Patel v Minister for Immigration& Anor
[2020] FCCA 1295
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION& ANOR | [2020] FCCA 1295 |
| Catchwords: MIGRATION – Student (Subclass 500) Visa – decision of the Administrative Appeals Tribunal – Extension of time application – lack of merit in grounds of review – extension of time application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359B, 359C, 360, 363A, 379A, 477 Migration Regulations 1994 (Cth), cls.500.211, 500.212 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | KISHAN KANUBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 369 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 May 2020 |
| Date of Last Submission: | 21 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Applicant: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 369 of 2019
| KISHAN KANUBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on 23 September 2015 on a student visa (Court Book (“CB”) 98). On 13 March 2018, the applicant applied for a Student (Subclass 500) Visa (the “visa”) (CB 1-29). He indicated that he intended to study a Bachelor of Business and forwarded a number of supporting documents relevant to his visa application (CB 32-62).
On 30 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 63-73). The delegate was not satisfied that the applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the delegate was not satisfied that the applicant was a “genuine temporary entrant”.
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 2 May 2018 (CB 86-87).
On 17 May 2019, the Tribunal wrote to the applicant inviting him to provide further information that indicated that that he was enrolled in a registered course and was a genuine applicant for stay and study as a student (CB 105-112). The applicant did not respond to this notice.
On 3 August 2019, the Tribunal affirmed the decision to not grant the applicant the visa (CB 115-123).
On 17 September 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application was filed 10 days outside of the statutory time limit provided for in s.477 of the Migration Act 1958 (Cth) (the “Act”). In these circumstances, the applicant requires an extension of time within which to pursue these proceedings.
The materials before the Court include the applicant’s judicial review application dated 17 September 2019, correspondence confirming service of the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 127 pages (marked as Exhibit 2), an affidavit of Sara Anicic dated 29 April 2020 and an outline of written submissions filed by the Minister on 7 May 2020. The Court notes that it also received an email from the applicant after the hearing had been conducted. The Court cannot accept this email as evidence but notes that, in any event, the contents of that email simply repeat what the applicant said orally before the Court. It added nothing to what was said by the applicant during the course of the hearing before the Court.
Tribunal’s Decision
The Tribunal’s decision is 4 pages in length and 18 paragraphs long. It is well written and the analysis provided is forensic.
The Tribunal began by setting out the factual background to the matter (at [1]-[3]). It referred to having sent the applicant the invitation to provide information pursuant to s.359 of the Act (at [4]). It noted that the invitation was properly sent and that the applicant had failed to respond (thereby losing his entitlement to attend a hearing) (at [5]-[6]).
The Tribunal then considered whether any information from the applicant would be forthcoming and if the applicant had had an opportunity to present information (at [7]). It also considered whether the Tribunal should adjourn the review to allow the applicant additional time to provide information (at [8]).
Overall, the Tribunal was satisfied that the applicant had had a fair opportunity to provide information. The Tribunal decided not to adjourn the review to allow the applicant to provide further information (at [9]-[11]).
The Tribunal identified that the issue was whether the applicant was currently enrolled in a course of study (at [13]). It then set out the requirements of cl.500.211 (at [14]-[15]) and found as follows:
16. There is no evidence before the Tribunal that the applicant is currently enrolled in a course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
17. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Proceedings in this Court
As noted, the applicant filed his judicial review application 10 days outside of the statutory time limit prescribed by s.477 of the Act. In his judicial review application, the applicant indicated that he required an extension of time and set out the basis upon which he sought that extension, as follows:
I would like to seek an extension of time. I was in a very depressed and stressed state of mind recently and suffered symptoms of the flu. Due to this, I have miscalculated the time to lodge my application. Please accept my application, as I believe that I have grounds to prove that I am a genuine student. I would like to have the opportunity to explain to the judge at the FCC why I believe that I should have a chance to study again.
As the applicant has indicated that he requires an extension of time and the basis upon which that extension is sought, the requirements of s.477(2)(a) of the Act are satisfied. As such, the Court must determine whether, as per s.477(2)(b) of the Act, it is “in the interests of the administration of justice” that an extension of time be granted.
The Court explained to the applicant that the factors it will consider in this regard are not exhaustive. However, in determining whether it is necessary in the interests of the administration of justice to extend time, the Court will generally look at the following factors:
a)the length of delay and any prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
Consideration
Delay, Explanation and Prejudice
The Minister conceded that the delay is short and there would be no prejudice if an extension was granted. This weighs in favour of an extension of time being granted.
The explanation the applicant provides is limited. He was depressed, stressed and had the flu. Further, he explained that his migration agent had not advised him properly.
The applicant provided no evidence of any of these matters. Nonetheless, the Court is prepared to find that the explanation is acceptable. It is noted that the Tribunal’s decision was not provided to the applicant until 6 August 2019. In effect, this gave the applicant two less days to apply to the Court for a review of the decision.
The explanation provided also weighs in favour of granting the extension of time.
Merits of the substantive application
The decisive factor here is whether there is merit in the judicial review application.
In this regard, the Court is mindful that the merits of the application should only be considered at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 at [62]-[63]; MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201 at [19].
To the extent the application for an extension of time is suggesting that the substantive application has merit because the applicant can now prove he is a genuine student this is an invitation to engage in impermissible merits review.
The applicant’s judicial review application filed 17 September 2019 contains three “grounds of review”, as follows:
1. The review applicant has not provided information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.
2. The reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
3. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
On their face, these “grounds of review” are not entirely clear and are not actually review grounds. Rather, they simply provide extracts from the Tribunal’s decision.
Noting the remarks of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [9]) that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that, in determining whether the substantive application had merit, it needed to look at whether there was an argument that the Tribunal had engaged in jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but 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]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he now seeks or consider whether he is, in fact, a genuine student. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant submitted that his migration agent did not tell him that there was a hearing and he never attended a hearing. The Court will address this issue below.
Interpreting the “grounds of review” favourably, the Court infers that the applicant is suggesting that the Tribunal has erred because:
a)the Tribunal was wrong to determine that the applicant was not entitled to attend a hearing (“Ground 1”);
b)the applicant was denied a “fair opportunity” to provide information to the Tribunal (“Ground 2”); and
c)the Tribunal was wrong to conclude that the applicant was not entitled to the visa (“Ground 3”).
Ground 1
The Tribunal determined that the applicant was not entitled to attend a hearing as the applicant had failed to respond to the request to provide information issued pursuant to s.359 of the Act (which had been sent to the applicant’s representative on 17 May 2019).
The Tribunal was correct when it determined that that the applicant “was not entitled” to attend a hearing.
The Tribunal had sent an invitation to provide information which conformed to the requirements of ss.359 and 359B of the Act. Specifically:
a)The invitation was sent to the applicant’s authorised recipient by email, a method specified in s.379A: the Act, s.359(3)(a);
b)the Tribunal specified that the information was to be given in writing: the Act, s.359B(1); and
c)the time in which the applicant had to provide the information was in accordance with the prescribed statutory period: the Act, s.359B(2).
The applicant did not respond to the invitation. In those circumstances s.359C of the Act allowed the Tribunal to make a decision without taking any further action to obtain information. As a result of the “cascading effect” of ss.359C(1), 360(2) and 363A, the applicant was not entitled to attend a hearing: Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413.
To the extent the applicant’s oral submission complained there was an error as he was not invited to a hearing, this does not arise to jurisdictional error here.
Insofar as the applicant has raised concerns that his migration agent did not advise him about the hearing, the Court has considered whether the actions of the migration agent may have stultified the Tribunal’s review of the application. The applicant has not suggested that his migration agent acted fraudulently. Rather, it appears there may have been a lack of communication between the applicant and his agent. The applicant states that the migration agent told him that his Tribunal review “would be successful”. These matters rise no higher than a suggestion of incompetence and bad advice. No jurisdictional error arises in this regard. However, to the extent that the applicant has any concerns about the conduct of his agent, he is referred to the services of the Office of Migration Agents Registration Authority – an agency that is empowered to investigate and address concerns of the sort arguably raised here.
Ground 1, accordingly, has no merit.
Ground 2
This ground can be seen to suggest that the applicant did not have a “fair opportunity” to provide information and it was unreasonable for the Tribunal to decide the review only on the material before it.
The Court is satisfied that the applicant had a “fair opportunity” to provide any relevant information in circumstances where:
a)the application was lodged on 2 May 2018 and the applicant was advised to provide any supporting information as soon as possible;
b)the Tribunal invited the applicant to provide information and advised him of the consequences of not providing that information and the applicant did not provide any response to that request and invitation;
c)the applicant nevertheless had from 31 May 2019 until the decision was made on 3 August 2019 to provide any supporting documents and did not do so.
The applicant had a fair opportunity to provide any relevant information.
As for whether it was unreasonable for the Tribunal to proceed to make a decision without seeking any further information, the Court does not consider it unreasonable, noting that:
a)the Tribunal was expressly empowered to do so by virtue of s.359C of the Act;
b)the applicant had provided no information to the Tribunal since lodging his application, despite being requested to do so. Hence, there was no indication that any materials were forthcoming;
c)it was for the applicant to establish that he met the criteria to be granted the visa: Abebe v Commonwealth (1999) 197 CLR 510. It was not for the Tribunal to make inquiries about whether the applicant was enrolled in a course, notwithstanding that it could have, or accessed the PRISMS database to confirm if the applicant was currently enrolled. In light of the applicant’s lack of engagement in the review process and failure to provide relevant information (despite requests to do so) it was within the area of decisional freedom for the Tribunal to proceed to make a determination without accessing the PRISMS database.
Further, and in any event, as the Minister correctly submits, the applicant did not have a current confirmation of enrolment in any course from 30 August 2018. Therefore, any failure to make an inquiry (which the Court does not consider to have been unreasonable) would not have resulted in a different decision and cannot be seen to have deprived the applicant of a successful outcome.
Ground 2, accordingly, has no merit.
Ground 3
The final ground appears to take issue with the Tribunal’s conclusion that the applicant could not be granted the visa.
On one view, this seeks impermissible merits review. However, to the extent that the applicant is suggesting that the Tribunal erred in its application of the law, this also cannot be accepted.
The evidence did not indicate that the applicant was enrolled in a course of study. This was a mandatory requirement of the visa. On that basis, the visa had to be refused. It was the only decision open to the Tribunal.
Ground 3, accordingly, is without merit.
Conclusion – Merits
None of the grounds of review as interpreted by the Court identify any arguable case of jurisdictional error. The Court is otherwise unable to identify any arguable error on the face of the Tribunal’s decision.
The lack of merit in the substantive application overall weighs heavily against an extension of time being granted.
Conclusion
As a result of a lack of any merit in the applicant’s substantive application the Court finds that it would not be in the interests of the administration of justice for an extension of time to be granted in the circumstances of this case.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 29 May 2020
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