MURNI v Minister for Immigration
[2020] FCCA 579
•17 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURNI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 579 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – where the applicants consented to the Tribunal deciding the application without a hearing – whether the applicants were denied procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 360, 363A, 476 Migration Regulations 1994 (Cth), regs.500.211, 500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | SARI MURNI |
| Second Applicant: | ICHWAN MURTOPO |
| Third Applicant: | TIFANI AMARI JIHANDINI |
| Fourth Applicant: | ISABILA SANAA HAMIDA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 304 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 March 2020 |
| Date of Last Submission: | 13 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 17 March 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 304 of 2019
| SARI MURNI |
First Applicant
| ICHWAN MURTOPO |
Second Applicant
| TIFANI AMARI JIHANDINI |
Third Applicant
| ISABILA SANAA HAMIDA |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 4 July 2019.
The Tribunal affirmed a decision of the first respondent (the “Minister”) not to grant the applicants a Student (Temporary) (Class TU) visa (the “visa”).
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
Before the Court is the applicants’ application for judicial review, a Court Book (“CB”) numbering 120 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 28 February 2020.
The Court confirmed with the applicants that they had received and had reviewed the Court Book and the Minister’s submissions.
Background
The applicants are citizens of Indonesia. The first applicant was the primary applicant in relation to the visa in question. The second applicant (the first applicant’s husband) and the third and fourth applicants (the daughters of the first applicant and the second applicant) were members of the first applicant’s family unit (CB 1-30). They arrived in Australia on 30 October 2008 (CB 67)
On 24 May 2017, the first applicant applied for the visa. The first applicant indicated that she was enrolled to study a Diploma of Business. The applicants provided a number of supporting documents (CB 1-52).
On 30 May 2017, a Ministerial delegate refused to grant the applicants the visa (CB 57-75). The delegate found that the first applicant did not meet cl.500.212 of the Migration Regulations 1958 (Cth) (the “Regulations”). The delegate was not satisfied that the first applicant was a genuine temporary entrant. As the first applicant did not meet the criterion, the visa was also refused for the second, third and fourth applicants.
On 17 June 2017, the applicants applied for review of the delegate’s decision (CB 76-79).
On 7 February 2019, the Tribunal invited the applicants (pursuant to s.359 of the Act) to complete the “Request for Student Visa Information” questionnaire (CB 85-91).
On 20 February 2019, the first applicant completed the questionnaire. As discussed further below, the first applicant indicated (within the questionnaire) that the applicants did not wish to appear at a hearing before the Tribunal. The first applicant also indicated that she did not hold a current confirmation of enrolment (CB 92-104).
On 10 July 2019, the Tribunal affirmed the decision not to grant the applicants the visa.
Tribunal’s decision
The Tribunal’s decision is 3 pages long and spans 15 paragraphs.
At [1]-[8], the Tribunal summarised the background to the application. This summary detailed the delegate’s reasons for refusing the visa and noted that the applicants had consented to the Tribunal determining the matter without further hearing.
At [9]-[11], the Tribunal outlined the requirements of cl.500.211 of the Regulations and the definitions relevant to that provision.
At [12], the Tribunal stated:
The delegate was provided with a letter from Stanley College offering a placement to the applicant for a Diploma of Business with a start date of the 7 August 2017.The applicant applied for the student Visa on the 24 May 2017.Despite the written request from the Tribunal for information and confirmation of enrolment on the 7 February 2019 the Tribunal has not received written confirmation of enrolment. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
At [13], the Tribunal found that the second, third and fourth applicants applied for the visa on the basis that they were members of the first applicant’s family unit and, as such, their application depended on the outcome of the first applicant’s application.
The Tribunal affirmed the decision not to grant the visa.
Proceedings in this Court
The applicants’ judicial review application contains one ground of review, as follows:
The Tribunal failed to afford me procedural fairness as I wanted to attend a hearing.
The applicants were given an opportunity to file an amended application, affidavit evidence and an outline of submissions in this Court. No further materials were provided.
At the hearing, the applicants appeared without legal representation. They were assisted by an interpreter in the Bahasa Indonesian language. The first applicant and the second applicant attended in person.
Noting that the applicants were unrepresented, the Court allowed the applicants an opportunity to elaborate on, and further particularise, the ground of review. This is now the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicants that this Court cannot review the merits of the Tribunal’s decision or grant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the applicants to explain what they thought the Tribunal “did wrong”. In effect, the first applicant stated that there was a misunderstanding (due to poor English language skills) and that is why the applicants did not attend the hearing. It was her understanding that the applicants did not have to attend the hearing but they realise now that they should have attended to explain their situation and present evidence.
The second applicant added that as the applicants did not understand English well, they were confused about what was required. He also stated that “everyone deserves a right to education” and asked the Court to address this issue on appeal.
Consideration
The sole ground of review alleges that the Tribunal failed to afford the applicants procedural fairness because they were denied an opportunity to attend the hearing before the Tribunal.
Section 360 of the Act provides:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In the “Request for Student Visa Information” questionnaire, the applicants were asked:
Do you and any other applicants consent to the Tribunal deciding the review without a hearing?
The applicants responded:
Yes, I/we consent to the Tribunal deciding the review without a hearing.
The information directly beneath this response provided:
Note: If you consent to us deciding your review without a hearing:
• We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. This means we may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once we’ve made our decision.
• Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed. You can upload additional information at the end of this form.
• If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
The following declaration appeared at the base of the questionnaire:
By submitting this form I declare that:
• The information provided in this form, including any attachments, is complete and correct.
…
• If there is more than one applicant for review, I am also providing this information on their behalf and with their consent to do so.
The first applicant submitted the form. That is not in dispute.
It is apparent from the above that the applicants, pursuant to s.360(2)(b), waived their right to attend a hearing and asked the Tribunal to determine their application on the papers.
Once that consent had been given the Tribunal was not entitled to invite the applicants to attend a hearing (by virtue of s.360(3) and s.363A) and had the power to proceed (and was obliged to proceed) without the applicants appearing before the Tribunal: SZIMG v Minister for Immigration & Citizenship [2008] FCA 368 at [21].
There is nothing in the materials or the evidence before the Court to suggest that the first applicant’s consent was not effective. The first applicant declared that the information was correct and that she had authority to act on behalf of the other applicants.
To the extent that the applicants state that poor English language skills resulted in them being confused, there is no obligation on the Tribunal to provide correspondence to the applicants in their native language: SZGWH v Minister for Immigration & Citizenship [2007] FCA 543 at [12].
The letter inviting the applicants to compete the “Request for Student Visa Information” questionnaire contained the following (CB 86):
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450
Here, the Tribunal has clearly articulated who the applicants can contact for further assistance.
There is also nothing on the materials before the Court to suggest that the applicants wanted to attend a hearing. The evidence points to the contrary.
Insofar as the applicants are concerned that they are being denied an opportunity to seek further education, in effect the applicants are disagreeing with the Tribunal’s ultimate decision to deny them the visa and are asking this Court to find differently. While the Court is sympathetic to the concerns raised, the applicants are seeking impermissible merits review of the Tribunal’s decision. This Court can only assess whether the Tribunal fell into jurisdictional error.
Having reviewed the Tribunal’s decision as a whole, the Court is of the view that no error arises here. In circumstances where the Tribunal determined that the applicants were not enrolled in any course, the Tribunal had no choice but to refuse the visa.
Conclusion
The applicants have failed to identify any jurisdictional error in the Tribunal’s decision. The Court has otherwise reviewed the materials and cannot identify any error in the Tribunal’s decision.
The application, accordingly, is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 17 March 2020
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