Parvez v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 918
•04 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Parvez v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 918
File number(s): SYG 138 of 2020 Judgment of: JUDGE STREET Date of judgment: 04 May 2021 Catchwords: MIGRATION - Administrative Appeals Tribunal – application for a Student (class TU) (subclass 500) Visa – where applicant had no current course of enrolment – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out – amended application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 357A, 359, 363(1)(b), 477(1), 477(2)
Migration Regulations 1994 (Cth) r 500.212
Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9; [2001] FCA 929
DVQ17 v Minister for Immigration and Border Protection [2020] FCA 58
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246; [2020] FCAFC 127
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61Number of paragraphs: 7 Date of hearing: 04 May 2021 Place: Sydney Counsel for the applicant: Mr O R Jones Solicitors for the applicant: TCI Lawyers Solicitors for the first respondent: Ms C Juarez, Minter Ellison ORDERS
SYG 138 of 2020 BETWEEN: MD IQBAL PARVEZ
Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
04 MAY 2021
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the further amended application filed on 1 April 2021.
2.The further amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
3.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrate Appeals Tribunal (“the Tribunal”), made on 26 November 2019, affirming the decision of the Delegate of the minister (“the Delegate”) not to grant the applicant a student temporary class TU subclass 500 visa (“the Visa”). The Court adopts the first respondent’s submission in paragraphs 2-43.
A ISSUES
(1)By way of an application filed on 17 January 2020, made under s 476 of the Act the applicant seeks an extension of time pursuant to s 477 of the Act in which to seek judicial review of a decision of the Tribunal dated 26 November 2019. In that decision the Tribunal affirmed a decision not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.
B FACTUAL BACKGROUND
(2)The applicant is a citizen of Bangladesh who first arrived in Australia on 11 December 2009 and held a series of student visas. On 30 September 2017, he applied for another student visa (Court book (CB) 24–41).
(3)On 14 December 2017, the Delegate refused to grant the applicant a student visa because he did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 54–58). This was because the Delegate considered that the applicant did not genuinely intend to stay temporarily in Australia.
(4)By application dated 29 December 2017, the applicant sought review of the Delegate's decision before the Tribunal (CB 59–69).
(5)By letter dated 1 October 2019, the applicant was invited to provide information pursuant to s 359 of the Act (83–85). The letter relevantly set out that the applicant was required to be enrolled in a registered course of study, and to be a genuine applicant for entry and stay as a student.
(6)The applicant completed the online request for information, in which he confirmed that he had only departed Australia on one occasion since his arrival in 2009, to visit his parents for 16 days (CB 91–100). Further, he confirmed that he did not have a current Confirmation of Enrolment (CoE) (CB 95).
(7)By letter dated 11 November 2019, the applicant was invited to attend a hearing to give evidence and present arguments (CB 103–105). The letter noted that the Member was in Melbourne and the hearing would be by telephone. The hearing invitation attached a copy of Direction 69 and requested the applicant provide, among other things, a copy of his current CoE within 7 days.
(8)On 26 November 2019, the applicant attended the hearing by telephone with the assistance of a Bengali interpreter (CB 113–115).
(9)Also on 26 November 2019, the Tribunal made an oral decision, affirming the decision not to grant the applicant a Student visa. This was sent to the applicant by email the same day (CB 116–121).
(10)The Tribunal's oral reasons were reduced to writing on 6 March 2020 at the request of the Minister (CV 131–133).
C TRIBUNAL DECISION
(11)The Tribunal identified that while the issue before the Delegate was whether the applicant met the requirements of clause 500.212 (genuine temporary entrant criterion), the issue before the Tribunal was whether the applicant met the enrolment requirements (CB 132: [7]). That clause relevantly required that, at the time of decision, the applicant is enrolled in a course of study (CB 132: [9]).
(12)The Tribunal noted that the applicant did not provide evidence of a CoE 7 days before the hearing, as requested by the hearing invitation (CB 132: [11]). Further, it noted that the applicant confirmed, in his response to the 359 letter and in oral evidence to the Tribunal, that he did not have a CoE (CB 133: [12])
(13)The Tribunal recorded that the applicant gave oral evidence to the Tribunal that his enrolment at Holmes was cancelled in 2018, and that his enrolment at UBS was cancelled in 2019. The applicant also confirmed that he was not enrolled in any course of study in Australia (CB 133: [13]).
(14)Accordingly, the Tribunal found that there was no evidence that the applicant was enrolled in a course of study as required by clause 500.211 and affirmed the decision not to grant the applicant a student visa (CB 133: [14]–[15]).
D APPLICATION FOR EXTENSION OF TIME
(15)By way of application filed on 17 January 2020, the applicant seeks an extension of time in which to apply for judicial review. In support of that application, the applicant has filed an affidavit (affirmed on 1 April 2021).
(16)By way of further amended application for review, filed on 1 April 2021, the applicant pleads three proposed substantive grounds of review, which are summarised in the context of the first respondent's consideration below.
E CONSIDERATION
Extension of time
(17)The application was filed outside the 35 day statutory timeframe under subs 477(1) of the Act. Consequently, the application is incompetent unless the Court grants an extension of time pursuant to subs 477(2) of the Act. The Court may extend time if it is satisfied that it is necessary in the interests of the administration of justice to do so.
(18)It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay; the explanation for the delay; any prejudice a respondent might suffer because of the delay; and the merits of the proposed application: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]–[23] per Wilcox J; MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [45]–[58] per Mortimer J (MZABP).
(19)The application was filed 17 days after the expiry of the statutory timeframe. The Tribunal's decision was made on 26 November 2019 and the application for judicial review was filed on 17 January 2020. The delay is moderate.
(20)The grounds of application for extension of time contend that the applicant did not have a written copy of the Tribunal's decision. This may be accepted, as it is plainly apparent from the evidence before the Court that the applicant did not request written reasons within the prescribed timeframe and therefore did not receive them. However, the first respondent (the Minister) submits that this explanation is wholly insufficient in circumstances where the applicant was provided a statement of decision (CB 121) with which he could have made an application for judicial review.
(21)By letter dated 26 November 2019, sent to the applicant by email, the Tribunal notified the applicant of the oral decision and provided a written statement that the decision had been affirmed. The letter also informed the applicant that he could request a written statement of reasons within 14 days of the date of the oral decision and enclosed a fact sheet which informed the applicant he could seek judicial review within 35 days. The Minister submits that the Tribunal's letter, decision and information sheet complied the requirements of paragraph 368D(4)(a).
(22)On 8 December 2019, the applicant emailed the Tribunal requesting they consider his application again and on 9 January 2020, the applicant emailed the Tribunal requesting written reasons. However, this request was well outside the prescribed 14 day period.
(23)On 13 January 2020, the Tribunal wrote to the applicant and provided a copy of the recording of the hearing. On 16 January 2020, the Tribunal wrote to the applicant and notified him that written reasons would not be provided as the request was received after the 14 day prescribed period and that a member had considered his request to reopen the matter but found there was no jurisdictional error which would justify this request.
(24)While the applicant has provided an explanation for the delay, being that he attempted to request the Tribunal to reopen his matter and the Tribunal's response was delayed, the Minister submits that this is not a reasonable explanation in the circumstances where the applicant's request was without merit and based on the applicant's misunderstanding of the process before the Tribunal. In this respect, the Minister notes that ignorance of time limits or Court processes, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38] per Foster J.
(25)The Minister accepts that the there is no actual prejudice apart from costs which is suffered by the Minister. However, the absence of prejudice does not, without more, suffice to justify the grant of an extension: see BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [8] per Beach J. Further, it should not be overlooked that there is a significant public interest in the timely and effective disposal of litigation particularly in public law where delays in dealing with applications for visas are to be avoided if possible: Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9; [2001] FCA 929 at [62] per Gyles J.
(26)However, the question of whether an extension of time should be granted will principally turn on the merits of the proposed substantive application: DVQ17 v Minister for Immigration and Border Protection [2020] FCA 58 at [43] per Kenny J. This must be considered at an impressionistic level: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246; [2020] FCAFC 127 at [79] per Collier, Rangiah and Derrington JJ. On a 'reasonably impressionistic' review of the proposed substantive grounds, the Minister submits that the applicant's proposed grounds have no reasonable prospects of success such that the discretion to extend time in subs 477(2) of the Act should be refused: MZABP at [62]–[63] per Mortimer J.
THE GROUNDS
(27)The grounds of the application are as follows:
GROUND ONE
(28)Ground one alleges that the Tribunal 'erred in law in concluding that the fact that the Applicant did not satisfy cl 500.211 of Sch 2 of the Migration Regulations 1995 (Cth) as at 26 November 2019 was determinative of his application for review of the decision of the Delegate of the Minister to refuse him his visa'. The applicant's submissions contend that the Tribunal proceeded on a false legal premise as to the necessity of satisfying the relevant visa criterion at the time of the hearing, and contend the Tribunal could have adjourned the hearing to allow the applicant to enrol. The Minister submits that this ground is misconceived and must fail.
(29)As set out in the background above, by letter dated 1 October 2019, the Tribunal invited the applicant to provide information pursuant to s 359(2) of the Act, including whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student (CB 84–85). The letter expressly stated that:
(30)You will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the courses of study that you are undertaking and your entry and stay in Australia as a student.
(31)The applicant completed an online response to this request for information (CB 91–100). In his response, the applicant wrote 'no' in response to the question 'Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?'. The letter further stated:
(32)Not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
(33)On 15 October 2020, the applicant wrote to the Tribunal by email and said that he was 'strongly expecting' that he would resume his Bachelor of Accounting from January 2020 (CB 101). He did not provide any documentary evidence in support of this assertion.
(34)On 11 November 2020, the Tribunal wrote to the applicant to invite him to hearing (103–105). That invitation again stated that the applicant should provide a copy of his current CoE at least 7 days prior to the hearing (CB 104). In an information sheet enclosed with the invitation (CB 106–109), the Tribunal noted that the Member may announce a decision at the end of the hearing (CB 108).
(35)The Minister submits that the applicant was plainly on notice that he was required to be enrolled for the grant of the visa, that he should provide the Tribunal with a CoE before the hearing and that the Tribunal may proceed to make a decision on review at that hearing. In circumstances where the applicant was on notice of the importance of an enrolment, where he did not expressly seek an adjournment to obtain such an enrolment (see ground two below) and where he confirmed to the Tribunal at the hearing that he was not enrolled, the Minister submits that it was open to the Tribunal to find that the applicant's absence of enrolment was the determinative issue on review and to proceed to make an oral decision and that this finding was not based on a false legal premise.
GROUND TWO
(36)Ground two takes issue with the Tribunal's failure to consider whether to adjourn the hearing to allow the applicant an opportunity to obtain a CoE in circumstances where he had expressed an intention to enrol. The particulars to the ground allege that the applicant told the Tribunal at the hearing that he had booked an IELTS test on 11 January 2020 and would enrol in a course soon, and the Tribunal failed to adjourn the hearing to provide the applicant with an opportunity to obtain a Confirmation-of-Enrolment required for his Student visa.
(37)The applicant's submissions accept that the applicant did not expressly ask for an enrolment, but point out that he was not legally represented and was relying on an interpreter.
(38)The Tribunal has a discretionary power under paragraph 363(1)(b) of the Act to adjourn the review from time to time; however, the discretion must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [47] per Hayne, Kiefel and Bell JJ (Li). The Tribunal made an oral decision on the same day of the hearing. The applicant has filed a transcript of that hearing, and the Minister submits that, as accepted by the applicant in his submissions, it is readily apparent that the applicant did not expressly ask for an adjournment request. The Minister also submits that no such a request be implied.
(39)Based on the Tribunal transcript, the applicant raised that he was preparing for his IELTS test and the test was scheduled to take place on 11 January 2020 (some 7 weeks after the hearing). However, the applicant did not ask that the review be adjourned so that he could undertake the test. Further, the Minister submits that no such request should be implied, noting that the applicant provided no documentary evidence to show that he was taking the test.
(40)Even if such a request could be implied, the Minister submits that it was not legally unreasonable for the Tribunal to have proceeded to have made its decision on the day of the hearing. This is because even if the applicant completed the IELTS test, this was only a preliminary step to the ultimate requirement that the applicant was required to satisfy, being enrolment in a course of study. The applicant provided no evidence from his course provider or otherwise to indicate that once he completed his IELTS, he would be enrolled in a course of study.
(41)In summary, the Minister submits that there was no error in the Tribunal failing to consider an express request that was not made by the applicant. Further, the Minister submits that there is no error in the Tribunal failing to take the applicant's assertion that he was enrolled in an IELTS test as an implied request, in circumstances where it was not readily apparent (on the evidence before the Tribunal) how or when this would result in an enrolment, noting the applicant would also need to wait for results and presumably obtain a certain level of proficient in an IELTS test. In the alternative, even if such a request were implied, the Minister submits it was nevertheless reasonable for the Tribunal to proceed to a decision on the day. The Minister therefore submits that this ground should be dismissed.
(42)For completeness, the Minister submits that the present matter is readily distinguishable from Li, as the applicant in this case had not yet sat for a test or provided any evidence as to the relevance of the test to his enrolment.
GROUND THREE(43)Ground three contends that the Tribunal erred by failing to make the applicant aware of the procedural possibility that the hearing could be adjourned. The particulars note that he was unrepresented, did not have any legal training and does not speak or read English fluently and relied on an interpreter.
(44)The Minister submits that the cases cited by the applicant in submissions in relation to the Court's obligations in relation to unrepresented applicants are not applicable to the Tribunal's obligations.
(45)The Tribunal is not required to inform the applicant that it is possible to seek an adjournment. Division 5 of Part 5 of the Act contains is an exhaustive statement of the natural justice hearing rule: s 357A of the Act; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [66] per Heerey, Conti and Jacobson JJ. Relevantly, it does not include any requirement that the Tribunal put an applicant on notice of the possibility that they could ask for an adjournment. Further, as set out in relation to ground two, the Tribunal has a discretionary power to grant an adjournment that must be exercised reasonably. For the reasons set out in relation to ground two, we consider that it was reasonably for the Tribunal not to grant an adjournment that the applicant did not seek, in circumstances where it would appear to be of little utility as there was no corroborative evidence as to how sitting an IELTS test would result in enrolment.
(46)Further, the Minister submits that for the reasons given in relation to ground one, the Tribunal put the applicant on notice of the requirement that he be enrolled and the possibility that the Tribunal may make an oral decision at the hearing. The Minister submits that it is apparent that the Tribunal afforded the applicant a reasonable opportunity to put his case. The Minister notes that the Tribunal need only afford an applicant a reasonable opportunity to advance his or her case, not 'every opportunity ... to present his or her best possible case and to improve upon the evidence': Li at [82].
BEFORE THE COURT
Mr Oliver of counsel on behalf of the applicant relied upon the written submissions advanced as well as further expanding on ground three. The Court granted leave to the applicant to rely upon the three grounds in the further amended application.
For the reasons given by the Minister in the Minister’s submissions adopted above, the Court does not accept that there is any arguable ground of relevant error raised by grounds one and two.
In relation to ground three, Mr Oliver of counsel maintained that there was a requirement, in terms of procedural fairness, upon the Tribunal to permit the applicant to be informed where unrepresented and requiring a different language to take steps to alert the applicant of an entitlement to seek an adjournment.
There may be circumstances in which there is force in Mr Oliver’s argument. In the present case, the applicant was well on notice of the need for a current course of enrolment. There was no obligation upon the Tribunal to take further steps, at the time of the hearing, to refer to further opportunity by adjournment for the applicant to put on a current course of enrolment. The Court is not satisfied ground three raises an arguable case of relevant error in the circumstances of this case.
Accordingly, the Court is not satisfied that the application has raised an arguable case for the relief claimed, that is the further amended application.
The Court is satisfied this is an appropriate matter in which to exercise the Court’s discretion under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding seven (7) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 04 May 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 24 May 2021
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