Rani v Minister for Home Affairs

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Rani v Minister for Home Affairs [2021] FCCA 1649

File number(s): MLG 1968 of 2018
Judgment of: JUDGE BLAKE
Date of judgment: 23 July 2021
Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 572 visa –whether the Tribunal failed to provide the Applicant a meaningful hearing as required by s 360 of the Migration Act 1958  (Cth) – whether the Tribunal failed to comply with s 359AA of the Migration Act 1958 (Cth) – no jurisdictional error – Application dismissed.
Legislation:

Migration Regulations 1994 (Cth) sch 2 cl 572.223(1)(a)

Migration Act 1958 (Cth) ss 359AA, 360

Federal Circuit Court Rules 2001 r 13.03(c)(1)
Cases cited:

Ibrahim v Minister for Immigration [2018] FCA 2087

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration v WZARH (2015) HCA 40

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

MZYFH v Minister for Immigration (2010) 188 FCR 151
Number of paragraphs: 53
Date of hearing: 25 May 2021
Place: Melbourne
Counsel for the Applicants: Mr McBeth
Solicitor for the Applicants: Clothier Anderson Immigration Lawyers
Counsel for the Respondents: Mr Yuile
Solicitor for the Respondents: Clayton Utz

ORDERS

MLG 1968 of 2018
BETWEEN:

RITU RANI

First Applicant

PARVEEN KUMAR MALHAN

Second Applicant

NOOR MALHAN

Third Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1.The Application filed on 9 July 2018 be dismissed.

2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $4,480.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

  1. The Applicants seek review of a decision of the Administrative Appeals Tribunal ('Tribunal'). The decision was delivered orally by the Tribunal on 4 June 2018 and a written statement of reasons was subsequently issued by the Tribunal dated 13 August 2018 ('Decision').  In the Decision, the Tribunal affirmed the decision of a delegate of the Minister ('Delegate') not to grant the First Applicant a Student (Temporary) (Class TU) Subclass 572 visa ('Visa').

  2. For the reasons that follow, I have decided to dismiss the application for review.

    BACKGROUND

  3. The First Applicant is the primary applicant for the Visa.  The Second Applicant and the Third Applicant are dependents of the First Applicant and are Secondary Applicants for the Visa. In these reasons, I refer to the First Applicant as the 'Applicant'.

  4. The Applicant through her then representatives Asia Pacific Education Consultants Pty Ltd applied for the Visa on 29 April 2016.

  5. On 28 October 2016, the Department wrote to the Applicant and informed her that her application for the Visa had been refused (Court Book 124).  The Applicant was advised that she did not meet the requirements of the Migration Regulations 1994 (Cth) ('Regulations'). Specifically, the Applicant was advised that she did…

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Details
Case
[2021] FCCA 1649
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of a student visa. The applicant, the first applicant in the proceeding, had applied for the visa in April 2016. The Department of Home Affairs refused the application in October 2016, finding the applicant did not meet the requirements of the Migration Regulations 1994 (Cth), specifically that she did not genuinely intend to stay in Australia temporarily, considering her circumstances and immigration history. The applicant sought review of this decision.

The primary legal issue before the court was whether the AAT had failed to provide the applicant with a meaningful hearing, as required by section 360 of the Migration Act 1958 (Cth). The applicant contended that the Tribunal refused her requests for an adjournment, despite her daughter's illness, and then proceeded to make a decision without affording her a proper opportunity to respond to adverse information or present her case, including providing evidence of current enrolment in a course.

Blake J dismissed the application for review. The court found that the Tribunal had repeatedly requested evidence of the applicant's current enrolment or an offer of enrolment in a registered course, which was a prerequisite for the visa. Despite being given multiple opportunities, including an invitation to a hearing and reminders via email, the applicant failed to provide this crucial documentation. The Tribunal noted the applicant's evidence that she was not currently enrolled and had no offer of enrolment. Given the lack of evidence satisfying the enrolment requirements, the Tribunal was entitled to conclude that the applicant did not meet the criteria for the visa. The court found no error in the Tribunal's conduct of the hearing, including the refusal of further adjournments and the use of an interpreter, in light of the applicant's failure to provide the necessary evidence.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I have decided to dismiss the application for review.BACKGROUND The First Applicant is the primary applicant for the Visa. The Second Applicant and the Third Applicant are dependents of the First Applicant and are Secondary Applicants for the Visa. In these reasons, I refer to the First Applicant as the 'Applicant'. The Applicant through her then representatives Asia Pacific Education Consultants Pty Ltd applied for the Visa on 29 April 2016. On 28 October 2016, the Department wrote to the Applicant and informed her that her application for the Visa had been refused (Court Book 124). The Applicant was advised that she did not meet the requirements of the Migration Regulations 1994 (Cth) ('Regulations'). Specifically, the Applicant was advised that she did not meet the requirements set out in clause 572.223(1)(a) of Schedule 2 to the Regulations because the Delegate was not satisfied that the Applicant intended to genuinely stay in Australia temporarily having regard to her circumstances and immigration history (Court Book 134). The Applicant sought a review of the Delegate's decision on or around 15 November 2016 (Court Book 143). The Tribunal wrote to the Applicant on 8 May 2018. In that letter, the Tribunal invited the Applicant to a hearing before it on 4 June 2018. Further and significantly in the circumstances of the present matter, in the letter, the Applicant was asked to provide, among other things, 'a copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa' and 'Document/s that show you are currently enrolled in a course or have an offer of enrolment in a registered course, as required for the grant of a student visa' (Court Book 157). On 31 May 2018, the Applicant sent an email to the Tribunal. The Applicant requested an adjournment of the hearing on the basis that her daughter was unwell (Court Book 171). On Friday, 1 June 2018, the Tribunal sent an email to the Applicant that attached a letter. The Tribunal refused the adjournment application because the supporting evidence submitted by the Applicant did not cover the date of the hearing. The Tribunal did, however, offer the Applicant the opportunity to attend any hearing by telephone. The Applicant was also reminded of the need to provide a copy of her current Certificate of Enrolment, and documents that showed her currently enrolled in a course or having an offer of enrolment in a registered course (Court Book 176-177). The Applicant subsequently telephoned the Tribunal and made a further request for an adjournment on the basis that her daughter was unwell. That request was also refused. Ultimately, the hearing proceeded on 4 June 2018 with the Applicant attending by telephone, and being assisted by an interpreter. The Tribunal proceeded to dismiss the application for review. The Applicant filed her application for review in this Court on 9 July 2018. It is not presently necessary to recite all of the events that occurred in this Court, save to note that the Applicant filed with the leave of the Court an Amended Application for review dated 29 April 2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

A Court Book was ultimately filed by the Minister. The Applicant filed written submissions on 3 May 2021 and relied on her affidavits of 9 July 2018, 7 January 2021, and 1 March 2021, and an affidavit from her solicitor of 21 December 2021. The Minister filed written submissions on 19 May 2021. THE DECISION OF THE TRIBUNAL The decision of the Tribunal is of relatively short compass and may be summarised as follows:(a)At paragraphs [1]-[5] of the Decision, the Tribunal set out the background to the application for the Visa.(b)At paragraph [6] of the Decision, the Tribunal recorded that the delegate had refused to grant the Visa because the delegate was not satisfied that the Applicant was a 'genuine student who intends genuinely to stay in Australia temporarily'.(c)At paragraphs [7]-[8] of the Decision, the Tribunal noted that the hearing was conducted by telephone and with the assistance of an interpreter.(d)At paragraph [9] of the Decision, the Tribunal noted the issue before the delegate. The Tribunal stated that the issue before it 'now is whether at the time of this decision you met the enrolment requirements for a student visa'.(e)At paragraph [10], the Tribunal summarised the Regulations as requiring, inter alia, that the 'applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course'.(f)In paragraphs [11]-[13] of the Decision, the Tribunal recorded that the Applicant had been asked on 8 May 2018 to provide a copy of her Certificate of Enrolment and also that she had been asked to provide the Certificate of Enrolment during the hearing. The Tribunal recorded that she had not produced that document, noted her further evidence that she had last been enrolled in a course in late 2016 and her sworn evidence that she was not currently enrolled in, nor did she have any offer of 'enrolment in any course of study in Australia'.(g)In paragraphs [14]-[15] of the Decision, the Tribunal records that there is no evidence before it that the Applicant is now enrolled or has an offer of enrolment in an applicable course of study, and that the current enrolment prerequisite for all student Visa subclasses is not met.(h)At paragraph [16] of the Decision, the Tribunal concludes that the decision under review should be affirmed.GROUNDS OF REVIEW There are two grounds of review in the Amended Application. The first ground of review is as follows:The Tribunal failed to provide the applicant a meaningful hearing as required by s 360 of the Migration Act 1958 (Cth)(‘the Act’).Particulars(a) The Tribunal put adverse information to the applicant and asked her whether she required more time to respond.(b) The applicant replied that she required more time to respond.(c)The Tribunal then immediately refused to provide the applicant an opportunity to provide a meaningful response and proceeded to make a decision.(d)The applicant requested an opportunity to have the interpreter explain the situation, but was not provided with a meaningful opportunity for that to occur.(e)The applicant was not provided a meaningful opportunity to give evidence and present arguments as required by s 360 of the Act.

Ratio Decidendi

Legal Principle Established

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