Namjiltseren (Migration)

[2021] AATA 4340

Namjiltseren (Migration) [2021] AATA 4340 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Bayasgalan Namjiltseren
Ankhiluun Bayasgalan

CASE NUMBER:  1923091

HOME AFFAIRS REFERENCE(S):          BCC2019/3177022

MEMBER:T. Quinn

DATE:16 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 16 June 2021 at 2:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – subsequent entrant visa – primary visa holder’s pending Federal Circuit Court appeal – no final hearing date listed – adjournment request declined – President’s Direction in relation to Conducting Migration and Refugee Reviews – suggestion to join applications – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Federal Circuit Court Rules 2001 (Cth), r 11.01
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), cl 500.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 2 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants’ wife and mother, Ms Gerelsaikhan Ulziibat (hereinafter referred to as ‘Ms Ulziibat’), applied for a student visa as the primary applicant on 28 April 2019.  The applicants have applied for subsequent entrant, student visas as members of the family to join Ms Ulziibat who was the primary visa applicant for a TU-500 Student Visa (‘the application’).   At the time of the application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  Ms Ulziibat was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither of the applicants in this case or Ms Ulziibat claim to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 2 August 2019, the delegate refused to grant the applicants in this case a subsequent entrant visa on the basis that they did not satisfy the requirements of clause 500.311 of Schedule 2 to the Regulations, namely that they were not members of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 23 August 2019, the delegate refused to grant Ms Ulziibat the student visa on the basis that she did not satisfy clause 500.217 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) (namely, the public interest criteria were not satisfied).

5. Ms Ulziibat sought a review of the delegate’s decision in September 2019 with this Tribunal.  Member Witts of this Tribunal affirmed that decision on 18 March 2021 (Tribunal case number 1925195).  Ms Ulziibat has appealed that decision to the Federal Circuit Court (proceeding number SYG619/2021).  That case is yet to be finally determined – there have been orders made for the filing of affidavits by 23 September 2021 but, so far as the Tribunal can ascertain, no final hearing date has been fixed.

6. On 2 August 2019, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

7. The applicant sought an adjournment of his case on 1 and 3 June 2021 and on the day of hearing (16 June 2021).

8. On 1 and 3 June 2021, the applicant requested an adjournment of his hearing listed for 16 June 2021 until after 23 September 2021 on the basis that his wife’s Federal Circuit Court case would be finalised on that day. 

9. The Tribunal gave this request and the circumstances, reasons and explanation put forward careful consideration.  The Tribunal declined to grant this adjournment request for a number of reasons. 

10. Firstly, the orders in that proceeding do not read as though matters will be finalised on that day, it is listed as the final date for Ms Ulziibat to file affidavit and in fact no final hearing date is listed. 

11. The Tribunal’s objectives under section 2A of the Administrative Appeals Tribunal Act 1975 include providing a mechanism of review that is fair, just, economical, informal, quick, and proportionate to the importance and complexity of the matter under review.

12. The Tribunal also notes that the Tribunal President’s Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975 (‘the President’s Direction’). Clause 5.2 of the President’s Direction states that requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the Tribunal has given sufficient advance notice of a hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. Cogent reasons are required for the postponement of a hearing, and not merely for the convenience of the applicant. With respect, the Tribunal considers the applicant’s submissions in relation to his application for adjournment cannot justify the granting of an adjournment in order that the applicant be given more time to comply with a mandatory requirement of the Act and Regulations when they are currently non-compliant, in order to engage the decision maker on criterion that is preferable for the purposes of their application. Further, it is speculation as to whether Ms Ulziibat will in fact be successful in her Federal Circuit Court appeal and the Tribunal does not consider there is certainty as to when that decision will be made.

13. The Tribunal considers that the applicant was unable to provide such cogent reasons. Whilst the Tribunal empathises with the applicant, it is not appropriate to delay a case such as this by over three months on the basis of speculation about the prospects of an appeal. Even if Ms Ulziibat is successful in her Federal Circuit Court appeal, she actually still will not hold a current student visa at that time in order that the applicants in this case would meet the criteria of clause 500.311 for the purposes of the current application. If Ms Ulziibat is successful in the Federal Circuit Court appeal, it is likely her matter will be remitted for reconsideration. The process involved can involve extensive periods of time and during that time, unless and until her application is sent back to the Department for reconsideration, she will remain on a bridging visa and not hold a student visa such that the applicants in this case would meet clause 500.311.

14. The Tribunal has considered whether, in the circumstances of this case, the review applicant has had a fair opportunity to provide relevant information already.

15. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[3] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[5]

    [1] [2002] FCA 617.

    [2] [2001] FMCA 28.

    [3] [2013] HCA 18 (8 May 2013).

    [4] [2014] FCAFC 1 (4 February 2014).

    [5] [2014] FCA 915 (28 August 2014).

16. In these circumstances, for the reasons set out in this decision record, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

17. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.

18. The applicant appeared before the Tribunal via telephone hearing on 16 June 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. 

19. During the hearing, when it became apparent that the applicant was not going to be successful, he again sought an adjournment, repeating the submissions contained in his applications of 1 and 3 June 2021.  The Tribunal stated that it had considered the adjournment request but that the Tribunal has an obligation to be efficient and that it was speculative if and when Ms Ulziibat would be on a student visa and the Tribunal could not delay the matter on this basis.  The Tribunal refers to and repeats paragraphs 9-17 above in this regard.

20. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

21. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

    a.the oral evidence of the first named applicant given at the hearing;

    b.all written material filed by or on behalf of the Applicant; and

    c.other relevant documents on the Tribunal and Department files.

    The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

22. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicants satisfy the secondary criteria.

23. Clause 500.311 requires as follows:

    The applicant is a is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

    (a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in

    (i)the primary person's application under subregulation 2.07AF(3); or

    (ii)information provided in relation to the primary person's application under subregulation 2.07AF(4); or

    (b)the applicant became a member of the family unit of the primary person:

    (i)after the grant of the student visa to the primary person; and

    (ii)before the application was made.

24. Clause 500.311 relevantly requires that, at the time of decision, the applicants be family members of the family unit of a person who holds a student visa (emphasis added) and therefore the applicants’ application must be founded on evidence that Ms Ulziibat holds a student visa.[6] 

    [6]Clause 500.312 of Schedule 2 to the Regulations.

    Significance of Primary Visa Holder Criterion

25. Producing evidence that the primary visa holder holds a current student visa is a critical first step towards obtaining a subsequent entrant student visa. The Tribunal must therefore be presented with evidence that shows the primary visa holder currently holds a student visa. Absent such evidence, a subsequent entrant student visa cannot sensibly be grated. Indeed, in any case for a subsequent entrant student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.311-500.318 of the Regulations, is premised on the primary visa holder holding a student visa criterion in clause 500.311 first being satisfied. If this criterion is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    THE HEARING

26. The Tribunal went through Ms Ulziibat’s application history (as set out above) with Mr Namjltseren at hearing and confirmed that she does not hold a current student visa and is awaiting the outcome of her Federal Circuit Court appeal.

27. The applicants were unable to produce evidence that they are members of the family unit of a person who holds a student visa to the Tribunal at the hearing which would establish that they met the essential requirement under clause 500.311.

28. The Tribunal has no evidence that the applicant is a member of the family unit of a person who holds a student visa which would establish that the applicant meets the essential requirement under clause 500.311 of the Regulations.

29. The applicant does not meet the regulatory requirements for the grant of a subsequent entrant student visa because there is no evidence satisfying the criteria of ‘a member of the family unit of a person who holds a student visa’ as set out in clause 500.311 of the Regulations.

    Suggestion to Join Applications

30. Rule 11.01 of the Federal Circuit Court Rules 2001 states that

    (1)Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.

    (2)The Court may require a person to be included as a party.

    (3)A person required to be included as an applicant who does not consent to be included may be included as a respondent.

    (4)The Court may decide a proceeding even if a person is incorrectly included or not included as a party.

31. The Tribunal has considered whether it ought to delay the determination of this application until after Ms Ulziibat’s Federal Circuit Court proceeding is finalised.  However, this would make the Tribunal’s decision in this case significantly over time given the timetable extends to late September 2021 with no final hearing date listed. 

32. The Tribunal also notes that the aim of the AAT is to provide accessible, fair, just, economical, informal, and quick review processes.  Given the extensive delays likely to occur in this matter if the Tribunal was to wait until determination of Ms Ulziibat’s substantive application, the Tribunal considers it is not appropriate or warranted in the circumstances.  It is preferable, more efficient and makes more practical sense to join the applicants in this case to Ms Ulziibat’s application so that all matters can be heard by the one decision maker simultaneously.

33. Should the applicants in this case appeal the Tribunal’s decision, the Tribunal respectfully suggests that the Federal Circuit Court consider including Mr Namjltseren and Miss Bayasgalan as parties in the application of Ms Ulziibat, proceeding number SYG619/2021 pursuant to Rule 11.01 as set out in paragraph 30 above. In this way, all matters associated with Ms Ulziibat’s appeal, which includes the status of her husband and daughter, will be completely and finally determined simultaneously.

    CONCLUSIONS

34. The Tribunal is not satisfied that at the time of its decision, the applicants are members of the family unit of a person who holds a student visa and accordingly clause 500.311 of the Regulations is not met.

35. Given the above findings, the Tribunal is not satisfied that the applicants meet the requirements of clause 500.311 of Schedule 2 to the Regulations. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

36. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    T. Quinn
    Member