MAI v Minister for Immigration
[2020] FCCA 790
•7 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 790 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – where first applicant did not meet enrolment criterion – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Regulations 1994 (Cth), cl.500.211 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v Jia Legeng (2001) 178 ALR 421 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 |
| First Applicant: | VAN HA MAI |
| Second Applicant: | THI LE NGUYEN |
| Third Applicant: | NHAT MINH MAI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 358 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 April 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Perth |
| Orders Pronounced: | 6 April 2020 |
| Delivered on: | 7 April 2020 |
REPRESENTATION
| Applicants: | No appearance by or for the applicants |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The matter proceed under to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed.
Written reasons for judgment be published from Chambers at a late date.
The applicants pay the first respondent’s costs fixed in the sum of $5,000.
Pursuant to r.36.03(b) of the Federal Court Rules 2011 (Cth) the applicants have up to and including 8 May 2020 to file any Notice of Appeal from these orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 358 of 2017
| VAN HA MAI |
First Applicant
| THI LE NGUYEN |
Second Applicant
| NHAT MINH MAI |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed for hearing on 6 April 2020. On that occasion, the applicants made no appearance. Attempts were made to reach the applicants on their mobile telephone number provided to the Court. Unfortunately, there was no response. The matter was also called three times outside the courtroom. No appearance was entered.
In light of the above, Court made the following orders:
1. The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The matter proceed under to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
3. The application be dismissed.
4. Written reasons for judgment be published from Chambers at a late date.
5. The applicants pay the first respondent’s costs fixed in the sum of $5,000.
6. Pursuant to r.36.03(b) of the Federal Court Rules 2011 (Cth) the applicants have up to and including 8 May 2020 to file any Notice of Appeal from these orders.
These reasons are those referred to in order 4 above.
Background
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 1 June 2017.
The Tribunal affirmed a decision of the first respondent (the “Minister”) to not grant the applicants a Student (Temporary) (Class TU) visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
The applicants are citizens of Vietnam. The first applicant and the second applicant are husband and wife respectively. The third applicant is their son.
On 30 September 2016, the applicants applied for the visa. The first applicant was the primary applicant and the second and third applicants were members of the family unit (Court Book (“CB”) 1-24).
On 20 October 2016, the applicants were asked to provide further information, namely a confirmation of enrolment and health records (CB 57-66). The first applicant provided a Research Student Profile (CB 68-71).
On 18 November 2016, the delegate again requested evidence of enrolment (CB 72-77). In a statutory declaration dated 4 December 2016, the first applicant indicated that he had sought enrolment confirmation from his university but that request was denied (CB 78-79).
On 5 January 2017, the delegate refused to grant the visa. The delegate found that the first applicant did not meet cl.500.211 of Migration Regulations 1994 (Cth) (the “Regulations”).
On 11 January 2017, the applicants applied for review of the delegate’s decision at the Tribunal (CB 92-94).
The first applicant attended a hearing at the Tribunal on 12 April 2017 (CB 101-105).
On 1 June 2017, the Tribunal affirmed the decision to refuse the applicants the visa.
Tribunal’s Decision
The Tribunal’s decision is 3 pages long and spans 19 paragraphs.
Relevantly, [8]-[17] of the Tribunal’s decision provides:
8. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211 (a).
9. The applicant is awaiting the marking of a PhD thesis and conceded that no current enrolment is held.
10. Clause 500.211 (a) is therefore not met.
11. Clause 500.211 (b) requires that the educational provider requires the applicant to remain in Australia during the marking of the thesis.
12. The applicant gave evidence that the provider had specifically declined to issue a letter stating that the applicant was required to remain in Australia during marking.
13. The tribunal nonetheless gave the applicant more time after hearing in which to obtain such a letter and suggested that if the provider did not issue such a letter, the tribunal may not be satisfied the applicant is required to remain in Australia.
14. No further material has been received from the applicant and as suggested the tribunal is not satisfied the applicant is required to remain in Australia and Clause 500.211 (b) is not met.
15. As conceded at hearing, the applicant is not a Foreign Affairs student or Defence student and cl.500.211(c) and (d) are not met.
16. Therefore, the applicant does not meet cl.500.211.
17. On the evidence, the remaining visa applicants do not meet cl.500.211 and fail against relevant secondary criteria.
Proceedings in this Court
The Court had before it the applicants’ application for judicial review, a copy of the Court Book and written submissions from the Minister dated 12 March 2020.
The application for judicial review contains 10 “grounds” as follows:
1. On or about, 30 September 2016, Van Ha MAI, Thi Le NGUYEN and Nhat Minh MAI (the applicants) made an application for a Student Visa (500) to the Department of Immigration and Border Protection (the department).
2. The 500 visa requires, inter alia, a current confirmation of enrolment or if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis.
3. As a result of not having either a valid certificate of enrolment or a letter from the relevant educational institution requiring the applicant to be in Australia during the marking of his postgraduate thesis, the student visa was refused on 5 January 2017.
4. The applicants lodged an application for merits review and the hearing at the AAT was scheduled on or about 12 April 2017.
5. At the hearing, the applicants stated that they were required to stay in Australia during the marking of the postgraduate thesis.
6. On or about 1 June 2017, the applicants received notification from the AAT that they have affirmed the decision of the department and their visa had been refused.
7. The applicants believe that relevant information was not taken into consideration at both the time of the decision to refuse the visa by the department and the decision to refuse the visa by the AAT.
8. The applicants would be seeking to rely on relevant information from witness(es) from the university.
9. The applicant would like the opportunity to be heard with an open mind before any conclusions are reached.
10. The applicants are now seeking relief in the Federal Circuit Court.
The applicants were provided an opportunity to file any amended application, further affidavit evidence and an outline of written submission. No further materials were provided by the applicants.
As noted above, the applicants did not attend the hearing. The Minister tendered correspondence (marked as Exhibit 1) which indicated that the applicants were advised by the Minister’s solicitors on three occasions (12 March 2020, 31 March 2020 and 2 April 2020) that the hearing would proceed on 6 April 2020 at 9.30am. The Court notes that it also emailed the applicants on two occasions confirming the matter would proceed by telephone on 6 April 2020 at 9.30am.
Just prior to the matter being called on, Chambers attempted to contact the applicants on the phone number they had provided. No answer was received.
In the circumstances, the Court was satisfied that the applicants were on notice of the date and time of the hearing and that it would be proceeding. Having noted that the Minister had filed submissions addressing the matter substantively, the Court determined that it would proceed with the hearing pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
Notwithstanding the lack of appearance by the applicants, the Court has remained astute and alert to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Consideration
Grounds 1-6 and 10
Grounds 1-6 are not grounds of review. They are factual matters that are already reflected in the materials in the Court Book. They do not identify any error.
Ground 10 is a pleading for relief. It is not a ground of judicial review.
Grounds 1-6 and 10 are, accordingly, dismissed.
Ground 7
For ease of reference, ground 7 provides:
The applicants believe that relevant information was not taken into consideration at both the time of the decision to refuse the visa by the department and the decision to refuse the visa by the AAT.
To the extent that the applicants are arguing that the delegate did not take into account “relevant information”, the Court has no jurisdiction to review the delegate’s decision: s.476(2) and (4) of the Act.
The applicants have not identified what “relevant information” was not taken into account. The relevant criterion was cl.500.211 of the Regulations, which (at that time) provided:
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
Here:
a)the Tribunal took into account the first applicant’s evidence that he did not currently have a confirmation of enrolment (at [9]);
b)the Tribunal took into account the first applicant’s evidence that the university had declined to issue the first applicant with a letter stating that he was required to remain in Australia for the marking of his thesis (at [12]). The Tribunal gave the first applicant additional time after the hearing to again request this information from the university and indicated that, if he did not do so, the Tribunal might not be satisfied that he was required to remain in Australia (at [13]). The Tribunal noted that no further information was provided by the applicants (at [14]); and
c)the Tribunal expressly noted that the first applicant conceded at hearing that he was not a foreign affairs student or a defence student (at [15]).
The Tribunal took into account the “relevant information” that it was required to consider when determining if the first applicant met cl.500.211 of the Regulations.
Ground 7, accordingly, fails.
Ground 8
For ease of reference, ground 8 provides:
The applicants would be seeking to rely on relevant information from witness(es) from the university.
To the extent that this ground is suggesting that the Tribunal did not take into account relevant information from witnesses from the university or make inquiries of the university, the Court notes as follows:
a)on the response to hearing invitation, the applicants did not indicate that they wished for the Tribunal to obtain evidence from any witnesses (CB 103-105);
b)there is nothing on the face of the Tribunal’s decision to suggest that the first applicant indicated at the hearing that he wished for the Tribunal to obtain information from witnesses or the university;
c)it is for the applicants to provide the evidence and information necessary to satisfy the visa criterion: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. It was not for the Tribunal to make inquiries – particularly where the first applicant’s evidence was that he had made the inquiries himself and was denied any information; and
d)the Tribunal provided the first applicant additional time to again ask for the information from the university and indicated that if he was unable to do so this might suggest that the university did not require the first applicant to remain in Australia for the marking of his thesis.
There is no jurisdictional error evidenced by the Tribunal not obtaining relevant information from “witness(es)” in circumstances where the Tribunal was not requested to do and where there is no obligation to do so.
If the applicants are claiming that they wish to rely on evidence from witness(es) from the university in these judicial review proceedings, it is noted that no affidavit evidence from any of these witnesses has been provided. Further, the evidence these witnesses would provide would, arguably, be information that was not before the Tribunal.
Given that no evidence has been provided to the Court, and there is no error in the Tribunal not relying on relevant information from witnesses (and in circumstances where there was no such information before the Tribunal in any event), ground 8 fails to identify any error.
Ground 8, accordingly, is dismissed.
Ground 9
For ease of reference, ground 9 provides:
The applicant would like the opportunity to be heard with an open mind before any conclusions are reached.
To the extent that this ground implies that the Tribunal did not provide the applicants with an opportunity to be heard with an open mind, the Court disagrees.
The applicants were invited to a hearing which appears to have lasted two hours. The first applicant clearly provided evidence at that hearing. The applicants were also represented by a migration agent. They were given notice prior to the hearing that they would need to prove confirmation of enrolment (CB 102). Further, the issue before the Tribunal was the same as that before the delegate (such that no error of the kind in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 can arise).
The Tribunal complied with the procedural fairness obligations.
As for whether the Tribunal had an “open mind”, it is noted that an allegation of bias must be clearly made and distinctly proven: Minister for Immigration v Jia Legeng (2001) 178 ALR 421.
There is nothing on the materials here to indicate that the Tribunal had a closed mind or had predetermined the applicants’ application. This is most evident from the fact that the Tribunal allowed the applicants additional time within which to provide evidence to meet the relevant criterion.
No bias is evident in the Tribunal’s decision.
Ground 9, accordingly, is dismissed.
Otherwise
The Court has otherwise reviewed the Tribunal’s decision for any identifiable error.
The Court notes that, in circumstances where the applicants failed to provide evidence that they met the enrolment criterion, the only decision open to the Tribunal was to refuse the visa. While the first applicant’s statutory declaration pleaded for the use of discretion on “compassionate grounds”, reg.500.211 offers no discretionary powers. There is no power to waive the requirement. If that requirement is not met, the Tribunal must refuse the visa.
Overall, the Court is not satisfied that any error arises from the Tribunal’s decision.
Conclusion
The applicants’ application for judicial review has failed to identify any jurisdictional error. The Court is otherwise satisfied that there is no error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 7 April 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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