Malla v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 659
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 659
File number(s): SYG 598 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal - Student (Class TU) (Subclass 500) visa – whether applicant denied procedural fairness – whether Tribunal failed to apply relevant law – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 359, 379,
Migration Regulations 1994 (Cth) cl 500.211(a)
Cases cited: SZDA v Minister for Immigration and Citizenship (2012) 135 ALD 17
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 25 July 2023 Date of hearing: 25 July 2023 Place: Parramatta Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Wilson appeared on behalf of the First Respondent. ORDERS
SYG 598 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KISMAT MALLA
First Applicant
TEEKA RANA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 July 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time to file an application for judicial review, is refused.
3.The substantive application is dismissed.
4.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $5000.00.
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 D HUMPHREYS
INTRODUCTION
The first applicant is a citizen of Nepal. He arrived in Australia on 10 July 2009 as the holder of a Student visa. The second applicant is the partner of the first respondent.
On 17 November 2017, the applicant applied for a Student (Class TU) (Subclass 500) visa (“Student visa”). A delegate of the Minister for Immigration (“the delegate”) refused to grant the first applicant his Student visa on 12 February 2018.
The applicant sought merits review of the delegate’s decision in the Administration Appeals Tribunal (“the Tribunal”) on 1 March 2018. On 30 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, an extension of time should not be granted and the application is otherwise dismissed.
EXTENSION OF TIME
The applicant requires leave to proceed with their application of judicial review in this Court as it was filed outside of the review period provided by s 477 of the Act. In determining whether to grant the applicant an extension of time, the Court is to consider the length of delay, the explanation for the delay, any prejudice to the parties and the merits of the proposed substantive application: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47].
The first respondent conceded that the delay in filing the application was not substantial and that there was no particular prejudice to the first respondent, however these factors alone are not sufficient to grant the extension of time.
The applicant provides the following ground as their reason for requiring an extension of time:
1. My migration agent never informed me of time limit
The first respondent submitted that this is an inadequate reason and that it was not supported by any evidence. A plea of ignorance of the time limit is not an adequate explanation for the delay.
The first respondent further submitted that the applicant’s application does not have sufficient merit, even at a reasonably impressionistic level, to grant an extension of time.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The length of the delay is some 5 days. This is not excessive and favours leave being granted.
The explanation given by the applicant is that his Migration Agent did not advise him of the 35 day time limit for the lodging of an application for judicial review to this Court. The first respondent submitted that the explanation for the delay is inadequate and is not supported by any affidavit evidence to support this proposition. The Court notes that the applicant is self-represented and may not be familiar with the overall requirements for the filing of affidavit evidence. The first respondent does not rely upon any evidence to dispute the claim by the applicant. In my view this matter is neutral as regards an extension of time, rather relies upon ignorance not being a proper explanation for the delay: SZDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38].
Quite properly, the first respondent concedes that there is not real prejudice should leave be granted. This points in favour of an extension being granted.
The final matter, is the merits of the proposed application. If there is no merit in the proposed application it would be pointless to grant leave for an extension of time. The first respondent submitted that, even at an impressionistic level, the proposed grounds lack merit. Accordingly, leave should be refused. This requires an examination of the Tribunal decision and the proposed grounds of judicial review.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION RECORD
Paragraphs 1 to 3 of the Tribunal’s decision record outline the background to the applicant’s Student visa application.
On 15 October 2019, the Tribunal wrote to the applicant pursuant to s 359 of the Migration Act 1958 (Cth) (“the Act”) inviting him to provide information concerning his studies and entry and stay in Australia. The invitation was sent to the applicant’s last provided address and included a date whereby the information would be required before the Tribunal would proceed in making its decision without taking further steps to obtain information and the applicant would lose any entitlement he may have had to appear before the Tribunal at a hearing.
At paragraph 6, the Tribunal noted that the applicant did not provide the requested information and that no extension of time was granted. Section 359C of the Act applied causing the applicant to lose his entitlement to appear before the Tribunal. Further, the Tribunal had no power to permit her to appear.
The Tribunal considered whether it should adjourn the matter to allow the applicant additional time to provide further evidence, however formed the view that the applicant had been provided with a fair opportunity to provide relevant information. The Tribunal accordingly declined to exercise its discretion under s 363(1)(b) of the Act to adjourn the matter, noting that the onus is on the applicant to satisfy the Tribunal that he met the requirements for the grant of his Student visa.
The Tribunal provides the legislative background to the applicant’s Student visa application in paragraphs 13 to 15. Notably, the applicant is required to, at the time of the decision, be enrolled in a course of study.
At paragraph 16, the Tribunal stated that there was no evidence before it that the applicant was enrolled in a course of study. Accordingly, the applicant found that the applicant did not meet cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Given that the applicant was not found to be enrolled in a course of study, the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa was not met and the decision under review had to be affirmed.
At paragraph 18 the Tribunal outlined the requirements for the grant of a visa to secondary applicants. As the primary applicant did not meet the requirements for the grant of his visa, the second applicant, being the secondary applicant to the Student visa application, did not meet the criteria for the grant of their visa and the decision of the delegate in relation to the second applicant also had to be affirmed.
THE GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 10 March 2020. The Initiating Application appears to include what could be considered two sets of grounds of judicial review. The first set of grounds appears below the heading ‘Final orders sought by the applicant/s’ and reads as follows:
1. s.359C and s.360(3) applicant is not entitled to appear before the Tribunal
2. s.363 was not applied
The second set of grounds appears below the section of the Initiating Application where grounds of judicial review are intended to be set out and are as follows:
1. I did not got any mail for me to explain my situation
2. my agent never given me information and s.360(3) should apply
3. I should be given opportunity to explain my situation
THE APPLICANTS’ SUBMISSIONS
The first applicant appeared before the Court unrepresented and with the assistance of a Nepalese Interpreter.
The Court ensured that the first applicant had received a copy of the relevant Court Book and a copy of the first respondent’s written submission. The applicant was given the opportunity for the first respondent’s written submissions to be translated to him before the hearing commenced. The Court also ensured the applicant had access to a pen and paper so he could take notes if he so wished to.
The Court explained it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the hearing would be undertaken.
Despite orders of the Court, the applicant did not provide any written submissions. During the hearing he stated he had issues with his Migration Agent. The Migration Agent did not pass on any information and did not advise him of the requirement to be enrolled in a course of study as at the time of the Tribunal decision.
The Court also discussed the fact that in order to find fraud on the part of the Migration Agent, there would need to be evidence before the Court. At the moment there was no evidence other than his assertions.
The applicant also confirmed to the Court that as at the date of the Tribunal decision, he was not enrolled in a registered course of study. The Court explained this was a mandatory requirement for the grant of the type of visa he sought.
THE FIRST RESPONDENT’S WRITTEN SUBMISSIONS ON THE MERITS OF THE PROPOSED GROUNDS
The first respondent submitted that the applicant’s grounds of judicial review, at their highest, indicate an instance of migration agent fraud. The standard of proof required to stablish fraud requires evidence of what was fraudulent, how it was fraudulent and how it was acted upon. It was submitted that the applicant as not provided evidence in answer to any of these points.
The first respondent further submitted that the applicant’s grounds do not argue that there has been fraud on the Tribunal and that the circumstances are rather indicative of a third party’s negligence or inadvertence. This is not sufficient to give rise to fraud on the Tribunal. It was submitted that there is no evidence before the Court that the applicant’s migration agent acted dishonestly, rather that it could easily be ascribable to oversight or negligence which does not demonstrate the requisite fraudulent motivation so to warrant judicial intervention.
The first respondent submitted that the Tribunal’s invitation was free from error as it was transmitted by email to the applicant’s last email address provided in connection with the review, it specified the information could be provided by completing a questionnaire, and it nominated a period of 14 days by which the applicant had to provide a response.
The Tribunal justified its decision not to grant the applicant an adjournment by reference to the fact that the applicant had been given a fair opportunity to provide relevant information.
DO THE GROUNDS OF JUDICIAL REVIEW HAVE MERIT?
The first set of grounds complain that the Tribunal did not exercise its power under s 363 of the Act to adjourn the hearing after the applicant failed to respond to its s 359 letter inviting the applicant to comment on certain information. The Tribunal at [8] – [9] of its decision, gave specific consideration if it should adjourn the review pursuant to s 363(1)(b) of the Act, but determined that the applicant ‘has had a fair opportunity to provide relevant information’. In the circumstances of this matter, the Court is reasonably satisfied that the decision not to adjourn the proceedings was reasonably open to the Tribunal for the reasons it gave, based on the material before it. The decision not to adjourn, was a reasonable exercise of the decisional freedom given to the Tribunal in the circumstances outlined in this matter. No jurisdictional error exists. The first set of grounds have no merit.
The second set of grounds claim that the first applicant did not get any mail for him “to explain his situation’. He claims that his Migration Agent did not give him any information and s 363(3) of the Act should apply. This section of the Act allows the Tribunal to summons a person to appear before it. The firs applicant claims he should be given an opportunity to explain his situation.
As pointed out by the first respondent, these grounds at their highest, allege fraud on the part of the Migration Agent. There is no evidence before the Court to support this allegation. The invitation to provide information was sent to the last email address supplied by the first applicant in accordance with s 359(3)(a) and s379A(5) of the Act. It complied with all other requirements specified by the legislation. It provided a 14 day time limit for the provision of the information sought.
Given that the applicant did not respond by the required date, the Tribunal was entitled to take the action it did and determine the application on the material before it. No jurisdictional error is apparent in the action the Tribunal to consider the matter on the material before it.
Further, even had the applicant appeared before the Tribunal, his application could not have succeeded, as it was subject to a fatal flaw, that being, that the first applicant was not then enrolled in a registered course of study. As a result, he could not satisfy cl 500.211(a) of the Regulations, a mandatory requirement for the grant of the type of visa the applicant sought.
DISPOSITION
None of the proposed grounds of judicial review have merit. In those circumstances, leave for an extension of time should be refused and the application otherwise dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 July 2023
0
2
0