Parikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1239

FEDERAL CIRCUIT COURT OF AUSTRALIA

Parikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1239

File number:

PEG 40 of 2021

Judgment of:

JUDGE KENDALL

Date of judgment:

9 June 2021

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by an error of law – whether the Tribunal inflexibly applied policy – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C

Migration Act 1958 (Cth), Pt 5, Div 5, ss 359, 360, 366, 476

Migration Regulations 1994 (Cth), cl 500.214 of Schedule 2

Cases cited:

Abebe v The Commonwealth [1999] HCA 14

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

63

Date of hearing:

3 June 2021

Place:

Perth

Applicant:

No appearance by or for the applicant

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 40 of 2021

BETWEEN:

KARAN DINESHKUMAR PARIKH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	3 JUNE 2021

THE COURT ORDERS THAT:

1.The hearing proceed pursuant to rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2.The application be dismissed.

3.Written reasons for judgment be published from Chambers at a later date.

4.The applicant pay the first respondent’s costs fixed in the sum of $6,500.

REASONS FOR JUDGMENT

JUDGE KENDALL:

INTRODUCTION

1. This matter was listed before the Court for final hearing on 3 June 2021. When the matter was called, there was no appearance by or for the applicant. The Court was satisfied that the applicant had been properly notified of the hearing date and time (and that the hearing would proceed in person with attendance required by the parties). In the circumstances, the Court made the following orders:

   1. The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

   2. The application be dismissed.

   3. Written reasons for judgment be published from Chambers at a later date.

   4. The applicant pay the first respondent’s costs fixed in the sum of $6,500.

2. These reasons for judgment are those referred to in order 4. They explain why the Court proceeded to hear the application in the absence of the applicant and why the Court dismissed the application on the merits.

   BACKGROUND

3. The applicant is a citizen of India. He arrived in Australia on a student visa in 2017 (Court Book (“CB”) 14).

4. On 29 August 2019, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa” (CB 1-23). He indicated that he intended to study a Diploma in Project Management.

5. On 23 November 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 28-30). The delegate was not satisfied that the applicant met cl 500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had not demonstrated that he had “genuine access to sufficient funds for his time in Australia”.

6. The applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 6 December 2019 (CB 31-32).

7. On 13 January 2021, the applicant was invited to attend a hearing before the Tribunal. The invitation asked that the applicant provide certain information as follows (CB 37-53):

   In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

   1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211 (a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

   3. Either:

   •Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

   OR

   •Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

   •Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.

8. No further documents were provided to the Tribunal.

9. The applicant attended a hearing before the Tribunal on 2 February 2021 (CB 54-56).  Later that day, the Tribunal affirmed the delegate’s decision (CB 59-66).

10. On 26 February 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

    TRIBUNAL’S DECISION

11. The Tribunal’s decision is 8 pages and 27 paragraphs long.

12. The Tribunal began by identifying the type of visa under review.  The Tribunal then summarised the delegate’s decision and noted that the applicant had appeared before the Tribunal at a hearing (at [1]-[4]).

13. The Tribunal explained that the issue in the present case was whether the applicant had genuine access to funds (at [6]). The Tribunal explained that cl 500.214 of the Regulations required the applicant to satisfy the Tribunal that he had sufficient funds available for the costs and expenses of his intended stay and genuine access to those funds (at [7]). Further, it was explained that the applicant was required to give evidence of his financial capacity as set out in LIN 19/198 (at [8]-[9]).

14. The Tribunal noted that the delegate made a finding that the applicant did not meet cl 500.214 as he had not provided “adequate evidence” (at [10]). The Tribunal further noted that the applicant was required to provide current information to the Tribunal (at [11]). The Tribunal then set out information it requested the applicant provide in the invitation to attend the hearing (at [12]-[13]).

15. The Tribunal determined that the applicant was aware that he was required to provide a confirmation of enrolment. He had been given a copy of LIN 19/198 (which indicated what evidence he was required to provide for the purposes of cl 500.214 of the Regulations)

    
    

    (at [14]-[15]).

16. The Tribunal noted that that the applicant had not complied with the request for further information (at [16]).

17. The Tribunal continued:

    17.Prior to the hearing the applicant did not provide a copy of a current COE or any form of proof of current enrolment in a course of study to the Tribunal.

    18.In evidence to the Tribunal the applicant advised he came to Australia in August 2016, stopped studying in Australia in July 2020, had not enrolled in a course of study since that time, was not currently enrolled in a course of study and could not provide a COE or any other form of proof of enrolment to the Tribunal.

    19.In evidence to the Tribunal the applicant advised he was not enrolled in a course of study and did not have a COE or any other form of proof of enrolment in a course of study

    20.Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payment of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.

    21.The applicant has been aware since 20 November 2019 (date of delegate's decision) of the requirement to provide proof of GAF. Despite multiple notices of such requirement the applicant has not provided sufficient current proof of GAF.

    22.In evidence the applicant advised the Tribunal he did not have any further documents to provide to the Tribunal.

    23.The applicant did not provide adequate current proof of GAF to the Tribunal. The evidence before the Tribunal does not satisfy LIN 19/198 (see paragraph 15 above in addition).

18. The Tribunal found that the applicant did not meet the requirements of cl 500.214(3) of the Regulations and, accordingly, affirmed the delegate’s decision not to grant the applicant the visa (at [24]-[27]).

    PROCEEDINGS IN THIS COURT

19. In his application for judicial review dated 26 February 2021, the applicant provides the following “ground of review”:

    1.        The Decision of Tribunal

    a) Is affected by an error of Law

    b) Is due to inflexible application of Policy

    c) Is lack of procedural fairness

20. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.

21. The materials before the Court include the application for judicial review application dated 26 February 2021, correspondence sent to the applicant confirming the date and time of the hearing (marked as Exhibit 1), a Court Book numbering 66 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 17 May 2021.

22. The applicant did not appear at the hearing before the Court on 3 June 2021 either in person or via telephone. There was no appearance entered by any person on his behalf. The Minister sought that the matter be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court 2001 (Cth) (the “Rules”). However, for the reasons that follow, the Court determined that it was more appropriate to proceed to hear the application on its merits pursuant to r 13.03C(1)(e) of the Rules.

23. Exhibit 1 satisfies the Court that the applicant was advised of the date and time of the hearing. The Court is also satisfied that the applicant could have participated at the hearing if he wished to do so. While the Court accepts that it can dismiss an application for non-appearance pursuant to r 13.03C(1)(c) of the Rules, the Court also has the power to proceed with the application in the absence of the applicant pursuant to r 13.03C(1)(e) of the Rules. The Court chooses to do so here.

24. A hearing date was scheduled and in April 2021 in this matter. The Minister prepared detailed submissions, attended the hearing and was prepared to proceed. The result is that public resources have been expended and the Court’s already limited resources have, in effect, been wasted. A dismissal under r 13.03C(1)(c) would enable the applicant to apply for reinstatement (which would involve more of the Court’s time).

25. In light of the above, the Court considers that the hearing should proceed pursuant to r 13.03C(1)(e) of the Rules in the absence of the applicant.

26. While there was no appearance by or for the applicant, the Court has nonetheless remained astute and alert to the possibility of any error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.

    CONSIDERATION

27. The only issue before the Court is whether the Tribunal here has fallen into jurisdictional error.

28. The possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, 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 (“SZRUI”) 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].

29. Further, this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he 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.

30. Here, for the reasons that follow, the Court is satisfied that no error arises in the Tribunal’s decision.

    Ground 1 - Particular (a)

31. Ground 1, Particular (a) simply provides: “is affected by an error of Law”.

32. The applicant has not identified what “error of law” he is referring to. However, in its duty to assist unrepresented applicants, the Court has considered for itself if there is any identifiable error in the Tribunal’s decision.

33. The Tribunal found that the applicant did not meet cl 500.214(3) of the Regulations, which provides:

    If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

34. The applicant was required to give evidence of financial capacity in accordance with LIN 19/198. Section 6 of LIN 19/198 requires:

    (2)       The evidence of financial capacity

    (a) is in the form specified in section 10; and

    (b) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i) travel expenses; and

    (ii) the following living costs and expenses:

    (A) if the primary applicant intends to stay in Australia for a period of 12 months or more - AUD21,04l (annual living costs); and

    (B) if the primary applicant intends to stay in Australia for a period of less than 12 months - the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii)      the following course fees, minus any amount already paid:

    (A) if the duration, or the remainder, of the primary applicant's period of study in Australia is less than 12 months - the fees for the course of study or the remaining components of the course of study; or

    (B) If the duration, or the remainder, of the primary applicant's period of study in Australia is more than 12 months - course fees for the first 12 months of the period study in Australia; and

    Note: The period of study is the period beginning at one of the following commencement periods and ending on the final day of the applicant's final course of study:

    (a) if the applicant's first course of study commenced after the date of application - on the first day of the first course of study; or

    (b) if the applicant's first course of study commenced before the date of application - on the date of application.

35. The Tribunal placed some emphasis on the fact that there was no current confirmation of enrolment before it.  A current confirmation of enrolment is relevant to the assessment of s 6(2)(b)(ii) of LIN 19/198. Without a current confirmation of enrolment, the Tribunal cannot determine the applicant’s intended length of study.

36. It could be argued that s 6(2)(b)(iii) of LIN 19/198 required a current confirmation of enrolment. However, the “Note” to s 6(2)(b)(iii) of LIN 19/198 suggests otherwise. It appears that the “course fees” relate to the course the applicant was enrolled in at the time of application – not the course enrolled in at the time of the Tribunal’s decision. The course fees were for the first course that the applicant commenced after the date of the application. This appears to be the Diploma of Project Management. It was this course which would be relevant for s 6(2)(b)(iii) of LIN 19/198. If the applicant had enrolled in further courses, this would only become relevant to determine whether the duration of the applicant’s period of study was more or less than 12 months.

37. The Tribunal found as follows:

    20. Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payment of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.

38. Arguably, the Tribunal appears to be of the view that without a current confirmation of enrolment, the Tribunal could not calculate the requirements of s 6(2)(b)(iii) of LIN 19/198. The reference to a receipt for payment of tuition fees suggests that this is the case as s 6(2)(b)(iii) of LIN 19/198 refers to “minus any amounts already paid”.

39. While the Tribunal may have been of the incorrect view about the relevance of a current confirmation of enrolment, the dispositive reason for the Tribunal finding that the applicant did not meet cl 500.214(3) of the Regulations is found at [21]-[23] as follows:

    21.The applicant has been aware since 20 November 2019 (date of delegate's decision) of the requirement to provide proof of GAF. Despite multiple notices of such requirement the applicant has not provided sufficient current proof of GAF.

    22.In evidence the applicant advised the Tribunal he did not have any further documents to provide to the Tribunal.

    23.The applicant did not provide adequate current proof of GAF to the Tribunal. The evidence before the Tribunal does not satisfy LIN 19/198 (see paragraph 15 above in addition).

40. The reason that the Tribunal found that the applicant did not meet cl 500.214(3) of the Regulations was because he had not provided sufficient evidence to enable the Tribunal to determine if he met cl 500.214(3) of the Regulations.

41. Hence, even if the Tribunal did incorrectly construe s 6(2)(b)(iii) of LIN 19/198 as requiring a current confirmation of enrolment, it does not change the fact that:

    (a)the applicant had not provided any evidence of financial capacity in a form specified in s 10 of LIN 19/198. Accordingly, the evidentiary threshold of s 6(2)(b)(i) of LIN 19/198 could not be met;

    (b)the applicant was not currently enrolled in a course. He gave no intention as to his intended stay in Australia and the Tribunal could not determine the applicable amount as specified in s 6(2)(b)(ii) of LIN 19/198; and

    (c)the applicant had not, at any time, provided a confirmation of enrolment or other information related to the course fees for the Diploma of Project Management that he was enrolled in at the time of his application. Accordingly, the Tribunal, in any event, could not calculate s 6(2)(b)(iii) of LIN 19/198 on the correct interpretation.

1. Accordingly, the Tribunal was correct in relation to its ultimate conclusion that the applicant did not provide adequate evidence and current proof that he met the genuine financial capacity criterion – such that the Tribunal could not be satisfied that he met the requirements in LIN 19/198.

2. There has been no “error of law” here of the sort that assists the applicant on review. While there was arguably a misunderstanding “of the law”, the Tribunal’s “misunderstanding” was not critical to the conclusion it reached on the dispositive issue.

3. Particular (a) is dismissed.

   Particular (b)

4. Particular (b) provides: “is due to inflexible application of Policy.”

5. This ground fails on a factual level. The Tribunal did not apply “a policy”. Particular (b) can be dismissed on this basis alone.

6. If the applicant is referring to LIN 19/198 as a “policy”, it is not. It is a Ministerial Instrument. It is a legislative instrument and is, by virtue of cl 500.214(3) of the Regulations, a criterion for the grant of the visa.

7. Further, there is flexibility in LIN 19/198. If the applicant did not meet s 6(2) of LIN 19/198, he could have demonstrated he met cl 500.214(3) of the Regulations by satisfying any of s 6(3), (4), (5) and (6) of LIN 19/198. He advanced no evidence whatsoever. This was the core issue. In his visa application, the applicant indicated that his parents were supporting him. If this was the case, he could have provided evidence relevant to s 6(3) of LIN 19/198. He did not do so.

8. The Tribunal did not inflexibly apply LIN 19/198.  It simply applied it according to its terms.

9. Particular (b) is dismissed.

   Particular (c)

10. Particular (c) simply states: “is lack of procedural fairness.”

11. The applicant does not explain how he was denied procedural fairness.

12. The Tribunal’s procedural fairness obligations are found in Division 5 of Part 5 of the Act.

13. Here, the Court is satisfied that the Tribunal afforded the applicant procedural fairness. Specifically:

    (a)the Tribunal did not exercise the powers under s 359, 359A or 359AA of the Act to get information or invite the applicant to comment or respond to information. There was no error in this approach. It was the applicant’s responsibility to provide the evidence he needed to satisfy the Tribunal that he met the relevant criterion: Abebe v The Commonwealth [1999] HCA 14. The only information before the Tribunal (which was minimal) was information the applicant had provided;

    (b)the Tribunal invited the applicant to attend a hearing and he did so. That hearing was five minutes in length. While short, the Tribunal’s decision demonstrates that the applicant did participate. He provided evidence about his enrolment status during the course of the hearing (at [18]-[19]). Accordingly, the Tribunal complied with s 360 of the Act;

    (c)the dispositive issue before the Tribunal (i.e., the lack of evidence to demonstrate genuine access to funds) was the same issue which proved determinative before the delegate and which led to the delegate to refuse the visa. Accordingly, no error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises here;

    (d)the hearing proceeded by telephone. The Tribunal is empowered to allow an appearance by this method (the Act, s 366) and there is nothing to suggest that the applicant was prejudiced by the Tribunal proceeding in this way. The applicant was given an opportunity to object to the hearing proceeding by the telephone and did not do so (CB 39);

    (e)there is nothing to indicate that the applicant requested an adjournment or additional time such that the Tribunal was required to exercise a discretion; and

    (f)the Tribunal listened to the applicant and actively sought further information from him about his enrolment status. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.

14. Further, although not required to do so, the Tribunal explicitly referred, in its hearing invitation, to information and evidence relevant to visas of this sort. This information is, if acknowledged and acted upon by applicants, helpful.  It allows them to satisfy the visa criterion. This information placed the applicant on notice of matters which would assist him.

15. The Tribunal afforded the applicant procedural fairness.

16. Particular (c) is, accordingly, dismissed.

    COSTS

17. At the hearing, the Minister sought costs fixed in the sum of $6,500.

18. This amount is below the amount set for matters of this sort. Here, the Minister filed detailed written submissions addressing the grounds of review and appeared at the hearing prepared to participate at the scheduled time.

19. In light of the time and effort the Minister has expended on this matter, the Court is satisfied that $6,500 is an appropriate amount.

    CONCLUSION

20. For the reasons outlined above, the Court proceeded to hear and determine the judicial review application on the merits despite the applicant’s failure to attend at the hearing.

21. The Court was not satisfied that the judicial review application identified any jurisdictional error. Nor was it satisfied that any error otherwise arises.

22. The application was, accordingly, dismissed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       9 June 2021