Seo v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 963

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Seo v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 963

File number(s):

ADG 60 of 2020

Judgment of:

JUDGE GERRARD

Date of judgment:

2 October 2024

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether denial of adjournment unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) sch 2 cll 500.211, 500.211(a), 500.212, 500.212(a)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392

SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294, [2005] HCA 24

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

50

Date of last submission/s:

25 July 2024

Date of hearing:

11 September 2024

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Korean interpreter

Counsel for the First Respondent:

Alex Chan

Solicitor for the First Respondent:

Sparke Helmore

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 60 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KYEONGSEON SEO

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	2 OCTOBER 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

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

JUDGE GERRARD:

BACKGROUND

1. The applicant is a citizen of South Korea. She first arrived in Australia on 18 April 2006 as the holder of a Working Holiday visa (Court Book (CB) 49). Subsequently, the applicant has remained in Australia following the grant of further working holiday visas, student and higher education sector visas, and associated bridging visas (CB 133).

2. Since arriving in Australia, the applicant has attained the following qualifications (CB 49):

   ·Certificate IV in Spoken and Written English;

   ·Diploma of Community Welfare Work;

   ·Certificate IV in Christian Leadership;

   ·Diploma of Christian Leadership; and

   ·IELTS Preparation.

3. On 8 August 2017, the applicant applied for a Student (Class TU) (Subclass 500) visa (the visa) (CB 1-23). In that visa application, the applicant indicated that she intended to study an Advanced Diploma of Community Sector Management (CB 7).

4. On 23 October 2017, a delegate of the first respondent (the Minister) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 47-51).

5. On 6 November 2017, the applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 52-62).

6. On 24 October 2019, the Tribunal wrote to the applicant inviting her to provide further information in a ‘Request for Student Visa Information’ form by 7 November 2019 (CB 72-73). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (CB 74-78).

7. On 28 October 2019, the applicant was invited to attend a hearing scheduled for 10 January 2020 (CB 79-81).

8. On 1 November 2019, the applicant applied for an adjournment of the hearing on the basis that she was receiving treatment for a mental health condition (CB 82). The applicant provided a report dated 7 August 2019 from Dr Chesterman, a consultant psychiatrist, seemingly prepared in relation to a workers compensation claim in support of this application (CB 83-91). That report concluded with Dr Chesterman’s answers to questions specific to workers compensation matters. This included a diagnosis that the applicant had sustained an adjustment disorder with mixed anxiety and depression and Dr Chesterman’s view that the applicant “has a normal future work capacity…and she should be able to return to work” albeit with some caveats specific to her place of employment (CB 91).

9. On 12 November 2019, the Tribunal advised the applicant that the adjournment application was refused (CB 95).

10. On 6 January 2020, the applicant sent an email to the Tribunal advising that she had “been working on more documentation but I have not finished but I will submit by tomorrow” (CB 96). That email also attached a report dated 2 January 2020 from Dr Lam-Po-Tang, a consultant psychiatrist, again seemingly related to a workers compensation claim (CB 97-107). That report addressed matters pertinent to workers compensation proceedings. The report confirmed Dr Lam-Po-Tang’s opinion that the applicant had sustained a psychiatric injury, namely an adjustment disorder with anxiety (CB 103), and that the applicant was “capable of studying as planned in 2020” (CB 105).

11. On 10 January 2020, the applicant provided a completed “Request for Student Visa Information” form (CB 108-121).

12. That same day, the applicant attended the Tribunal hearing (CB 125-127). At the conclusion of that hearing, the Tribunal delivered an oral decision affirming the delegate’s decision not to grant the applicant the visa (CB 131). The Tribunal delivered reasons in writing on 13 January 2020 (CB 128-134).

13. On 6 February 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

    THE TRIBUNAL’S DECISION

14. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

15. The Tribunal’s decision in this matter is 4 pages long and spans 24 paragraphs (CB 131-134).

16. The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 8 August 2017 (at [1]-[2]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant satisfied the requirements of cl 500.212 of Schedule 2 to the Regulations (at [3]).

17. The Tribunal outlined that the applicant had requested an adjournment of the hearing until after 28 February 2020 on the basis of a medical issue. It confirmed that the request had been considered, and not supported, by the Tribunal (at [6]-[9]).

18. The Tribunal confirmed that the applicant had appeared at a hearing before it on 10 January 2020 to give evidence and present arguments (at [12]).

19. The Tribunal found that, whilst the issue before the delegate was whether the applicant was a genuine temporary applicant for entry and stay as a student, the issue before the Tribunal was whether she met the enrolment requirement in cl 500.211(a) of Schedule 2 to the Regulations (at [16]-[19]). That requirement was that, at the time of the decision, the applicant must be enrolled in a course of study.

20. The Tribunal asked the applicant at the hearing to provide documented evidence of her current enrolment. The applicant advised the Tribunal that she was not currently enrolled in any course of study (at [21]). As a result of the applicant’s evidence at the hearing that she was not currently enrolled in a course of study, the Tribunal found that the applicant did not meet cl 500.211 at the time of its decision (at [22]).

21. The Tribunal affirmed the delegate’s decision (at [24]).

    APPLICATION TO THIS COURT

22. The application for judicial review filed by the applicant on 6 February 2020 contains two grounds of review as follows (without alteration):

    1.The decision of the Administrative Appeals Tribunal, Migration & Refugee Division (“the Tribunal”) made on 10 January 2020 was affected by jurisdictional error in that the Tribunal denied the Applicant procedural fairness by unreasonably refusing to adjourn the hearing before the Tribunal scheduled for January 2020.

    2.The decision of the Tribunal was affected by jurisdictional error in that it was unreasonable and failed to take into account the report of consultant psychiatrist Dr John Lam-Po-Tang dated 2 January 2020 which stated that the client was suffering from an adjustment disorder with anxiety according to the DSM5 Criteria and recommed further treatment. A member Steven Griffiths did not read this medical report and said sorry to me.

23. The applicant filed an affidavit with that judicial review application on 6 February 2020 which annexed a copy of the Tribunal’s decision.

24. The applicant appeared before the Court on 11 September 2024 without legal representation but with the assistance of a Korean interpreter. The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.

25. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 6 February 2020 (the affidavit being taken as read and in evidence at the hearing on 11 September 2024), a Court Book numbering 134 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 25 July 2024.

26. The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 11 September 2024, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.

27. The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error included:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

    (b)where the decision-maker ignores relevant material (Craig at 178);

    (c)where the decision-maker relies on irrelevant material (Craig at 178);

    (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at 330, [2005] HCA 24 at [207]-[208]);

    (e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111], [2013] FCA 317 at [111]);

    (f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

    (g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27, [2022] FCAFC 3 at [33] (Djokovic); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (Li); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44] (Singh)).

28. However, it was also explained to the applicant that this was not an exhaustive list, and she should attempt to articulate why she said the Tribunal had fallen into error.

29. Against this background, the applicant initially told the Court that, at the time of the Tribunal hearing, the applicant was busy dealing with other matters (which the Court assumes is a reference to her workers compensation claim) and was suffering from her work-related injury.

30. The applicant also said that she admitted that there is “no judicial error”. The Court appreciates the applicant’s frankness in making such a concession. Nevertheless, it is the Court’s role to ascertain whether or not the Tribunal’s decision is affected by jurisdictional error. In that respect, the Court observes that if it were to uphold the applicant’s grounds that the Tribunal had acted unreasonably in denying the applicant’s request for an adjournment, or had failed to have regard to relevant material in considering that application for an adjournment, then that would evidence jurisdictional error. The Court notes that the grounds in the application raised recognisable species of jurisdictional error. In that sense, the Court views the applicant’s concession that the Tribunal decision contained “no judicial error” as no more than a self-represented applicant having difficulty in properly articulating her concerns with the decision.

31. When asked why she said the Tribunal’s decision to not grant her an adjournment was unreasonable, the applicant at first began to address the issues she had with the delegate’s decision. However, she went on to tell the Court that, at the time of the Tribunal’s decision, she was limited in her ability to prepare for the hearing. The applicant also told the Court that if the Tribunal had considered the report of Dr Lam-Po-Tang, it should have adjourned the matter and she would then have had more time to prepare.

32. In reply to the Minister’s submissions, the applicant told the Court that the injury she had suffered significantly impacted her ability to think and this meant she was not capable of fully representing herself at the Tribunal hearing. She also said that she could not enrol in a course because of her financial circumstances and that, even when she had tried to enrol in a course, she was rejected.

    CONSIDERATION

33. As outlined above, there are two grounds of review advanced in these proceedings. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392). Having regard to what the applicant has said in her application and her submissions before the Court, it appears that the applicant’s principal complaint is that the Tribunal acted unreasonably in refusing to adjourn the hearing as requested and that the Tribunal also failed to have regard to the report of Dr Lam-Po-Tang.

    Ground One

34. In written submissions, the Minister submitted that the Tribunal’s refusal of the adjournment had an evident and intelligible justification (relying upon Li at [76]). In this respect, the Minister drew the Court’s attention to the fact that the Tribunal expressly recorded that the applicant had applied for the adjournment on the basis that she would be receiving treatment until 28 February 2020, and that it had received and considered the medical evidence. The Minister submitted that it is apparent from the Tribunal’s decision record that it refused the adjournment on the basis that, in its view, the medical evidence did not justify an adjournment. The Minister submitted that there was nothing unreasonable about that conclusion, especially given the medical evidence did not state that the applicant could not attend the Tribunal hearing.

35. Accordingly, the Minister submitted that the Tribunal’s refusal to adjourn the hearing in the circumstances was within its “decisional freedom” (relying upon Li at [28]; Singh at 445, [44]), and not an arbitrary, capricious or plainly unjust act. In support of this, the Minister referred to the High Court’s decision in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [2018] HCA 30 (SZVFW) where the test for unreasonableness has been described as “necessarily stringent” (per Kiefel CJ at 551, [11]), “extremely confined” (per Gageler J, as his Honour then was, at 564, [52]), or as requiring something in the “realm of the extraordinary” (per Gageler J, as his Honour then was, at 570, [70]).

36. It is well accepted that a discretionary statutory power, such as the Tribunal’s power to adjourn a matter, must be exercised reasonably (see Li at [29], [63] and [88]; SZVFW at 564-5, [53] and 575, [89]; Djokovic at 27, [29]-[30]). An unreasonable exercise of a statutory power is one which lacks an evident and intelligible justification (Li at [76]). The intelligible justification must lie within the reasons the decision-maker gave for the exercise of the power (Singh at 446-7, [47]).

37. It must be said that the Tribunal’s reasons for refusing the applicant’s adjournment request were far from fulsome. Whilst the Tribunal set out the basis of the request, noting that it was on the basis of a medical issue and a wish to submit all documents and details of a workers compensation claim (at [6]-[9]), its reason for refusing the adjournment is limited to the single sentence that “the request for postponement of the hearing had been considered, and not supported, with the hearing to proceed on 10 January 2020” (at [9]). The brevity of this statement is unfortunate because it leaves the Court, and more importantly the applicant, in the unsatisfactory position of having to piece together the basis for the refusal of the adjournment.

1. Notwithstanding the above concern, the Court accepts that in this matter, there is an intelligible justification for the refusal of the adjournment. The applicant’s request for an adjournment was based on a wish to submit unidentified documents relating to her workers compensation claim. These were presumably additional medical documents to the two reports she had already submitted. Those reports, however, gave no support to the applicant’s claim that she was unable to attend the Tribunal hearing. Reading the Tribunal’s reasons as a whole, as the Court must do, the Court accepts that the Tribunal made a finding that the request for an adjournment was not supported by the evidence that the applicant had submitted. That finding was clearly open on the material. On that basis, the Court accepts that the Tribunal’s decision to refuse to grant the applicant an adjournment was not unreasonable.

2. No jurisdictional error is made out in respect of ground one.

   Ground two

3. Through this ground, the applicant asserts that the Tribunal erred in failing to have regard to the report of Dr Lam-Po-Tang.

4. The Minister submits that this fails at a factual level, given that the Tribunal expressly stated (at [18]) (emphasis added):

   The Tribunal has read and had regard to information provided by the primary applicant to the Tribunal by email on 1 November 2019, 4 November 2019, 6 January 2020, 9 January 2020 and 10 January 2020.

5. The applicant’s email of 6 January 2020 did nothing other than attach Dr Lam-Po-Tang’s report. Read fairly, the Tribunal’s reference to having regard to the information provided by the applicant in the email on 6 January 2020 can only be a reference to Dr Lam-Po-Tang’s report. The Minister submits that having regard to this statement, the Tribunal clearly had regard to the medical evidence but simply did not make specific reference to Dr Lam-Po-Tang’s report. In this respect, the Minister submitted that a decision-maker is not required to refer to or make findings upon every piece of evidence (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]).

6. The Court agrees with the Minister’s submission in this regard. It is clear that the Tribunal had regard to the report of Dr Lam-Po-Tang. Furthermore, for the reasons set out in respect of ground one, the Court accepts that the Tribunal engaged with that report.

7. No jurisdictional error is made out in respect of this ground.

   Materiality

8. The Minister also submitted that, even if the applicant could establish error on the part of the Tribunal, any such error would be immaterial. This is because it is not in dispute that the applicant was not enrolled in any course of study at the time of the decision and therefore could not meet the express requirement in cl 500.211(a) that she be enrolled in a course of study.

9. In this matter, the applicant accepts that she was not enrolled in a course of study at the time of the Tribunal’s decision. She gave evidence to that effect before the Tribunal. The Minister is correct in saying that the Tribunal made the only decision that was legally open to it. In that respect, the Court accepts that there is no realistic possibility that any other decision could have been made.

10. The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none.

11. The Court is satisfied that, even adopting the broad approach referred to in [33] of these reasons, no denial of procedural fairness arises.

    CONCLUSION

12. The application for judicial review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.

13. Accordingly, the application is dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       2 October 2024