Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 322
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322
File number: MLG 1604 of 2021 Judgment of: JUDGE LAING Date of judgment: 28 April 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – where the applicant was not enrolled at the time of the Tribunal’s decision – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal denied the applicant procedural fairness – application dismissed. Legislation: Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth) ss 359, 359A, 359B, 379C, 363A, 379B, 379C, 379G
Migration Regulations 1994 (Cth) r 1.03, 2.13, 4.17, Schedule 2 cl 500.111, 500.12
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 21 April 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared by telephone with the assistance of an interpreter. Solicitor for the First Respondent: Ms S. Wright (Mills Oakley) appeared by video-link on behalf of the first respondent. Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
MLG 1604 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD FAISAL SHAHBAZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
28 April 2023
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a citizen of Pakistan. He applied for a student visa on 29 August 2019.
The Delegate refused to grant the student visa on 27 November 2019 on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied for review by the Tribunal on 13 December 2019.
By email sent to the applicant (care of his migration agent) on 25 February 2021, the Tribunal invited the applicant pursuant to s 359 of the Migration Act 1958 (Cth) (Act) to provide information regarding the requirements for the visa that he be (a) enrolled in a registered course and (b) a genuine applicant for entry and stay as a student. The information was required by 11 March 2021. The correspondence noted that:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Despite the above warning, no response was provided to the Tribunal’s invitation dated 25 February 2021.
By further email sent to the applicant (care of his migration agent) on 26 May 2021, the applicant was invited pursuant to s 359A of the Act to comment on or respond to information that would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. That information was that a recent check of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant did not hold a current Confirmation of Enrolment in a course of study. The relevance of this information and the consequences of it being relied upon were explained as follows:
This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a full time registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).
If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.
The comments or response were required by 9 June 2021. The letter forewarned:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No response was provided to the Tribunal.
On 16 June 2021, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter and the criterion in issue at [1]-[13] of its decision. This included a summary of the correspondence that had been sent to the applicant and the lack of response.
At [14]-[16] the Tribunal reasoned:
14. As set out in the Tribunal’s letter dated 26 May 2021, a check of the Provider Registration and International Student Management System (PRISMS) indicates that the applicant does not hold a current Confirmation of Enrolment in a course of study. The applicant was invited on two occasions to provide information about his current enrolment in a course of study but failed to do so.
15. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
16. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
On this basis, the Tribunal affirmed the Delegate’s decision (at [17]).
RELEVANT CRITERION
The criterion in issue before the Tribunal was cl 500.211 of Schedule 2 to the Regulations, which provided:
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.
“Course of study” was relevantly defined in cl 500.111 as a “full-time registered course”. “Registered course” was defined in reg 1.03 by reference to a course provided by an institution, body or person relevantly registered under the Education Services for Overseas Students Act 2000 (Cth).
PROCEEDINGS BEFORE THE COURT
The applicant commenced the current proceedings through an application filed on 8 July 2021. The following was stated under “Grounds of application” (reproduced verbatim):
1.Administrative Appeal Tribunal has not invited me in person to provide the documentation and information regarding my refusal. Email was sent, but I'm more convenient and comfortable in providing my information to officer face to face
2. Administrative Appeal Tribunal has not considered my genuineness of being student in Australia where I have done few courses in Australia while on my student visa
3.Administrative Appeal Tribunal has not considered any of my personal circumstances and didn't show any courtesy of any of my hardship during the COVID and no opportunity regarding presenting me with my circumstances.
4.No courtesy towards my future disadvantage for retuning back to country without completion of my course
5.My student visa application was refused by DOHA on the reasons of not providing any information regarding my geniuses
6.Administrative Appeal Tribunal has found to dismiss the review of my student visa application and has advised to me affirm the decision of Department of Home Affairs
7. I would like to seek an opportunity from FCC to put in front the reasons and claims to proof myself as student.
8.Administrative Appeal Tribunal has not considered my circumstances of impact which me and my family will go at their decision.
9.My circumstances got overlooked in tribunal's decision
Ground 1
Ground 1 appeared to contend that the Tribunal erred in not inviting the applicant to a hearing to provide evidence in person.
The difficulty with this ground is that the applicant lost his entitlement to a hearing pursuant to s 360 of the Act. This was because he did not respond to the Tribunal’s s 359 invitation dated 25 February 2021 within the prescribed period: s 360(3) of the Act. Even if he had relevantly responded to this invitation, the entitlement to a hearing would have been lost due to his non-response to the s 359A invitation subsequently issued.
The written invitation dated 25 February 2021 complied with the requirements of s 359(3) of the Act, in that it was given by one of the methods specified in s 379A (i.e. by email to the last address the applicant had provided for his representative in connection with the review: see s 379G). The applicant was therefore taken to have received the invitation by the end of the day on 25 February 2021: s 379C. He was provided with the minimum prescribed notice period of 14 days: r 4.17 of the Regulations. The invitation otherwise appears to have complied with the requirements of s 359B of the Act. The applicant did not respond to the invitation.
As the applicant did not respond within the requisite period, ss 359C and 360(3) applied and the applicant lost his entitlement to attend a hearing before the Tribunal. The consequent effect of s 363A was that the Tribunal had no power to invite the applicant to a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [29].
The Tribunal therefore cannot have relevantly erred in not inviting the applicant to attend a hearing. It follows that ground 1 is unable to demonstrate jurisdictional error.
Grounds 2, 3, 4, 8 and 9
Grounds 2, 3, 4, 8 and 9 contended that the Tribunal failed to consider various circumstances and evidence in coming to its decision.
However, the Tribunal was not obliged to refer to every aspect of the evidence that was before it: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (per McHugh, Gummow and Hayne JJ).
Whilst the Delegate considered the applicant against the genuine student criterion in cl 500.212 of Schedule 2 to the Regulations, the issue before the Tribunal was the applicant’s ability to meet the enrolment criterion in cl 500.211. This was an objective criterion for the grant of the visa. It was unable to be waived by reference to the applicant’s previous study or personal circumstances.
The only evidence that was relevant to the Tribunal’s decision therefore concerned the applicant’s ability to meet the enrolment criterion. As such, I would not draw an inference that other evidence was overlooked, simply because the detail of it was not referred to in the Tribunal’s decision.
The Tribunal’s reasoning indicates that it considered the evidence before it regarding the currency of the applicant’s enrolment at [14]-[16] of its decision. It cannot be said, as was suggested under ground 3, that the applicant was denied the opportunity to put further evidence before the Tribunal in this regard. This opportunity was given by the Tribunal through the ss 359 and 359A letters that it sent to the applicant, care of his agent. For the reasons given above, the Tribunal was unable to invite the applicant to a hearing before it.
At the hearing before the Court, the applicant submitted that he had experienced difficulties in providing requested documents such as his confirmation of enrolment to the Tribunal because of the coronavirus. However, I accept the Minister’s submission that there is no evidence that such difficulties were communicated to the Tribunal. The Tribunal’s invitation to provide information dated 25 February 2021 noted that an extension of time could be sought if the applicant were unable to provide the requested information within the required period. No such extension was sought by the applicant. The Tribunal did not relevantly err by failing to consider the applicant’s difficulties in circumstances where those difficulties were not communicated to the Tribunal.
The Applicant additionally submitted at hearing that he considered that his representative before the Tribunal had been negligent. As I explained at the hearing, however, there is authority to the effect that negligence on the part of a representative, without more, is incapable of providing this Court with a basis for setting aside the Tribunal’s decision: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [30] and [33]. For this reason, although I have considerable sympathy for the applicant’s position should he be correct in his claim of negligence, I am not able to overturn the Tribunal’s decision on this basis.
Grounds 2, 3, 4, 8 and 9 therefore do not demonstrate relevant error in respect of the Tribunal’s decision.
Ground 5 and 6
Grounds 5 and 6 set out the background to the matter, including the Delegate’s refusal of the application for a visa and affirmation of that decision by the Tribunal.
They therefore do not identify any recognisable ground of jurisdictional error.
Ground 7
Ground 7 suggested that the applicant wished to have the opportunity to prove himself as a student before the Court.
The applicant’s position in this regard is understandable. However, as I explained at the hearing, this Court has no power to reassess the applicant’s ability to meet the criteria for the student visa. The role of this Court is limited to assessing whether there is any material, legally recognisable error in the procedure or the decision of the Tribunal.
As ground 7 does not identify such an error, it is unable to succeed.
CONCLUSION
For the above reasons, no jurisdictional error has been demonstrated by the grounds relied upon by the applicant. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 April 2023
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