Satty v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 982
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982
File number: MLG 411 of 2023 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 2 November 2023 Catchwords: MIGRATION– application for review of a Registrar’s decision – review application filed out of time –
Registrar decision to summarily dismiss Application and the Applicant pay Minister’s costs – review sought on basis of illness, merits of substantive application, mistake of Applicant regarding statutory timeframe – whether an extension of time should be granted for review of Registrar’s decision – no extension of time granted – substantive application has no reasonable prospects of success – costs orderedLegislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254 and 256
Migration Act 1958 (Cth) ss 359A, 359C(1), 360(3), 476(2)(a) and 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02 and 21.04
Migration Regulations 1994 (Cth) cls 500.211 and 500.212
Cases cited: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Allison v Murphy [2021] FCAFC 232
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 818
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submissions: 19 October 2023 Date of hearing: 19 October 2023 Place: Melbourne The Applicant: Appeared in person Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitted an appearance, save as to costs ORDERS
MLG 411 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAICHARAN REDDY SATTY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time to file the Application for Review filed 11 October 2023 (Review Application) is dismissed.
2.The Applicant pay the First Respondent’s costs of the Review Application on a party-party basis, fixed in the sum of $2,800.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
On 5 October 2023, the Applicant lodged an Application for Review, which was accepted for filing on 11 October 2023 (Review Application). The Review Application seeks review of an exercise of power by a Registrar of this Court, pursuant to Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (2021 Rules).
The relevant exercise of power by the Registrar was Orders made on 11 September 2023 (Registrar’s Orders) which: summarily dismissed the Applicant’s Application filed on 10 March 2023 (Substantive Application) and the amended Application filed on 5 September 2023 (Amended Substantive Application); and ordered that the Applicant pay the First Respondent’s costs fixed in the sum of $4,189.38.
The Review Application lists a number of orders sought by the Applicant, as well as grounds for leave to file the Review Application out of time. The Court will consider this information in detail below.
The hearing of the Review Application took place at the Melbourne Registry of the Court on 19 October 2023 (Review Hearing). The Applicant appeared in person and a solicitor appeared for the First Respondent (Minister). At the conclusion of the Review Hearing, judgment was reserved.[1] These are the Reasons for Judgment in relation to the Review Hearing.
[1] Orders of Judge C. E. Kirton KC made on 19 October 2023, Order 1.
ISSUES TO BE DETERMINED
The issues to be determined are as follows:
(a)Whether leave should be granted for the Applicant to file the Review Application out of time; and
(b)If leave is granted to file the Review Application out of time, whether the Review Application should be acceded to.
SYNOPSIS
The Court has determined that:
(a)Leave to file the Review Application out of time should not be granted on the basis that the Amended Substantive Application has no reasonable prospects of success;
(b)The Registrar’s Orders thereby remain in full force and effect; and
(c)The Applicant pay the Minister’s costs of the Review Application on a party-party basis, fixed in the sum of $2,800.
BACKGROUND
The Applicant is a citizen of India and arrived in Australia on 1 November 2018.[2]
[2] Court Book (CB) 74.
On 7 August 2020, the Applicant applied for a Student (Temporary)(Class TU)(Subclass 500) Visa (Visa), with the assistance of a migration agent (Visa Application).[3] In the Visa Application, the Applicant provided information that he was to commence studying a Certificate III and IV in Commercial Cookery, and a Diploma of Hospitality Management at Acumen Education Pty Ltd.[4]
[3] CB 1-60.
[4] CB 50-52.
On 20 January 2022, the Department of Home Affairs notified the Applicant, by email to his authorised representative, that the Visa Application had been refused (Delegate’s Decision).[5] The Delegate’s Decision was made on the basis that the Applicant did not satisfy the ‘genuine temporary entrant criterion’ in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[6] That is, the delegate was not satisfied that the Applicant genuinely intended to stay in Australia temporarily.
[5] CB 67-75.
[6] CB 72-74.
On 3 February 2022, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s Decision.
On 9 January 2023, pursuant to s 359A of the Migration Act1958 (Cth) (Migration Act), the Tribunal invited the Applicant, via his representative, to respond to information obtained from the Provider Registration and International Student Management System (PRISMS) that indicated that the Applicant did not hold a current Confirmation of Enrolment (CoE) in a course of study.[7] No response was received from the Applicant within the required timeframe.[8]
[7] CB 104-107.
[8] CB 118.
The Applicant, although out of time, submitted a response to the Tribunal’s invitation indicating that he did not have a current CoE in a registered course of study.[9] The response submitted by the Applicant also indicated that the Applicant had not been enrolled in a course of study between October 2021 and January 2023.
[9] CB 112.
On 20 February 2023, the Tribunal notified the Applicant of its decision, made on 16 February 2023, to affirm the Delegate’s Decision on the basis that the Applicant was not enrolled in a course of study (Tribunal’s Decision).[10]
[10] CB 119-125.
PROCEEDINGS BEFORE THE COURT
On 10 March 2023, the Applicant filed the Substantive Application, seeking review of the Tribunal’s Decision.
On 23 March 2023, the Minister filed a Response to the Substantive Application, accepted for filing on 24 March 2023 (Response). The Response sought summary dismissal of the Substantive Application pursuant to r 13.13 of the 2021 Rules, on the basis that the Substantive Application had no reasonable prospects of success.
On 8 August 2023, the Minister’s lawyers filed a court book with 128 paginated pages (Court Book).
On 15 August 2023, an Affidavit of Kristina Petrovski, a solicitor employed by the Minister’s lawyers, was filed (15 August 2023 Petrovski Affidavit). The 15 August 2023 Petrovski Affidavit annexed correspondence from the Court and the Minister’s lawyers to the Applicant’s nominated email address, advising that this matter was listed for call over and that his failure to attend may result in the dismissal of the Substantive Application.
On 28 August 2023, a further Affidavit of Kristina Petrovski was filed (28 August 2023 Petrovski Affidavit). The 28 August 2023 Petrovski Affidavit referred to the Court Book and annexed a ‘screenshot evidencing the Tribunal’s receipt of correspondence submitted by the Applicant, dated 24 January 2023, which was inadvertently omitted from the Court Book.
On 29 August 2023, the Minister filed Submissions in support of the application for summary dismissal (Minister’s Summary Dismissal Submissions), which addressed the grounds of review in the Substantive Application.
On 6 September 2023, the Applicant filed the Amended Substantive Application amending the Substantive Application, by including four (4) additional grounds of review, the details of which are voluminous and extend over some ten (10) pages. At the conclusion of the additional grounds of review, the following is stated:
Conclusion:
[…]
1. A breach of natural justice occurred.
2. The decision-maker did not have the jurisdiction to make the decision.
3. There was an error of law.
4. The decision was otherwise contrary to law.
5. Taking into account irrelevant considerations.
6. Disregarding relevant considerations, did not provide additional time to submit evidence.
7. Exercising a power by applying a rule or policy without considering the merits of the case.
8. Exercising a power in a way that is so unreasonable that no reasonable person could have exercised it that way.
(Without alteration)
On 7 September 2023, the Applicant filed an Affidavit sworn or affirmed on 6 September 2023, annexing material including: an affidavit of financial support from his parents, a valuation report of property held in his mother’s and father’s names, a medical report from India, an overseas student CoE, and a unit enrolment for his courses in Australia.
On 7 September 2023, the Minister’s application for summary dismissal was heard by a Registrar of this Court, via Microsoft Teams. The Applicant appeared in person and a solicitor appeared for the Minister. Orders were made thereafter reserving judgment.[11]
[11] Orders of Registrar Cummings made on 7 September 2023, Order 1.
The Registrar’s Orders were made in Chambers on 11 September 2023, together with comprehensive written Reasons for Decision in Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 818 (Registrar’s Reasons for Decision).[12] I note the following observations of the Registrar in the Registrar’s Reasons for Decision which are of particular relevance:
(a)The question for the Court in determining the application for summary dismissal was ‘whether the Court is satisfied that the applicant has no reasonable prospects of establishing that the Tribunal’s decision is affected by jurisdictional error’;[13]
(b)The enrolment criterion in cl 500.211 of the Regulations ‘imposes an objective criteria for the grant of the [V]isa’;[14]
(c)The reasons why the Applicant was not enrolled were irrelevant to the Tribunal’s determination as to whether he satisfied the enrolment criterion, citing Perry J in Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [31]; (2016) 245 FCR 296 at 303;[15]
(d)The Applicant did not make a request to the Tribunal to delay making its decision on review, nor did the information provided by the Applicant to the Tribunal contain ‘anything that ought to have led the Tribunal to conclude that the applicant would more likely than not become enrolled in a course in the near future’;[16]
(e)It is ‘eminently understandable’ why the Tribunal decided to make the decision on the review without giving the Applicant a further opportunity to provide evidence;[17]
(f)It was ultimately accepted by the Applicant that his then agent’s conduct, in belatedly providing the Tribunal’s s 359A invitation to the Applicant, was the result of a mistake rather than intentional wrongdoing or fraud by the agent;[18] and
(g)The Tribunal ‘acted on the [A]pplicant’s own evidence when making the finding that provided (sic) dispositive to the outcome of the review’.[19]
[12] Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 818 (Registrar’s Reasons for Decision).
[13] Registrar’s Reasons for Decision, [13].
[14] Registrar’s Reasons for Decision, [26].
[15] Registrar’s Reasons for Decision, [28].
[16] Registrar’s Reasons for Decision, [29].
[17] Registrar’s Reasons for Decision, [29].
[18] Registrar’s Reasons for Decision, [32].
[19] Registrar’s Reasons for Decision, [39(3)].
The Review Application was accepted for filing on 11 October 2023, seeking review of the Registrar’s Orders. The Review Application was made out the 7-day timeframe required by r 21.02(1) of the 2021 Rules, even where the date of lodgement by the Applicant of 5 October 2023 is considered.
The Review Application reads as follows, relevantly:
Grounds to seek leave to make an application out of time:
a)Ignorance of the Legal Right or Requirement: I am a young student, I did not know, and could not have reasonably known, of the requirement to lodge the application within the specified time.
b)Mistake: A genuine mistake was made regarding the deadline, procedure, and once the mistake was realized, I acted swiftly to remedy it.
c)Significant merits in the Substantive Matter: The substantive matter or the main application has significant merits, which justify the court considering the matter despite the delay.
d)Illness or Incapacity: I was unwell and depression which prevented me from filing the application on time.
Orders sought
1.That pending the hearing the Respondents be restrained from acting on the on the decision of the JUDICIAL REGISTRAR CUMMINGS, Federal Circuit and Family Court of Australia dated 11 September 2023 in a manner prejudice to the appellant’s rights for saying “the party prosecuting the proceeding or claim for relief has no reasonable prospects of successfully prosecuting the proceeding or claim”.
2.Request for review of the summarily dismissal of my application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.An order that the decision of the JUDICIAL REGISTRAR CUMMINGS, Federal Circuit Court dated 11 September 2023 be set aside.
4.An order directing the Administrative Appeals Tribunal to hear the review again according to law.
5.That the decision of the Administrative Appeals Tribunal dated 16 Feb 2023, is invalid unlawful and void and of no force and effect.
6.A writ of mandamus directed to the tribunal or Minister, requiring them to determine the appellant’s application according to law
7.An injunction restraining the Respondents his servants and agents from acting on an invalid decision
8.The application should be granted. The tribunal decision or Minister should be quashed, and remitted back to be redetermined by a differently constituted tribunal.
9.Such further order as the Court deemed fit and proper.
(Without alteration)
Together with the Review Application, the Applicant affirmed and lodged an Affidavit on 5 October 2023, accepted for filing on 11 October 2023 (Applicant’s Affidavit). The Applicant’s Affidavit briefly sets out some background to the Review Application before addressing at length the grounds of his ‘appeal’ of the Registrar’s Orders as well as of the Tribunal’s Decision. The Court does not propose to reproduce these grounds in their entirety in these Reasons for Judgment. The Court notes that Exhibit “A” and Exhibit “B” to the Applicant’s Affidavit, being copies of the Delegate’s Decision and the Tribunal’s Decision and the Registrar’s Reasons for Decision, were not filed with the Applicant’s Affidavit. This matter was raised with the Applicant and the solicitor for the Minister at the commencement of the Review Hearing. No issue was taken by the solicitor for the Minister in relation to this matter, as the Court otherwise has copies of these documents.[20]
[20] Transcript P1:L27-P3:L9.
On 13 October 2023, Orders were made by a Registrar of this Court for the filing of any affidavit material and submissions of the parties with respect to the Review Application. No material was filed by the Applicant pursuant to these Orders.
On 18 October 2023, the Minister filed a Written Outline of Submissions on the Review Application (Minister’s Review Application Submissions) and an Affidavit of Jack Mangos, a solicitor employed by the Minister’s lawyers, affirmed 18 October 2023 (Mangos Affidavit). The Mangos Affidavit annexed the Registrar’s Reasons for Decision.
EVIDENCE AND SUBMISSIONS
At the Review Hearing the Applicant relied on:
(a)The Substantive Application;
(b)The Amended Substantive Application;
(c)The Review Application; and
(d)The Applicant’s Affidavit.
At the Review Hearing the Minister relied on:
(a)The Response;
(b)The Minister’s Summary Dismissal Submissions;
(c)The Minister’s Review Application Submissions; and
(d)The Mangos Affidavit.
Both parties relied upon the material contained within the Court Book. The Court has also reviewed the transcript of the Review Hearing.
The Applicant made brief oral submissions at the Review Hearing which are summarised as follows:
(a)He could not afford legal aid or representation and therefore was unaware of the statutory timeframe to file the Review Application;[21]
(b)His representative before the Tribunal did not notify him of any correspondence of or decisions made by the Tribunal and that it was because of this that he was ‘in this situation’;[22]
(c)He had completed his Certificate III in Commercial Cookery and is currently completing other courses;[23] and
(d)At the time of the Tribunal’s Decision, the Applicant was concerned for the health and safety of his family in India, including his sister and elderly parents, whom he was unable to visit due to the Covid-19 pandemic.[24]
[21] Transcript P3:L42; P4:L3-4.
[22] Transcript P4:L12-17; P4:L26; P14:L46-P15:L2.
[23] Transcript P4:L17-18, L31-33; P15:L13-16.
[24] Transcript P15:L3-10, L20-23.
The Minister’s representative also made oral submissions at the Review Hearing.
APPLICABLE LEGAL PRINCIPLES
In accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), parties may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act.
Pursuant to r 21.02(1) of the 2021 Rules, applications for review of an exercise of power by a Registrar must be made within seven (7) days. This timeframe may be extended by the Court or a Registrar on any terms that it thinks fit, or with the consent of the parties: r 21.02(2) of the 2021 Rules.
There are no prescribed statutory criteria to inform the discretion to extend time under r 21.02 of the 2021 Rules. The factors of relevance in determining whether to exercise discretion to extend time, albeit in the context of applications for judicial review under s 477 of the Migration Act, include: the length of the delay; any explanation or reasons for the delay; prejudice to the respondent or third parties; and the merits of the underlying application. The Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of administration of justice: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12].
The level of consideration that is given to the assessment of the merits of the proposed grounds is a matter for the Court: Katoa at [19]. It has been held that in determining whether to grant an extension of time to file such an application, the prospects of success of the substantive application ought to be considered within the broader assessment of interests of justice, so as not to render the extension of time futile: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9].
In accordance with r 21.04(1) of the Rules, the hearing of an application for review of an exercise of power by a Registrar such as the Review Application, is to proceed as a ‘hearing de novo’. The Court may receive evidence of any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04(2)(a) and (b) of the 2021 Rules; Allison v Murphy [2021] FCAFC 232 at [11]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19].
CONSIDERATION
Should leave be granted to file the Review Application out of time?
In determining whether to exercise my discretion to extend time for the filing of the Review Application, I must consider whether it will be in the interests of justice to do so, including consideration of the factors referred to at [36] above.
Length and explanation for the delay
The Review Application was lodged by the Applicant on 5 October 2023, 17 days out of time. It was accepted for filing by the Court on 11 October 2023, a further six (6) days out of the time required by r 21.02(1) of the 2021 Rules. The delay was addressed by the Applicant in the Review Application and the Applicant’s Affidavit, as reproduced earlier in these Reasons for Judgment at [25] ‘Grounds to seek leave to make an application out of time’.
The Minister’s Review Application Submissions describe the explanation for the delay provided by the Applicant as ‘unsatisfactory’ and note that ignorance of the law is not an adequate explanation for failing to comply with a statutory time limit, citing BUB17 v Federal Circuit Court of Australia [2020] FCA 923 at [50].[25]
[25] First Respondent’s Written Outline of Submissions on Application for Review of Registrar’s Decision, filed 19 October 2023 (Minister’s Review Application Submissions), [15].
Further, the Minister points to the fact that no independent evidence as to the Applicant’s illness has been provided to the Court, nor has any explanation been provided as to how such illness affected the Applicant’s ability to submit the Review Application within time.[26]
[26] Minister’s Review Application Submissions, [16].
I agree with the Minister’s Review Application Submissions and note that in the circumstances, although the delay in filing the Review Application was not overly extensive, there has been no adequate explanation provided as to the delay. I note also that the Applicant’s status as a self-represented litigant does not preclude him from compliance with statutory timeframes.
Prejudice to the Minister
The Minister accepted that there is no specific prejudice caused by the delay beyond the broader public interest in the finality in administrative decision making. The Minister submits however that this alone is not a sufficient reason to justify the granting of an extension of time, citing Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 349.[27]
[27] Minister’s Review Application Submissions, [17].
I accept that no prejudice would be brought upon the Minister were time extended for the bringing of the Review Application.
Prospects of success of the Substantive Application
The Review Application asserts that the Amended Substantive Application has ‘significant merits’.
In order to assess whether the Amended Substantive Application has reasonable prospects of success, it is necessary to examine the grounds of review as they were brought in the Substantive Application, as amended by the Amended Substantive Application on 5 September 2023.
Ground 1
In Ground 1, the Applicant contends that the Tribunal ‘did not provide enough weight to the situation’ or give him a chance to explain his circumstances.
In the Minister’s Summary Dismissal Submissions, Ground 1 was described as ‘misconceived’. The Tribunal’s finding that the Applicant was not enrolled in a course was submitted to be ‘the only finding open to it on the evidence before it’, including the PRISMS record and the Applicant’s own evidence. That finding was submitted by the Minister to have been ‘fatal to the application and the Tribunal was not required to consider any circumstances or the ‘situation’ of the applicant beyond this’.[28]
[28] Minister’s Written Submissions, filed 29 August 2023 (Minister’s Summary Dismissal Submissions), [19]-[20].
Further, the assertion that the Tribunal did not provide the Applicant with an opportunity to explain his circumstances can be readily dismissed in circumstances where the Tribunal complied with its statutory obligations under s 359A of the Migration Act to comment or respond on information obtained from the Applicant’s PRISMS record. Although out of time, the response provided by the Applicant was clearly considered by the Tribunal.[29] Further, it was open to the Applicant to request further time to provide information or that the review be adjourned until a later time, when he had a valid CoE, however he did not do so.
[29] CB 124, [10].
As submitted by the Minister, insofar as Ground 1 takes issue with the Tribunal opting not to conduct a hearing, it cannot succeed.[30] This is so as the Tribunal, pursuant to s 359C(1) of the Migration Act, is entitled to make its decision upon the issuing of a request to provide information and no response being received within the required timeframe. The Applicant was on notice of this.[31] Therefore, the Tribunal discharged its obligation to the Applicant and it was open to the Tribunal to make a decision on the review without further reference to the Applicant.
[30] Minister’s Summary Dismissal Submissions, [22]-[30].
[31] CB 97.
Ground 1 has no reasonable prospects of success.
Grounds 2 to 18 and 20 to 23
The Applicant in these grounds has set out the background to the matter and reproduced the Tribunal’s Decision. I agree with the submissions of the Minister that these are not proper grounds of review and must be dismissed. As such, they have no reasonable prospects of success.
Ground 19
In ground 19, the Applicant stated that he was trying to get a CoE, however family issues meant he was unable to.
I agree with the submissions of the Minister that this ground invites the Court to engage in impermissible merits review which is not permitted on judicial review: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].[32] Further, the Applicant himself acknowledges that he did not hold a valid CoE at the relevant time, therefore not satisfying an objective criterion for the grant of the Visa.
[32] Minister’s Summary Dismissal Submissions, [30].
Ground 19 has no reasonable prospects of success.
Additional Ground 1
Ground 1 of the ‘Amended Additional Grounds’ in the Amended Substantive Application is not self-contained but rather is made up of five (5) discrete paragraphs of ‘particulars’. These particulars have been summarised in the Minister’s Review Application Submissions as various contentions by the Applicant.[33]
[33] Minister’s Review Application Submissions, [22].
First, the Applicant asserts that the Tribunal erred in affirming the Delegate’s Decision that he did not satisfy the ‘genuine temporary entrant’ criteria in cl 500.212 of the Regulations. As the Tribunal clarified at the commencement of the Tribunal’s Decision, the issue before it, as distinct from that before the Delegate, was whether the Applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations.[34] This was the case as the PRISMS information obtained by the Tribunal indicated that the Applicant did not have a current CoE. Therefore, in the event that the Tribunal was satisfied that this Visa criteria was not met, it was not required and indeed did not, make an assessment as to whether the Applicant was a genuine temporary entrant pursuant to cl 500.212 of the Regulations. This aspect of the ground therefore has no prospects of success.
[34] CB 123, [3].
The Applicant also refers to ‘miscommunication and delay’ between himself and his migration agent, who was his authorised representative before the Tribunal. The Court notes, as the Registrar did,[35] that jurisdictional error will only arise in circumstances where it can be shown that an agent engaged in ‘fraud’ on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 at [76]-[77]. Such an argument has never been made previously by the Applicant and none was made by the Applicant at the Review Hearing. Indeed the Applicant has accepted that the information provided to the Tribunal was correct, namely, that he did not have a valid CoE at the relevant time. Therefore, it cannot be accepted that any fraud was engaged in by the Applicant’s migration agent nor did the Tribunal commit jurisdictional error as a result. This aspect of Ground 1 has no reasonable prospects of success.
[35] Registrar’s Reasons for Decision, [31]-[32].
I agree with the Minister’s Submissions, in response to the Applicant’s assertions regarding ‘credibility findings’ made by the Tribunal, that in fact no adverse credibility findings were made by the Tribunal in concluding that the Applicant did not satisfy the enrolment criterion.[36]
[36] Minister’s Review Application Submissions, [23.2].
The Applicant contends that the Tribunal denied him procedural fairness on the basis that he was not provided with additional time to submit further information, to present his case, due to the aforementioned miscommunication with his migration agent. The Court considers that in circumstances where the Applicant was provided with an invitation to respond to adverse information and did not do so, and at no point made an adjournment request to the Tribunal, there cannot be said to have been a denial of procedural fairness. Further, the fact that no hearing was held before the Tribunal does not represent a denial of procedural fairness to the Applicant but rather followed as a matter of statute pursuant to s 360(3) of the Migration Act.
I do not accept that the Applicant was denied procedural fairness at any stage before the Tribunal. The Applicant was on notice that he did not have a valid CoE, which was a requirement of the Visa, and that the Tribunal may make a decision on the review without taking further action where no response is received. This aspect of Ground 1 has no reasonable prospects of success.
The balance of the ‘particulars’ in Ground 1, as they appear in the Amended Substantive Application, are largely incomprehensible and I do not consider that they amount to proper grounds of review. To the extent that it is asserted by the Applicant that the Tribunal incorrectly weighed factors, and failed to consider a number of relevant factors, this will be considered further in detail below.
Ground 1 has no reasonable prospects of success.
Additional Ground 2
Ground 2 of the ‘Amended Additional Grounds’ of the Amended Substantive Application again makes a number of assertions including: that the Tribunal took a ‘very narrow’ view; failed to consider various considerations and circumstances relevant to its assessment of whether the Applicant was a ‘genuine temporary entrant’; that the Tribunal was biased and did not have access to the Applicant’s information; as well as taking issue with the Delegate’s Decision.
I agree with the Minister’s classification of the particulars in Ground 2 as ‘repetitive and largely incoherent’.[37]
[37] Minister’s Review Application Submissions, [24].
To the extent that Ground 2 seeks review of the Delegate’s Decision it must be dismissed as the Court does not have jurisdiction to review primary decisions pursuant to s 476(2)(a) of the Migration Act.
I agree with those submissions of the Minister addressing the Applicant’s allegations of bias on the part of the Tribunal, noting that these allegations have not been properly made by the Applicant and there is no evidence to support such allegations.[38] The Tribunal clearly turned its mind to the relevant assessment and made a conclusion reasonably open to it, and indeed necessitated, on the material before it.
[38] Minister’s Review Application Submissions, [25.3].
Ground 2, as it appears in the Amended Substantive Application, has no prospects of success.
Additional Ground 3
Ground 3 of the Amended Substantive Application is made up of six (6) paragraphs.
To the extent that Ground 3 addresses the failure by the Tribunal to take into account certain factors or its failure to address considerations with respect to the genuine temporary entrant criteria, it has no prospects of success. This is so, as previously stated, as the Tribunal was not required to make a finding as to whether the Applicant met the criteria in cl 500.212 of the Regulations in the event that it was not satisfied as to the objective criteria in cl 500.211 of the Regulations. The PRISMS information indicated that the Applicant did not hold a current CoE and the Applicant himself confirmed as much. This being the case, the Tribunal was entitled to make the decision it did on the material before it.
The Applicant’s comments within Ground 3 with respect to his course commencing in June 2023 for completion in October 2024 are irrelevant for the purposes of the Tribunal’s Decision, where it was plainly evident that at the relevant time, the Applicant did not hold a valid CoE. The fact that the Applicant did not raise with the Tribunal that he was planning to commence studies in the future, nor make a request for an adjournment of the review until he can satisfy the enrolment criteria, cannot be translated to an error on the part of the Tribunal. The Tribunal discharged its obligations to inform the Applicant of evidence obtained and invite him to respond pursuant to s 359A of the Migration Act.
With respect to the Applicant’s procedural fairness arguments in Ground 3, I repeat those comments made at paragraph [61] and [62] above and consider that they have no reasonable prospects of success.
Additional Ground 4
Ground 4 of the Amended Substantive Application once again addresses the genuine temporary entrant criteria in cl 500.212 of the Regulations. For the reasons I have stated previously, the Tribunal was not required to make reference to this and indeed did not do so. The Applicant’s allegations that the Tribunal ignored relevant considerations and considered irrelevant considerations therefore has no reasonable prospects of success in this regard.
I agree with the Minister’s Submissions that Ground 4 otherwise requests the Court to undertake impermissible merits review.[39] Additional Ground 4 has no prospects of success.
[39] Minister’s Review Application Submissions, [27].
Applicant’s Affidavit
I have also reviewed the Applicant’s Affidavit which contains 15 ‘grounds of appeal’ under the heading ‘Grounds for my Apreal’. Many of these grounds are a repetition of the grounds included in the Amended Substantive Application. Others are unparticularised and meaningless assertions. The ‘grounds of appeal’ are incomprehensible and irrelevant to the consideration of matters relevant to this review application.
Therefore, despite the large number of assertions made by the Applicant, the Amended Substantive Application as a whole lacks any reasonable prospects of success. It is apparent that the Applicant has plainly misunderstood that the Tribunal was essentially required to affirm the Delegate’s Decision, albeit on a different basis, in light of the evidence that the Applicant himself confirmed and continues to confirm, that he did not hold a CoE at the relevant time.
CONCLUSION
I have concluded that it is not in the interests of the administration of justice to extend the time for the Applicant to file the Review Application, on the basis that the Amended Substantive Application does not have any reasonable prospects of success.
Therefore the application for an extension of time to file the Review Application will be dismissed.
At the Review Hearing, and in the Minister’s Submissions, the Minister submitted that costs should be ordered on a party-party basis fixed in the amount of $2,800.[40] The Applicant submitted that he could not afford to pay costs this amount.[41] Nevertheless, I am satisfied in the circumstances that the Minister’s costs should be paid by the Applicant in the amount of $2,800.
[40] Minister’s Review Application Submissions, [28.2]; Transcript P14:L12-17.
[41] Transcript P15:L38.
Orders will be made accordingly.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C. E. Kirton KC. Associate:
Dated: 2 November 2023
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