Sen v Minister for Home Affairs

[2019] FCCA 1994

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1994

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl.500.212(a)

First Applicant: POONAM SEN

Second Applicant: SUNIL KUMAR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: LNG 57 of 2018

Judgment of: Judge Riethmuller

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Hobart

Delivered on: 18 March 2019

REPRESENTATION

The First Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The originating application be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $3737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 57 of 2018

POONAM SEN

First Applicant

SUNIL KUMAR

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 July 2018.  That decision affirmed a decision of the delegate to refuse to grant the applicant a Student (Temporary) (Class TU) visa. 

2. The applicant first came to Australia in May 2009 on a student visa and has held a number of student visas since that time.  By October 2016, she again applied for a Student Temporary Subclass 500 visa because she wished to undertake a Masters of Business Administration at the Holmes Institute.  The delegate refused this application in February 2017 and a further application was then made to seek a review of the delegate’s decision with the Tribunal.  The applicant is the primary applicant on the visa.  Her spouse is the secondary applicant.  His visa rises or falls with the applicant’s visa. 

3. On 13 April 2018, the Tribunal invited the applicants to provide additional information.  This was done in writing and the applicant was given until 27 April 2018: see [9] and [10] of the decision.  The applicant did not respond to this request for information, and the Tribunal proceeded to make a decision. 

4. Before me, the applicant says that the reason that she did not respond to the invitation was that she had engaged a migration agent to act on her behalf and that the agent had failed to provide the documents to the Tribunal on her behalf.  There is no affidavit evidence about these events.  It appears that after the applicant received the decision of the Tribunal refusing her application, she then also sent some messages. Although, at this point, the Tribunal no longer had any jurisdiction, as it had finalised its decision dismissing her application.

5. There is nothing in the material to indicate that this case has any indications of a case of a fraud being committed on the Tribunal or the process.  At best, it is perhaps a case where a claim could be brought in negligence against the agent depending entirely upon the actual dealings the applicant had with the agent.

6. The applicant has undertaken a number of diplomas or certificates in Australia.  The number of courses that she has enrolled in, although not having undertaken all of them, is quite large, and conveniently set out (at [8]) of the submissions for the Minister as follows:

   8. As listed by the delegate, the Provider Registration and International Student Management System (PRISMS) indicates that the first applicant thereafter enrolled in the following courses (CB127).

   ·   Advanced Diploma of Leadership and Management

   ·   Advanced Diploma of Management

   ·   Diploma of Management

   ·   Master of Information Technology

   ·   Certificate III in Printing and Graphic Arts (Graphic Pre-Press)

   ·   Diploma of Information Technology (Networking)

   ·   Certificate IV in Information Technology

   ·   Advanced Diploma of Accounting

   ·   Diploma of Information Technology (Multimedia)

   ·   Diploma of Accounting

   ·   Certificate IV in Information Technology (Multimedia)

   ·   Certificate IV in Financial Services (Accounting)

7. It seems that the applicant has at least completed a Diploma of Information Technology and Multimedia at Ozford College of Business, a Certificate III in Printing and Graphic Arts at the Australian Institute of Technical Training, a Masters of Information Technology at the University of Ballarat, and an Advanced Diploma of Leadership and Management at Angad Australian Institute of Technology.  These were undertaken over the seven years between her arrival and 2016.  During this time, the applicant also had employment at a Turkish restaurant, at a Big W, as an admissions officer with Federation University, and with Just Group for a period in 2016.  The applicant has a child who lives with her parents in India. 

8. The applicant explained that she wanted to study an MBA because she believed she needed more skills in business administration to survive in today’s competitive world, despite the various courses that she was doing.  The applicant also said that she expected to complete her MBA by July 2017.  The decision of the Tribunal was not until 25 July 2018.  Whilst there is no evidence before me, it appears, on her case, the Institution was not content for her to continue her enrolment, the delegate having refused the visa.  The applicant also stated that the enrolment was cancelled, as she was not, at that time, able to pay the fees.  The result is that, on the statements of the applicant before me, the applicant did not hold a current certificate of enrolment or offer of enrolment at the time the Tribunal made the decision, and, therefore, did not fulfil one of the visa requirements.

9. The Tribunal’s decision, however, was based upon the merits of the applicant’s case.  The Tribunal concluding that she was not a genuine student, having been in Australia and studying for such an extensive period of time.  After the Tribunal considered all of the relevant matters required under the relevant legislation and regulations, it is not surprising that the applicant, having been in Australia for such a lengthy period of time and undertaking so many different courses, that the Tribunal would conclude that she was not a genuine student who did not intend to remain in Australia permanently.

Grounds of Judicial Review 

1. The applicant sets out five grounds for judicial review in her judicial review application as follows:

   1. The Administrative Appeals Tribunal decision of 25/07/2018 was affected by jurisdictional error in that the Applicant was not afforded procedural fairness in the making of the decision by reason of the Tribunal’s failure to allow the Applicant a fair, meaningful or reasonable opportunity to respond to information held by the First and Second Respondent that was adverse to the Applicant that was considered to be credible, relevant and significant to the Applicant’s application for review and would (and did) form the reason, or part of the reason, for affirming the decision under review.

   2. The Administrative Appeals Tribunal decision of 25/07/2018 was affected by jurisdictional error in that the Tribunal acted unreasonable in the exercise of his statutory powers by failing to provide a fair, meaningful opportunity for the Applicant to comment or respond to the relevant matters raised.

   3. The Administrative Appeals Tribunal decision of 25/07/2018 was affected by jurisdictional error in that the Tribunal failed to consider all of the evidence in the case.

   4. The Administrative Appeals Tribunal decision of 25/07/2018 was affected by jurisdictional error in that Tribunal failed to proper reasons for its decision and the findings of any material questions of fact on which the decision was based.

   5. The Administrative Appeals Tribunal decision of 25/07/2018 was affected by jurisdictional error in that the Tribunal did not conduct the review in the manner required by law.

2. At the hearing, it was apparent that the applicant was unfamiliar with these grounds, even though the application appears to have been lodged by her personally.  The applicant stated that her lawyer, Mr Nein, drew the grounds for her for a fee of $1,500.  The applicant, however, lodged the grounds on her own behalf.  I turn then, to consider each of the grounds that she relies upon.

Ground 1

1. In this case, it appears clear that the Tribunal invited the applicant to provide information to it, to enable it to properly determine whether or not to grant the visa.  The section does not require the Tribunal to provide particulars of the information that the applicant gave to it, even if that information does form part of the basis upon which the Tribunal may refuse the applicant’s application.

2. There is nothing in the Tribunal’s reasons to indicate that it relied upon information that may have engaged section 359A of the Migration Act 1958 (Cth). In substance, the difficulty confronted by the applicant was that her circumstances and study history was such as to not result in the Tribunal being persuaded that she intended to genuinely stay in Australia temporarily in accordance with cl.500.212(a) of the visa criteria: see Migration Regulations 1994 (Cth).

3. In these circumstances, it cannot be said that the applicant has shown any form of arguable case under ground 1. 

Ground 2

1. Ground 2 alleges that the Tribunal acted unreasonably by failing to provide a fair, meaningful opportunity for her to comment or respond to the matters raised.  The Tribunal wrote to the applicant.  It sought information.  The applicant did not provide information to the Tribunal.  As indicated above, the applicant says that this was the fault of her agent in failing to provide the documents that she provided the agent (although she did not produce them in Court today). 

2. There is nothing on the face of the Tribunal’s decision, nor in the Court Book, to indicate that the Tribunal failed to provide the applicant with an opportunity for a fair and meaningful hearing.  Instead, the Tribunal sought information and then proceeded to make a decision in accordance with the statutory scheme.  This ground does not show an arguable basis for judicial review.

Ground 3

1. The third ground alleges that the Tribunal failed to consider all of the evidence in the case.  There was nothing identified by the applicant as evidence that the Tribunal failed to have regard to.  This ground appears to have been drawn without regard to the actual facts and circumstances of this case. 

Ground 4

1. The fourth ground alleges that the Tribunal failed to provide proper reasons for its decision.  Again, this appears to have been drawn without any regard to the reasons that have been provided.  The Tribunal member provided reasons that run to seven pages, addressing a wide variety of relevant matters, as the Tribunal were required to under the statute. 

2. There is nothing raised by the applicant before me, nor anything that appears on a reading from the reasons to indicate that the Tribunal failed to provide proper reasons for its decision. 

Ground 5

1. The last ground alleges that the Tribunal did not conduct the review in the manner required by law.  Again, the applicant had no submissions to make with respect to this ground.  There is nothing on the face of the Tribunal’s decision to indicate an error of law on the Tribunal’s part.  In the circumstances, it does not appear to me that the applicant has established an arguable ground for the judicial review in this case.

2. In addition, it appears clear on the information before the Court that the applicant was not enrolled or the holder of an offer of enrolment at the time of the Tribunal’s decision, and, in these circumstances, the applicant is not eligible for the visa in any event.

3. Finally, I note that the applicant raised a claim that the Tribunal ought to have allowed her to provide further material after the Tribunal had made its decision. As this was a time which she says she became aware that her agent had not forwarded material to the Tribunal, the Tribunal declined to do so, as it considered its statutory function had been carried out, and it, therefore, no longer had power to make further decisions.  The Tribunal set this out in a letter to the applicant on 7 August 2018: see CB p.170.  It is clear that the Tribunal had fulfilled its function when giving a decision and it was not open for the Tribunal to revisit its decision in the circumstances raised by the applicant. 

4. In these circumstances, I must, therefore, dismiss the current application.  

   [Further argument ensued]

Costs

1. In this matter, the Minister seeks costs in the sum of $3,737.  This is the amount provided for in the scale.  It appears to me to be reasonable in the circumstances of the case.  The Minister has been entirely successful.  I will order costs in the sum of $3737. 

2. In this matter, the applicant has made submissions that she does not wish the Court to refer the solicitor involved in drawing her application to the Legal Services Commissioner with respect to the conduct involved in drawing specific grounds of complaint about the Tribunal’s decision which were not supported by any specific facts or circumstances in this case.  Given that the applicant, herself, does not wish that to be taken further, on this occasion, I will not make any specific referral with respect to the solicitor’s conduct. 

3. However, I note that it does not appear to me to be proper for a solicitor to draw grounds for a judicial review (beyond the most general form of grounds such as a general ground claiming a jurisdictional error by way of a holding application done urgently pending an amended application being forthcoming), and certainly the drawing of much more specific grounds without a proper foundation or proper basis for them being arguable would not be proper conduct for a solicitor. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  23 July 2019