Nagpal v Minister for Immigration
[2020] FCCA 2329
•25 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAGPAL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2329 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 360, 360A, 362B, 476 Migration Regulations 1994 (Cth), cl.500.214 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Minister for Immigration v Jia Legeng (2001) 178 ALR 421 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | AKHIL NAGPAL |
| First Respondent: | MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 503 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 August 2020 |
| Date of Last Submission: | 21 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 25 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 503 of 2019
| AKHIL NAGPAL |
Applicant
And
| MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on 4 May 2015 on a student visa.
On 5 September 2017, the applicant applied for a Student (Temporary)(class TU) Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 1-30). He indicated that he intended to study an Advanced Diploma of Leadership Management.
On 8 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 31-38). The delegate was not satisfied that the applicant met cl.500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the applicant did not meet the “financial capacity criterion”.
On 22 November 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 39-40).
The applicant was invited to attend a hearing on 27 November 2019 (CB 45-47). The applicant did not attend that hearing (CB 48-50).
The Tribunal proceeded to determine the review pursuant to s.362B(1A)(a) of the Migration Act 1958 (Cth) (the “Act”). That is, the Tribunal determined the application without any appearance by the applicant.
The Tribunal affirmed the decision not to grant the applicant the visa on 27 November 2019 (CB 53-59).
On 23 December 2019, the applicant filed an application for judicial review in this Court pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision is 15 paragraphs long.
The Tribunal began by summarising the type of visa the applicant had applied for. The Tribunal noted that the delegate had refused the visa because the applicant had not provided evidence that he met cl.500.214 of the Regulations (at [1]-[3]).
The Tribunal then explained that the applicant had been properly invited to attend a hearing on 27 November 2019 and that, despite receiving two SMS reminders of the date and time of the hearing, the applicant did not attend or respond to the SMS reminders (at [4]).
The Tribunal confirmed that the applicant had failed to attend the hearing and that the Tribunal had, accordingly, decided the review pursuant to s.362B(1A) of the Act (that is, without taking any further action to allow the applicant to appear) (at [5]).
The Tribunal confirmed that the subclass of visa that the applicant had applied for was a subclass 500 (at [7]). The Tribunal then summarised the requirements of cl.500.214, as follows:
8. Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds: cl.500.214(1).
9. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3). This is noted in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The Tribunal then identified that the correct instrument in relation to the applicant was LIN 19/198 (the “Instrument”) (at [10]).
The Tribunal then determined:
11. The applicant has not provided the Tribunal with any evidence at all. The Tribunal has read and carefully considered the Departmental file in relation to this matter, and has concluded (as the delegate noted) that the applicant provided no evidence regarding financial capacity to the Department either. The Tribunal notes that in the course of making his visa application, the applicant was asked to give details as to why he will not be providing attachments prior to lodging his application. Given the list of documents the applicant did provide, as set out at the end of the printed copy of the applicant’s visa application on the Departmental file, it is clear that that question related at least to documents going to financial capacity. The applicant answered that question in the words: “Will be provided after.” As there is no evidence at all before the Tribunal relevant to the requirements of cl.500.214(3), as set out in the Instrument, the Tribunal cannot find in the applicant’s favour on this issue.
The Tribunal was not satisfied that the applicant met cl.500.214(3) (at [12]). As the applicant had not met cl.500.214(3), the applicant could not be granted the visa.
The Tribunal affirmed the decision to refuse the visa (at [13]-[15]).
Proceedings in this Court
In his application dated 23 December 2019, the applicant provides a number of “grounds of review”. These “grounds of review” are repeated in his affidavit sworn 23 December 2019 and provide as follows:
1. I was born on [omitted] at Haryana, India.
2. I am currently Indian Citizen and holder of passport no [omitted].
3. I completed my studies from India which includes primary and secondary education inclusive of Bachelor of Arts in 2013.
4. I looked around for job prospects, but I was unable to achieve job satisfaction and career growth.
5. After that I reconsidered my further study options, in order to enhance my career opportunities, therefore applied for study visa of Australia.
6. I applied for Student (Class TU) Visa and was granted one, and I arrived in Australia on 4th May 2015.
7. After coming to Australia, I started MBA from ECU, but I was unable to cope with the academics due to different study structure and environment.
8. Even though I tried my best to attempt the units, but I was unable to meet competency, eventually my study was terminated from ECU due to low progress in academics.
9· After that, I got enrolled in Diploma of Leadership Management and completed the same in Mar 2018.
10. Subsequently, after that I was enrolled in Advanced Diploma of Leadership Management and completed the same in Dec 2018.
11. After coming to Australia, I observed how effective business is in Australia because they have been using management in a very effective manner. Whereas back in my home country, effective management is at root stage.
12. I, therefore, decided to gain knowledge and understanding of this sector, in order to enhance my job prospects.
13. Further, I applied for Student Visa (Subclass 500) on 5th Sep 2017.
14. My application was refused on 8th Nov 2017 as case officer found that I was not meeting clause 500.214 of Schedule 2 of the Migration Regulations.
15. I believe that the Department has made an error in this judgement.
16. I believe, assessing officer has failed to consider supporting documents while making a decision.
17. I applied for a review of the application with Migration and Refugee Division of Administrative Appeals Tribunal.
18. On 27th of November 2019, Administrative Appeals Tribunal affirmed the decision and denied grant of visa
19. I believe Department of Home Affairs ignored the study I have completed while staying on a student visa.
20. I believe that the Department of Home Affairs and Administrative Appeals Tribunal have not accessed my application, and thus assessment of my application lacks procedural fairness.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions. No further materials were filed.
The materials before the Court are thus limited to the judicial review application dated 23 December 2019, a Court Book numbering 60 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 7 August 2020.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, 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] (“SZRUI”); 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 that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. 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 (“Wu Shan Liang”).
Against this background, the applicant gave the Court a detailed history of his studies in Australia. He indicated that he had difficulties with the educational system when he first arrived. The applicant also explained that he had no excuse for not attending the hearing. He was unwell but did not tell the Tribunal. In effect, his non-appearance was “his mistake”. The applicant then said that he would like a chance to get another visa. He also stressed that while he was unable to prove that he met the financial criteria when his matter was determined by the Tribunal, he now had the means to do so as his parents would support him.
Unfortunately, the applicant’s submissions were directed to the merits of the Tribunal’s decision and pleaded with the Court to grant him the visa. The Court has no jurisdiction to review the merits of the decision or grant him the visa that he seeks: Wu Shan Liang.
The applicant’s oral submissions did not identify any jurisdictional error. The “grounds of review” will be assessed below.
Consideration
Grounds 1-14 and 17-18
Grounds 1-14 are factual matters that (largely) precede the visa application or are otherwise uncontroversial. They do not give rise to jurisdictional error.
Ground 17 and 18 are also factual matters that do not give rise to jurisdictional error.
Grounds 1-14 and 17-18 are, accordingly, dismissed.
Ground 15
Ground 15 states that the applicant “believes” that the Minister’s Department made an error in refusing to grant the visa. The applicant is referring to the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4).
Ground 15 is dismissed.
Ground 16
To the extent that the “assessor” in this ground of review is the Minister’s delegate, the Court has no jurisdiction to review the delegate’s decision.
The Court has proceeded on the basis that the “assessor” is the Tribunal and the applicant is claiming that the Tribunal failed to consider supporting documents.
The Court does not accept that the Tribunal failed to consider these documents.
The applicant provided the following documents in support of his visa:
a)the visa application (CB 1-16);
b)evidence of his English Language ability (CB 16);
c)evidence of his health insurance (CB 16);
d)a copy of his passport (CB 16);
e)the applicant’s genuine temporary entrant statement (CB 17-18); and
f)various academic documents (CB 19-30).
At [11], the Tribunal confirmed that it had “carefully considered” the materials on the Departmental file (which include the documents referred to above). More specifically, the Tribunal noted that the applicant had indicated in his visa application that he would be providing further documents “after” lodging the visa application (CB 16). No such documents were ever provided.
The Tribunal had regard to the “supporting documents” that the applicant had provided and noted the absence of relevant evidence.
If the applicant is concerned that the Tribunal did not refer “in detail” to some supporting documents (i.e., his genuine temporary entrant statement and his academic documents) no error arises in this regard because those documents were not relevant to the issue the Tribunal was considering (i.e., the financial capacity criterion). The Tribunal did not need to refer to these documents.
There is no evidence before the Court that the Tribunal failed to consider any supporting documents or that it in anyway overlooked relevant evidence.
Ground 16 is dismissed.
Ground 19
Ground 19 again refers to the “Department”. The Court does not have jurisdiction in relation to the Department’s decision.
To the extent that the applicant is saying that the Tribunal did not consider in detail the “academic documents” which outlined his previous studies that he provided when he filed his visa application, this is true. The closest the Tribunal came to referencing any academic documents (and the applicant’s previous studies) was to state that it had “read” the Departmental file.
The Tribunal did not “engage” with these documents, beyond noting that they were not evidence of financial capacity. Nothing more was required in this regard.
No error arises in this regard as the Tribunal was not required to “engage” with the applicant’s study history in order to determine the issue on review.
Accordingly, ground 19 reveals no error.
Ground 20
Insofar as this ground relates to the delegate’s decision (or the Department of Home Affairs), again, this Court has no jurisdiction in that regard.
The first part of this ground suggests that the Tribunal did not “access the applicant’s application”. This is incorrect. The Tribunal’s decision expressly references the visa application and, more specifically, a comment made in the visa application, as follows:
11.The applicant has not provided the Tribunal with any evidence at all. The Tribunal has read and carefully considered the Departmental file in relation to this matter, and has concluded (as the delegate noted) that the applicant provided no evidence regarding financial capacity to the Department either. The Tribunal notes that in the course of making his visa application, the applicant was asked to give details as to why he will not be providing attachments prior to lodging his application. Given the list of documents the applicant did provide, as set out at the end of the printed copy of the applicant’s visa application on the Departmental file, it is clear that that question related at least to documents going to financial capacity. The applicant answered that question in the words: “Will be provided after.” As there is no evidence at all before the Tribunal relevant to the requirements of cl.500.214(3), as set out in the Instrument, the Tribunal cannot find in the applicant’s favour on this issue.
It cannot be said that the Tribunal failed to “access” the applicant’s visa application.
The second part of this ground of review raises concerns in relation to the Tribunal’s procedural fairness obligations.
In this regard, the Court notes:
a)all of the information that the Tribunal relied upon was information that the applicant had provided in the course of his review. The Tribunal was not required to put this to the applicant as per s.359A of the Act. Gaps or absences of evidence are not information for the purposes of s.359A: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18];
b)the applicant was invited to attend a hearing before the Tribunal: the Act, s.360. The invitation was sent to the applicant and complied with the requirements under s.360A of the Act. Furthermore, the issue on the review was the same as the issue that was assessed by the delegate: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152;
c)the applicant failed to attend the hearing. The Tribunal then had the discretion to proceed with the review and make a decision without hearing from the applicant: the Act, s.362B(1A)(a). In circumstances where the applicant was validly invited (and was reminded by two SMS text messages) of the date and time of the hearing, where he had not indicated that he intended to attend the hearing or suggested that he would be unable to attend, where he had provided no documents in support of the visa application to either the delegate or the Minister and where the application had been on foot at the Tribunal for over two years, it was entirely reasonable for the Tribunal to proceed as it did under s.362B(1A)(a). Further, there was nothing to suggest that adjourning the hearing would result in any further information from the applicant;
d)before this Court, the applicant said that he was unwell at the relevant time and that this was why he did not attend the hearing before the Tribunal. The applicant did not communicate any health issues to the Tribunal or request an adjournment. Nor has applicant provided any evidence to support this assertion. Indeed, the applicant himself took responsibility for failing to attend the hearing. There is nothing to suggest that the applicant was unfit to participate at the hearing before the Tribunal;
e)the applicant also told the Court that he did not have the money to meet the financial capacity criterion at the relevant time and required more time. The Court notes that no request was ever made to the Tribunal for more time and there was no reason for the Tribunal to assume that more evidence was forthcoming; and
f)there is nothing to suggest that the Tribunal showed actual or apprehended bias. The Tribunal convened the hearing with the view to allowing the applicant an opportunity to present evidence. The Tribunal considered all of the materials before it and came to the conclusion it did objectively and without pre-determination. No bias issue arises as per Minister for Immigration v Jia Legeng (2001) 178 ALR 421 and SZRUI.
The Court is satisfied that the Tribunal did not breach any of the procedural fairness obligations that arise under div.5 of pt.5 of the Act.
No jurisdictional error arises in relation to ground 20.
Conclusion
The applicant has failed to establish that the Tribunal has fallen into jurisdictional error. The Court is otherwise satisfied that the Tribunal has not made any error of a sort that can be addressed by this Court.
The application is, accordingly, dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 August 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Appeal
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