Mehta v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 649
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mehta v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 649
File number(s): SYG 355 of 2021 Judgment of: JUDGE LAING Date of judgment: 25 July 2024 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or denied the applicant procedural fairness – application dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 359AA, 360
Migration Regulations 1994 (Cth) Sch 2, cl 500.211
Cases cited: Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 15 July 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr A Taverniti of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 355 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PALLAV NIRAV MEHTA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant applied for the student visa that is the subject of these proceedings on 26 November 2019.
On 16 January 2020, the Delegate refused the application. This was on the basis that the applicant was unable to meet the enrolment criterion for the visa in cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It was in circumstances where the Confirmation of Enrolment (COE) in an Advanced Diploma of Hospitality Management course that was submitted on behalf of the applicant indicated a course end date that had expired by the time of the Delegate’s decision.
The applicant applied to the Tribunal for review of the Delegate’s decision on 2 March 2020. In support of his review application, the applicant provided a COE dated 10 February 2020 in an Advanced Diploma of Hospitality Management course with a course end date of 12 April 2020.
On 10 March 2020, the Tribunal requested a copy of a current COE. On the same day, the applicant’s representative sent a copy of the COE already submitted to the Tribunal together with a Letter of Confirmation of Studies dated 21 February 2020. The latter document indicated an expected course completion date of 21 March 2020.
On 22 January 2021, an email was sent to the applicant’s representative inviting the applicant to a hearing on 9 February 2021. A copy of a current COE demonstrating that the applicant met the enrolment criterion was requested in advance of the hearing date. No further COE was provided to the Tribunal.
The applicant attended a hearing before the Tribunal on 9 February 2021.
On 9 February 2021, the Tribunal made an oral decision to affirm the decision under review. Written reasons were requested by the applicant and provided on 24 February 2021.
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for decision in the written record produced on 24 February 2021:
3.Mr Mehta you applied for a Student visa on 26 November 2019. The application was refused on 16 January 2020 because the delegate was not satisfied you met the requirements for the grant of a Student visa. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of that primary decision.
4.When I read from that primary decision it states: this application does not include a valid CoE for the applicant as the course end date has passed, as required by subparagraph 1222 (3)(c) of Schedule 1 of the Regulations. The delegate found you had not provided a current CoE and therefore did not satisfy 500.211.
5.You appealed that decision to be reviewed by this Tribunal and with the application you provided a copy of that decision.
6.What you have told the Tribunal is that since you lodged the application you have completed your Advance Diploma of Hospitality Management, which you completed in March 2020. You told the Tribunal you do not intend to do any further study but your aim was to get a 485 visa, so that you could get work experience in your chosen field.
7.As I said to you, the role of the Tribunal is to conduct a de-novo review, which means taking a fresh look at your application and considering whether you satisfy the requirements for the grant of a Student visa.
8.Your student visa application was refused because the delegate found you did not meet the enrolment criteria and therefore did not satisfy 500.211, you have today told the Tribunal you are not currently enrolled in a registered course and you do not intend enrolling in a registered course in the foreseeable future.
9.As was explained in the letter sent with the hearing invitation, current enrolment is a prerequisite for the grant of a Student visa. It is only when someone is enrolled in a course is it possible to work out the other evidence required, like the financial evidence, which includes course fees for proposed courses, and overseas student health cover, which is required for the duration of the intended course.
10.As you are not currently enrolled you do not satisfy 500.211 and as you do not meet 500.211 it is the decision of this Tribunal to affirm the decision under review.
On the above basis, the Tribunal affirmed the Delegate’s decision (at [11]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 8 March 2021 relying upon the following grounds of review:
1.The AAT acted unreasonably. The AAT did not recognise the Confirmation of enrolment that was provided.
2.The AAT failed to provide procedural fairness by not considering the confirmation of enrolment.
The grounds contended that the Tribunal’s decision was affected by legal unreasonableness, or a breach of procedural fairness, because the Tribunal did not consider or recognise the COE provided by the applicant.
Adjournment application
At the hearing of this matter, the applicant sought an adjournment for a period of months in order to endeavour to obtain legal representation. The applicant explained that he had needed to go to India and that there had been some difficulties regarding the cost of representation by a lawyer and a barrister that had been indicated to him. Adjournment was opposed by the Minister.
For reasons that I discussed with the applicant at the hearing, I was not persuaded that it was an appropriate use of my discretion to allow such an adjournment in the present case. These proceedings have been before the Court for some years. The applicant has therefore had a considerable period of time in which to secure legal representation, if he were able to do so. The applicant has not filed any material in support of his application since 2021 and only sought an adjournment on the day of the hearing. The information that he provided to the Court indicated that he had made at least some inquiry regarding the cost of legal representation and attempt towards securing funding. However, the general information that was provided did not inspire confidence that legal representation would be secured if a short adjournment were to be granted. If I were to grant a further hearing in this case, then that hearing would be unable to be allocated to another applicant who may also have been waiting some years for adjudication of their matter.
I have nonetheless been conscious in this matter that the applicant has lacked representation. With this in mind, I have carefully considered the materials before me with a view to identifying any potential issue with the procedure or decision of the Tribunal that might sustain a viable ground of review, in respect of which legal representation may assist the applicant. Had such a ground been identified, I may have been willing to reconsider whether an adjournment ought to be granted. However, I have identified no such ground on the facts of this case.
Pleaded grounds
The Tribunal in this case found that the applicant was unable to meet cl 500.211 of Schedule 2 to the Regulations. That provision was required to be met at the time of the Tribunal’s decision and required:
500.211
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.
There is no indication that (b) to (d) were of relevance to the present case. The applicant therefore had to demonstrate that he was enrolled at the time of the Tribunal’s decision.
The Tribunal does appear to have referred to and considered at least one prior COE that had been submitted by the applicant at [4] of its decision. That paragraph summarised the Delegate’s reasons for decision, which included reference to the expiry of the course end date.
I accept that the Tribunal did not expressly refer to the further COE that had been provided to the Tribunal, bearing a course end date of 12 April 2020. However, the context of the Tribunal’s decision does not support an inference that the Tribunal overlooked or otherwise failed to consider this document. That is because the document, on its face, similarly had a course completion date that had expired. Taken with the applicant’s evidence that he had completed the course, the COE was, on its face, incapable of meeting cl 500.211. This is because it did not show that the applicant was currently enrolled in a course of study at the time of the Tribunal’s decision. The more likely inference, therefore, is that the Tribunal did not refer to the outdated COE because it did not find it to be material to its decision.
In finding that the applicant was not enrolled at the time of its decision, and was therefore unable to meet cl 500.211, the Tribunal relied upon the applicant’s own evidence that he was not currently enrolled and did not intend to enrol in a course in the foreseeable future. As current enrolment was necessary to meet cl 500.211 it was open to the Tribunal to find that the applicant was unable to meet this criterion and affirm the Delegate’s decision on this basis. While the applicant may have preferred a different outcome, I accept the Minister’s submission that the Tribunal’s reasoning in this regard could not be said to have lacked an “evident and intelligible justification”, or to have been otherwise illogical or unreasonable: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]- [131]. To the contrary, as the Minister submitted, a finding that the applicant was unable to meet cl 500.211 appears to have been the only logical and reasonable conclusion available to the Tribunal.
In the above circumstances, it is also difficult to see how any failure to consider the outdated COE could be said to have deprived the applicant of the possibility of a successful outcome in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. I would therefore not have been persuaded that any error in this regard, if found, was capable of meeting the requirement of materiality.
I am also not persuaded on the evidence before me that the Tribunal denied the applicant procedural fairness, in the sense provided for under Division 5 of Part 5 of the Migration Act 1958 (Cth) (Act).
The applicant was invited to a hearing pursuant to s 360 of the Act, which he attended. The applicant appears to have been sufficiently on notice of the issues on the review from the Delegate’s decision and the exchanges recorded in the Tribunal’s decision record: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
I have considered whether the Tribunal may have breached s 359A of the Act, in the sense considered in Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296. In the circumstances of that case, Perry J found that PRISMS records confirming that an applicant was not enrolled were capable of enlivening s 359A of the Act. However, her Honour declined to grant relief on the basis of futility.
In the present case, PRISMS records indicating that the applicant had completed his course and was no longer enrolled were before the Tribunal. There is no transcript in evidence. It is therefore unclear if the Tribunal put this to the applicant pursuant to the procedure in s 359AA of the Act: see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].
Even if the Tribunal did not do so, however, it does not appear on the facts of this case that the Tribunal’s obligations under s 359A of the Act were ultimately enlivened. This is because what otherwise might have been regarded as “information” (namely, “information” that the applicant had completed his course and was no longer enrolled) appears from the Tribunal’s decision to have been provided by the applicant himself at his hearing before the Tribunal. It therefore appears to have been brought within the exception in s 359A(4)(b) of the Act (being information “that the applicant gave for the purpose of the application for review”): Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [30].
In the particular circumstances of this case, and given the concessions that the applicant appears to have made at the Tribunal hearing, I also would have considered that relief ought to be refused on discretionary grounds even if some breach of s 359A of the Act had been established. This is in circumstances where I would not have been satisfied that compliance in this case could realistically have resulted in the possibility of a different decision: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 at [137]-[147].
Submissions at hearing
At the hearing of this matter, the applicant submitted that his application had been refused at the Department stage because his agent had submitted the wrong COE. The Tribunal had then not decided the matter until his course had been completed, which he considered was unfair. At that stage, he did not require a student visa and wished to pursue another type of visa. However, the refusal of his student visa was standing in the way of his application for a further visa.
Although the applicant’s feelings in this regard are understandable, they do not provide a basis for overturning the Tribunal’s decision. As the applicant was not enrolled in a course by the time of the Tribunal’s decision, the Tribunal was unable to find that he met the criteria for the visa. In these circumstances, I am unable to see any legally remediable error in the Tribunal’s decision to affirm the decision of the Delegate. This is notwithstanding the difficulties that it has created for the applicant’s visa situation, in respect of which I do have some sympathy for this applicant.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 25 July 2024
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