Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 946
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 946
File number(s): SYG 1406 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 25 September 2024 Catchwords: MIGRATION – Judicial Review – student visa – applicant not enrolled in relevant study – cl 500.212 not met— whether the applicant consented to no hearing under s 360 of the Act Legislation: Migration Act 1958 (Cth) ss359(2), 360, 476(2)(a), 476(4)(a)
Migration Regulations 1994 (Cth) cll 500.211, 500.212 of Schedule 2
Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA)
Minister for Immigration and Citizenship v SZGUR (2001) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 16 September 2024 Solicitor for the Applicants: Self-represented litigants (First Applicant appearing on behalf of all Applicants and as Litigation Guardian for the Third Applicant) Solicitor for the First Respondent: Ms Shultz, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1406 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIGNESHKUMAR MUKUNDBHAI PATEL
First Applicant
PRATIBHABEN JIGNESHKUMAR PATEL
Second Applicant
PRATIJ JIGNESHKUMAR PATEL
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name for the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 4 June 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed 4 June 2020, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 May 2020. The Tribunal affirmed the decision of a delegate of the Minister (the delegate) to refuse the applicants’ Student (Temporary) (Subclass 500) visas.
BACKGROUND
The first applicant (the applicant) is a 46-year-old male citizen of India. The second and third applicants are the first applicant’s wife and son. The applicant initially arrived in Australia on 23 April 2009 as the holder of a Student (Subclass 572) visa.
The applicants applied for the visas on 7 November 2018 on the basis of the applicant’s enrolment in the Graduate Diploma of Management at the Australian Health and Management Institute Pty Ltd.
On 9 January 2019, the delegate refused to grant the visas because they were not satisfied that the applicant intends genuinely to stay temporarily in Australia.
On 26 January 2019, the applicants applied to the Tribunal for merits review of the delegate’s decision.
On 17 April 2020, the Tribunal invited the applicants to provide information pursuant to s 359(2) of the Migration Act 1958 (the Act) regarding the course of study the applicant was undertaking and his entry and stay in Australia as a student.
On 28 April 2020, the applicant provided the Tribunal a completed ‘Request for Student Visa Information’ form (RFSVI form). In that form the applicant consented to the Tribunal deciding the review without a hearing. The applicant also, in that form, stated that he did not have a current Confirmation of Enrolment (CoE) in a registered course of study.
On 11 May 2020, the Tribunal affirmed the decision of the delegate on the basis that the applicant was not enrolled in a course of study.
THE TRIBUNAL’S DECISION
In affirming the delegate’s decision, the Tribunal noted that the applicants had been properly invited to provide information to the Tribunal and that the applicant provided a response to the Tribunal in writing.
The Tribunal then observed that the applicant had consented to the Tribunal determining the application without a hearing and, in the circumstances, it had no power to permit the applicant to appear before it.
The Tribunal identified that a requirement of the visa, found in cl 500.211(a), is that at the time of the decision, the applicant is enrolled in a course of study (noting that the applicant did not claim to meet any of the alternative criteria). Of this requirement, the Tribunal noted that:
(a)‘Course of study’ is defined as a ‘full-time registered course’ and ‘registered course’ is defined as “a course of education or training provided by an institution, body or person that is registered, under Division 3 or Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students”;
(b)Producing evidence of a current enrolment is a critical first step towards obtaining a student visa;
(c)Enrolment is a continuing requirement of the holder of a student visa and if a student visa is issued to an applicant who is not enrolled, the visa would be breached as soon as it is granted;
(d)Without evidence that shows the applicant had a current enrolment in a registered course of study, a student visa cannot sensibly be granted;
(e)If cl 500.211 is not met there is no utility in the Tribunal considering any further primary criteria; and
(f)For the purposes of determining whether the cl 500.211 is satisfied, cogent evidence of a current enrolment must be presented to the Tribunal before it can be satisfied that the applicant is enrolled in a registered course of study.
The Tribunal stated there was no evidence to suggest the applicant was enrolled and it was not satisfied that the applicant had a current enrolment in a registered course of study.
The Tribunal further noted the following:
(a)That the applicant completed a Bachelor of Accounting in December 2016, completed a Bachelor of Business in 2015, an Advanced Diploma of Leadership and Management in 2012, Diploma of Management in 2011 and a Certificate IV in December 2010;
(b)The applicant stated that he had most recently worked as an Accountant between October 2018 and March 2020;
(c)There was no evidence to suggest he was engaged in any further studies since he completed his last degree;
(d)The applicant stated he wants to study a Graduate Diploma of Management but there is no evidence he is currently enrolled in such a course; and
(e)In his response to the Tribunal’s request to provide information, the applicant answered “no” to the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” Further, in that response, the applicant did not list any additional courses when given the opportunity to list his past, current and future enrolments.
The Tribunal was not satisfied that the applicant was enrolled in a course of study and accordingly affirmed the delegate’s decision on the basis that the requirement in cl 500.211 was not met.
Having found that the applicant did not meet the requirements of the visa, the Tribunal found that the second and third applicants had also failed to meet the criteria for the grant of a student visa.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contains one ground of review which has been considered by the Court further below.
The applicant also filed an affidavit, affirmed on 4 June 2020, which appears to ventilate further grounds of judicial review as well as annexing the Tribunal’s and delegate’s decision record.
On 18 June 2020, the Minister filed a Response, pleading that:
(a)The application fails to raise an arguable cause for the relief claimed;
(b)The application for judicial review does not contain any proper grounds of judicial review;
(c)The application invited the Court to review the merits of the Tribunal’s decision;
(d)The application failed to establish any jurisdictional error; and
(e)Costs.
On 16 July 2020, a Registrar of the Court made orders by consent, providing for, inter alia:
(a)The first applicant to be appointed a litigation guardian for the third applicant (his minor son);
(b)The Minister to file the Court Book by 27 August 2020;
(c)The applicants file any amended application with proper particulars of the grounds, any supplementary Court Book and any submissions by 8 October 2020; and
(d)The Minister to file submissions by 19 November 2020.
On 11 August 2020, the Minister filed the Court Book and on 9 November 2020 the Minister filed written submissions.
At a call over before a Registrar of the Court on 2 April 2024 the Court ordered inter alia that:
(a)The applicants file submissions, any amended application with proper particulars of the grounds and any additional evidence by 16 April 2024;
(b)The Minister file any further submissions and any additional evidence by 23 April 2024;
(c)The Minister file, at least 7 days before the hearing, an affidavit of service of the Court Book, submissions and any additional evidence filed by them.
The applicant did not file any further submissions, an amended application or additional evidence. Neither did the Minister.
The matter was heard on 16 September 2024 at the Parramatta Registry. The applicant appeared in person. Mr Simon Knuckey, Solicitor, appeared on behalf of the Minister.
The Minister sought to rely on the Court Book, filed on 11 August 2020, which was tendered at the hearing and marked Exhibit CB.
The Court observed that the Affidavit filed by the applicant on 4 June 2020 annexed the delegate and the Tribunal’s decisions. It also contained what appears to be further particulars to the ground of review and submissions regarding the applicant’s circumstances. Noting that the delegate and Tribunal decisions were already in the Court Book and the balance of the Affidavit contained submissions, the Court proposed to take the Affidavit of the applicant into account, to the extent it was relevant, as submissions. The Minister did not object to this course of action.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
As no amended application or written submissions had been filed by the applicant, he was invited to make oral submissions in support of the ground of review set out in his originating application. The Minister also made oral submissions at the hearing which largely reflected those in the written submissions filed on 9 November 2020.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2.
In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2].
The Court has no power to review the merits of the Tribunal decision or to consider whether the applicant met the requirements of the visa sought: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Ground of review
In the application, the applicants set out a single ground of judicial review:
Administrative Appeals tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with
(without alteration)
The Affidavit of the applicant provides the following particulars:
Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student. First of all, delegate only take a decision on base on hearing they not given me time to provide a documents.
I hope that I have put forward my position in a simple, clear and honest manner and that you will see that I am not in the breach of cl 500.212 condition and I have tried all the avenues to upkeep the conditions of my current visa. its happened because of my financial hardship and due to job circumstances. I have lost my job many times. And get me more stress. Also I have some family issue as well as. And its still keep going. I sincerely request that you give due consideration to the compelling and compassionate circumstances. Also please acknowledge that current global circumstances, that being the pandemic of Covid-19, may impact on my ability to depart Australia. May I request you to look into the grounds. .the Circumstances Leading to the breach were due to factors beyond my Control. 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. [sic]
By ground one, the first applicant alleges that he has not been afforded procedural fairness by the Tribunal. The particulars of that ground take issue with the following:
(1)the conduct of the delegate in making a decision based on a hearing and not giving him time to provide documents.
(2)that he is not in breach of cl 500.212 and has complied with the conditions of his visa.
(3)he is a victim of procedural fairness issues as the Tribunal made an error in his decision because it did not look at all the necessary aspects of his case and give him time to produce documents.
The Court accepts, as submitted by the Minister, that it has no jurisdiction to review the delegate’s decision: see ss 476(2)(a) and (4)(a) of the Act.
The reference to the delegate making a decision on the basis of a hearing does not appear to relate to the facts of this case, as the applicant did not appear at a hearing (or interview) before the delegate in relation to the student visa application.
The reference to the applicant not being given the opportunity by the delegate to provide documents has been considered by the Court as an allegation against the conduct of the Tribunal and is the subject of further consideration below.
As to the complaint that he was denied procedural fairness by the Tribunal, the Court asked the applicant at the hearing which aspects of the Tribunal’s procedure he felt was unfair. The applicant said it was around the time of COVID-19 and he did not go for a hearing. The Court observed that in his communication with the Tribunal (CB 68) he had provided consent for the Tribunal to decide the review without a hearing. The applicant said it was COVID-19, they were not allowed to attend a face-to-face hearing and there was confusion about how the hearing would be conducted.
When asked about his complaint that he had not been given time to provide documents and the aspects of his case he felt were not considered by the Tribunal, the applicant said there had been a communication gap between himself and the Tribunal and that he had no idea what to communicate at the time.
In ascertaining whether the Tribunal’s decision was affected by jurisdictional error, and being mindful that the applicant was unrepresented in this matter, the Court has carefully considered the submissions and evidence before it.
The issue that was before the Tribunal, at the time of its decision, was whether the applicant satisfied the criterion in cl 500.211(a) which required him to be enrolled in a course of study. Notwithstanding that the delegate refused the application for the visas on a different basis, namely whether the applicant intends genuinely to stay temporarily in Australia, as required by cl 500.212(a), the Court is satisfied that the applicants were made sufficiently aware of the issues that may be dispositive of the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [33]. In the s 359(2) letter, the applicants were put on notice that it was a requirement of the visa that one of the applicants (the main applicant) be enrolled in a registered course of study. Further, in the RFSVI form, the following information was provided to the review applicants (CB 71):
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
In the same form, the applicant (as the main applicant) was asked whether he had a current Confirmation of Enrolment (CoE) in a registered course of study, to which he responded “No”. In view of this information, and the applicants consenting to the Tribunal deciding the review without a hearing, which is the subject of further consideration below, the Tribunal was entitled to consider the issue of enrolment at the time of its decision and to determine the review on that basis. No procedural unfairness arose out of the Tribunal deciding to affirm the delegate’s decision on a different criterion than that which was considered by the delegate.
The applicant’s claim that he did not breach cl 500.212 and complied with the conditions of his visa were not relevant considerations for the Tribunal. Having determined that the applicant did not satisfy cl 500.211(a), it was not necessary for the Tribunal to also consider whether the applicant satisfied cl 500.212. No error arose out of the Tribunal not considering whether the applicant satisfied the requirements of cl 500.212. The applicant’s compliance or otherwise with visa conditions was not relevant to the determinative issue in the review.
As to the applicant’s complaint that the Tribunal did not consider all the necessary aspects of his case and did not give him enough time to produce documents, the Minister submitted that procedural fairness did not require the Tribunal to make out the applicant’s case for him and that it was entitled determine the review on the evidence put forward by the applicant: Minister for Immigration and Citizenship v SZGUR (2001) 241 CLR 594 at [86].
The Court accepts, as submitted by the Minister, that the Tribunal’s invitation to provide information under s 359(2) requested the applicant to provide information to satisfy the requirement that he was enrolled in a registered course of study and informed him that if he could not provide the information by 1 May 2020, being the prescribed period by which he had to provide the information, he could seek an extension of time to provide the information.
The evidence before the Court is that the applicants did not seek an extension of time to provide information (or documents). The Court considers that in the circumstances, where the applicants had not sought an extension of time to provide additional information (or documents), and where they had consented to the Tribunal deciding the review without a hearing, it was not unreasonable for the Tribunal to proceed to a decision on the information before it. No error, let alone a jurisdictional error is established by this complaint.
A further grievance, which was raised by the applicant in oral submissions, is that he did not attend a hearing before the Tribunal. The applicant was under the mistaken belief that he could not attend a hearing because of COVID-19 restrictions.
The Minister contends that no error arose in this regard because the applicant consented to the Tribunal deciding the review without a hearing and was informed, in the RFSVI form, which he completed, that (CB 68):
Note: If you consent to us deciding your review without a hearing:
•You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
Section 360(1) of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, this provision does not apply if the applicant consents to the Tribunal deciding the review without the applicant appearing before it: s 360(2)(b) of the Act. If the applicant does so consent, then they are not entitled to appear before the Tribunal: s 360(3) of the Act.
The applicant consented, (on behalf of himself and his family members), to the Tribunal deciding the review without a hearing. It is understandable, given the restrictions on gatherings and movement during the COVID-19 pandemic, that the applicant may have been confused about how the hearing would be conducted. It was, however, open for the applicant to contact the Tribunal and make enquiries about these matters. The s 359(2) invitation letter indicated that if the applicant had any questions, he could contact the Tribunal, including through the translating and interpreting service (CB 61). In any event, the applicant’s submissions to the Court indicates that he understood the question being asked about whether he consented to the Tribunal deciding the review without a hearing, and that he had so consented on behalf of all applicants.
Having consented to the Tribunal deciding the review without a hearing, the applicants were not entitled to appear before the Tribunal. In the circumstances, the Court does not consider that any procedural fairness arose out of the Tribunal proceeding to a decision on the information before it. In the circumstances, no procedural unfairness arose from the applicants not being invited to a hearing.
CONCLUSION
There has been no denial of procedural fairness by the Tribunal in this matter. It follows that the applicants have not established jurisdictional error on the part of the Tribunal. The Court will accordingly dismiss the application.
The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 25 September 2024
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