Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 408
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 408
File number(s): MLG 3919 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 2 May 2024 Catchwords: MIGRATION – Student Visa – Application for an extension of time for review of Registrar’s summary dismissal order – Where the substantive application did not have a reasonable prospect of success to make it in the interests of justice to extend time – Where the Applicant was not enrolled in a course of study and did not satisfy a mandatory criterion for the grant of a student Visa – Application for an extension of time to review the decision made by the Registrar dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 256
Migration Act 1958 (Cth) ss. 359AA, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.13, 21.02, 21.04
Migration Regulations 1994 (Cth) reg. 500.211, 500.212
Cases cited: El-Tawil v Minister for Home Affairs [2019] FCA 1012
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 2 May 2024 Date of hearing: 2 May 2024 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3919 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RINKU ASHOKABHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 26 March 2024 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1,400.
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 CHAMPION
INTRODUCTION
Ms Rinku Patel (the Applicant) seeks an extension of time to bring an application for review of a Registrar’s decision summarily dismissing her judicial review application. Her substantive judicial review application seeks judicial review of a decision of the Administrative Appeals Tribunal refusing to grant her a student visa. The Tribunal refused to grant her a student visa because she did not satisfy the mandatory criterion for the grant of the visa because she was not enrolled in a course of study. Because her substantive judicial review application does not have a reasonable prospect of success it is not in the interests of justice to extend time for her to bring an application for review of the Registrar’s decision. Her application will be dismissed. My reasons follow.
BACKGROUND
On 21 December 2018 the Applicant filed an application seeking judicial review of a decision of the Tribunal made on 4 December 2018 (CB162–167).
By an amended response filed on 20 December 2023, the First Respondent made application for summary dismissal of the application pursuant to r. 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on the basis that the Applicant had no reasonable prospect of successfully prosecuting the proceeding.
On 26 March 2024 a Registrar summarily dismissed the Applicant’s judicial review application.
Rule 21.04(1) of the Rules provides for judicial review of the exercise of power by a Registrar by way of a hearing de novo.
AN EXTENSION OF TIME
The Applicant seeks a review of the Registrar’s decision pursuant to s. 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). Rule 21.02(1) of the Rules provides that “an application for review of the exercise of a power by a Registrar must be made within 7 days.” Rule 21.02(2)(a) provides that the “time prescribed […] may be extended by the Court […] on any terms that the Court […] thinks fit.”
Because the Registrar had made his decision on 26 March 2024, the deadline for making the review application within time was to April 2024. On (Sunday) 7 April 2024 the Applicant lodged her application for review of the Registrar’s decision to summarily dismiss the Applicant’s judicial review application. The application was accepted for filing on 12 April 2024. Suffice to say the application was made some days after the 7-day time limit the Rules prescribe. The First Respondent opposes the grant of an extension of time to bring the application.
In support of her application for an extension of time the Applicant read her affidavit made on 6 April 2024 (Ex. A1) in which she deposed at [3]:
I was under stress and experiencing health issues since the hearing the matter by the court.
The Applicant annexed a medical certificate (RPD-2) to her affidavit which recorded that:
Ms Rinku Patel was seen in this clinic for a medical condition and will be unfit for work from 28/03/204 to 28/03/2024
As the grounds in the substantive judicial review application have no reasonable prospects of success, it is not in the interests of justice to extend time for the bringing of the review application under r. 21.02(2)(a) and will make orders accordingly.
MATERIAL BEFORE THE COURT
In addition to the Applicant’s affidavit made on 6 April 2024, I admitted into evidence the Court Book (CB1–200; Ex. CE-1).
I have had regard to the First Respondent’s submissions dated 31 January 2024 (Ex R1) and 24 April 2024 (Ex. R2).
Even though I made orders on 18 April 2024 that the Applicant file a written outline of submissions and any additional affidavit by 30 April 2024, she filed no additional material as to her review.
BACKGROUND
The Applicant is a citizen of India.
The visa application before the delegate
On 12 April 2017, the Applicant applied for the Student (subclass 500) visa. On the visa application, the Applicant answered ‘Yes’ when asked whether she held a Confirmation of Enrolment (CoE) for her intended course of study (CB1).
On 24 July 2017, a delegate of the Minister refused to grant the Applicant the visa because the delegate was not satisfied that the Applicant was a genuine temporary entrant (GTE) within the meaning of cl. 500.212(a) of Sch. 2 to the Migration Regulations 1994 (Cth).
The visa application before the Tribunal
On 7 August 2017 the Applicant applied to the Tribunal for merits review (CB54–55).
On 26 October 2018 the Tribunal invited the Applicant to complete a “Request for Student Visa Information Form”. The cover letter stated that “it is a requirement for the visa that you are enrolled in a registered course of study” (CB 80–1).
On 9 November 2018 the Applicant’s representative returned the completed form with supporting documentation but not a Confirmation of Enrolment (CoE). On the form, when asked if she held a current CoE for an approved course of study, the Applicant answered ‘No’ (CB103).
On 15 November 2018 the Tribunal invited the Applicant to attend a hearing on 4 December 2018 (CB121). By its letter the Tribunal requested the Applicant provide a copy of her current CoE and any other documents prior to the hearing (CB122).
The Tribunal’s decision and its reasons
At the hearing on 4 December 2018, the Tribunal gave an oral decision and affirmed the Delegate’s decision to refuse the visa because the Applicant not enrolled in a course of study satisfy the mandatory criterion for the grant of the visa under cl. 500.211 of the Regulations.
On 12 December 2018 the Tribunal provided written reasons of its decision (CB160–162).
In its reasons the Tribunal explained that the determinative issue was whether the Applicant was enrolled in a course of study and that this was a different determinative issue to the issue before the delegate which was whether it was satisfied that the Applicant was a genuine temporary entrant (CB160, [5]–[7]).
The Tribunal put adverse information to the Applicant pursuant to its obligations under s.359AA of the Migration Act 1958 (Cth), namely that records from the Provider Registration And International Student Management System (PRISMS) disclosed that the Applicant was not currently enrolled in a course of study (CB136–137). Noting that the Tribunal hearing was on 4 December 2018, the PRISMS records disclosed that the Applicant had not been enrolled in a course of study since 8 July 2018.
The Tribunal reasons further record (CB160, [14]):
You further confirmed in your sworn evidence that you are not currently enrolled, nor do you have a valid offer of enrolment in any course of study in Australia.
Because the Tribunal found that there was no evidence that the Applicant was enrolled in, or had a current offer enrolment in, any course of study the Tribunal was not satisfied that at the time of the decision that the Applicant was enrolled in a course of study and “accordingly clause 500.211 is not met” (CB160, [15]).
The Tribunal refused to grant the visa.
THE JUDICIAL REVIEW APPLICATION AND THE APPLICATION FOR ITS SUMMARY DISMISSAL
On 21 December 2018 the Applicant filed an application for judicial review of the Tribunal’s decision in this Court pursuant to s. 476 of the Act. I have detailed the grounds below.
Summary dismissal application
As already noted, on 20 December 2023, the Minister made a summary dismissal application under r.13.13(a) of the Rules which was heard and determined by a Registrar who summarily dismissed the judicial review application.
Rule 13.13(a) provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;…
[Emphasis added]
In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [58]–[60] a plurality in the High Court both warned against any “judicial glossing” of the expression “no reasonable prospect” and said at [59]:
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power
[Emphasis added]
An extension of time
My discretion as to any extension of time must be exercised in the interests of justice.
It will not be in the interests of justice to extend time for the bringing of a review application “if the substantive application does not have sufficient prospect of success to make it just that the prospective appellant be permitted to proceed with it” e.g., in another context, WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399, [9].
Common considerations which inform the discretion to extend time under s. 477 of the Act to bring an application for judicial review may be relevant to the exercise of the discretion to extend time to bring an application for review of a Registrar’s decision. Those (non-exhaustive) considerations include the length of the delay, the explanation of the delay, any relevant prejudice to the First Respondent and the merits of the proposed substantive application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28, [12].
In this case, the delay is very short and there is no relevant prejudice to the First Respondent. There is also some explanation for the delay in terms of the Applicant’s illness. Whether that explanation is satisfactory might be put to one side because the substantive application does not have sufficient prospect of success to make it in the interests of justice to extend time.
The application can be properly described as “untenable” or “groundless” (Spencer, [59], above).
There was no basis for the Tribunal to be satisfied that the Applicant met a mandatory criterion for the grant of the visa of enrolment in a course of study
The Tribunal had to be satisfied that the Applicant met a mandatory criterion for the grant of the visa, namely at the time of the Tribunal’s decision she was “enrolled in a course of study” (cl. 500.211(a)).
That criterion is mandatory and cannot be waived (El-Tawil v Minister for Home Affairs [2019] FCA 1012, [15] (Griffiths J)). Having regard to the PRISMS records and the Applicant’s own sworn evidence before the Tribunal there was no basis on which the Tribunal could be satisfied that the Applicant was enrolled in a course of study.
As a result, the Applicant’s substantive judicial review application which contends that the Tribunal made a jurisdictional error is “untenable” or “groundless”.
Grounds of review
I turn now to the Applicant’s Grounds of Review.
The grounds as set out in the originating application on 21 December 2018 (which have not been since amended) were as follows:
1.The Hon. Tribunal Member committed a jurisdictional error just by relying upon file notes of the Case Officer from Department of Home Affairs.
2.The Member has made decision without considering material facts and that I completed my enrolled studies.
3.The Hon. Member has confused me with the strict legal complication without considering the material facts and Member failed to hear my personal circumstances.
[As written]
Ground 1 asserts that the Tribunal erred “by relying upon file notes of the case officer from Department of Home Affairs”. The Tribunal relied upon the PRISMS records (which it properly put to the Applicant pursuant to its obligations under s. 359AA), the Applicant’s non-provision of a CoE before the hearing and the Applicant’s sworn evidence at the hearing that she was not enrolled in a course of study. Ground 1 has no reasonable prospect of success.
Ground 2 is that the Tribunal “made decision without considering material facts and that I completed my enrolled studies”. I accept the First Respondent’s submission that having found the Applicant was not in enrolled in a course of study, the Tribunal's task was complete. It was “not required to assess whether any other visa criteria was or was not met” including as to whether the Applicant was a genuine temporary entrant) were satisfied (Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605, [28] (Rofe J)).
Ground 3 has 2 elements. The first element is that the Tribunal “confused me with the strict legal complication”. This part of Ground 3 appears best understood on the basis that the Applicant did not fully understand that the Tribunal was dealing with the matter on the basis of a different dispositive issue (enrolment in a course of study) than the dispositive issue before the delegate (whether the Applicant was a genuine applicant for entry and temporary stay as a student). Before the hearing, the Tribunal (twice) by its communications in the letters sent on 26 October 2018 and 15 November 2018 put the Applicant on notice of the different dispositive issue than the issue that was before the delegate in accordance with its obligations (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, [35]).
Further, as to the second element of Ground 3, to the extent that the Applicant complains that the Tribunal “failed to hear my personal circumstances”, because the Applicant did not meet the mandatory criterion of enrolment in a course of study, her personal circumstances did not otherwise frame the decision the Tribunal had to make.
DISPOSITION
In substance, the First Respondent has made good its summary dismissal application that the Applicant has no reasonable prospect of successfully prosecuting her claim for relief. Practically, the Registrar’s order made on 26 March 2024 dismissing the application remains in full force and effect. Because the substantive judicial review proceeding has no reasonable prospect of success, it is not in the interests of justice to extend the time for bringing this review application.
My order will be that the application for an extension of time to review the decision made by a Registrar on 26 March 2024 is dismissed.
I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $1,400 as sought which is an amount I regard as reasonable.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 2 May 2024
0
7
4