MARGJONAJ v Minister for IMMIGATION
[2018] FCCA 1929
•18 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARGJONAJ & ORS v MINISTER FOR IMMIGATION & ANOR | [2018] FCCA 1929 |
| Catchwords: MIGRATION – Student visa – where first applicant had enrolled in series of courses and applied for a range of different visas – where delegate refused application on ground that first applicant not genuinely intending to stay temporarily in Australia – where Tribunal affirmed decision on same ground – ground of review generalised – whether first applicant afforded natural justice – whether applicant afforded a real opportunity to present case – whether first applicant’s evidence and submissions given real and genuine consideration – whether negligence of migration agent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 359A(4)(b), 360, 476, 499 Migration Regulations 1994 (Cth), reg.1.12, Sch.2, pt.572 cl.572.223, |
| Cases cited: ABV16 vMinister for Immigration and Border Protection [2017] FCA 184 |
| First Applicant: | ARBEN MARGJONAJ |
| Second Applicant: | BARDHE VERRINA |
| Third Applicant: | CHIARA MARGJONAJ |
| Fourth Applicant: | DENNILSON MARGJONAJ |
| First Respondent: | MINISTER FOR IMMIGATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 972 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 13 July 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Melbourne |
| Orders pronounced: | 13 July 2018 |
| Delivered on: | 18 July 2018 |
REPRESENTATION
| The First Applicant appeared in person. |
| Solicitor advocate for the First Respondent: | Mr Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application filed on 11 May 2016 be dismissed.
The first applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 972 of 2016
| ARBEN MARGJONAJ |
First Applicant
| BARDHE VERRINA |
Second Applicant
| CHIARA MARGJONAJ |
Third Applicant
| DENNILSON MARGJONAJ |
Forth Applicant
And
| MINISTER FOR IMMIGATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 11 May 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on
22 April 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act).
On 13 July 2018, I made an order that the application be dismissed. These reasons explain why that order was made.
Background
The applicants are a family unit. The first applicant, an Albanian born Italian citizen, is aged 45 years. The second applicant is his spouse, and the third and fourth applicants are their children. For the purposes of the Act, the second, third and fourth applicants are members of the first applicant’s family unit: reg 1.12, Migration Regulations 1994 (Cth) (Regulations).
On 22 July 2009, the first applicant arrived in Australia as the holder of a Visitor visa. He was subsequently granted a Student visa on 14 January 2010. The first applicant was granted two further visas, which were valid until 15 March 2012 and 15 March 2013 respectively. The first applicant was then granted a further Student visa, which was valid until
5 November 2014.
Relevantly, on 24 October 2014, the first applicant applied for a further Student visa. The second, third and fourth applicants were included on this application as his dependants.
On 27 October 2014, the Department of Immigration and Border Protection requested further information from the first applicant. It does not appear that the first respondent replied to that request. The reasons why that occurred are examined below.
On 24 December 2014, a delegate of the Minister refused the Student visa application. The delegate found that there was insufficient information to enable him to be satisfied that the first applicant met the prescribed requirements for a Student visa.
The delegate identified the eight courses which the first applicant had undertaken in the period between 2010 and 2014. The delegate concluded that the first applicant did not genuinely intend to stay temporarily in Australia, and for that reason did not satisfy the criterion prescribed by cl 572.223(1)(a) of Part 572, Sch 2 of the Regulations, or the corresponding criteria of any other subclass for which he might otherwise be eligible. The delegate refused the visa applications of the first, second, third and fourth applicants.
On 5 January 2015, the Department again notified the first applicant of the refusal of his visa application.
On 14 January 2015, the applicants applied to the then Migration Review Tribunal for a review of the delegate’s decision. A copy of the delegate’s decisional record accompanied their application.
The applicants were invited to attend a hearing before the Tribunal on 11 February 2016 to give evidence and present arguments relating to the issues arising on the decision under review. The hearing was rescheduled to 23 March 2016.
The first and second applicants appeared at the hearing on
23 March 2016, doing so with the assistance of a migration agent.
The Tribunal allowed the applicants a series of extensions of time in which to submit further documents to the Tribunal.
On 22 April 2016, the Tribunal made a decision affirming the delegate’s decision not to grant first applicant the Student visa, and for that reason, also affirmed the decision refusing visa applications made by or on behalf of the second, third and fourth applicants. The Tribunal provided a statement of reasons for that decision (Reasons).
Procedural history
On 11 May 2016, the first applicant filed an application for judicial review of the Tribunal’s decision made on 22 April 2016.
The first applicant’s affidavit affirmed on 11 May 2016 annexed a copy of the Tribunal’s decision, but adduced no further evidence in support of the application, or otherwise informing the grounds of judicial review.
By a Response filed on 23 May 2016, the Minister contended that the application did not establish any jurisdictional error and sought that the application be dismissed with costs.
On 12 October 2016, orders were made, by consent, listing the matter for a Final Hearing and regulating the filing of any amended application, supplementary Court Book and written submissions.
The applicant did not take the opportunity afforded by those orders to file any further material.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476 of the Act. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
When appearing before me the first applicant was assisted by an interpreter in the English and Albanian languages.
The sole ground of review advanced by the applicants read as follows:
I was denied procedural fairness.
The Tribunal was obliged to afford the applicants procedural fairness.
In Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, the Full High Court said at [83]:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
(Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]; see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59]).
It may be accepted that it is necessary to identify, at some level of specificity, the nature of the inquiry to be conducted and the issues that are to be considered. For example, in SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, Flick J stated at [22]:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
(See also ABV16 vMinister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited).
The scope of the obligation is not at large. The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision: see BMF16 vMinister for Immigration and Border Protection [2016] FCA 1530, [162]-[163]. Generally, where the obligation is engaged, procedural fairness will require that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant: HFM045 v The Republic of Nauru (2017) 350 ALR 34, [51].
As noted above, in SZSSJ the Court held at [83] that ordinarily there was no requirement to notify a person of information which is in the possession of, or accessible to, the decision maker which he or she has decided not to take into account at all in the conduct of the inquiry. Nor is the Tribunal required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
In Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82, [177], Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .
I apply those principles in the present application.
Resolution
As the applicants had not taken the opportunity to file a supplementary Court Book, any submissions or amended application, the Minister, and in turn the Court, were left to attempt to discern the existence of jurisdictional error from a ground which was devoid of particulars.
In WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760, Gilmore J said at [35]:
Ground 2 is . . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed. (Citations omitted)
(See also MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25] (McKerracher J).)
Although the present application is open to dismissal on this basis alone, I have considered the grounds as contained in the application for review following my examination of the Reasons and the materials contained in the Court Book.
By s 360 of the Act, the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As the purpose of s 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the applicant with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [60]-[61], (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [39], [42]-[45] (Griffiths J). In the latter case, Griffiths J observed that there may be circumstances in which an applicant has been denied a real and meaningful opportunity to present evidence and arguments.
In my opinion, there was no want of procedural fairness in the manner in which the Tribunal conducted the hearing of the application, including in relation to the matters which preceded and occurred after the hearing.
The applicants attached a copy of the delegate’s decision to the application for a merits review by the Tribunal. The matters addressed in the delegate’s decision squarely identified the issues which were to be dispositive of the application before the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). As the applicant had supplied a copy of the delegate’s decision, there was no obligation for the Tribunal to again supply the applicants with the information contained in that decision: cf s 359A(4)(b).
The Tribunal invited the applicants to attend a hearing, and that invitation was taken up by the first to fourth applicants: s 360. They did so appear, made submissions, and were assisted by their agent in the presentation of evidence and arguments relating to the issues arising on the decision of the delegate to refuse the visa application. The first and second applicants took the opportunity to give evidence to the Tribunal.
The Reasons confirm that the Tribunal identified and applied the correct legal test to the merits review of the application. The Tribunal identified that the issue in the application was whether the applicant met the criterion prescribed by cl 572.223 of Part 572, Sch 2 of the Regulations at the time of the Tribunal’s decision, and in particular, whether it was satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to the matters set forth in para 572.223(1)(a)(i)-(iv). The Tribunal recognised that in considering those matters it must have regard to Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for Student visa applications, made under s 499 of the Act. It recognised that the direction required the Tribunal to have regard to a number of specified factors, but that they ought not be used as a checklist, and instead be employed as a guide in evaluating the particular applicant’s circumstances as a whole: Reasons, [25]-[28]; cf Liyanage v Minister for Immigration and Border Protection [2017] FCA 1333, [12]-[14] (Allsop CJ); Nguyen v Minister for Immigration [2013] FCCA 1864, [50]-[60], [86] (Lloyd-Jones J).
I do not consider that the Tribunal merely recited the correct legal principles but failed to employ and adopt them in its evaluation of the matter: cf SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572, [3](Allsop J, as his Honour then was). As appears below, the Reasons also confirm that the Tribunal had regard to the evidence and submissions which were made to it.
The Tribunal identified the history of the first applicant’s application for a Student visa and the reason for the delegate’s decision to refuse the application: Reasons, [3]-[7].
The Tribunal noted that the applicants’ representative had provided submissions and identified the documents which had been provided to it: Reasons, [8], [9], [21], [23]. The Tribunal noted that the first and second applicants had requested and been afforded further time in which to submit additional documentation.
The Tribunal considered the applicants’ history, including that the first applicant had: (a) first come to Australia in July 2009 to learn English and, if possible, to find a job and stay in Australia; (b) completed six levels of English language courses in the period 2010 to 2013; (c) completed a Certificate IV and Diploma of Business by November 2014, and apparently intended to return to Italy so as to set up his own business; (d) worked as a bricklayer, then building manager and site manager in Italy for a building company, Pellizzaro & Beghi, between 2001-2003, and stated that the same company wanted him to return to Italy in 2017 to work as a site manager; (e) owned no property in Italy, but owned a block of land and held funds in Albania; (f) travelled to Italy and Albania on one occasion in 2012, staying for approximately three weeks; (g) no employment in Australia (nor did his spouse); (h) rented accommodation in Australia, paying $1,650 per month; (i) survived upon savings held in Albania or transferred to Australia; (j) undertaken no education in Italy, where he had lived for a period of 18 years; (k) his own business registered in Italy in 2001, which worked as a subcontractor for Pellizzaro & Beghi; (l) provided various bank statements and other documents upon request by the Tribunal: Reasons, [11]-[23].
The Tribunal understood the first applicant’s contention that he wanted to complete a Diploma in Building and Construction (Building) and Certificate IV in Building and Construction and a Certificate III in carpentry: Reasons, [6]. It considered the first applicant’s educational qualifications, and how they related to his stated career path, together with the circumstance that when arriving in Australia on a Visitor’s visa, he had intended to learn English, and if possible, find a job and stay in Australia: Reasons, [11], [29]-[30]. The Tribunal considered the courses which the first applicant had undertaken, and found that he had not provided a clear or adequate statement of why he wished to study the courses, or how they would fit within his proposed career plan, particularly in circumstances where he had over 15 years’ experience as a carpenter and bricklayer: Reasons, [31]-[33].
The Tribunal considered the first applicant’s immigration history, including his claim to own property in Albania worth over €500,000, but observed that no evidence of the claim had been supplied. The Tribunal rejected the first applicant’s explanation that he was unable to obtain evidence of his property ownership, despite being allowed additional time in which to do so. It did not attach weight to the documentary evidence adduced by the first applicant on a variety of bases: Reasons [35]-[39].
The Tribunal expressed concern that the first applicant was applying for the current Student visa so as to circumvent the migration program and to maintain his ongoing residence and employment in Australia. It found that the first applicant had undertaken, and was proposing to undertake, relatively short and inexpensive courses of education for the purpose of maintaining ongoing residence and employment in Australia. The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily, and for that reason, found that he did not meet the requirements prescribed by cl 572.223(1)(a) of Part 572, Sch 2 of the Regulations, or any other subclass of class TU visa. On the same basis, the Tribunal affirmed the delegate’s decision not to grant the second to fourth applicants a visa, as they did not satisfy the criteria in their own right: Reasons, [40]-[44].
I accept the Minister’s submission that in the foregoing circumstances, it was reasonably open to the Tribunal to make the finding that the first applicant had not satisfied the criterion prescribed by cl 572.223(1)(a) of Part 572, Sch 2 of the Regulations, and that the Tribunal had complied with its obligation under s 499(2A) of the Act to comply with a Ministerial Direction; namely, Ministerial Direction No 53: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi), [68]-[69] (Stone, Foster and Nicholas JJ).
In light of the Tribunal’s analysis of the facts and circumstances relating to the application for merits review, I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the matter: Khadgi (2010) 190 FCR 248, [57]-[59].
Subject to one matter, I accept the submission made on behalf of the Minister that nothing said on behalf of the applicants elaborated in any way upon the basis for which they complained of a denial of procedural fairness by the Tribunal.
In the course of his reply, the first applicant began to complain of the manner in which his migration agent had discharged his responsibilities. Having regard to the complaint being made, I invited the first applicant to give evidence before me. He did so in a forthright and candid manner. In the course of giving that evidence, the first applicant disavowed any complaint as to the manner in which he had been treated by either the Tribunal or by the delegate. Although the first applicant appeared with the assistance of an interpreter, it was readily apparent that he had a reasonable command of written and spoken English (for example, interjecting with his answer to a question without waiting for the translation first to be provided to him).
The first applicant explained that his migration had failed to supply documents in response to a request from the delegate. An examination of the Court Book confirmed that this was so. The submission prepared by the applicants’ migration agent for the Tribunal adverted to this fact, and explained the manner in which the Department had addressed the oversight by re-notifying the applicants of the refusal of the application.
As explored in the course of the hearing, any negligence in the conduct of the migration agent in failing to supply such documents to the delegate was addressed by the supply of all documents considered to be relevant for the purposes of a merits review of the delegate’s decision by the Tribunal. As the first applicant confirmed in the course of his submissions and when giving evidence, the Tribunal had agreed to his request to be provided further time to provide any additional documents that he wished to be considered. The Tribunal recorded each of the additional documents that had been supplied: Reasons, [23].
Further, the criticisms levelled by the first applicant at his former migration agent were not capable of amounting to fraud. Nothing in the nature of mere negligence or other mishap would afford a ground for vitiating an otherwise valid decision of the Tribunal: cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [53] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ); Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ); SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
Conclusion
For the reasons above, I was not satisfied that the applicants had demonstrated any want of procedural fairness or other error in the decision of the Tribunal, and ordered that the application be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 18 July 2018
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