Quadri v Minister for Home Affairs
[2019] FCCA 2768
•26 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUADRI & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2768 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – principal applicant found not to be enrolled in a course of study – whether the Tribunal provided a fair hearing opportunity or whether the Tribunal made an unreasonable decision considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 359A, 360, 425 Migration Regulations 1994 (Cth) |
| Cases cited: SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 SZLPH v Minister for Immigration [2018] FCAFC 145 |
| First Applicant: | SYED MUJTABA HASSAN QUADRI |
| Second Applicant: | ASNA TASKHEER |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1241 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2019 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Lambe of HWL Ebsworth |
ORDERS
The application filed on 3 May 2018 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1241 of 2018
| SYED MUJTABA HASSAN QUADRI |
First Applicant
| ASNA TASKHEER |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The first applicant, Mr Quadri, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 April 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant to Mr Quadri and his dependents temporary student visas.
Background facts relating to this matter are set out in initial legal submissions filed on behalf of the Minister on 27 February 2019.
Mr Quadri, a male citizen of India, arrived in Australia on 16 September 2008 as the holder of a valid student visa.[1] The second applicant, Ms Taskheer, is his wife who is a female citizen of India and who arrived in Australia in 2015.[2] Since Mr Quadri’s initial arrival in Australia, he has held a further three student visas and their associated bridging visas.
[1] Court Book (CB) 114
[2] CB 117
On 18 September 2016 Mr Quadri applied for a student (temporary) (class TU) (subclass 500) visa (student visa). Ms Taskheer applied for the visa as an accompanying family member of Mr Quadri. Mr Quadri and Ms Taskheer stated that Mr Quadri held a confirmation of enrolment (CoE) (number 84698472) for an intended course of study in Australia (Mr Quadri’s CoE).[3]
[3] CB 1
On 2 November 2016, Mr Quadri was invited by email to comment on his circumstances in relation to the Genuine Temporary Entrant criterion and to provide further documentation.[4] He responded on 29 November 2016, providing a statement addressing the Genuine Temporary Entrant criteria and other supporting documents.[5]
[4] CB 34-35
[5] CB 48-72
On 17 February 2017 Mr Quadri and Ms Taskheer were notified of the delegate’s decision of earlier that day to refuse to grant the student visa application.[6] The delegate noted that at the time of application, Mr Quadri was enrolled to undertake a Bachelor of Business[7] but found that Mr Quadri did not satisfy the Genuine Temporary Entrant criterion. As Mr Quadri was found not to satisfy clause 500.212 of the Migration Regulations 1994 (Cth) (Regulations), Ms Taskheer was found not to satisfy clause 500.311, that is, that they are a member of the family unit of a person who holds a student visa.[8]
[6] CB 75
[7] CB 83
[8] CB 85
Proceedings before the Tribunal
On 27 February 2017 Mr Quadri and Ms Taskheer applied to Tribunal for review of the delegate’s decision.[9]
[9] CB 87
On 7 March 2018 the Tribunal wrote to Mr Quadri and Ms Taskheer to:
a)invite them to attend a hearing before the Tribunal;
b)inform them that the they should have regard to the reasons that the delegate had refused to grant the visa “as well as any changes in your circumstances” in providing documents and preparing for the hearing; and
c)request that they provide to the Tribunal within seven days of the hearing a number of documents including “a copy of your current Certificate of Enrolment … or other document/s that show you are currently enrolled in a course of study as defined in clause 500.111 of the Migration Regulations 1994, as is required for the grant of a student visa” (emphasis added).
On 29 March 2018 Mr Quadri and Ms Taskheer accepted the hearing invitation and provided certain documents to the Tribunal.[10] On 5 April 2018 only Mr Quadri appeared before the Tribunal to give evidence and present arguments. Ms Taskheer did not attend apparently due to the then recent birth of Mr Quadri and Ms Taskheer’s child. At the hearing Mr Quadri provided the Tribunal with medical documents pertaining to the birth of their baby.[11]
[10] CB 120
[11] CB 151
Notably, none of the documents provided to the Tribunal (either before or at hearing) included a copy of a current CoE, although a document entitled “Offer and Acceptance of Enrolment” in relation to a Bachelor of Business course at Group Colleges Australia was provided.[12] The enrolment dates specified on the Offer and Acceptance of Enrolment were 24 October 2016 to 16 August 2019.[13]
[12] CB 138
[13] CB 139
On 6 April 2018, the Tribunal notified Mr Quadri and Ms Taskheer of its decision made on 5 April 2018 affirming the delegate’s decision.[14]
[14] CB 167
The Tribunal found that at the time of making its decision Mr Quadri did not satisfy clause 500.211, as he was not enrolled in a course of study.[15] In reaching this conclusion, the Tribunal noted that Mr Quadri did not provide a current CoE or offer of enrolment, despite him having confirmed at hearing that he had read the hearing invitation carefully.[16]
[15] Tribunal at [22]
[16] Tribunal at [21]-[22]
While the Tribunal noted that Mr Quadri had provided a document entitled “Offer of Enrolment”, this was not considered to be a current offer, presumably given that it was for a course of study that was to have commenced in 2016.[17]
[17] Tribunal at [16]-[17]; [22]
The Tribunal further noted that as this threshold criterion had not been met and because he needed to satisfy all clause 500.2 criteria at the time of the Tribunal’s decision, it was not necessary to assess him against the other criteria in clause 500.2.[18] Having affirmed refusal of the visa for Mr Quadri, the Tribunal also affirmed the decision to refuse the visa for Ms Taskheer.[19]
[18] Tribunal at [23]
[19] Tribunal at [25]
The present proceedings
These proceedings began with a show cause application filed on 3 May 2018. Mr Quadri continues to rely upon that application. The grounds in it are:
1.The Administrative Appeals Tribunal failed to comply with section 359A or section 359AA of the Migration Act 1958 (Cth).
Particulars
a)The Tribunal's Invitation to Attend a Hearing dated 7 March 2018, failed to give notice to the Applicant that the CoE 84698472 provided to the Department of Immigration and Border Protection as part of the student visa application lodged on 18 September 2016 was cancelled.
b)The Tribunal failed to give clear particulars in regard to the cancellation of the CoE 84698472 to the Applicant.
c)The Applicant informed the Tribunal that the CoE provided to the Department was the current CoE issued to the Applicant and is valid until 16 August 2019. The Applicant was unaware that CoE84698472 was cancelled at the time of the Tribunal hearing. The Tribunal failed to give notice to the Applicant that a new Certificate of Enrolment was required.
2. The Administrative Appeals Tribunal failed to give procedural fairness
Particulars
a)The Tribunal, during the course of the hearing, failed to determine whether the course was suspended, deferred or cancelled. The Tribunal decision record notes at paragraph 17, "At the hearing the applicant was asked if he commenced the Bachelor of Business and said he did, but that he only completed one semester before discontinuing study because his wife was pregnant, ... ''. The Applicant informed the Tribunal during the hearing that the CoE was valid until the year 2019.
b)The Tribunal decision record notes at paragraph 22 "In seeking to establish whether the applicant had an offer of enrolment he was asked when he intends to resume study and said 'as soon as possible'..''. Thereby, the Tribunal led the Applicant to believe the CoE was still valid and he simply was required to resume the studies.
c)The Tribunal informed the Applicant that the PRISMS record confirmed the evidence given by the Applicant [in] relation to his studies. In doing so, the Tribunal erred in considering the evidence of the Applicant at the time of the hearing. The Applicant gave evidence that the CoE was valid until the year 2019. Accordingly, the Tribunal misled the Applicant.
The matter came before me for a show cause hearing on 9 March 2019. At that time I made a show cause order as follows:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why the relief should not be granted to the applicants in relation to the following issues:
a.whether the Administrative Appeals Tribunal decision was illogical, irrational or unreasonable in terms of the material that the Tribunal decision record discloses was before it; and
b.whether the Tribunal complied with its obligation under s 360 of the Migration Act 1958 (Cth) to afford a fair hearing opportunity to the applicants.
The purpose of the show cause order was to test at a final hearing whether the conclusion reached by the Tribunal on Mr Quadri’s ineligibility for the visa was open to it on the available material and whether the hearing opportunity afforded him was a fair one.
In addition to the court book filed on 23 July 2018, I have before me as evidence the affidavit of Helen Stanbury made on 10 April 2019 (Stanbury Affidavit), to which is annexed a transcript of the hearing before the Tribunal. I received as a submission Mr Quadri’s affidavit filed with his original application.
Having regard to the transcript, it is clear that the conclusion reached by the Tribunal concerning Mr Quadri’s lack of a current enrolment at the time of the decision was open to it. The issues are addressed in the Minister’s supplementary submissions. Having examined the transcript and heard oral submissions from Mr Quadri, I agree with the Minister’s submissions.
Order to show cause issue (b): did the Tribunal comply with its obligation under s.360 of the Migration Act 1958 (Cth) (Migration Act) to afford a fair hearing opportunity to Mr Quadri and Ms Taskheer?
This issue arises because the Tribunal decided the review on a different basis to the delegate. Additionally, at the show cause hearing on 6 March 2019, Mr Quadri made an allegation (consistently with ground 2 of his application) that the Tribunal had misled him by leading him to believe that his Offer of Enrolment in relation to the Bachelor of Business was valid.
The second aspect of this issue can be dealt with briefly as there is nothing in the transcript to bear out Mr Quadri’s allegation that the Tribunal led him to believe that his CoE was valid.
In relation to the first aspect of this issue, the delegate refused Mr Quadri and Ms Taskheer’s application for a student visa on 17 February 2017 on the basis that Mr Quadri did not satisfy the Genuine Temporary Entrant Criterion.[20] In coming to that conclusion, the delegate accepted that, at the time of the student visa application, and at the time of his decision, Mr Quadri was enrolled to undertake a Bachelor of Business.[21]
[20] CB 95-100 and especially 99
[21] CB 97
The Tribunal affirmed the delegate’s decision to refuse the visa because it was not satisfied that Mr Quadri was enrolled in a course of study at the time of its decision.[22] It was a condition for the grant of the visa that Mr Quadri be enrolled in a course of study at the time a decision is made on the application.[23]
[22] CB 172
[23] Clause 500.211 of the Regulations
In SZBEL v Minister for Immigration,[24] the High Court held that in conducting a hearing under s.425 of the Migration Act (the analogous Pt 7 provision to s 360), the Tribunal is obliged to identify to the applicant any issues that it considers dispositive if those issues are not issues that were dispositive before the delegate.[25] That is, “unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”.[26] The requirement that the Tribunal “identify” dispositive issues was given content by the Court at [47]:
…where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
[24] (2006) 228 CLR 152; [2006] HCA 63
[25] See [35]
[26] [36]
Nonetheless, the Court qualified the above at [48]:
Procedural fairness does not require the Tribunal to give a running commentary upon what it thinks about the evidence that is given.
That is, the Tribunal is not required to disclose its deliberative processes.[27]
[27] See, e.g. SZLPH v Minister for Immigration [2018] FCAFC 145 at [55]
The transcript reveals a number of instances at which the Tribunal identified as an issue in the review whether or not Mr Quadri was enrolled in a course of study. The Tribunal noted:[28]
Member:In considering your matter and making a decision I am going to have regard to such things as your circumstances in your home country, your circumstances in Australia, your immigration or travel history any other relevant information that could be beneficial to you but could be unfavourable as well. I will also look at whether you are enrolled in a course of study, because of course you need to be enrolled in a course of study to be granted a student visa.
Applicant:Exactly.
Member:That is one of the primary criteria.
Applicant:Exactly.
[28] See page 5 of Annexure A to the Stanbury Affidavit
And at pages 15-16 of Annexure A to the Stanbury Affidavit:
Member: Are you enrolled in a course at the moment?
Applicant:Yes like I have to ah printing that one for whatever the course I (unintelligible)… I have to continue that one because I'm planning to go back to the uni.
Member:But are you enrolled at the moment?
Applicant:Yes enrolled.
Member:So did you defer the course or something like that?
Applicant:Yes I deferred the course.
Member:And do I have evidence of that?
Applicant:No.
Member:Why not?
Applicant:No actually I haven’t ,it’s not deferred but what you said, it’s like I discontinued this thing.
Pages 11, 13, 14 and 18 of Annexure A to the Stanbury Affidavit also record relevant exchanges between Mr Quadri and the Tribunal.
I accept that these exchanges reveal that Mr Quadri was well aware that his enrolment in a course of study was at issue in the Tribunal proceeding. He acknowledged that he was no longer studying and had discontinued (c.f. deferred) his studies.
Order to show cause issue (a): was the Tribunal decision illogical, irrational or unreasonable in terms of the material that the Tribunal decision record discloses was before it?
This issue arose at the show cause hearing in the context of Mr Quadri and Ms Taskheer’s assertion, by their application, that the Tribunal had erred by failing to put to Mr Quadri and Ms Taskheer, pursuant to s.359A and/or s.359AA of the Migration Act, that Mr Quadri’s PRISMS[29] record indicated his CoE was cancelled. The Tribunal’s decision does not make mention of the PRISMS record.
[29] Provider Registration and International Student Management System
The Minister’s representative raised with me at the show cause hearing that on the face of the documents, it appeared as though Mr Quadri’s PRISMS record was before the Tribunal.[30] The transcript puts that question beyond doubt.[31]
[30] CB at 118-119
[31] See Annexure A to the Stanbury Affidavit at pages 17-19
The Minister’s submission is that the Tribunal’s decision is nonetheless unaffected by jurisdictional error. I agree. This is because the Tribunal did not rely on the PRISMS record in making its decision. It relied only on information provided by Mr Quadri at the hearing.[32] The point is well made by reference to page 18 of the transcript, at which the following exchange takes place:
[32] See, e.g. the excerpts of the transcript cited above at [31]-[32]
Member:There-there's a document called the PRISMS record and it just has a list of all the courses you've done…
Applicant:Exactly Ma'am
Member:Any courses you've finished or even not finished…
Applicant:Yes Member
Member:So what it has on it, sometimes if you- sometimes if there's an applicant with a student visa they will say they’ve done these courses and I have a look at the document and it's not the same.
Applicant:Exactly
Member:So then I would have a problem, and I would say 'well I need to talk to you in detail about that'.
Applicant:Exactly.
Member:That's not your case. You've told me what you've done, that's what the records says-
Applicant:Exactly Member
Member:And it says also that you have- that you did discontinue the course and you've told me that.
Applicant:Yes Member
Member:So there's nothing on that government record that is different to what you've told me.
Applicant:Ok.
It is apparent from the above that there was no need for the Tribunal to rely on the PRISMS record in coming to its decision because the PRISMS record is entirely consistent with Mr Quadri’s own evidence, namely that he had discontinued his course and was no longer studying. This proposition is supported by the Tribunal’s reasons, which refers to Mr Quadri’s evidence but does not refer to the PRISMS record.[33]
[33] See, in particular [17], CB 172
The short point is that the Tribunal did not rely on the PRISMS record in coming to its conclusion that Mr Quadri was not enrolled in a course of study and therefore did not meet one of the primary criteria for the grant of the visa. Any failure by the Tribunal to refer to the PRISMS record in its reasons was not illogical, irrational or unreasonable because it did not rely on that record.
Nor could the Tribunal have erred by failing to put PRISMS record to Mr Quadri and Ms Taskheer pursuant to s.359A or s.359AA of the Migration Act. Those sections are confined in operation to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The PRISMS record is not information of that kind.
I conclude that it was open to the Tribunal to find that Mr Quadri was not enrolled in a course of study at the time of the Tribunal decision. This was the key dispositive issue before the Tribunal, and the transcript establishes that Mr Quadri was put on notice of it. Mr Quadri continues to claim that he misunderstood the significance of the words “deferred” and “discontinued”, but no confusion is apparent on the transcript.
Conclusion
I conclude that Mr Quadri has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,900. Mr Quadri sought an explanation of the process of dealing with the costs order, which I gave him. He did not oppose a costs order in principle. The amount sought is, in my view, reasonable and proper recompense for the work done on behalf of the Minister.
I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,900.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 October 2019
0
3
3