Seggam v Minister for Home Affairs

[2018] FCCA 2187

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEGGAM v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2187

Catchwords:
MIGRATION – Student visa – adjournment sought orally – adjournment refused – primary criteria – course of study – applicant not enrolled in course of study at time of Tribunal decision – no error established.

Legislation:

Migration Act 1958 (Cth), ss.359, 360

Migration Regulations 1999 (Cth) regs.1.03, 4.21, Sch.2 cls.500.211, 500.212

Cases cited:

Kaur v Minister for Immigration [2017] FCAFC 184

Minister for Immigration v SZIAI [2009] HCA 36; (2009) 83 ALR 1123

Applicant: KRUSHNAMRAJU SEGGAM

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 623 of 2018

Judgment of: Judge Baird

Hearing date: 9 August 2018

Date of Last Submission: 9 August 2018

Delivered at: Sydney

Delivered on: 9 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms L Helsdon of Sparke Helmore

ORDERS

1. The Applicant’s oral application seeking adjournment be dismissed.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 623 of 2018

KRUSHNAMRAJU SEGGAM

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal made 8 February 2018. The Tribunal affirmed a decision of the Delegate of the First Respondent made on 11 November 2016 to refuse to grant the Applicant, Mr Seggam, a Student (Temporary) (Class TU) Visa.

2. Mr Seggam is a citizen of India and was born in 1985.  He applied for the Visa on 30 August 2016. 

3. On 11 November 2016 the Delegate refused to grant Mr Seggam the Visa on the basis that the Delegate was not satisfied that Mr Seggam was a genuine applicant for entry and stay as a student. 

4. On 30 November 2016 Mr Seggam applied to the Tribunal for review of the Delegate’s decision.  On 12 January 2018 the Tribunal invited Mr Seggam to attend a hearing before it, listed on 8 February 2018.  In its invitation, the Tribunal indicated the information sought so that a decision could be made as quickly as possible.  That information included a copy of his current certificate of enrolment (COE), or other documents that show he is currently enrolled in a course of study, as was required for the grant of the Visa. 

5. Mr Seggam attended a hearing before the Tribunal on 8 February 2018 with a Telagu interpreter.  Whilst he provided some COEs at the hearing, he confirmed that he did not have a current COE.  Later on the same day, the Tribunal affirmed the Delegate’s decision refusing the Visa. 

6. On 8 March 2018, Mr Seggam filed his application for judicial review before this Court.

Legislative criteria for Visa

1. The criteria for the Visa are set out in Schedule 2, Part 500 of the Migration Regulations 1994 (Cth). The primary criteria in cls.500.211 – 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Relevantly in this case, being the sole Visa applicant, Mr Seggam was required to satisfy the primary criteria.

2. Clause 500.211 requires that at the time of the decision:

   500.211 

   One of the following applies:

   (a)  the applicant is enrolled in a course of study;

   (b)  if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

   (c)  if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

   (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

3. Clause 500.212 then requires that the applicant “is a genuine applicant for entry and stay as a student because”, and sets out a number of criteria.

Proceeding before the Tribunal

1. As I have said, Mr Seggam applied to the Tribunal in November 2016. It was only in January 2018 that the Tribunal invited him to attend a hearing, 28 days later. The invitation was in compliance with the prescribed 14 day period: reg.4.21(4) of the Migration Regulations 1994 (Cth), and was made in compliance with s.360 of the Migration Act 1958 (Cth).

2. The invitation called for the following documents to be provided to the Tribunal:

   In addition, please provide the following information so that a decision can be made as quickly as possible:

   1. A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.

   2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the Delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

   Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.

3. On Friday 19 January 2018, Mr Seggam provided by email documents to the Tribunal, which were as follows:

   (a)response to the hearing invitation, indicating that he would attend the hearing;

   (b)his passport;

   (c)offshore transcripts from high school, and Bachelor of Technology, Information Technology, Jawaharlal Nehru Technological University Hyderabad;

   (d)IELS test report, and Griffith University English Language Intensive Course for Overseas Students certificates awarded to him for study for weeks within the periods 4 August 2013 to 5 September 2013 (incorrectly written as 2014) and from 17 March 2014 to 27 June 2014.

4. In his response to the invitation, Mr Seggam indicated that he would take part in the hearing scheduled for 8 February 2018, and that he required a Telagu interpreter.  He did not indicate any issue that might affect his ability to take part in the hearing.  At the hearing before the Tribunal, Mr Seggam provided a personal statement dated 8 February 2018 and some COEs.  Today before me he confirmed that the statement in the court book in evidence was a copy of that statement, and that the COEs from 2014 to 2019 which were contained in the court book were the documents he had given to the Tribunal.

5. Mr Seggam also confirmed with me by reference to the court book that the COE for a Bachelor of Business from the Australian Institute of Higher Education Pty Ltd was created on 30 August 2016.  The COE set out the course start and end dates as 28 November 2016 and 22 November 2019 respectively (although prepayment fees were only paid up to 28 December 2016, and course entry prerequisites included successful completion of a Certificate IV course). 

6. The Tribunal said at [15] of its decision:

   The Tribunal told the applicant that the COE for the Bachelor of Business to 22/11/2019 was dated 30/08/2016 and he was asked if it was current. He said it is not current and confirmed in his oral evidence at the hearing that he is not currently enrolled in a course of study.

7. According to the hearing record in evidence, the Tribunal hearing lasted 18 minutes.  Before me, Mr Seggam confirmed that he gave evidence as set out in [15] of the Tribunal's decision.  He also said that he went to the Tribunal and asked for more time to get more documents.  There is no evidence before me that he made that submission or that he asked for an adjournment before the Tribunal.

8. Mr Seggam did not have a current COE when he appeared before the Tribunal.  Accordingly, the Tribunal made its decision on a different basis than the Delegate.  It is permitted to do so long as the Tribunal puts an applicant on notice of the issues that it will discuss at the hearing. 

9. Mr Seggam was put on notice of the information, including the documents that the Tribunal required for its consideration.  By giving Mr Seggam notice of the information it required, and by providing him with more than a 14 day notice period, I find that the Tribunal complied with its obligations to accord procedural fairness in those respects.

10. The Tribunal identified that in order for Mr Seggam to satisfy the requirements for the Visa, cls.500.211 – 500.218 in schedule 2 of the Regulations must be satisfied. As noted in [8] of its decision, the Delegate refused to grant the Visa because he was not satisfied that Mr Seggam was a genuine applicant for entry and stay as a student, and therefore did not meet cl.500.212.

11. The Tribunal first turned its mind to whether Mr Seggam met clause 500.211. At [10] the Tribunal recorded the documents received from Mr Seggam, to which I have already referred. At [11] the Tribunal recorded that Mr Seggam handed up some documents at the hearing, and these have been identified at [12]–[14] above.

12. The Tribunal then summarised the requirements under cl.500.21,1 at [12]. The Tribunal noted that cl.500.211(a) requires that at the time of its decision, Mr Seggam must be enrolled in a course of study. The Tribunal noted that Mr Seggam did not claim to meet any of the alternative criteria in cl.500.211. As the Tribunal at [13] noted, that the course of study is relevantly defined in cl.500.111 as a "full-time registered course", and in turn, “registered course” is defined in reg.1.03 of the Regulations.

13. At [14] the Tribunal identified the COEs provided to it at the hearing.  Relevantly, as I have indicated, it identified the COE for the Bachelor of Business through to 22 November 2019, dated 30 August 2016 to which I have referred.  At [15] of the decision, in reliance on Mr Seggam's oral evidence and his confirmation at the hearing that he was not currently enrolled in a course of study, the Tribunal was not satisfied that as at 8 February 2018 Mr Seggam was enrolled in a course of study.  Accordingly, the criteria of cl.500.211 of the Regulations was not met.  The Tribunal found that the criteria for the grant of the Visa was not met.  It affirmed the decision under review. 

Grounds of Review

1. Mr Seggam relies on 2 grounds of review set out below (without alteration):

   1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.

   Particulars

   (a)The Applicant applied for a review of his decision. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.

   (b)   The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to the refusal of his visa.

   (c)   The Tribunal failed to provide procedural fairness in that it did not take into account the reasoning that the client needed obtain a visa so he could enroll in the course of study.

   2.    The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider the applicant's inability to obtain a current COE, in that educational institutions prefer not to give COES wo students in the Tribunal.

2. At the hearing before me today, I asked Mr Seggam whether he relied on those 2 grounds.  He was unclear in his response.  When I pressed him as to his arguments, he did not know. 

3. I have taken Mr Seggam as pressing the grounds of review in his application because, when I asked him whether he wished to proceed, Mr Seggam said that he did wish to proceed. 

4. Mr Seggam appeared at the first directions hearing in the matter before a Registrar of this Court, and by signing a copy of the short minutes of order on that occasion, agreed to the orders.

5. The orders made by the Registrar on 29 March 2018 provide that Mr Seggam file an amended application giving complete particulars of each ground of review and that he file and serve by way of affidavit any additional evidence to be relied on, including a transcript of a Tribunal hearing, by 10 May 2018. 

6. On about 28 March 2018, the lawyers for the Minister communicated with Mr Seggam, and with Chambers, advising that the Minister required an extension of time in which to obtain the documents which were to comprise the court book.   

7. After email communications, each of which were copied to Mr Seggam, on 16 April 2018, I made revised orders which relevantly extended to 28 May 2018 the time for Mr Seggam to file and serve an amended application, and to file and serve by way of affidavit any additional evidence to be relied upon, including any transcript of the Tribunal hearing. 

8. In Court before me today, I confirmed with Mr Seggam that the email address to which all the correspondence and orders were sent was his current email address.  Mr Seggam has not filed an amended application nor any further affidavits. 

Proceeding in this Court

1. Before me today, Mr Seggam appeared unrepresented, but with the assistance of a Telagu interpreter assisting by telephone.  Mr Seggam indicated that he wanted more time.  He said he was struggling because his brother had cancer and he needed more time, and he was “in tension”, by which I understood him to assert he was stressed and depressed.

2. When pressed, he expanded upon his position by saying that his grandmother had died, and he wanted some time to bring medical certificates of his grandmother's death, his brother's situation, and his depression.  I informed Mr Seggam that I would treat his submission as an application for adjournment.  Mr Seggam clarified that he was not currently enrolled in a course of study, and he had not been enrolled in a course of study on 8 February 2018.  He said to the effect that for the last four and a half years he did not go to India and that it would be better if he got a certificate. 

3. I invited Ms Helsdon, solicitor for the Minister, to advise the Minister’s position.  She informed me that the Minister opposed any application to adjourn, submitting that none of the documents Mr Seggam proposed to bring were relevant to establishing whether the Tribunal had fallen into jurisdictional error.  I declined to grant an adjournment. 

4. I explained to Mr Seggam that if he lost today, the Minister would likely seek costs, and that whilst unpaid, those costs would become a debt which he would owe to the Commonwealth and which might affect any further application for visa in the future.  I asked Mr Seggam whether in those circumstances he wished to proceed today, and he indicated that he wished to proceed, and needed more time. 

5. Mr Seggam did not expand upon the grounds of review today, except to say that he asked the Tribunal to give him more time to enrol, and they did not.  As I have noted, there was no evidence before me that such an application was made, nor that any application, if granted, would have changed Mr Seggam's circumstances.

6. As to the documents identified at the Tribunal's decision at [14], whilst they do not appear in the court book in evidence marked as received by the Tribunal in the form they might have been provided at the Tribunal hearing, Mr Seggam has confirmed that I have before me the COE for the Bachelor of Business dated through to 22 November 2019 (which is the key document referred to by the Tribunal).

Consideration

1. Turning to the first ground of review, I have referred to the hearing invitation sent to the Tribunal on 12 January 2018, the Applicant's response on 19 January 2018, and the hearing itself on 8 February 2018. I am satisfied that the Tribunal discharged its obligations under s.360 of the Act.

2. I turn to s.359 of the Act. Section 359 of the Act enables, but does not require, the Tribunal to obtain any information it considers relevant and to invite a person to give information. The 12 January 2018 invitation included such an invitation in accordance with s.359 of the Act by inviting the Applicant to provide documents relating to his enrolment and study.

3. It is well established that although the Tribunal may obtain information as it considers relevant, it does not have a general duty to undertake its own inquiries in addition to information provided to it by the applicant, in the present case, Mr Seggam.  As was said by the High Court in Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123, at [25]:

   The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

4. As I have noted, there is no general obligation on the Tribunal to make inquiries.  An obligation to make an inquiry may arise in rare or exceptional circumstances and the mere fact that it may have been reasonable to make an inquiry does not mean that the lack of such an inquiry amounts to a jurisdictional error:  see Kaur v Minister for Immigration [2017] FCAFC 184 at [26] and [33].

5. Given the evidence before the Tribunal that Mr Seggam was not currently enrolled in a course of study, and that the COEs on which he relied were not current, it is not clear what information Mr Seggam contends the Tribunal should have obtained which was relevant to his application for a visa.  I find that this ground cannot be made out. 

6. In particulars (b) and (c) of ground 1 and ground 2, Mr Seggam contends that the Tribunal failed to consider the circumstances that led to the refusal of his Visa. 

7. He says that the Tribunal did not take into account the reasoning that: “the client [which I understand to be Mr Seggam], needed to obtain a visa so he could enrol in the course of study” and “his inability to obtain a current COE, in that educational institutions prefer not to give COEs to students in the Tribunal.”

8. Those grounds and particulars are not otherwise evidenced.  They are inconsistent with the process and purposes of the Visa.  It is a mandatory, relevant consideration, and one of the primary criteria of the grant of Visa that Mr Seggam be currently enrolled in a course of study.  It is clear from the COEs that Mr Seggam provided with his application for a student Visa in 2016 and, relevantly, the COE for the Bachelor of Business, that the COE was obtained in 2016 to support Mr Seggam's application for Visa and that that COE was obtained before any grant of Visa.  That chronology alone is inconsistent with Mr Seggam's submission and the particulars, and ground 2. 

9. I turn to cl.500.211.  At [12]–[17] of its decision, the Tribunal considers whether Mr Seggam met the enrolment criteria as set out in cl.500.211.  I note that all the primary criteria must be satisfied at the time a decision is made on the application for the Visa.  Clause 500.211 is expressed in the present tense.  Relevantly, in subparagraph (a), that “the applicant is enrolled in a course of study”.  The Applicant was required to meet all of the primary criteria from cls.500.211 – 500.218.  On Mr Seggam’s own evidence before the Tribunal, he was not currently enrolled in a course of study.  He did not, on his own evidence, meet the requirements of cl.500.211.

1. It followed that the only decision open to the Tribunal was to affirm the Delegate's decision.  Clause 500.211 does not permit consideration of why an applicant may not be currently enrolled.  Further, there was no other relevant criteria within cl.500.2 that would permit consideration why Mr Seggam was not currently enrolled in a course of study.  The matters contained in the grounds of review and particulars in the application are not relevant considerations. 

2. There is nothing before the Tribunal to indicate Mr Seggam advanced the explanation referred to in ground 1(b) and (c) and ground 2 which I summarise as asserting that educational institutions prefer not to give COEs to students who are in the Tribunal. 

3. Finally, the Tribunal's invitation to the Applicant to appear at the hearing, to which I have already referred, put Mr Seggam on notice that a current COE was required for the grant of Visa to him, and that that was a live issue in the review before the Tribunal.

4. Given that the Tribunal, in its notice of invitation to hearing, specified the things (including documents) that it sought in order to make the decision, that Mr Seggam provided such documents as he had, and that he appeared at the hearing, which hearing was at a held after a notice period greater than the period prescribed under the Regulations, I conclude that the Tribunal did not fall into jurisdictional error for want of procedural fairness.  The application should be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:  28 August 2018