Savaliya v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 534
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Savaliya v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 534
File number(s): SYG 2235 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 9 June 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student Temporary Class TU – whether Tribunal failed to consider witnesses – whether Tribunal improperly considered opinion – whether applicant denied fair hearing – whether Tribunal failed consider facts and misapplied the law – whether Tribunal failed to accept applicant’s claims in a fair manner. Legislation: Migration Act 1958 (Cth) ss 359AA, 360
Migration Regulations 1994 (Cth)
Cases cited: Dahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 355
Hamouda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1827
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
WZAVW v Minister for Immigration [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 9 June 2022 Date of hearing: 9 June 2022 Place: Parramatta Solicitor for the First Applicant: In person Solicitor for the Respondents: Mr Taylor appeared on behalf of the First Respondent. ORDERS
SYG 2235 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAJESH SAVALIYA
First Applicant
MRS BHAVNABEN MANSHUKHBHAI GADHIYA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
9 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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
(As Revised from Transcript)JUDGE HUMPHREYS
INTRODUCTION
The first applicant applied for a Student Temporary Class TU visa (“Student visa”) on 24 September 2016. The second applicant was joined as a secondary applicant to the Student visa as a member of the family unit.
On 4 April 2017, a delegate of the Minister of Immigration (“the delegate”) refused to grant the applicants their Student visa.
The applicants applied to the Administrative Appeals Tribunal (“The Tribunal”) for merits review of the delegate’s decision. On 26 July 2018, the Tribunal affirmed the decision of the delegate not to grant the applicants their Student visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision consists of 24 paragraphs across two and a half pages. The first five paragraphs of the decision record provide background of the applicants’ application. Paragraph 6 to 8 of the Tribunal decision detail relevant clauses of the Migration Regulations 1994 (Cth) (“the Regulations”) for the grant of a Student visa. At paragraph 9 of the decision record, the Tribunal notes that the first applicant applied for a Student visa in order to study a Bachelor of Information Technology at Federation University. In the first applicant’s Student visa application, he stated that he had one subject remaining before completing his degree. At paragraph 10 of the decision record, the Tribunal notes that the Department of Immigration requested from the first applicant evidence of enrolment. The first applicant responded that he was not, at that time, involved in any course of study after having obtained his previous degree. The first applicant advised the Department that he proposed to apply for a subclass 485 Graduate visa (“Graduate visa”).
In paragraph 12 of the decision record, the Tribunal acknowledged that the first applicant provided evidence that he was having difficulty lodging an application for a Graduate visa and this difficulty was acknowledged by the Department of Immigration. The Tribunal explained to the first applicant of the hearing that a Graduate visa was not a matter for review by the Tribunal on that occasion. At paragraph 13 of the decision record, the Tribunal explains the first applicant’s submissions in that he wished to study a Master’s degree and how he missed the deadline for admission. At paragraph 14 of the decision record, the Tribunal accepted that the first applicant had completed his course at Flinders University, which was the course he wished to undertake when he first applied for the Student visa. The Tribunal further accepted that the applicant had subsequently enrolled in and completed other courses of study in Australia.
At paragraph 15 of the decision record, the Tribunal accepted that the first applicant had received an offer to study at the Performance Education group. However, the offer had passed. The first applicant confirmed at the Tribunal hearing, and the Tribunal found, that he did not proceed with the enrolment offer.
The Tribunal put information of the first applicant pursuant to s 359AA of the Act that the Provider Registration and International Student Management System record (“PRISMS”), indicated that he was not enrolled in any course of study since 17 February 2017.
At paragraph 16 of the decision record, the Tribunal records that the first applicant commented immediately that he did not dispute he has not been enrolled in a course of study since 17 February 2017. The applicant claimed to have done some English studies that were not registered courses under the Regulations.
At paragraph 17 of the decision record, the Tribunal noted that the first applicant gave evidence that he was not studying and did not have an enrolment or an offer of enrolment in any course of study. The first applicant claimed that he was unable to obtain enrolment due to not having a Student visa.
At paragraph 18 of the decision record, the Tribunal notes the first applicant suggested that he was waiting to hear from some universities. However, the Tribunal found that the first applicant already had sufficient time to arrange an enrolment and refused to grant further time for this to occur. The Tribunal noted that the first applicant had over 15 months to arrange an enrolment. The first applicant’s invitation to attend the Tribunal hearing requested that he provide a current Certificate of Enrolment and other documents showing that he was, at the time, enrolled in the course of studies defined in cl 500.111 to Schedule 2 of the Regulations.
At paragraph 20 of the decision record, the Tribunal found that, at the time of its decision, the first applicant was not enrolled in a course of study and, accordingly, failed to meet cl 500.211 to Schedule 2 of the Regulations.
Given the above finding, the Tribunal found at paragraph 21 that the first applicant did not meet the relevant criteria for the grant of a Student visa. Given the first applicant did not satisfy cl 570.211 to Schedule 1 of the Regulations, the Tribunal found at paragraph 22 of the decision record that the second applicant could not be granted a visa as a member of the first applicant’s family unit because he was not the subject of a grant of a visa.
GROUNDS OF JUDICIAL REVIEW
The applicants’ grounds of judicial review are contained in an Initiating Application filed with the Court on 10 August 2018. The grounds are reproduced below as they appear in the application verbatim:
1.Tribunal Member did not allowed to submit more testimony and made jurisdictional omission and also he did not properly consider the witness presented to AAT-MRT;
2.Tribunal member errored by not considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus made error by the AAT-MRT;
3.Tribunal member did not giver a change to submit CoE in support of application in support of my matter, it was not fair hearing;
4.The AAT-MRT made jurisdictional error in denying the application for Student Class TU in failing to consider all facts and the law related to student visa claims.
5.AAT - MRT failed to acknowledge the fact the obligations under GTE criteria and did not accepted my claims in fair manner.
THE APPLICANTS’ SUBMISSIONS
The first applicant appeared before the Court unrepresented. The first applicant was assisted by an interpreter. Prior to the hearing commencing the Court ensured that the first applicant had received a copy of the Court Book and the first respondent’s written submissions. The Court also ensured the first applicant had access to pen and paper so that he could take notes during the course of the hearing if he wished to.
The Court began the hearing by explaining to the first applicant that it was conducting judicial review, not merits review, and the difference between the two types of review. The Court then explained to the applicant how the hearing would proceed.
The applicant was also advised that if the Court delivered an oral judgment, which it is, that he would be provided with a written copy of the Court’s orders. Further, the applicant could apply to the Court for a written copy of the Court’s judgment.
Despite Court orders, the applicant did not provide any written submissions to the Court in support of his case.
The first applicant told the Court that he felt aggrieved because he had not been given an adjournment by the Tribunal to be enable him to obtain a Certificate of Enrolment. The applicant did not wish to say anything further in relation to the grounds of judicial review contained in the application.
Following the first respondent’s oral submissions, the first applicant was asked if he wanted to say anything further in reply. The applicant stated that he did not.
FIRST RESPONDENT’S SUBMISSIONS:
Ground 1 and 3 in substance allege that the applicant was not afforded a fair hearing because the Tribunal did not allow him to submit more testimony and did not properly consider witnesses presented to AAT-MRT and did not give applicant a chance to provide Certificate of Enrolment.
It was submitted that there was no evidence that the applicant was prevented from advancing any claims or submissions that he wished to make to the Tribunal hearing. It is unclear from the applicants’ evidence to the Tribunal what it is alleged to have failed to properly consider. The applicant did not request evidence to be taken from witnesses in response to the hearing invitation. The Tribunal hearing record does not list any witnesses in attendance other than the applicant and his wife. Further, the applicant had been on notice that he was required to have a current Certificate of Enrolment from the time the delegate refused to grant the applicants’ Student visas on 4 April 2017. The hearing invitation dated 2 July 2018 specifically requested the applicant to provide a Certificate of Enrolment. In those circumstances it cannot be maintained the applicant was not given, “a chance”, to provide a Certificate of Enrolment.
To the extent that ground 3 can be interpreted, there is an allegation that the Tribunal unreasonably refused to exercise its discretion to adjourn the proceedings to allow the applicant more time to provide a Certificate of Enrolment, it has no proper basis. The Tribunal expressly considered adjourning the review, but refused to do so on the basis that the applicant had at least 15 months to obtain a Certificate of Enrolment between the date he applied for the review of the delegate’s decision and the date of the Tribunal decision.: (see; paragraph [8] of the decision record of the Tribunal). The Tribunal was not under an obligation to afford every opportunity to an applicant for review to present his best possible case and improve upon his evidence.
Ground 2 is an assertion that the Tribunal did not properly consider the procedural fundamental that allowed an opinion from an Independent Protection Assessment Review. Contrary to this assertion, the Tribunal did not have regard to any opinion from an Independent Protection Assessment Reviewer. This ground appears to be unrelated to the decision that is the subject of these proceedings. The ground does not explain which procedural fundamentals were overlooked consistent with its obligations under s 360 of the Act. The Tribunal invited the applicants to appear at the hearing. They were given an opportunity to give evidence and present arguments on the issues for review. The decision record indicates the first applicant was invited, in accordance with the procedure in s 359AA of the Act, to comment on and respond to information contained in his PRISMS and indicated that he had not been enrolled in a course of study since 17 February 2017. The applicant chose to comment immediately and did not dispute this fact. The Tribunal complied with all relevant procedural requirements in this regard.
Ground 4 asserts that the Tribunal failed to consider all facts and law related to the Student visa claims. It was submitted that the absence of particulars make this ground meaningless and it cannot succeed: (see; WZAVW v Minister for Immigration [2016] FCA 760 at [35]).
The fifth ground alleges that the Tribunal failed to acknowledge the fact that obligations under the GTE criteria and did not accept his claims in a fair manner. This ground fails to appreciate that it was not necessary for the Tribunal to consider whether the first applicant satisfied the Genuine Temporary Entrance criteria of cl 500.212, having relied upon the applicant’s own evidence to find he did not meet the enrolment criteria in cl 500.211 to Schedule 2 of the Regulations. There was no utility in the Tribunal also assessing whether the applicant also met the requirements in clause 500.212 as he was unable to meet an essential requirement for the grant of a student visa: (see; Dahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 355 at [11]; Hamouda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1827 at [10]).
In an Affidavit which accompanied the judicial review application filed on 10 August 2018, the first applicant repeats complaints that the Tribunal, “Did not give a chance to conduct the hearing in a fair manner”, and failed to consider, “The facts in law related to a genuine student claim”, and failed to acknowledge, “Obligations under the GTE criteria”, and, “Did not accept my claims in a fair manner”. It was submitted these complaints ought to be rejected for the reasons previously outlined.
The applicant also contended that the Tribunal, “Did not attend the case material produced before and after”. Without further particulars, that contention is meaningless and should be rejected.
CONSIDERATION
It is for the applicant to provide all necessary material they relied upon in order to advance the contention that they were entitled to the visa they sought. The onus of proof lies with the applicant: (see; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611).
In this case, the essential criteria for the grant of a visa sought was that, at the time of the Tribunal decision, the first applicant had a current Certificate of Enrolment such that he was able to satisfy the requirement in cl 500.211(a), of Schedule 2 to the Regulations.
It is not disputed that, at the time of the Tribunal’s decision, the applicant did not have a valid Certificate of Enrolment. In those circumstances, the Tribunal had no option other than to affirm the decision under review.
The Court is satisfied that all necessary procedural fairness obligations were followed by the Tribunal. This included notifying the applicant in the invitation to the Tribunal hearing of the requirement to produce a valid Certificate of Enrolment. There is nothing in the Tribunal decision record to suggest that the applicant did not have a real and fair opportunity to put whatever they wished to and participate in the hearing in a way from which it can be concluded 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].
In terms of the grounds of judicial review, grounds 1 and 3 have no merit. There is nothing to indicate that the Tribunal failed to properly consider the material before it. The applicants appeared before the Tribunal, had an opportunity to give evidence and present arguments. Secondly, the first applicant was on notice that he was required to have a current Certificate of Enrolment as at the time of the decision by the Tribunal. The first applicant was reminded of this in the invitation to attend the hearing. The Court agrees with the first respondent’s submission that it cannot be maintained that the applicant was not given a chance to provide a Certificate of Enrolment.
The Court notes that the Tribunal did consider providing the applicant with an adjournment, but rejected that course as it found that, “the applicant had already had sufficient time to arrange an enrolment”: (see; paragraph [18] of the Tribunal decision record). There is nothing unreasonable, illogical or irrational in arriving at that decision and it was within the legitimate decisional freedom of the Tribunal.
Ground 2 appears misconceived. All relevant procedural fairness obligations were complied with, including the procedure under s 359AA of the Act in relation to material that was put to the first applicant from his PRISMS records showing that he was not studying and had no Certificate of Enrolment. Ground 2 has no merit.
Ground 4 is a bare assertion of jurisdictional error. The Court agrees with the submission of the first respondent that in the absence of particulars, it is meaningless and cannot properly be responded to. Ground 4 has no merit.
Ground 5 broadly alleges that the Tribunal failed to acknowledge the fact that obligations under the GTE criteria “and did not accept my claims in a fair manner”. This contention takes the matter no further. There was no requirement for the Tribunal to further in considering the matter, having arrived at the conclusion the first applicant did not comply with cl 500.211(a) to Schedule 2 of the Regulations, as he did not have a current Certificate of Enrolment in an approved course of study. Ground 5 has no merit.
The Court has considered the additional material contained in the applicant’s Affidavit, but is not of the view that they reveal any manner of jurisdictional error on the part of the Tribunal. The bland assertions that the applicants’ claims were not addressed in a fair manner and the Tribunal did not attend to the case material produced before and after the hearing cannot be sustained.
There was a fatal flaw in the applicant’s case that there was no current Certificate of Enrolment. As indicated above, in those circumstances the Tribunal had no option other than to arrive at the decision that it did.
In circumstances where the applicants are unrepresented, the Court has carefully considered the Tribunal’s decision record, but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application must be dismissed in relation to the first applicant. As the first applicant’s application has failed, the second applicant’s application also must fail as her visa was dependent upon the first applicant’s.
The application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 9 June 2022
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