Patel v Minister for Immigration
[2020] FCCA 2832
•20 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2832 |
| Catchwords: MIGRATION – Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where first applicant not enrolled in a course of study – whether the applicants were denied procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 476 Migration Regulations 1994 (Cth), cls.500.211, 500.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Quadri v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 246 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| First Applicant: | YOGESH LAXMANBHAI PATEL |
| Second Applicant: | PINKIBEN YOGESH PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 163 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 October 2020 |
| Date of Last Submission: | 15 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 October 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Mr H McLaurin |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 163 of 2020
| YOGESH LAXMANBHAI PATEL |
First Applicant
| PINKIBEN YOGESH PATEL |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. They are husband and wife respectively. The first applicant arrived in Australia on a student visa on 6 December 2012 (Court Book (“CB”) 89). He was subsequently granted a graduate visa. His wife joined him in Australia on 19 March 2017 (CB 89).
On 31 October 2018, the applicants applied for a Student (subclass 500) visa (the “visa”) (CB 34-76). The first applicant was the primary applicant. The second applicant was a member of the family unit. The first applicant indicated that he was enrolled to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality.
On 21 December 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 81-92). The delegate found that the first applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student.
On 27 December 2018, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 93-95).
On 21 August 2019, the Tribunal invited the applicants to provide information (CB 113-119). Relevantly, the Tribunal requested a confirmation of enrolment and evidence relevant to the genuine temporary entrant criterion. The applicants responded to that information and provided a range of supporting documents (CB 120-159).
On 4 May 2020, the first applicant sent the Tribunal a Certificate of Completion of the Certificate IV in Commercial Cookery (CB 203-206).
The first applicant attended a hearing before the Tribunal on 5 May 2020 (CB 207-209).
On 7 May 2020, the Tribunal affirmed the decision not to grant the applicants the visa (CB 214-216).
On 3 June 2020, the applicants sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicants must show jurisdictional error on the part of the Tribunal.
Tribunal’s Decision
The Tribunal’s decision is three pages long and spans 14 paragraphs.
The Tribunal began by setting out the background to the application. It identified the type of visa sought and outlined the reasons why the delegate refused the visa. The Tribunal also noted that the issue before it was whether the first applicant was enrolled in a course of study (at [1]-[4]).
The Tribunal then discussed the requirements of cl.500.211 of the Regulations and the definition of “course of study” (as that term is used in the relevant provision) (at [7]-[9]).
The Tribunal continued:
10. At the hearing the primary applicant was given an opportunity to provide enrolment evidence to the Tribunal, such as a copy of his current confirmation of enrolment certificate. No such evidence was forthcoming.
11. The primary applicant confirmed in sworn evidence that no current enrolment in an approved course exists. As such there is no evidence before the Tribunal that the primary applicant is enrolled in any approved course of study. Therefore clause 500.211 is not met.
12. The second named applicant has applied for a visa on the basis of being a member of the primary applicant’s family unit and therefore her application is determined by the primary applicant’s application.
The Tribunal affirmed the decision not to grant the applicants the visa (at [13]-[14]).
Proceedings in this Court
The application for judicial review dated 3 June 2020 provides three lengthy passages as follows:
1. I, Yogesh Laxmanbhai Patel, Passport number [omitted] Date of Birth: [omitted] made an application for a Student Visa subclass 500 on 11 Oct 2018. I was the primary applicant and my wife Mrs Pinkiben Patel was the secondary dependant applicant. My son Harshiv Yogesh Patel was born on [omitted], which is after the visa application was refused. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of a subclass 485 visa holder. I wanted to continue to study in Australia and I did enrol for Cert III + Cert IV + Diploma of Hospitality. I have managed to complete the Cert III in commercial cookery and Cert IV in commercial cookery now. The reason behind this intention was that I worked in similar hospitality industry and had an aspiring dream of opening a restaurant of my own either in Australia or overseas. However, my lack of knowledge in commercial cookery, management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or genuine intension as a student. Based on the information given by me, without any request for further documents or clarification, I received a notice of refusal of student visa application by Department of Home Affairs on 21 Dec 2018, which stated that I did not satisfy clause 500.212 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant me the Student Visa. According to me, I believe that the rule they applied at the time of making the decision on my visa application, which is cl. 500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that l did not satisfy cl. 500.212 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as previous studies, employment prospects and intentions to study as a genuine student. I also further read the regulations and sections wherein I found that my GTE statement was very clear about my intentions and career prospects in hospitality. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker's judgement for the student visa application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was not given a fair chance at the AAT for my visa application too. The college I was enrolled into (New England College, Perth) was shut down due to unknown circumstances and hence the students were stranded without a continuous COE for studies. That is when I appeared for the AAT hearing. The Tribunal Member refused my appeal, as I did not hold a COE for further hospitality course. I was hoping that the Member would give me a chance to provide a further hospitality Coe. As stated above, I was enrolled for the said courses and out of which, I have completed Cert III + Cert IV in Hospitality. I was invited for a hearing at the AAT office in Perth and I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study further hospitality courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.
2. After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
3. The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AA T has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I was capable of providing my reasons, transcripts of courses completed since AAT lodgement and also further COE and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study, I still satisfy the clause 500.212. I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.
The applicants were given an opportunity to file an amended application, supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application dated 3 June 2020, a Court Book numbering 219 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 30 September 2020.
The applicants appeared before the Court without legal representation. The first applicant spoke on his own behalf and on behalf of the second applicant. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained that this Court can only turn its attention to the issue of 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] (“SZRUI”); 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 that 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.
Against this background, the first applicant stated that he “did not have enough time to provide a new enrolment”. He also told the Court that he genuinely intended to study in Australia temporarily.
Consideration
Ground 1
In light of the length of the first ground of review, the Court will extract relevant portions/arguments and address them in turn.
The ground of review starts with:
I, Yogesh Laxmanbhai Patel, Passport number [omitted] Date of Birth: [omitted] made an application for a Student Visa subclass 500 on 11 Oct 2018. I was the primary applicant and my wife Mrs Pinkiben Patel was the secondary dependant applicant. My son Harshiv Yogesh Patel was born on [omitted], which is after the visa application was refused. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of a subclass 485 visa holder. I wanted to continue to study in Australia and I did enrol for Cert III + Cert IV + Diploma of Hospitality. I have managed to complete the Cert III in commercial cookery and Cert IV in commercial cookery now. The reason behind this intention was that I worked in similar hospitality industry and had an aspiring dream of opening a restaurant of my own either in Australia or overseas. However, my lack of knowledge in commercial cookery, management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into.
This provides no more than background information which is not in dispute and is otherwise apparent from the materials in the Court Book.
The ground of review continues:
However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or genuine intension as a student. Based on the information given by me, without any request for further documents or clarification, I received a notice of refusal of student visa application by Department of Home Affairs on 21 Dec 2018, which stated that I did not satisfy clause 500.212 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.212 and regulations do not support my claims and therefore they refused to grant me the Student Visa. According to me, I believe that the rule they applied at the time of making the decision on my visa application, which is cl. 500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that l did not satisfy cl. 500.212 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as previous studies, employment prospects and intentions to study as a genuine student. I also further read the regulations and sections wherein I found that my GTE statement was very clear about my intentions and career prospects in hospitality. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the student visa application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa.
What appears above relates to the delegate’s decision. The Court has no jurisdiction in relation to the delegate’s decision: the Act, s.476(2) and (4).
In any event, there is no right to appear before the delegate (unlike the situation before the Tribunal). Further, the applicant is simply disagreeing with the delegate’s decision.
The ground of review continues:
I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was not given a fair chance at the AAT for my visa application too. The college I was enrolled into (New England College, Perth) was shut down due to unknown circumstances and hence the students were stranded without a continuous COE for studies. That is when I appeared for the AAT hearing. The Tribunal Member refused my appeal, as I did not hold a COE for further hospitality course. I was hoping that the Member would give me a chance to provide a further hospitality Coe. As stated above, I was enrolled for the said courses and out of which, I have completed Cert III + Cert IV in Hospitality. I was invited for a hearing at the AAT office in Perth and I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study further hospitality courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.
This statement suggests that the first applicant was denied procedural fairness. It also suggests that it was unreasonable for the Tribunal not to adjourn the application.
The first applicant suggests that he was not given a chance to speak or participate when he appeared before the Tribunal. Section 360 requires that the Tribunal invite applicants to attend a hearing. That hearing must offer a real and meaningful opportunity for applicants to participate: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
There is no Tribunal transcript before the Court. The Tribunal’s hearing record indicates that the hearing lasted for approximately 37 minutes. In light of the length of the Tribunal’s hearing, the Court is satisfied that the first applicant was given ample opportunity to speak. The Tribunal’s decision also indicates that the first applicant provided sworn evidence confirming that he was not enrolled in a course of study, that he understood that the determinative issue was whether he was enrolled in a course of study and that he was given an opportunity to address this issue.
On the basis of the evidence that is before the Court, the Court is satisfied that the first applicant had a real and meaningful opportunity to participate in the Tribunal hearing. He was on notice of the determinative issue and he was given the opportunity to address that issue.
The first applicant also seems to suggest that it was unreasonable for the Tribunal to deny him the opportunity to provide a further confirmation of enrolment. He seems to suggest that he needed (and asked for) “more time”.
On the evidence, there is simply no indication that the first applicant made any request for further time to provide a certificate of enrolment or more evidence.
In the absence of a clear request from the applicants, it is difficult to see how the Tribunal can be seen to have acted unreasonably by not allowing further time within which to provide evidence.
Lest the Court be wrong in this regard and the first applicant did, in fact, request “more time” to provide further evidence, the question then arises: did the Tribunal act unreasonably by not giving the first applicant more time to present evidence?
Here:
a)the first applicant’s course was cancelled on 28 February 2020 as his provider was unable to deliver the course. This was at least two months prior to the Tribunal hearing;
b)on 10 March 2020, the applicants were invited to attend a hearing. That invitation stated that the applicants should provide a copy of the first applicant’s current Confirmation of Enrolment at least seven days prior to the hearing; and
c)on 24 March 2020, the Tribunal advised the applicants that the hearing would now proceed by telephone. That letter again stated that the applicants should provide a copy of the first applicant’s current Confirmation of Enrolment seven days prior to the hearing.
The first applicant had over two months to make arrangements to enrol in a new course of study. He was prompted by the Tribunal to do so on two occasions. The application had been on foot for nearly 18 months at the time of the hearing.
While it was indeed unfortunate that the educational provider was unable to continue the course and this resulted in the non-enrolment, this was a matter which occurred two months prior to the Tribunal’s hearing. It is noted that the applicants were receiving assistance from a migration agent who had previously requested an adjournment for the applicants. However, no such application was made in the present circumstances.
In these circumstances, it cannot be said that it was unreasonable for the Tribunal not to adjourn the review. The applicants had been given sufficient time to provide the information they had been asked to provide.
The Court is satisfied that the Tribunal acted reasonably in this regard.
In relation to the other procedural fairness provisions of the Act, the Court is satisfied that the Tribunal complied with these provisions.
Relevantly:
a)the Tribunal placed the applicant on notice that the determinative issue was his enrolment and the applicant indicated that he understood this (at [4]). Accordingly, there has been no error of a kind identified in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152; and
b)while it appears that the Tribunal had before it information in the form of a PRISMS report which indicated that the applicant was not enrolled in a course of study, this was not information that fell within the scope of ss.359A or 359AA of the Act. As the Minister submitted, the PRISMS report contained information that the applicant had already himself provided the Tribunal in his oral evidence and, as such, was not required to be “put” to him: Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 246.
The Tribunal did not deny the applicants procedural fairness and acted reasonably throughout.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
The first applicant argues that the Tribunal did not give him an opportunity to explain or clarify anything relating to the fact that he had “a genuine intention to study”.
Although not entirely clear, it appears that what the first applicant is saying is that the Tribunal did not consider cl.500.212 of the Regulations.
The Tribunal was not required to consider cl.500.212 of the Regulations as it was not satisfied that the first applicant met cl.500.211 of the Regulations. It was not necessary for the Tribunal to give the applicant a chance to explain or clarify any matter relating to his genuine intention to study when it was not the determinative issue of the review.
The applicants were not denied procedural fairness because the Tribunal failed to engage with the first applicant’s evidence on whether he genuinely intended to study. “Genuine intention” was not relevant in the circumstances of this case once the Tribunal determined that the first applicant was not enrolled in a course of study.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 initially provides:
The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I was capable of providing my reasons, transcripts of courses completed since AAT lodgement and also further COE and had a fair chance of approval.
For the reasons given in relation to ground 1, there was no denial of procedural fairness or unreasonableness in relation to the Tribunal proceeding as it did.
Ground 3 continues:
I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study, I still satisfy the clause 500.212.
For the reasons given in ground 2, cl.500.212 is not relevant to the circumstances of this case. The fact that the first applicant thinks that he satisfies cl.500.212 is irrelevant here.
Ground 3 concludes:
I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.
The Court has no reason to doubt that the first applicant has made genuine efforts to study and gain academic knowledge and recognition. However, this is irrelevant to the Court’s task on judicial review. The Court’s task is to determine whether the Tribunal fell into jurisdictional error.
Ground 3 does not identify any jurisdictional error.
Conclusion
The application for judicial review fails to identify any jurisdictional error. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 October 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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