Multani v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 598
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Multani v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 598
File number(s): MLG 106 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 26 July 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – where no confirmation of enrolment – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 474, 4766
Migration Regulations1994 (Cth) Sch 2 cll 500.111, 500.211
Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2012) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Plaintiff S157 of 2002 v Commonwealth [2003] HCA; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 26 July 2022 Date of hearing: 26 July 2022 Place: Perth Applicant: In person via CISCO Webex Counsel for the First Respondent: Mr T Creedon Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 106 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVNEET KAUR MULTANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
26 JULY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 16 January 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs in the sum of $5,500 by 26 August 2022.
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
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, Ms Ravneet Kaur Multani (“Ms Multani “) filed 16 January 2018 for judicial review (“Judicial Review Application”) in relation to a decision of the Administrative Appeals Tribunal of 14 February 2018 (“Tribunal” and “Tribunal Decision” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent being then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) made on 15 May 2017 to cancel Ms Multani’s Student Temporary Class TU Higher Education Sector visa (“Student Visa”). The Judicial Review Application contains seven grounds which the Court will come to in due course.
The Court has had regard to various materials that are before it, including the Court Book (‘CB”) marked as “Exhibit 1” in the proceedings, and the affidavit filed by Ms Multani on 16 January 2018, a supplementary Court Book of some four pages, marked as “Exhibit 2”, and the written submissions filed by both Ms Multani and the Minister on 31 May 2021 and 4 July 2022 respectively. The Court also notes that there was provided to the Chambers of the presiding Judge this morning, at 8.53am AWST, a copy of a conditional letter of offer for Ms Multani from the Asia Pacific International College in relation to a Master of Information Technology course.
It is not the task of the Court to consider or grant or otherwise interfere in the administrative process of whether or not Ms Multani is granted the Student Visa for which she has applied, and therefore the conditional letter of offer provided to the Court this morning is irrelevant for present purposes, the Court being required to consider whether or not the Tribunal Decision is affected by jurisdictional error.
The relevant background to the judicial review application is as follows. Ms Multani is a citizen of India who on 29 August 2016 arrived in Australia. After completing an English language course she enrolled in a Master of Business Information Systems and Enterprise Resource Planning Systems in August of 2014, and on 15 May 2017 the Delegate’s Decision was to cancel Ms Multani’s Student Visa on the basis that she was not enrolled in a course of study as required by cl 500.211 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”).
On 29 May 2017 Ms Multani lodged the application for review of the Delegate’s Decision with the Tribunal and on 28 November 2017 the Tribunal invited Ms Multani to attend a Tribunal hearing on 13 December 2017 (“Tribunal Hearing”). The Tribunal Hearing invitation to Ms Multani also requested that she provide the following:
(a)a copy of her current certificate of enrolment or other documents that evidence current enrolment in a course of study, and
(b)documentation that showed her past studies in Australia.
In a document dated 6 December 2016, Ms Multani provided to the Tribunal a written submission along with relevant documents and, relevantly, the written submission:
(a)indicated that she accepted that she did not have a confirmation of enrolment, despite attempts in the past to obtain one;
(b)intimated that one of the staff at Victoria University, without her knowledge or permission, had applied for a new course for her and that this application had been rejected;
(c)claims she was depressed and was going through financial hardship;
(d)claimed her husband had a kidney condition which meant he was unable to work at the time;
(e)indicated she had a new baby and had to face domestic violence and that a complaint was lodged against her husband, but that they had reconciled;
(f)claimed that she had shared her email address with her husband who marked all of her emails as read, and due to this sharing, when Victoria University sent her an email about the cancellation of the confirmation of enrolment due to non-payment of fees, she was unaware of the email; and
(g)argued that the Tribunal should give due consideration to all of the facts and circumstances and determine that she was a genuine student who had made every effort to get a confirmation of enrolment, but Victoria University had denied her a confirmation of enrolment because of incorrect information held by the University.
Ms Multani attended the Tribunal hearing on 13 December 2017. The Tribunal Hearing went for a little over 30 minutes. At the conclusion of the Tribunal Hearing, the Tribunal made an oral decision to affirm the Delegate’s Decision, and on 14 February 2018 the Tribunal made written reasons for its oral decision.
In the Tribunal Decision the Tribunal set out its statement of decisions and reasons at CB 213 at [3]-[12] as follows:
3.Ms Multani, you applied for a subclass 500 visa on 29 August 2016, to undertake study here in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa subclass contained a number of different subclasses. Generally speaking, the subclass that could be granted to an applicant who applies as a student depended upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (subclass 570 – 575), or whether the applicant had the support of the relevant Minister (subclass 576).
4.The delegate in your case refused to grant you a visa on the basis that you did not satisfy clause 500.211, of Schedule 2 to the Migration Regulations, because the delegate was not satisfied that you were enrolled in a course of study.
5.You have appeared before the Tribunal today to give evidence and present arguments. You have told the Tribunal about your attempts to obtain a certificate of enrolment and a letter of offer.
6.The Tribunal accepts that you have been making efforts to obtain a certificate of enrolment and that you have been making efforts to obtain a letter of enrolment.
7.The Tribunal has however, explained to you that it is a requirement that, at the time of decision, you must either have a confirmation of enrolment, or a letter of offer, and you do not have either.
8.By way of background, on the 28th of November 2017, the tribunal wrote to you inviting you to attend this hearing today. The Tribunal attached in the hearing invitation, information about what you would need to provide. It says, and I am just going to highlight. I have made some earlier remarks in relation to different subclasses. I have made earlier remarks in relation to 570 to 575. I also made reference to 576. But this is a matter where you have applied under clause 500. The letter of invitation says:
Please provide the following information so the decision can be made as quickly as possible: (1) Copy of your current certificate of enrolment or other documents that show that you are currently enrolled in a course as defined in clause 500.111 of the Migration Regulations 1994.
9. That was sent to you on 28 November 2017.
10.As I said before, I accept that you have made efforts to obtain a confirmation of enrolment certificate. You provided evidence of that, but ultimately you have not obtained one and it is a requirement of the relevant clause.
11.Accordingly, for completeness, there is no evidence before me that you are now enrolled.
12.For these reasons, I have concluded that the decision under review should be affirmed.
In summary, it suffices to observe that:
(a)the Tribunal Hearing invitation had clearly requested Ms Multani to provide a current confirmation of enrolment or other document to show that she was enrolled in a course of study;
(b)noted that Ms Multani had not obtained a confirmation of enrolment, despite making efforts to obtain one;
(c)found that there was no evidence before it that Ms Multani was enrolled in a course of study, and
(d)affirmed the Delegate’s Decision which was under review.
There are seven grounds of review set out in the judicial review application. They are as follows (reproduced unaltered):
1.I have applied for a student visa extension on 29-08-2016 which was refused on 15-06-2017
2.I then applied for a review of the decision with AAT which was heard @ AAT an oral decision was made on 13-12-2017
3.I have obtained letter of offer from Holmes Institute & a copy of it is attached for your kind reference, However, I am still fighting with Victoria University for my admission as I believe I was treated unfairly.
4. My enrolment was cancelled without any duty of care.
5.As an international student, I travelled here with a great desire to complete my Masters program & would like to have an opportunity to complete my desired course.
6.With great request, I submit my application & request you to kindly accord an opportunity to allow me to complete my study.
7.I will be submitting a very detailed statement to support my application as & when requested.
For present purposes, it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error, and the Court refers to ss 474 and 476 of the Migration Act, and the High Court’s decision in Plaintiff S157 of 2002 v Commonwealth [2003] HCA; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material, or
(d)relies on irrelevant material
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected, resulting in a decision exceeding or a failure to exercise any authority or powers given to the Tribunal under the Migration Act may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225. So, too, may a breach of procedural fairness requirements, any illogicality, irrationality or unreasonableness in a legal sense in the Tribunal Decision, or if the Tribunal Decision was affected by actual or apprehended bias: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2012) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1.
The originating application was filed in the Melbourne Registry of this Court on 16 January 2018 and was the subject of a first court date at which orders were made by a Registrar on 17 October 2018 listing the matter for a show cause hearing before a Judge in the Melbourne Registry on 27 March 2019. The relevant Judge’s Chambers advised the parties on 15 February 2019 that the matter had been adjourned to a date to be advised, but no date was subsequently advised, and in early November 2021 the matter was reallocated to the Perth Registry of the Court for hearing by a Perth Judge, and on 15 November 2021 orders were made, listing the matter for hearing today.
On 16 January 2018 Ms Multani filed an affidavit in support of her Judicial Review Application appending a copy of the Delegate’s Decision, certain Tribunal documents and correspondence from the Tribunal notifying the outcome of the review, and a letter of offer from Holmes Institute dated 15 December 2018.
On 15 November 2021 Ms Multani attended a directions hearing, which the Court has already adverted to, at which the matter was programmed for hearing and in the course of which the Court’s orders required Ms Multani to file and serve by 1 June 2022 any amended Judicial Review Application, any affidavits, a supplementary court book, if any, and written submissions (“Court’s Orders”).
Ms Multani’s submissions, which are in the form of a letter dated 22 May 2021, indicate that she seeks the Court’s assistance to right what she refers to as a “wrong” and advises the Court that:
(a)a wrong was done to her by Victoria University denying her the opportunity to complete her Master’s degree;
(b)Victoria University has been negligent in several aspects which resulted in the cancellation of her Student Visa and the completion of her degree which she had 90 per cent completed;
(c)Victoria University cancelled the program and are asking her to take on additional subjects for a new degree; and
(d)her personal circumstances having children and COVID have made it hard to cope with (the Court notes that the current COVID-19 pandemic postdates the Tribunal Decision);
(e)she requests the Court to assist her in getting Victoria University to reinstate her confirmation of enrolment and Student Visa; and
(f)her intention is to complete her degree, go back home to India and take up a career in information technology in India.
In oral submissions today Ms Multani indicated that she had been attempting to obtain a confirmation of enrolment and referred to the conditional offer forwarded to the Court this morning, which the Court has already indicated is irrelevant, and referred to the fact that she was doing what she was doing so that she could complete her degree and have a good future and ensure the future of her children. She also referred to what she described as her lawyer’s negligence in failing to advise her that a confirmation of enrolment letter was required for the tribunal process and made reference to the fact that she had verbally asked the Tribunal for more time in which to get the relevant confirmation of enrolment letter.
The Minister’s submissions are as follows:
(a)regarding Grounds 1, 2, 5, 6 and 7:
(i)these grounds are a recitation of the factual background and requests to the Court to consider Ms Multani’s case. These are not proper grounds of review and do not disclose any jurisdictional error in the Tribunal Decision; and
(ii)to the extent that grounds 5 and 6 request that the Court give the applicant an “opportunity” to complete her studies, this ground impermissibly invites the Court to engage in merits review;
(b)regarding Grounds 3 and 4:
(i)these grounds contend that Ms Multani had obtained a letter of offer from Holmes Institute and that she was treated unfairly by Victoria University. These grounds do not disclose any jurisdictional error in the Tribunal’s reasons;
(ii)Ms Multani’s reliance upon the letter of offer from Holmes Institute in support of her judicial review application is misplaced. The letter was not before the Tribunal (indeed, it was generated after the Tribunal Decision) and it is not open to Ms Multani to ask the Court to admit fresh evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J. Whether Ms Multani satisfies cl 500.211 of Sch 2 to the Migration Regulations was a matter that had to be assessed at the time of the Tribunal Decision. As Ms Multani was not enrolled at that time, the Tribunal, appropriately, affirmed the Delegate’s Decision;
(c)the issues raised by Ms Multani regarding her alleged mistreatment by Victoria University – which are expanded upon in Ms Multani’s submissions – are irrelevant to the Court’s consideration of whether the Tribunal Decision was affected by jurisdictional error; and
(d)Ms Multani’s grounds of review do not disclose jurisdictional error in the Tribunal Decision.
In oral submissions at hearing today the Minister indicated that it was clear that the Tribunal had invited Ms Multani to attend the Tribunal Hearing and to provide evidence of confirmation of enrolment and that the issue for the Tribunal was whether Ms Multani was enrolled in a course of study and that she was unable to provide any evidence of that enrolment or any enrolment in a course of study and that the Tribunal had made the correct decision.
With respect to Ms Multani’s submission that she asked the Tribunal for more time, the Minister referred to [8] of the Tribunal Decision (see [8] above) in which the Tribunal indicated that it had written to Ms Multani on 28 November 2017 indicating what was to be provided for the Tribunal Hearing, namely, a copy of a current certificate of enrolment or other documents that showed that Ms Multani was currently enrolled in a course for the purposes of cl 500.111 of Sch 2 of the Migration Regulations, and went on at [10] to indicate that it accepted that Ms Multani had made efforts to obtain a confirmation of enrolment certificate and had provided evidence of that, but ultimately that she had not obtained one and that that was a requirement of the clause, and in the circumstances the Minister said that there was an intelligible justification for making the decision on the day that it was made and that it was reasonable for the Tribunal to do so.
Turning then to the grounds of the Judicial Review Application. Of the seven grounds of the Judicial Review Application none appear to relate to the question of jurisdictional error in the Tribunal Decision, but rather relate to claims of alleged unfair treatment that Ms Multani has endured, principally at the hands of Victoria University which Ms Multani claims has treated her unfairly and failed to discharge its purported duty of care to her in so doing. There is no ground raised by Ms Multani which would appear to the Court to address, identify or raise any ground of jurisdictional error in the Tribunal Decision.
Ground 1 is simply a recounting of the Delegate’s Decision, the date thereof and the outcome, and raises no jurisdictional error for the Court to address. Ground 2, likewise, is a recounting of the date and the Tribunal Decision outcome and the fact that it was an oral decision, but it goes no further and does not actively or appreciably engage with the content of the Tribunal decision so as to raise any allegation of jurisdictional error.
Grounds 3 and 4 object to Ms Multani’s alleged ill-treatment by Victoria University. For the purposes of the Judicial Review Application, that allegation is irrelevant. Grounds 3 and 4 fail to establish any jurisdictional error by the Tribunal or in the Tribunal Decision. What is raised in grounds 5 and 6 of Ms Multani’s grounds of review are issues that are not within the ambit of the Court’s jurisdiction to address or rectify. They ask the Court to engage in impermissible merits review and to restore Ms Multani’s Student Visa so that she may be able to complete her studies in Australia and they express her status as an international student in Australia.
The Court cannot review the merits of Ms Multani’s decision and these grounds do not identify jurisdictional error in the Tribunal Decision, nor can the Court restore Ms Multani’s Student Visa, and the Court’s role is not to review the merits of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 and not to involve itself in determining whether or not Ms Multani is entitled to a visa, but rather to identify jurisdictional error in the Tribunal Decision.
Ground 7 asserts that Ms Multani indicates that she plans to provide a more detailed statement as and when requested. As the Court has already indicated, the Court’s Orders provided an opportunity for Ms Multani to provide further materials including submissions and any further affidavit, and in relation to that, Ms Multani has relied upon and filed a letter to the Court by way of submissions, that letter being dated 15 May 2022, to which the Court has already referred, but that letter again does not raise any ground of jurisdictional error in the Tribunal Decision.
In submissions today the question of the Tribunal granting extra time for Ms Multani to obtain a confirmation of enrolment was raised and the Court notes that the Tribunal proceeded to determine the matter on the day of the hearing and then to provide written reasons over two months later. There is nothing to indicate that any confirmation of enrolment was provided to the Tribunal prior to the handing down of the written Tribunal Decision, and there is nothing in the Tribunal Decision which would indicate that it was likely in all of the circumstances that Ms Multani would be able to obtain a confirmation of enrolment within a short period of time, and there was therefore in the circumstances a reasonable and intelligible justification for the Tribunal to proceed to make the Tribunal Decision and to determine that the Delegate’s Decision should be affirmed.
The Court notes also that there is still no evidence that a confirmation of enrolment has been obtained and indeed as recently as today Ms Multani seeks impermissibly from the Court further time to provide a confirmation of enrolment presumably in relation to the conditional letter of offer that she has now obtained from the Asia Pacific International College and which, as the Court has indicated, is irrelevant.
In relation to the assertion briefly made that her lawyers were negligent in failing to properly advise her with respect to the requirement for a confirmation of enrolment, the Court notes that mere negligence by an applicant’s lawyer is insufficient to constitute jurisdictional error upon the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510. But the Court notes, in any event, that as a matter of fact Ms Multani was put on notice by reason of the Tribunal Hearing invitation issued in November 2017 which specifically advised her of the necessity to provide a current certificate of enrolment or other documents that showed that she was currently enrolled, and that was some two weeks prior to the Tribunal Decision, so it cannot be said that she was not on notice of the requirement to provide those documents.
It follows that the originating application filed 16 January 2018 must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 July 2022
0
21
0