics referred to in CCQ17: Li at 365 [71]; Singh at 446 [45]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 219 [44]. The indicia of legal unreasonableness are to be found in the scope, subject and purpose of the particular statutory provisions in issue: Singh at 447 [48]. For a breach of the Tribunal’s procedural fairness obligations to constitute jurisdictional error, it must result in a denial of an opportunity to make submissions which is material to the Tribunal’s decision: SZMTA at 443 [38].

5. In this case, the Tribunal became seized of the review on 4 December 2017 and decided it 23 months later, two days after the COE that the applicants had relied on to satisfy cl.500.211(a) expired on 3 November 2019. No evidence indicates that the Tribunal alerted the applicants to the possibility that it might not render its decision before the end of 3 November 2019 and I conclude that it did not, although it is difficult to conceive that the Tribunal did not advert to the consequences of it making its decision on 5 November 2019 rather than, for instance, on 2 November 2019.

6. The Tribunal’s s.359 request had sought from the applicants, amongst other things:

   … all relevant information about the course(s) of study the main applicant is undertaking … .

   On 27 September 2019 the applicants responded to the Tribunal’s s.359 request, supplying it with, relevantly, the COE current to 3 November 2019. By framing its request in the terms it did, the Tribunal gave no indication that information regarding any courses other than “the course(s) of study” the first applicant was then undertaking needed to be provided or might be relevant.

7. It is not correct to submit, as the Minister implicitly did, that the Tribunal’s s.359 request put the first applicant on notice that she needed to provide sufficient information to satisfy cl.500.211 of the Regulations, even if that information had not yet come into existence at the time she responded to the request. Certainly the Request for Student Visa Information form that the applicants were invited to complete, and did complete as their response to the s.359 request, contemplated the possibility that they might want to submit additional information at a later date, but it did not suggest that such a step might be necessary. It only became necessary for the applicants to provide additional evidence of enrolment because, after an unbroken period of enrolment dating from November 2017, the Tribunal decided the review two days after the COE for first applicant’s Diploma of Leadership and Management course became stale for the purposes of cl.500.211(a) on 3 November 2019, and did so without foreshadowing the possibility that it might not render its decision before that happened.

8. A review applicant is entitled to be confident that their review will be determined by the Tribunal’s reasoning, not by other behaviour of the Tribunal that prejudices the review’s outcome. By not deciding the review before the first applicant’s Diploma of Leadership and Management COE became stale for the purposes of cl.500.211, the Tribunal put a successful outcome beyond the reach of the applicants because, from that point the review’s outcome was certain, absent additional evidence of enrolment. Because the Tribunal did not alert the applicants to the possibility that the review would be determined after the COE expired, they would have had no reason to think that any additional evidence of that sort would be required.

9. The Tribunal gave no indication in its reasons that it had been unable to conclude the review before it did or of any other reason why the decision was made precisely when it was.  Given the significance of those matters for the applicants, such reasons might have been expected.  I am not persuaded that there was a satisfactory reason for the Tribunal not deciding the review before the COE became stale.  That being so, I conclude that the decision to decide the review when it was decided was arbitrary and lacking in rational foundation or evident or intelligible justification. The decision to decide the review on 5 November 2019 rather than earlier denied the applicants the support of the COE for the Diploma of Leadership and Management course and the possibility of a different outcome to the review.  For all those reasons the decision to decide to review on 5 November 2019 is affected by jurisdictional error.

1. Further, and again in light of the very significant consequences for the applicants of the decision on the review not being made before the COE expired, if the Tribunal had not been able to render its decision before then it should have alerted the applicants to the risk that its own behaviour might lead to evidence on which they relied becoming stale and the review being determined contrary to their interests for want of a current COE. Its failure to do so is unexplained. That unexplained failure, in circumstances where the Act exhorts the Tribunal to act according to substantial justice and the merits of the case, does not appear to have a rational foundation or an evident or intelligible justification and I conclude that it lacks those qualities. The failure to alert the applicants to the possibility that the Tribunal’s own behaviour might render, or had rendered, some of their evidence stale denied them the opportunity to consider whether to provide the Tribunal with the COE for the course that started on 4 November 2019 and, again, the possibility of a different outcome to the review. For those reasons, that decision is also affected by jurisdictional error.

   CONCLUSION

2. As the Tribunal’s decision is affected by jurisdictional error, it will be set aside and the matter remitted to it to be determined according to law.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       19 May 2022