Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 213
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 213
File number: SYG 1314 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 February 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal - Student (class TU) (subclass 500) visa - allegation of legal unreasonableness – s 359 letter – where the applicant did not provide additional information to the Tribunal within the time frame -no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359, 360,363
Migration Regulations 1994 (Cth) Sch 2, cl 500.211
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur vMinister for 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 Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v Minister for Immigration and Anor [2010] FMCA 890
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 6 February 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Pinder (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1314 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BA AN NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,100.00.
THE COURT FURTHER ORDERS THAT:
4.A Registrar of this Court refer this matter to the Office of the NSW Legal Services Commissioner for consideration of the conduct of the applicant’s legal representative, providing copies of the following:
(a)A copy of the reasons for judgment in the judicial review application; and
(b)A copy of the email correspondence between the Chambers of Judge D Humphreys and the applicant’s legal representative.
(c)A transcript of the proceedings on Thursday 6 February 2025.
THE COURT NOTES THAT:
A.The Orders made on 19 February 2025 are amended pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 to amend Order 4 to include an order directing a transcript of the proceedings to be taken out.
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
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 16 June 2021. The Tribunal affirmed a decision made on 14 October 2019 by a delegate of the Minister for Home Affairs (“delegate”) to refuse to grant the Applicant a Student (class TU) (subclass 500) visa (“visa”).
For the reasons outlined below, the Application must be dismissed.
BACKGROUND
The Applicant is a male citizen of Vietnam. He first arrived in Australia on 7 July 2014.
On 14 May 2019, the Applicant applied for the visa.
On 14 October 2019, a delegate refused to grant the Applicant the visa under s 65 of the Migration Act 1958 (Cth) (“Act”). The delegate was not satisfied that the Applicant met Genuine Temporary Entrant (GTE) criterion in cl 5000.212 in Sch 2 of the Migration Regulations 1994 (Cth) (“Regulations”).
On 1 November 2019, the Applicant applied to the Tribunal seeking review of the delegate’s decision.
On 12 February 2021, the Tribunal formally wrote to the review Applicant pursuant to s 359(2) of the Act inviting the Applicant to provide further information to the Tribunal, including information in relation to enrolment for the purposes of cl.500.211(a) of the Regulations. The Applicant’s representative provided a response however the response was not provided within the specified time frame.
On 16 June 2021, the Tribunal affirmed the decision not to grant the Applicant a visa.
On 14 July 2021, the Applicant applied to the then Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At [6] the Tribunal was satisfied the Applicant was properly sent an invitation to provide further information under s 359(2) of the Act.
The Tribunal found at [7] that as the Applicant did not respond within the prescribed period, s 359C(1) necessarily applied. Pursuant to s 360(3), the review Applicant was not entitled to appear before the Tribunal. The effect of s 363A of the Act was that if a review Applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear; (see: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [26]; Yang v Minister for Immigration and Anor [2010] FMCA 890 at [40]).
At [9] the Tribunal had regard to various case law and whether it should adjourn the review under s 363(1)(b) of the Act to allow the Applicant additional time to provide further supporting evidence; (see: Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, Manna v Minister for Immigration and Citizenship [2012] FMCA 28, Minister for Immigration and Citizenship v Li [2013] HCA 18, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, Kaur vMinister for Immigration and Border Protection [2014] FCA 915).
On 15 March 2021, the Applicant provided copies of documents related to the International English Language Testing System (“IELTS”) tests, Confirmation of Enrolment (“COE”) certificates and an offer letter. The Tribunal stated at [10] that no written submissions were provided.
The Tribunal therefore decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further and allow the Applicant more time.
At [14] the Tribunal instructed itself as to the relevant criteria for the visa. At issue was whether the Applicant satisfied cl 500.212 of the Regulations.
It stated at [16] that regard must be had to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act.
The Tribunal considered the ‘meaning of Genuine Applicant’ from [18] – [23] and the applicant’s circumstances from [24] – [32]. The Tribunal stated at [31] that the Applicant had provided little information, including no written submission, and had failed to inform the Tribunal of any academic progress since the delegate’s decision.
The Tribunal stated at [34] there was no evidence that suggested the delegate’s findings, concerning the Applicant’s circumstances in his home country, were incorrect.
At [37] the Tribunal stated that there was nothing to suggest the findings of the delegate with respect to the Applicant’s circumstances in Australia, were incorrect.
At [39] the Tribunal found the Applicant had provided a large number of COE’s for courses from 2017 to 2022. However, the Applicant did not provide any copies of academic transcripts or certificates of graduation or attainment related to any of the courses of study. It stated the COE’s demonstrated only a minimal payment of tuition fees for each of the particular course enrolments. The Tribunal also stated the Applicant had not provided any receipts that demonstrated payment of all or most of the tuition fees required for each course.
The Tribunal was not aware of the value of the course to the Applicant nor the reasons the Applicant enrolled in the particular course. The Tribunal stated at [40] it was reasonable to infer the Applicant had only re-commenced studies and applied for a Student visa for the purposes of prolonging his stay in Australia rather than due to a genuine interest in study and overall academic progress.
In respect of the Applicant’s immigration history, the Tribunal stated at [42] the Applicant had not challenged the findings of the delegate.
The Tribunal concluded at [43] it was not satisfied the Applicant intended to genuinely stay in Australia temporarily. Accordingly, the Applicant did not meet cl 500.212(a).
The Tribunal concluded at [44] it was not satisfied the Applicant was a genuine Applicant for entry and stay as a student as required by cl 500.212.
GROUNDS OF JUDICIAL REVIEW
The ground of judicial review is contained in an Originating Application lodged on 14 July 2021. It is reproduced as follows (emphasis in original):
Ground One:
1.The Administrative Appeals Tribunal (“the Tribunal”) was aware, at the time it was considering whether or not to exercise its power under s 363(1)(b) of the Migration Act 1958 (Cth) to adjourn the review to allow the applicant more time to respond to its letter dated 12 February 2021, that the applicant had provided little further evidence or information to the Tribunal in support of his application to the Tribunal. In circumstances where the applicant was no longer entitled to a hearing before the Tribunal, a separate question was whether the Tribunal should give the applicant, through its power under s 359(2), a final opportunity to provide additional information to the Tribunal by way of a further letter from the Tribunal to the applicant giving him a final opportunity. The Tribunal did not consider whether to exercise its discretionary power under s 359(2) in this way. The Tribunal’s failure to consider its possible exercise of power under s 359 involved jurisdictional error.
THE APPLICANT’S SUBMISSIONS
The Applicant appeared before the Court unrepresented. He had been previously represented by Mr Andy Pham of Andy Pham Lawyers. The history of Mr Pham’s representation of the Applicant is troubling.
On 5 August 2021, a Registrar of this Court made Orders for the Applicant to file any amended Application together with written submissions twenty-eight (28) days prior to the Court date. The matter was then set down for hearing on 6 February 2025. In accordance with this direction, written submissions should have been filed by 9 January 2025. No such submissions were filed.
Correspondence then took place between the Court, Mr Pham and the legal representative appearing for the Minister. The Minister’s legal representative quite correctly indicated that they were unable to file any written submissions in circumstances where the Applicant was represented, until the Applicant’s written submissions were indeed filed.
On 5 February 2025, the Court received an unsealed Affidavit from Mr Pham. That Affidavit stated that Mr Pham had briefed Counsel, Mr Benjamin Zipser in July 2021. He then stated “However in November 2024, Mr Zipser was appointed by the Attorney General of New South Wales to become a Judge of this Honourable Court, so I have yet appoint any other Counsel in this matter [sic].”
The above statement is incorrect in a number of ways. First, Judge Zipser was appointed by the Commonwealth Attorney General to the Federal Circuit and Family Court of Australia (Division Two). More importantly, Judge Zipser’s appointment was announced on 30 August 2024, and he was sworn in on 16 September 2024. Prior to his appointment, Judge Zipser, as is the normal course where a person is appointed to the bench, returned all of his briefs to his instructing solicitors. The Court is satisfied that Mr Pham was on notice from at least mid- September 2024 of his need to brief alternative Counsel. He acknowledges however that he had not yet appointed any other Counsel to appear in the matter.
Mr Pham goes on to outline a number of significant family issues he has been dealing with including the death of his mother in October 2024 along with sharing the care of his grandmother, aged ninety-eight (98), who has been in and out of hospital.
Mr Pham states that “when I returned to work at the office on 20 January 2025, I realise that I was sent with a Court listing for this matter for 6 February 2025… I had inadvertently overlooked this listing, which I am deeply regret.”
He then states that he attempted to have this matter relisted however the Court did not agree, Mr Pham goes on to state that he was asked by the Applicant in this matter that he discharge himself from his retainer in the matter.
Mr Pham states that he needed to take his grandmother for urgent medical consultation to Concord Hospital and requested to be excused from attending the Court hearing on 6 February 2025.
At 3:40PM on 5 February 2025, Mr Pham filed a Notice of Withdrawal as a Lawyer. Notwithstanding requests made by the Court, he did not appear when the matter was called on for hearing at 10:00AM on 6 February 2025.
During the course of the hearing, the Applicant stated from the bar table that it was in fact Mr Pham who requested that his instructions be withdrawn. Mr Pham provided the Applicant with a set of written submissions and discussed these with him in a meeting on 5 February 2025.
First, the Court is satisfied that Mr Pham unreasonably failed to take action to re-brief the matter to another Counsel following the appointment of now Judge Zipser to this Honourable Court. The Court is satisfied that Mr Pham would have been aware of the appointment by mid-September 2024.
Second, by his own admission, Mr Pham overlooked the notice of listing for the hearing of this matter, set down for 6 February 2025. In so doing, Mr Pham in the Court’s view was negligent.
Third, Mr Pham failed to comply, while still on the record as the Applicant’s Solicitor, with the Court’s direction that any submissions be filed twenty-eight (28) days prior to the Court hearing. Written submissions in fact were not filed by the Applicant in person until 31 January 2025. As a result, both the Court and more importantly the Respondent was seriously inconvenienced by not having any real idea of what case was being argued by the Applicant. Whilst this might be acceptable in circumstances where an Applicant is self-represented, it is not the case where an Applicant is represented. Mr Pham’s actions were both in breach of Court Orders and seriously discourteous to both the Court and the Ministers legal representative.
Fourth, notwithstanding the Court directing Mr Pham to attend the hearing of the matter on 6 February 2025, he deliberately chose not to. The filing of the Notice of Ceasing to Act late on the day before the hearing, in the Court’s view, was unacceptable given the history of this particular matter and, in circumstances where the Court accepts it was Mr Pham who asked for his instructions to be withdrawn, rather than as asserted by Mr Pham, the Applicant terminated his instructions.
The Court is of the view that the actions of Mr Pham were very discourteous, unprofessional and may involve unsatisfactory professional conduct. In these circumstances, the Court proposes to refer the papers in this matter to the Legal Services Commission of New South Wales for consideration.
Given the Applicant was unrepresented, at the commencement of the hearing the Court explained it was undertaking judicial review, not merits review and the difference between the two (2) types of review. The Court also explained the procedure by which the hearing would be undertaken. Whilst an interpreter was present, she was not required, and the Court was satisfied that the Applicant had a more than sufficient understanding of the English language to fully participate in the hearing.
The Court ensured that the Applicant had a copy of the Respondent’s written submissions and that he had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
The Applicant relied on written submissions which had been provided to the Court, albeit late. Those submissions at paragraph 4, accepted that the Tribunal had no power in the circumstances of the matter to permit the applicant to Appear before it to present arguments given he had failed to provide information requested in the s 395 letter within the required time frame.
In these circumstances, the Tribunal had two (2) options. Firstly, to proceed to a decision without taking further steps to obtain the balance of the information; or second, to allow the applicant further time to answer the Tribunal’s invitation to provide information before proceeding to a decision on the merits.
In this case, the Tribunal decided to proceed to a decision without taking further steps to obtain the balance of the information. It was submitted that it would have made no difference to the Tribunal to have allowed further time to allow the requested information to be provided.
It was suggested that the circumstances in June 2021 were extraordinary, given that was the middle of the COVID-19 lockdown and that in these circumstances, the least the Tribunal could have done was to allow a further two (2) weeks.
It was submitted that the decision to proceed to finality without allowing further time was a denial of procedural fairness in circumstances where a previous extension of time had been granted. It was submitted that the Tribunal did not substantively consider the further request in light of the bigger picture at the time.
The Tribunal’s failure to accommodate the request for a further short period to provide information was unreasonable.
FIRST RESPONDENT’S SUBMISSIONS
On behalf of the Minister, it was submitted the Tribunal identified that the Applicant’s response to the Tribunal s 359 invitation was out of time. It was satisfied that the invitation had been properly sent to the Applicant’s nominated address.
It was submitted the Tribunal properly found that as the Applicant did not respond to the invitation to provide information, the Tribunal was empowered to make a decision on the review without taking further action to obtain that information. Further, the Applicant was not entitled to appear before the Tribunal.
While the Tribunal decided not to exercise its discretion pursuant to s 363(1)(b) of the Act to adjourn the review to provide the Applicant with further time to provide information, the Tribunal made its decision having regard to information before it, including information provided by the Applicant of the Tribunal via email on 13 March 2021. The Tribunal further noted that the Applicant did not otherwise provide any written submissions to the Tribunal.
It was submitted that the exercise of the power in s 359 is discretionary and the Tribunal was under no obligation to seek out information not presently available or not put to it by the Applicant: (see: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [32]). It was submitted that no unreasonableness had been demonstrated in the Tribunal not considering whether to exercise its discretion under s 359(2) for the second time in circumstances where the Applicant had been validly invited to provide information and was on notice that if the information was not provided within the prescribed time frame, the Tribunal could make a decision on the review without taking further action to obtain information.
In any event, it was submitted that the Applicant had not identified what additional information the Tribunal ought to have requested which was not already sought in its initial s 359 invitation of 12 February 2021. There is nothing to suggest that a second invitation would have prompted the Applicant to provide further evidence. Further, notwithstanding the decision not to allow further time for the receipt of information, the Applicant’s representative did not provide a further submission of documents during the three (3)-month period until the decision of the Tribunal was handed down on 16 June 2021. The Applicant had three (3) further months to provide evidence but failed to do so. In these circumstances it was not unreasonable for the Tribunal not to consider the exercise of its discretion (for the second time) under s 359(2).
Although not specifically pleaded by the Applicant, the Minister submitted that the Tribunal was correct to find that the applicant was not entitled to attend a hearing before it. The Applicant was invited to provide information pursuant to s 359(2). The request specified the information had to be provided by 12 March 2021. In the absence of a response within that time frame, the Applicant was advised the Tribunal could make a decision to review the matter without taking any further action to obtain information and the Applicant would lose any entitlement to appear before the Tribunal.
It was submitted that the letter complied with all specified statutory requirements in respect of how the information could be given to the Tribunal and provided at least a fourteen (14) day time frame in which to provide the material. As the Applicant did not respond, s 360 of the Act operated such that the Tribunal had no power to permit the Applicant to appear before it.
Finally, it was submitted that the decision to proceed under s 359C and not exercise a discretion to allow further time under s 363 was reasonable in all of the circumstances. The Applicant plainly received the Tribunal’s request for information and responded to it (albeit outside of the time frame required). The Tribunal correctly identified the Applicant had provided documents but did not otherwise provide any written submissions. Whilst the Applicant provided a current COE, a submission (presumably addressing the GTE criterion) which the Applicant indicated would be made available, was never provided. In this case the reason to proceed under s 359C and not exercise a discretion under s 3 63 is apparent and reasonable.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In this matter, the sole ground of judicial review appears to be a complaint of legal unreasonableness in failing to adjourn the matter for a second time to allow the Applicant more time to respond to the request for information in the s 359 letter of 12 February 2021.
It is well settled that any discretion must be exercised reasonably.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see: Minister for Immigration and Citizenship v Li [2013] 297 ALR 225 (“Li ”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; (Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see: Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
First, the Court is satisfied that the s 359 letter complied with all statutory requirements and was a valid request for information.
In this case, the Applicant initially requested a further period of time to provide a response to the s 359 letter. The Tribunal provided such an extension until 12 March 2021 to provide the additional information.
On 13 March 2021, outside the time frame specified, the Applicant’s legal representative advised that due to technical difficulties they had been unable to provide a submission, and it was their intention to make a written submission on behalf of the Applicant. The Applicant’s response was transmitted on Saturday 13 March 2021. It also foreshadowed that the Applicant would be making a further written submission. It is noted that such a formal written submission was never received.
The Tribunal did not make its final decision until 18 June 2021, some three (3) months after the Applicant indicated that further material would be provided.
In circumstances where the Applicant had already been granted an extension of time, the Court is satisfied that the decision to deal with the matter on review without taking further action to obtain information pursuant to s 359C(1) and s360(3) of the Act and not allow further time for the receipt of further information was reasonable in that there was an evident and intelligible justification for the decision made. The Court agrees with the Respondent, that in any event, the Applicant had not identified what additional information could have been provided to the Tribunal which may have impacted on the ultimate decision of the Tribunal. It was open to the Applicant to provide material that indicated he was a genuine temporary entrant for the purposes of study, however in the three (3) months from 12 March until 16 June 2021, the Applicant did not provide any additional information. Had such information been provided, there is little doubt that the Tribunal would have considered it as part of its overall consideration of the matter.
In the Court’s view, the sole ground of judicial review has no merit.
In coming to this conclusion, the Court notes the actions of the Applicant’s legal representative over the course of the proceedings, including failing to provide additional information within the required time frame specified by the Tribunal, and then failing to provide any additional information prior to the decision being handed down in June, has disadvantaged the Applicant and points towards the matter not being handled in a professional and competent manner.
Those views have been reinforced by the actions of Mr Pham in his conduct of the matter subsequently in this Court.
DETERMINATION
In these circumstances, the Application must be dismissed.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 February 2025
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