PATEL v Minister for Immigration

[2020] FCCA 190

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 190

Catchwords:
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicants met the financial capacity criterion – whether it was unreasonable for the Tribunal not to adjourn – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 476

Migration Regulations 1994 (Cth), cll.500.214, 500.311 of sch.2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600
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] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

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

First Applicant: VISHALKUMAR MANUBHAI PATEL

Second Applicant: SHRADDHA VISHALKUMAR PATEL

Third Applicant: DHYEY PATEL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 126 of 2019

Judgment of: Judge Kendall

Hearing date: 3 February 2020

Date of Last Submission: 3 February 2020

Delivered at: Perth

Delivered on: 5 February 2020

REPRESENTATION

Applicants: The first applicant appeared in person and on behalf of the second applicant and third applicant

Counsel for the First Respondent: Ms G Ellis

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 126 of 2019

VISHALKUMAR MANUBHAI PATEL

First Applicant

SHRADDHA VISHALKUMAR PATEL

Second Applicant

DHYEY PATEL

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this Court on 9 April 2019, the applicants seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made 7 March 2019.

2. The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicants a Student (Temporary) (class TU) Student (subclass 500) (the “visa”).

3. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the Tribunal.

4. The first applicant was the primary applicant for the visa. The second applicant and third applicant are the first applicant’s wife and child respectively.

5. Before the Court is the application for judicial review, an affidavit of the first applicant sworn/affirmed (it is not indicated which) on 3 April 2019, a Court Book (“CB”) numbering 77 pages (marked as Exhibit 1) and an outline of submissions from the Minister dated 16 January 2020.

6. The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s submissions.

Background

1. The background to this matter can be summarised as follows.

2. The first applicant applied for the visa on 18 October 2016. The first applicant indicated that he wished to study a Certificate IV and Diploma of Human Resources (CB 1-19).

3. On 28 November 2016, the Minister’s department wrote to the applicants requesting further information and documents (CB 21-34). The request contained detailed particulars of what documents were required.

4. On 23 December 2016, the first applicant responded by email attaching various documents (CB 35-36). Not included amongst those documents was evidence as to his financial capacity.

5. On 14 February 2017, a Ministerial delegate found that the first applicant did not meet cl.500.214(3) of the Migration Regulations 1994 (Cth) (the “Regulations”) as there was no evidence as to the applicants’ financial capacity. As the first applicant did not meet the requirements for the visa, the second applicant and third applicant did not meet cl.500.311 of the Regulations (CB 42-46). Accordingly, the delegate refused the visa.

6. On 3 March 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 47-49).

7. By email dated 15 February 2019, the applicants were invited to attend a hearing before the Tribunal on 7 March 2019. In that invitation the applicants were also asked to provide the following documentation (CB 54-56):

   1. A copy of your current Confirmation of Enrolment (CoE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   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.

8. No further documents were provided by the applicants.

9. On 7 March 2019, the first applicant appeared before the Tribunal via telephone. The Tribunal made an oral decision at the conclusion of the hearing affirming the decision not to grant the applicants the visa (CB 57-62).

Tribunal’s Decision

1. The Tribunal’s decision was reduced to writing on 1 May 2019. It is four pages long and spans 23 paragraphs.

2. At [1]-[7], the Tribunal outlined the background to the matter.

3. At [8], the Tribunal noted that the issue in the applicants’ case was whether the first applicant met the financial requirements and the genuine access to funds criteria in cl.500.214. It was noted that the first applicant must satisfy this requirement in order to obtain the visa and that the appropriate legislative instrument applicable to the applicants in these circumstances was IMMI 18/010 (at [9]-[10]).

4. The Tribunal noted that, prior to the hearing, the applicants were requested to provide evidence that the first applicant met the financial capacity criterion. They did not provide any evidence (at [11]-[12]). The Tribunal noted that it had asked the first applicant at the hearing to provide evidence that he had genuine access to funds sufficient to meet the costs and expenses (for each family member) likely to be needed during the intended stay in Australia. No evidence was provided at hearing (at [13]).

5. The Tribunal continued as follows:

   14. The applicant requested further time in which to submit evidence of financial capacity and genuine access to funds. The Tribunal has carefully considered the request for further time and after consideration, the Tribunal is not satisfied that an extension of further time is appropriate for the following reasons.

   15. The first reason is that at the time of the hearing today, the applicant is not enrolled in a course of study and as a result the genuine access to funds calculation cannot be made. Two, the applicant has not provided any documentation since 14 October 2017 to the Tribunal in any form which is relevant to when the initial decision was made by the delegate and thirdly, no further documentation has been sent to the Tribunal as requested on page 2 of the invitation to attend the Tribunal today on 15 February 2019 when the invitation was sent.

   16. Accordingly, there is no evidence before me that you meet the requirements of having the financial capacity and genuine access to funds.

   17. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant meets the financial capacity requirements and accordingly cl.500.214 is not met.

6. The Tribunal affirmed the decision not to grant the first applicant the visa. Having found that the first applicant could not be granted the visa, the Tribunal found that the second applicant and third applicant could not meet the requirements of cl.500.311. Accordingly, the Tribunal affirmed the delegate’s decision.

Proceedings in this Court

1. The applicants’ judicial review application contains three grounds as follows:

   1. Administrative Appeals Tribunal had not acted in the best interest of the applicant ( procedural fairness issue ) as mentioned in affidavit attached here with .

   2. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations)first of all, delegate only take a decision on base on hearing they not given me time to provide a documents.

   3. I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects and give enough time to produce documents

2. The first applicant’s affidavit contains three paragraphs. The first two paragraphs simply refer to and attach the Tribunal’s and the delegate’s decision records. The third paragraph repeats the grounds of review.

3. On 30 April 2019, orders were made allowing the applicants an opportunity to file an amended application, any further affidavits and an outline of written submissions. No further materials were filed.

4. The first applicant appeared on his own behalf and on behalf of the second applicant and the third applicant. He had the assistance of an interpreter in the Hindi language.

5. Noting that an unrepresented applicant ought to be given an oral opportunity to explain any concerns he has with the Tribunal’s decision (see: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court explained to the first applicant what the Court can and cannot do.

6. The Court explained that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap.  It was explained that 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 (2005) 228 CLR 294 at [207]-[208];

   e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

7. It was also explained to the first applicant that this Court cannot review the merits of the Tribunal’s decision or grant the visas that the applicants seek. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

8. Against that background, the Court asked the first applicant to explain what he believes the Tribunal “did wrong”. In effect, the first applicant stated that there was a miscommunication between him and the Tribunal about what documents he needed. He further explained that he had requested more time to provide what was needed but was denied that opportunity.

Consideration

1. To the extent that the grounds articulated in the judicial review application refer to the delegate (and noting that the first applicant annexed a copy of the delegate’s decision), the Court cannot review the decision of the delegate: s.476(2) and (4) of the Act. The Court’s role is limited to identifying jurisdictional error in the Tribunal’s decision.

2. Here, the applicants may feel that the Tribunal did not act in their best interests because they were denied the visa. Unfortunately, this does not amount to jurisdictional error.

3. The three grounds of the application are similar. They all suggest that the applicants were denied procedural fairness.

4. The Court notes as follows:

   a)the applicants were invited, and the first applicant attended, a hearing before the Tribunal: s.360 of the Act;

   b)the applicants were on notice of the determinative issue (the ability of the applicants to meet the financial capacity criterion) as it was the same issue dispositive to the application before the delegate: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. Further, the applicants were placed on notice on two occasions that this was an issue (in the invitation to hearing and at the hearing); and

   c)the Tribunal was not required to “put” any information to the applicants as all of the information relied upon was found in the materials that were before the delegate: the Act, s.359A.

5. It appears that the applicants are aggrieved with the Tribunal’s decision not to provide them with extra time to provide further documents or to adjourn the hearing of the review until documents were obtained.

6. The Court has considered whether, in the circumstances of this case, the Tribunal’s refusal to allow extra time to provide documents was a denial of procedural fairness or unreasonable.

7. The Tribunal’s reasons for not providing the applicants additional time to provide further documents are set out at [14]-[15] as follows:

   14. The applicant requested further time in which to submit evidence of financial capacity and genuine access to funds. The Tribunal has carefully considered the request for further time and after consideration, the Tribunal is not satisfied that an extension of further time is appropriate for the following reasons.

   15. The first reason is that at the time of the hearing today, the applicant is not enrolled in a course of study and as a result the genuine access to funds calculation cannot be made. Two, the applicant has not provided any documentation since 14 October 2017 to the Tribunal in any form which is relevant to when the initial decision was made by the delegate and thirdly, no further documentation has been sent to the Tribunal as requested on page 2 of the invitation to attend the Tribunal today on 15 February 2019 when the invitation was sent.

8. The Court is not satisfied that it was unreasonable for the Tribunal not to have adjourned the hearing or to have allowed the applicants further time to provide documents. The reasons the Tribunal provided for not allowing the extra time were not arbitrary, vague and fanciful: Li at [65]. Rather, they were fair, detailed and within the area of decisional freedom the Tribunal enjoys in the context of the relevant statutory scheme. Specifically:

   a)the applicants were on notice that they were required to provide evidence of the ability to meet the financial capacity criterion as this was the basis of the delegate’s decision;

   b)the applicants had not provided any of the documentation the Tribunal had requested that it be provided with in the invitation dated 15 February 2019. The invitation was sent three weeks prior to the hearing, therefore the applicants had at least three weeks to gather this information; and

   c)the first applicant was not enrolled in a course of study which meant that the Tribunal, in any event, was unable to determine what funds the applicants would actually require for the visa. It is not the case that it was indicated that the first applicant had made attempts to obtain the documents. Rather, the first applicant was still required to obtain an enrolment before it could even be calculated what funds were required.

9. To the extent that the first applicant submits that there was a “miscommunication” or a misunderstanding about what he needed, unfortunately that is a matter for him and does not amount to a jurisdictional error.

10. The applicants had a significant amount of time to produce documents. The application had been on foot for two years, during which time the applicants could have produced documents (both relating to a confirmation of enrolment and the financial capacity criterion). Further, the applicants were again prompted to provide the documents (as to a confirmation of enrolment and the financial capacity criterion) to the Tribunal three weeks prior to the Tribunal’s hearing (CB 54-56).

11. The Tribunal was not asked to adjourn the review for a highly specific purpose (as was the case in Li). Rather, the Tribunal was being asked to adjourn the review to allow the applicants’ to first fulfil the enrolment criterion. Upon the applicants satisfying the enrolment criterion, the Tribunal could then determine whether the applicants had sufficient funds.

12. The Tribunal would, in effect, be adjourning to allow the applicants to gather evidence that they met the criterion for the visa generally in circumstances where the applicants had had nearly two years to do so and were reminded three weeks prior to the hearing that certain documents were necessary. In these circumstances, it cannot be said that no reasonable decision-maker could have made the same decision as the Tribunal.

13. Grounds 1, 2 and 3, insofar as they argue that the Tribunal erred in not adjourning the review and allowing further time to provide documents, are dismissed. Further, there is no other evidence generally that the applicants were not afforded procedural fairness.

Conclusion

1. The Court makes a final observation that here the first applicant was not enrolled in a course of study. On that basis alone, the first applicant could not be granted the visa. Unusually, the Tribunal makes no reference to this in its decision.

2. The Court has otherwise reviewed the Tribunal’s decision and the materials in the Court Book and is satisfied that the applicants were afforded procedural fairness in accordance with pt.5, div.5 of the Act. The Tribunal acted fairly and looked into all relevant aspects of the applicants’ review.

3. The application for judicial review is, accordingly, dismissed.

4. The Minister also seeks an order for the name of the first respondent to be amended to the current full title: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. There will be an order made to that effect.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  5 February 2020