Mntambo v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 889

•

13 September 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mntambo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 889

File number(s): MLG 2950 of 2018
Judgment of: JUDGE J YOUNG
Date of judgment: 13 September 2024 
Catchwords: MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) visa – where applicant concedes not enrolled in a course of study at the time of the Tribunal’s decision – oral submissions raised at hearing – where certain grounds raised by applicant were entirely misconceived – where certain grounds raised by applicant entirely unparticularised - found no jurisdictional error on behalf of the Tribunal – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 65, 474, 476

Migration Regulations 1994 (Cth) sch 2, cll 500.211, 500.211(a), 500.214, 500.214(3)

Ministerial Direction No. 69 – Assessing the genuine temporary entrant criterion for Student’
Cases cited:

Craig v South Australia (1995) 184 CLR 163

Hasnat v Minister for Immigration & Anor [2013] FCCA 1922

Kaur v Minister for Immigration & Anor [2016] FCA 132 at [30] per Perry J; Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149

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

Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322
Division: Division 2 General Federal Law
Number of paragraphs: 42
Date of hearing: 26 August 2024
Place: Melbourne
Solicitor for the Applicant: Self-represented litigant
Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley
Second Respondent: Submitting appearance save as to costs

ORDERS

MLG 2950 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ASIA YUSAPH MNTAMBO

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The Amended Application filed 16 August 2024 be dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

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 J YOUNG:

  1. Before the Court is an Amended Application filed on 16 August 2024, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 5 September 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

    BACKGROUND

  2. The applicant is a citizen of Tanzania.

  3. The applicant first arrived in Australia in 2007.

  4. On 24 October 2016 the applicant applied for the Visa.

  5. On 16 February 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.214 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.214 of the Regulations requires the Delegate to be satisfied the applicant had genuine access to funds while holding the Visa.

  6. On 6 March 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as her representative. In the application for review, the Applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.

  7. On 9 August 2018, the Tribunal sent an email to the applicant via her representative’s email address enclosing an invitation for the applicant to attend a hearing on 5 September 2018 at 1.00pm with an information sheet attached (Letter). The Tribunal requested the applicant provide the following documents, amongst other things, within seven days of receipt of the Letter: a copy of her current Confirmation of Enrolment (COE); documents evidencing her past studies in Australia; and documents demonstrating that she had genuine access to sufficient funds to meet her costs and expenses during her intended stay in Australia or evidence of the annual income of her parents/spouse/de facto partner and that she had genuine access to those funds. The Letter also included a ‘Response to hearing invitation – MR Division’ form (Response Form) to be completed by the applicant.

  8. On 15 August 2018, the applicant’s registered migration agent provided the Response Form to the Tribunal. No other documents were provided to the Tribunal prior to the hearing.

  9. On 5 September 2018, the applicant appeared at a hearing before the Tribunal to give evidence and present argument. The applicant’s representative did not attend the hearing.

  10. At the hearing on 5 September 2018, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa.

    TRIBUNAL DECISION

  11. On 20 September 2018, the Tribunal emailed the applicant’s representative and provided the written statement of decision and reasons (Tribunal Decision).

  12. At paragraph [8] of the Tribunal Decision, the Tribunal noted that the issue before the Delegate was whether the applicant had genuine access to funds. However, the Tribunal identified that the issue before it was whether the applicant satisfied cl 500.211(a) of Schedule 2 of the Regulations which required the Tribunal to be satisfied that the applicant was enrolled in a course of study at the time of its decision.

  13. At paragraph [12] of the Tribunal Decision, the Tribunal noted that the Letter sent to the applicant’s representative on 9 August 2018 requested that the applicant provide evidence of enrolment in an approved course of study at least seven days before the scheduled hearing. The Tribunal noted that no such evidence had been provided by the applicant. Further, at paragraph [13], the Tribunal noted that it again requested the applicant provide this evidence to it at the hearing, but that the applicant failed to do so.

  14. At paragraph [14] the Tribunal took into account the applicant’s oral evidence at the hearing that she was last enrolled in an Advanced Diploma of Marketing and Communication on 23 January 2017 which she did not commence. Further, the Tribunal noted that the applicant also gave sworn evidence that she was not enrolled in a course of study in Australia.

  15. Accordingly, the Tribunal found there was no evidence before it that the applicant was enrolled in a course of study, and concluded that cl 500.211 of Schedule 2 of the Regulations was not met. For those reasons, the Tribunal found the applicant did not meet the criteria for the grant of the Visa and affirmed the decision under review.

    APPLICATION FOR JUDICIAL REVIEW

  16. The applicant applied for judicial review of the Tribunal Decision on 2 October 2018. On 16 August 2024 the applicant filed an Amended Application which contains the follow grounds for judicial review (without amendment):

    1. FAILURE TO CONSIDER MANDATORY FACTORS

    PARTICULARS

    (a)the AAT has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction and deciding the matter by excluding the information that favoured the applicant.

    (b)The Learned Tribunal member fell into jurisdictional error when the Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction. The tribunal completely ignored mandatory concerning the applicant's circumstances and which related to other relevant information provided by the applicant, in this matter, the circumstances which explained the applicant's study plan and future endeavours.

    2. FAILED TO TAKE RELEVANT CONSIDERATIONS

    PARTICULARS

    The AAT failed to take relevant considerations, and unreasonably decided that the academic progress would not assist the applicant in future endeavours. The Tribunal also not justified in Evaluation of the whole academic progress and the future value of the proposed course.

  17. The applicant filed the following further material in support of the Amended Application:

    (1)an affidavit annexing a copy of the Tribunal Decision filed on 2 October 2018; and

    (2)written submissions filed on 16 August 2024.

  18. The above material was filed following the applicant obtaining legal representation. On 23 August 2024 the applicant ceased to be legally represented. Prior to obtaining legal representation the applicant also filed material, including an affidavit on 2 October 2018. That affidavit contained, in summary, the following grounds for judicial review:

    (a)the Tribunal erred in finding that cl 500.214(3) of Schedule 2 of the Regulations was not met, did not properly consider cl 500.214(3) and failed to consider the applicant’s previous qualifications;

    (b)the Tribunal failed to take into account the applicant’s COE (which is stated to be attached to the affidavit);

    (c)the Tribunal failed to take into account a potential explanation;

    (d)the applicant was not afforded natural justice and was denied an opportunity to present her case and evidence; and

    (e)the Tribunal failed to consider that the applicant reasons for not having a COE.

  19. Given the applicant is no longer legally represented and in light of the grounds contained in the Amended Application, the Court proposed to proceed on the basis of the grounds contained in the Amended Application and the affidavit. That approach was not opposed by the Minister.

  20. The Minister filed a Response on 13 November 2018 which sought orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister also relied on written submissions filed on 12 August 2024.

    The hearing

  21. The hearing took place on 26 August 2024.

  22. The applicant appeared in person at the hearing and was assisted by an interpreter in the Swahili and English languages. Mr O’Shannessy, solicitor, appeared for the Minister.

    STATUTORY FRAMEWORK

  23. A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

  24. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].

    CONSIDERATION

  25. At the hearing the applicant was invited to address the Court as to the grounds for review in both the Amended Application and the affidavit. Although the applicant’s submissions were somewhat confused, the following arose from those submissions:

    (a)the applicant conceded that she was not enrolled in a course of study at the time of the Tribunal’s hearing and decision;

    (b)the applicant conceded that at the hearing the Tribunal asked her to provide a current COE and she did not do so;

    (c)the reason for the applicant’s non-enrolment was that she was depressed;

    (d)the applicant understood that she was refused the Visa because she could not produce a bank statement; and

    (e)the applicant has been in Australia since 2007 and until 2016 had been continuously studying.

  26. The applicant was unable to further elaborate on the grounds of review.

    Grounds in the Amended Application

    Ground 1

  27. By Ground 1 of the Amended Application the applicant contends that the Tribunal erred in failing to consider “several mandatory considerations as specified in the Ministerial Direction”.

  28. Ground 1 is entirely misconceived.

  29. Ground 1 appears to reference ‘Ministerial Direction No. 69 – Assessing the genuine temporary entrant criterion for Student’ (Ministerial Direction 69). As set out above, at paragraph [8] of the Tribunal Decision, the Tribunal identified that the issue before it was whether the applicant met cl 500.211(a) of Schedule 2 of the Regulations which required her to be enrolled in a course of study at the time of the Tribunal Decision. On the basis of the applicant’s own oral evidence at the hearing, the Tribunal found that she was not enrolled in a course of study and did not meet cl 500.211. Further, as set out above, at the hearing in this Court, the applicant conceded that she was not enrolled in a course of study at the time of the hearing before the Tribunal. Accordingly, the Tribunal was not required to consider Ministerial Directions 69 or make an assessment of whether the applicant was a genuine temporary entrant. Further, references in Ground 1 to “mandatory considerations” and the applicant’s “study plan and future endeavours” were irrelevant issues before the Tribunal. The only matter before the Tribunal was whether the applicant was enrolled in a course of study for the purposes of cl 500.211(a) of Schedule 2 of the Regulations. Satisfying the requirements of cl 500.211(a) is a pre-requisite for the grant of a student visa: Hasnat v Minister for Immigration & Anor [2013] FCCA 1922. Having determined that the applicant did not satisfy cl 500.211(a) the Tribunal was therefore not required to consider any other criteria.

    Ground 2

  30. By Ground 2 the applicant submits that the Tribunal failed to take into account relevant considerations and “unreasonably decided that the academic progress would not assist the applicant in future endeavour”.

  31. For the same reasons as provided for in Ground 1, Ground 2 is entirely misconceived.

  32. As set out above, the issue before the Tribunal was limited to whether the applicant met the criteria contained at cl 500.211 of Schedule 2 to the Regulations. This was a pre-requisite to the applicant being granted the Visa. Having determined that the applicant did not satisfy cl 500.211(a) of Schedule 2 of the Regulations the Tribunal was not required to consider any other criteria.

  33. Accordingly, the grounds in the Amended Application do not disclose any jurisdictional error on the Tribunal’s behalf.

    Grounds in the affidavit and oral submissions

  34. The grounds in the affidavit largely replicate the oral submissions made by the applicant at the hearing. I address these collectively below.

  35. In relation to the submissions regarding cl 500.214(3) of Schedule 2 of the Regulations, that clause deals with the requirement that the applicant must have genuine access to sufficient funds. As set out above, whilst the Delegate was not satisfied that the applicant met the requirements of cl 500.214(3) of Schedule 2 of the Regulations, the only matter before the Tribunal was whether the applicant was enrolled in a course of study at the time of the decision as required by cl 500.211(a). The requirements of cl 500.214(3) were therefore not required to be considered by the Tribunal. Similarly, the applicant’s previous qualifications were not relevant to whether she met the criteria in cl 500.211(a) and were also not required to be considered by the Tribunal.

  36. In relation to the applicant’s COE, the evidence before the Court is that the applicant was requested in the hearing invitation sent to her on 9 August 2019 to provide the COE to the Tribunal and did not do so. The Tribunal’s decision at paragraph [13] records that the applicant was again requested to provide a current COE at the hearing and did not do so and at paragraph [14] of its decision the Tribunal records that the applicant’s evidence before the Tribunal was that she was not currently enrolled in a course of study. Further, at the hearing before this Court, the applicant conceded that she was not enrolled in a course of study at the time of the Tribunal’s decision. The evidence before the Court is that the applicant was last enrolled in an Advanced Diploma of Marketing and Communication on 23 January 2017. At paragraph [14] of its decision, the Tribunal records that the applicant’s evidence before it was that this was the last course she was enrolled in but that she did not commence it. Her evidence before the Tribunal was that the last course she completed was a Diploma of Marketing on 23 August 2015. Accordingly, the Tribunal had regard to the previous COE. However, on the evidence before it, and as was confirmed by the applicant at the hearing in this Court, at the time of the Tribunal Decision the applicant was not currently enrolled in a course of study as is required by cl 500.211(a). For completeness, notwithstanding that the affidavit deposed to a COE being annexed to it, no such document was attached.

  37. In relation to the assertion that the Tribunal failed to take into account a potential explanation, the applicant was unable to particularise what the potential explanation was or to what it applied.

  38. Similarly, the applicant was unable to particularise how she was not afforded natural justice or denied an opportunity to present her case and evidence. On 9 August 2018 the applicant, via her representative, was invited to attend a hearing before the Tribunal on 5 September 2018. On 15 August 2018 the applicant completed a “Response to hearing invitation” form and on 5 September 2018 attended the scheduled hearing. At the hearing the applicant appeared and gave evidence. As already set out above, the hearing invitation requested the applicant to provide to the Tribunal a current COE and the applicant was again requested to do so at the hearing before the Tribunal. Accordingly, the applicant was afforded an opportunity to appear before the Tribunal, present argument and give evidence.

  39. As to the assertion that the Tribunal failed to consider that the applicant’s reasons for not having a COE, the only question before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations. The Regulations provide that “all criteria must be satisfied at the time a decision is made on the application.” The enrolment criteria therefore impose mandatory, objective criteria for the grant of the Visa that could not be “waived by reference to [an] applicant’s previous study or personal circumstances”: Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24]. There was no evidence before the Tribunal that the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations at the time of the Tribunal’s Decision and she confirmed both before the Tribunal and at the hearing before this Court that she was not. The reasons why the applicant was unable to satisfy the requirements of cl 500.211(a) of the Regulations are not relevant in the absence of any discretion to grant the Visa: Kaur v Minister for Immigration & Anor [2016] FCA 132 at [30] per Perry J; Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149 at [9] per Jagot J.

  40. Accordingly, none of the grounds advanced by the applicant in the affidavit or orally at hearing disclose any jurisdictional error on the Tribunal’s behalf.

    DISPOSITION

  1. For the reasons set out above, the Application must be dismissed.

  2. The Minister seeks that the applicant pay its costs in the fixed amount of $5,000. I note that this is below the amount provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       13 September 2024

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Cases Citing This Decision

1

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1265
Cases Cited

7

Statutory Material Cited

3

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Kirk v Industrial Court of New South Wales [2010] HCA 1
Craig v South Australia [1995] HCA 58