NAZ v Minister for Immigration
[2020] FCCA 796
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAZ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 796 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – decision of the Administrative Appeals Tribunal – where the applicant held no confirmation of enrolment – whether Tribunal should have adjourned – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.500.214 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | GUL NAZ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 268 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 April 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms B Rayment |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 268 of 2019
| GUL NAZ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a citizen of Pakistan. She first arrived in Australia in late 2010 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa. She applied for and was granted various student and bridging visas after that time. In September 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) in order to study an Advanced Diploma of Business.
On 7 February 2017, a delegate of the first respondent (the “Minister”) refused to grant the visa. That decision was upheld by the Administrative Appeals Tribunal (the “Tribunal”) on 1 July 2019.
The applicant has now filed an application for judicial review in this Court seeking a review of the Tribunal’s decision.
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To be successful in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Before the Court is the applicant’s judicial review application dated 18 July 2019, an affidavit of the applicant sworn 18 July 2019, a Court Book (“CB”) numbering 99 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 16 March 2020.
The Court confirmed with the applicant that she had received and reviewed the Court Book and the Minister’s written submissions.
The hearing of this matter on 6 April 2020 proceeded by way of teleconference. In light of the current health advice, the Court determined that this was an appropriate manner in which to conduct the hearing. The applicant did not request an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for both parties to participate and engage in the proceedings.
Background
As noted above, the applicant applied for the visa the subject of this application on 14 September 2016 (CB 1-23). She indicated that she intended to study an Advanced Diploma in Business.
On 2 November 2017, the Minister’s department asked the applicant to provide further information relevant to the visa category (CB 25-33). In a response provided on the same day, the applicant indicated that her father had passed away and she was returning to Pakistan for three months. She further indicated that she would respond when she returned (CB 34)
On 7 February 2017, the delegate refused to grant the applicant the visa (CB 35-39). The delegate found that the applicant did not meet cl.500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”). The delegate was not satisfied that the applicant had provided evidence that she met the relevant financial capacity requirements.
On 8 February 2017, the applicant emailed the delegate a number of supporting documents and asked that the decision be reconsidered (CB 40-46).
On 23 February 2017, the applicant applied for review of the delegate’s decision at the Tribunal (CB 51-52). The applicant attached various documents to the review application (CB 53-61).
The applicant was invited to attend a hearing on 1 July 2019. The applicant asked that the hearing be adjourned for medical reasons (CB 76-78). The Tribunal refused to adjourn the hearing (CB 80-82). The applicant appeared before the Tribunal by telephone on 1 July 2019.
The Tribunal delivered an oral decision at the end of the hearing and affirmed the delegate’s decision not to grant the applicant the visa (CB 87). The Tribunal’s reasons were reduced to writing on 12 August 2019 (CB 91-92).
Tribunal’s Decision
The Tribunal’s written decision is 3 pages long and spans 14 paragraphs. Relevantly, the Tribunal wrote:
6. The applicant appeared before the tribunal on 1 July 2019 to give evidence and present arguments by telephone link with Western Australia. While the determinative issue before the delegate was whether the applicant met the criteria under clause 500.214, it became clear at the outset of today’s hearing that she did not meet other criteria that must be satisfied for the grant of a student visa.
7. Clause 500.211 of the Regulations requires the applicant to be enrolled in a registered course of study at the time the tribunal makes its decision. At the commencement of today’s hearing, the tribunal enquired of the applicant if she is currently enrolled in a registered course of study. In oral evidence, the applicant stated that she was not. The applicant was not able to produce any documentary evidence that demonstrated a current enrolment and that is because, as stated, she admitted that she was not currently enrolled.
8. It appears, through her submissions and her evidence, that she effectively stated that she did not have enough time to organise the documentation, including most probably the documentation that might have been able to satisfy clause 500.214, being her financial documentation, and the tribunal has taken those comments as essentially a request for an adjournment. That application for an adjournment has been refused on the basis that the applicant has had an adequate opportunity to arrange her affairs and prosecute her own application for review. It has been more than two years since the original refusal was made.
9. The applicant conceded in evidence that she received the letter inviting her to this hearing some weeks ago and that letter made it clear that she needed to provide documents.
10. Accordingly, having refused the adjournment, the tribunal must now proceed to determine the matter on the basis of the evidence before it. There is no current enrolment. As such, the applicant fails to satisfy the criterion contained in clause 500.211. In these circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the tribunal.
11. If the applicant does not meet the criteria under clause 500.211, there is no point in the tribunal proceeding to consider whether she has evidence of genuine access to funds under clause 500.214. In any event, the tribunal has considered that issue as well and there is no documentation satisfying the criterion under clause 500.214 as well.
Proceedings in this Court
The application for judicial review contains two grounds of review as follows:
1. The decision of the tribunal dated 01/07/2019 is affected by the jurisdictional error because the tribunal failed to take in to account a relevant consideration.
2. The tribunal member failed to determine that the appellant does not meet the requirements of cl.500.214 of the schedule of the Migration Regulations
The applicant also filed an affidavit which provides:
1. I am a citizen of Pakistan and currently live in Australia.
2. I applied to department of Immigration for Student Visa subclass 500 on 14th September 2016 and the delegate decided to refuse my application on 7th February 2017.
3. The delegate refused to grant me visa because I did not satisfy the requirements of cl.500.214 of Schedule 2 of the Migration Regulations.
4. I then applied for review of decision made by the delegate to refuse to grant the applicant student visa which was affirmed by tribunal member on 1st July 2019.
5. Since I am in Australia, I have always complied with my visa conditions.
6. While I studied in Australia, I have always paid my tuition fees and completed my courses on time.
7. During the processing of AAT proceedings a written request was submitted to request some more time to arrange evidence of financial capacity on medical grounds, which was declined by Tribunal member. The evidence of medical condition was also submitted along with the request.
8.Due to some family issues back in Pakistan, I couldn’t arrange requested documents.
9. The tribunal had no evidence before him to determine that I do not meet the criterion.
10. For the reasons above, I claim that AAT had made ‘jurisdictional error’ in deciding my visa application.
11. It is, therefore, request that the court makes order as requested in the application to which this affidavit is an attachment.
The applicant was provided an opportunity to file an amended application, any further affidavits and an outline of submissions. No further materials were provided.
On 29 January 2020, the applicant emailed Chambers advising that she was receiving medical treatment. She asked that she be given an extension of time to provide documents and that the matter be listed in November 2020. The applicant was advised that she needed to obtain consent from the Minister and, if no agreement could be reached, that she would need to file an application in a case with a supporting affidavit. No adjournment application was made. Nor did the applicant press her request for an adjournment when the substantive matter was eventually heard by this Court.
On 24 March 2020, the applicant emailed Chambers and stated that she was concerned about the coronavirus. She said she did feel safe going outside and is residing with her brother and his three young children. The applicant asked the Court to adjourn the hearing date “until this dangerous situation get over”. The Court emailed the parties advising that in light of the current health situation, the hearing would proceed by telephone. The applicant raised no objection to this course of action and provided her contact number accordingly.
At hearing, the applicant appeared before the Court without legal representation. The Court allowed the applicant the opportunity to elaborate on, and further particularise, her grounds of review and raise any other concerns she had with the Tribunal’s decision. This is now standard procedure in this Court following the Federal Court’s recent decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that this Court can only turn its attention to whether there was 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 applicant that this Court cannot review the merits of the Tribunal’s decision or grant her the visa she now seeks. 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 applicant was asked to tell the Court what she thought the Tribunal “did wrong”. In effect, the applicant submitted that at the time of the hearing before the Tribunal she was suffering from medical issues. She asked for an adjournment and this was not granted. She explained that it was difficult for her to gather documents while she was ill. The applicant also referred to her attempts to provide documents to the delegate and explained that a number of matters arose which made this difficult (this included a lack of internet access).
Insofar as the applicant is referring to difficulties providing documents to the delegate, while sympathetic, the Court notes that the Tribunal’s decision supersedes the delegate’s decision. Hence, the applicant had ample opportunity to provide these documents to the Tribunal. No error arises in this regard.
As for the applicant’s submissions about the Tribunal’s consideration of her health issues and the Tribunal’s decision not to adjourn, the Court will consider in detail below when considering the applicant’s grounds of review.
Consideration
Ground 1
Ground 1 provides:
The decision of the tribunal dated 01/07/2019 is affected by the jurisdictional error because the tribunal failed to take in to account a relevant consideration.
Here, the applicant has not clearly identified what “relevant consideration” was not taken into account.
The applicant’s affidavit (at [5]-[6]) appears to suggest that the Tribunal failed to consider the fact that she had always complied with her visa conditions and paid her tuition fees.
The Tribunal was not required to consider these matters as they were unrelated to the determinative issues before the Tribunal – i.e., the applicant’s enrolment status and her capacity to meet the financial capacity criterion.
Whether or not the applicant complied with her visa conditions and had paid her tuition fees was not relevant to whether or not the applicant was enrolled in a course.
The Tribunal alternatively found that the applicant had not provided evidence that she met the financial capacity criterion. Again, the applicant’s compliance with the relevant visa conditions and her previous payment of tuition fees were not relevant to the applicant’s financial capacity at the time of the Tribunal’s decision.
The applicant’s affidavit (at [8]) could be read as suggesting that the Tribunal did not consider the fact that “family issues” had prevented the applicant from providing documents. Before this Court, the applicant seemed to indicate that this is what she was referring to in ground 1 (in addition to the health troubles she was having at the relevant time).
The Tribunal did consider this issue (at [8]-[9]). It found that the applicant had had over two years to prepare documentation and was aware what documents were to be provided. While the applicant might not agree with the conclusions ultimately drawn by the Tribunal, it cannot be said that the Tribunal failed to engage with the information before it.
Having reviewed the Tribunal’s decision in detail, it cannot be said that the failed to consider any relevant considerations advanced by the applicant.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
The tribunal member failed to determine that the appellant does not meet the requirements of cl.500.214 of the schedule of the Migration Regulations
This ground is factually incorrect. The Tribunal did determine that the applicant failed to meet the requirements of cl.500.214 of the Regulations (at [11]).
In the applicant’s affidavit (at [9]) she states that there was no evidence that she did not meet cl.500.214. The applicant appears to suggest that it is for the Tribunal to find evidence that an applicant does not meet the relevant criterion. This is incorrect. It is for the applicant to affirmatively satisfy the Tribunal that she satisfies the criterion. The applicant must provide the evidence and information necessary to satisfy the criterion.
The only evidence the Tribunal had before it was a bank statement dated in February 2017. On that basis, it was open to the Tribunal to conclude that, at the time of the decision (in July 2019), it was not satisfied there was any documentation satisfying cl.500.214 of the Regulations.
Ground 2, accordingly, is dismissed.
The applicant’s affidavit
Paragraphs [1]-[3] and [10]-[11] of the applicant’s affidavit do not identify any error. They are factual matters or requests for assistance.
The only paragraph of the applicant’s affidavit that remains to be addressed is [7], which provides:
During the processing of AAT proceedings a written request was submitted to request some more time to arrange evidence of financial capacity on medical grounds, which was declined by Tribunal member. The evidence of medical condition was also submitted along with the request.
The applicant also directed her oral submissions to this issue.
The applicant requested an adjournment of the Tribunal hearing for medical reasons. During the course of the hearing, the Tribunal also considered the applicant’s statement that she did not have enough time to gather documentation and interpreted this to be a request for an adjournment.
In relation to the request to postpone the hearing, the basis for that request was that the applicant was getting “medications” which cause nausea and make it hard to concentrate (which make it difficult to “fully respond” and collect documentation) (CB 76).
The medical evidence that the applicant provided to the Tribunal indicated that she had a “medical condition” that rendered her “unfit for work” until 2 August 2019 (CB 79).
The adjournment request was made on short notice (5 days before the hearing). The medical certificate was generic. It did not indicate what the applicant’s medical condition was and how it inhibited her ability to participate in the hearing before the Tribunal. The applicant’s email suggested that her medication caused nausea and made it difficult to concentrate. However, this was not reflected in the medical certificate.
In the circumstances, the Court does not consider it unreasonable for the Tribunal not to have adjourned the hearing. The evidence in support was unsatisfactory and the Tribunal’s decision does not indicate that the applicant at any time suggested her medical condition was causing her ay difficulties during the hearing. It cannot be said that no reasonable decision-maker would not have made the same decision.
In relation to the implied request for an adjournment to obtain further documents, the Tribunal’s reasons for not adjourning to allow the applicant to obtain further documents were:
a)that the application had been on foot for over two years, during which time the applicant could have gathered or collected various documents; and
b)that the applicant admitted to the Tribunal that, by virtue of the correspondence sent by the Tribunal, she was aware of what documents were required from her.
In these circumstances, it was open to the Tribunal to refuse to grant an adjournment. The Tribunal was not unjust, arbitrary or capricious in refusing to grant an adjournment. The applicant did not indicate that she had sought to become enrolled in a course or that she had requested the documents that she had been unable to gather in time and was awaiting their arrival. Rather, the applicant appeared to suggest that she required an adjournment generally in order to obtain documents relevant to the various criterion.
Overall, it was within the Tribunal’s area of decisional freedom not to grant the adjournment.
The applicant’s affidavit does not identify any error.
Conclusion
The applicant’s application for judicial review and her affidavit fail to identify any jurisdictional error on the part of the Tribunal.
The Court has otherwise reviewed the Tribunal’s decision (as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and cannot identify jurisdictional error. On the applicant’s own evidence she was not enrolled in a course of study. This was a sufficient basis for the visa to be refused. Indeed, once that much was clear, the Tribunal was required to refuse the visa.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 April 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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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