Reddy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1148
•28 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Reddy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1148
File number(s): CAG 53 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Graduate (Temporary) (Class VC) (Subclass 485) visa – whether the finding of the Tribunal was infected by jurisdictional error – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 360, 366(1), 499
Migration Regulations 1994 (Cth) cl 500.212(a)Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18
Sharma v minister for Immigration and Border Protection [2018] FCCA 1382
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZNNE v Minister for Immigration and Citizenship [2010] FCA 194
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 39 Date of last submission/s: 25 May 2021 Date of hearing: 25 May 2021 Place: Parramatta Solicitor for the Applicant: The applicant appeared unrepresented Counsel for the Respondents: Mr Galvin of Counsel ORDERS
CAG 53 of 2020 BETWEEN: BADDAM ANUDEEP REDDY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $6000.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of India. The applicant first arrived in Australia on 14 November 2014 as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa to study a Master of Business Administration at Charles Sturt University. The applicant subsequently changed this to a Master of Commerce which, to his credit, he successfully completed on 17 July 2017.
The applicant was subsequently granted a Graduate (Temporary) (Class VC) (Subclass 485) visa valid until November 2019.
On 3 October 2019, the applicant applied for a further student visa to study a Diploma of Leadership and an Advanced Diploma of Business. A delegate of the then Minister for Home Affairs (“the delegate”) refused to grant the applicant his visa on 12 November 2019.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 12 November 2020, the Tribunal affirmed the decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Given the grounds of judicial review set out below, it is not necessary to summarise the Tribunal’s decision in great detail. At paragraph 4 of its decision, the Tribunal notes that the applicant appeared before the Tribunal on 29 September 2020 by telephone due to COVID-19 restrictions to give evidence and present arguments. The applicant was assisted in relation to the review by the registered migration agent.
At paragraph 8 and onwards of its decision, the Tribunal turned its mind as to whether or not the applicant satisfied cl 500.212(a) of the Migration Regulations 1994 (Cth)
(“the Regulations”) as to whether or not the applicant intended to stay in Australia temporarily as a student. The Tribunal properly instructed itself that it must have regard to Direction No 69, “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications” made under s 499 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal noted that this was not to be used as a checklist, but rather, was intended only to guide decision-makers when considering the applicant’s circumstances as a whole.
The Tribunal made a number of findings positive to the applicant, including, at paragraph 12 of its decision, that the applicant had demonstrated sound reasons for not studying the proposed courses in India as compared to Australia.
The Tribunal noted the applicant’s claims that he only wished to stay in Australia temporarily for the purposes of study was at odds with the fact that he admitted to exploring Australian permanent residency prior to applying for a Temporary Graduate visa in 2017. This matter was contained within evidence the applicant gave at the Tribunal hearing.
The Tribunal was also concerned as to the value of the proposed courses to the applicant’s future, bearing in mind he had already completed a Master’s Degree in Commerce (Marketing). The Tribunal noted that the applicant had already undertaken a number of management units in his Master’s degree, including management theory and practice, management of change, managing for sustainability, marketing management and human resource management. The Tribunal did not consider that the proposed courses were at a level consistent with his current level of education, bearing in mind his previous study.
At paragraph 25 of its decision, the Tribunal did not consider that the qualifications of the proposed courses would have a substantial effect on the applicant’s remuneration in his home country or a third country.
Following the completion of the hearing, the applicant submitted a post hearing submission in relation to medical documents. The Tribunal specifically referred to that submission at paragraphs 20 and 28 of its decision.
After considering all the matters it was required to do so, the Tribunal determined to affirm the decision under review not to grant the applicant a further study visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon by the applicant are set out in an Initiating Application filed with the Court on 10 December 2020. They are as follows verbatim:
Ground one
I have applied for student visa (Subclass 500) on 3rd October 2019. I ensured that all the required documents have been submitted which are essential for the grant of student visa (subclass 500). The decision made by the delegate of Minister for Immigration has refused my student visa (subclass 500).
Ground Two
I have applied for Administration Appeals Tribunal on 25th November 2019 for merit review of the decision made by the Delegate of Minister for Immigration for the refusal of the Student (Temporary) (Class TU) where I believe that I was satisfying the conditions which are required for student visa (Subclass 500).
Ground Three
Administration Appeals Tribunal hearing was held on 29th September 2020. I have submitted all the evidence which are essential for my student visa (Subclass 500). The hearing was done through the phone call due to COVID-19. Without no further questions raised or any considerations for my application was refused by the tribunal.
Ground Four
The decision made by the tribunal was considering Subclass 590 (Student guardian visa) but, I have applied for the student visa (Subclass 500).
Ground Five
The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.500.212(a) so the case was unsuccessful.
THE APPLICANT’S SUBMISSIONS
The hearing took place via videoconference using Microsoft TEAMS with applicant residing in Canberra. The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter, and the Court was satisfied that the applicant was able to participate in the hearing in a meaningful way.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court books and that a copy of the first respondent’s written submissions had been provided to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. This included that the Court was unable to grant the applicant the visa that he sought and that if jurisdictional error is established, all the Court could do is quash the Tribunal’s decision and remitted the matter back to the Tribunal for further consideration.
The court also explained the relevant procedure by which the Court hearing would be conducted.
Despite Court orders, no written submissions or additional material over and above the Initiating Application was provided to the Court within the 14 day time period specified by the Court. The Initiating Application included the following statements:
•I have fulfilled the requirements which are required for the student visa. I have chosen diploma in leadership and management course to gain the leadership and management skills which are required for my future ambition in India.
•I am a genuine student who had an intention to study the course only to gain the required skills for my business which I have planned to establish in India.
•I kindly request that you consider my application again to grant me student visa (Subclass 500).
On the evening prior to the hearing, the applicant provided the Court with written submissions that contained additional complaints in respect of the tribunal’s decision. They are as follows:
•The tribunal breached s 359A by not providing an opportunity to present fully.
•The Tribunal member didn’t consider my revised written statements….but forget or by error look into my revised written statements or evidences (sic).
•The Tribunal breached s 359A by failing to put to the applicant for comment information contained in the applicant’s visa.
In oral submissions, the applicant stated that he was stressed when he attended the Tribunal hearing and just needed some more time to finish his course prior to returning to India.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant stated that he never applied for permanent residency and the Tribunal was in error to regard this issue as a factor in refusing his application.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent indicated that he was able to deal, orally, with the additional matters raised by the applicant in his written materials filed with the Court the day before the hearing and did not need an adjournment to consider the new matters raised.
In relation to grounds one, two and five, the first respondent noted that the grounds do not contain any complaint regarding the Tribunal’s decision and instead merely restate certain factual backgrounds. It was submitted that these ground should fail as they do not identify any arguable jurisdictional error in the Tribunal’s decision.
Ground three contends that “without no further questions raised or any considerations for my application” the Tribunal affirmed the delegate’s decision. Taken at its highest, this ground could be understood to be a complaint that the Tribunal failed to afford the applicant procedural fairness. Counsel for the first respondent submitted that the Tribunal complied with its statutory procedural fairness obligations, which are exhaustively set out in Part 5, Division 5 of the Act. In accordance with s 360 of the Act, the applicant was invited to a hearing before the Tribunal, which he attended with his representative via telephone on 29 September 20. The first respondent submitted that it was apparent from the Tribunal’s reasons that the applicant had an opportunity to give evidence and present arguments about the determinative issues on review: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
To the extent that ground three is a complaint that the Tribunal denied the applicant procedural fairness because it conducted a hearing by telephone, or that it was legally unreasonable to exercise its discretion pursuant to s 366(1) of the Act, the first respondent submitted that this should also fail. Section 366 of the Act expressly permits the Tribunal to conduct hearings by telephone. The invitation to attend the hearing noted the hearing would be conducted by telephone and if the applicant was not able to participate in this telephone hearing, that he should contact the Tribunal as soon as possible: see Sharma v minister for Immigration and Border Protection [2018] FCCA 1382 at [28] (“Sharma”). The invitation from the Tribunal also gave a reason for conducting the hearing by telephone, being COVID-19 pandemic restrictions. The first respondent submitted that this provided an evident and intelligible justification for the exercise of its discretion to conduct the hearing by telephone: see Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76].
Further, there is nothing in the applicant’s response to the hearing invitation or the Tribunal’s Decision Record which indicates that he objected to a telephone hearing: see Sharma. To the contrary, the applicant’s response to the hearing invitation expressly eschewed any concern about participating in the hearing by telephone.
Further, there is no evidence to suggest the applicant had any difficulty in understanding the Tribunal member during the hearing, or that there were any technical faults in either the telephone link, or interpretation which may have prevented the applicant from having a real and meaningful opportunity to present evidence and arguments: see SZNNE v Minister for Immigration and Citizenship [2010] FCA 194 at [49].
Ground four contends that the Tribunal considered the application against the criteria for subclass 590 visa, rather than the criteria for a subclass 500 visa. Counsel for the first respondent submitted that this ground is factually incorrect and should fail on the facts. The Tribunal assessed the application against the criteria set out in pt 500 of Schedule 2 to the Regulations, which is the correct criteria for assessing a subclass 500 visa. Ground four has no merit.
In relation to the ground pursuant to s 359A of the Act asserted by the applicant, there was no material to put to the applicant that engaged the provisions of s 359A of the Act. To the extent that the ground complains that the hearing was conducted by telephone, no jurisdictional error is apparent.
CONSIDERATION
The grounds of judicial review, such as they are, that are relied upon by the applicant, largely consist of a narrative format setting out the basis of how the matter has come before the Court. Grounds one, two, and five do not allege any jurisdictional error or make any complaint as regards the conduct of the Tribunal. In these circumstances they must be dismissed as they have no merit.
On its face, ground three also does not reveal any jurisdictional error. It lacks particulars and for this reason alone is liable for dismissal: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. If, as is suggested by the first respondent, it is a complaint about procedural fairness, it must also fail. The Tribunal followed all relevant procedural fairness requirements, including inviting the applicant to a hearing which he attended with his representative. The fact that the hearing was undertaken via telephone, is a procedure which is specifically authorised by the Act. There was nothing legally unreasonable in the Tribunal exercising its discretion under s 366(1) of the Act to conduct a telephone hearing in circumstances where there were medical restrictions in place due to the COVID-19 pandemic. It is also important to note that at no point did the applicant raise objections to the hearing being conducted via telephone.
There is no evidence to indicate that the applicant was disadvantaged by reason of the telephone hearing. There is nothing to suggest that any technical difficulties deprived the applicant of the chance of a fair hearing The Court is satisfied that the applicant was able to give evidence and present arguments, including post hearing submissions.
There is nothing in the Tribunal’s Decision Record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in hearing in a way from which it can be concluded that the hearing was fair, and thus, administrative justice was done: see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [24]. Ground three has no merit.
Ground four involves a misconception by the applicant in relation to the task undertaken by the Tribunal. At paragraph 32 of the Tribunal’s decision, the following appears;
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.
As is apparent from the above, the Tribunal properly assessed the applicant against the Subclass 500 criteria. However, the Tribunal noted that there are two classes of student visa, being a Subclass 500 (Student) and a Subclass 590 (Student Guardian) visa. All the Tribunal was doing was noting that the applicant had not applied for a Subclass 590 (Student Guardian) visa. The Tribunal was merely being cautious in determining that the applicant had not applied for a Student Guardian visa and, in those circumstances, it did not consider whether he met the criteria for that subclass of visa. Ground four has no merit.
In relation to the additional matters raised by the applicant in his belated submissions, the Court is of the view that they also have no merit. It is clear that the Tribunal considered the post-hearing submissions and incorporated them into their written reasons. Further, there was no material before the Tribunal which engaged the provisions of s 359A of the Act. The material considered by the Tribunal was already before the Tribunal having been provided by the applicant and is subject to exemption under s 359(4) of the Act. The Tribunal is not required to give a running commentary of its subjective appraisals, thought processes, and determinations of the defects, gaps or lack of detail in an applicant’s evidence: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
As the applicant was unrepresented, the Court has perused the Tribunal’s Decision Record but it is unable to ascertain any jurisdictional error which has not been articulated by the applicant.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 May 2021
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