Shakira v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs

[2021] FCCA 914

FEDERAL CIRCUIT COURT OF AUSTRALIA

Shakira v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FCCA 914

File number:

SYG 137 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

4 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where the applicant had no course of enrolment – no arguable case of jurisdictional error made out – application dismissed.   

Legislation:

Migration Act 1958 (Cth), s 476

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

11

Date of hearing:

4 May 2021

Place:

Sydney

First Applicant:

In person

Solicitor for the First Respondent:

Ms K Pieri, MinterEllison

ORDERS

SYG 137 of 2020

BETWEEN:

ATIYA SHAKIRA

First Applicant

GHAZANFAR MURTAZA

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The applicants pay the first respondent’s costs fixed in the amount of $3, 737.00

REASONS FOR JUDGMENT

JUDGE STRET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision in the Administrative Appeals Tribunal (“the Tribunal”) made on the 19th of December 2019.

2. The Court adopts the first respondent’s submissions from paragraph 4 to paragraph 28 as follows: 

   B FACTUAL BACKGROUND

   (4)The first applicant (the applicant) is a citizen of Pakistan who first arrived in Australia on 27 December 2010 as the holder of a Student (Class TU) (subclass 572) visa (CB 79).

   (5)On 29 December 2017, she lodged a further application for a student visa (CB 17–36). The second applicant was listed as a dependant applicant (CB 21). At the time of application, the applicant was enrolled to undertake an Advanced Diploma of Leadership and Management course, which was due to commence on 19 February 2018 and be completed on 12 May 2019 (CB 61).

   (6)On 2 March 2018, a delegate of the Minister (the delegate) refused the application on the basis that applicant did not meet the genuine temporary entrant requirement in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 77–84).

   (7)On 6 March 2018, the applicants applied for review of the delegate's decision with the Tribunal (CB 85–86).

   (8)On 15 October 2019, the Tribunal invited the applicants pursuant to section 359 of the Act to provide information by way of a Request for Student Visa Information with respect to whether the applicant met the requirements to be enrolled in a registered course of study and to be a genuine applicant for entry and stay as a student (CB 109–111).

   (9)The applicants provided a response to this invitation (CB 117–129) in which they:

   (a)consented to the Tribunal deciding the review without a hearing (CB 118); and

   (b)confirmed that the applicant did not have a current Confirmation of Enrolment (CoE) (CB 121)

   (10)On 19 December 2019, the Tribunal affirmed the decision not to grant the applicants student visas on the basis that there was no evidence that the applicant was enrolled in a course of study as required by clause 500.211 (CB 135–137).

   C TRIBUNAL DECISION

   (11)The Tribunal recorded that the applicants had consented to the Tribunal making a decision on the review without a hearing such that they were no longer entitled to appear before it pursuant to paragraph 360(2)(b) and subsection 360(3) of the Act. The Tribunal identified that it had given consideration to the available evidence and determined that it was unnecessary to attempt to obtain further information (CB 136, [5]).

   (12)The Tribunal identified that the issue in the present case was whether the applicant was currently enrolled in a course of study. This issue arose in the context of the applicant's written response to the Tribunal's Request for Student Visa Information, in which she informed the Tribunal that she did not have a current CoE. The Tribunal recorded that this information was consistent with the applicant's enrolment history (CB 136, [7]).

   (13)The Tribunal recorded that neither the department file nor the Tribunal file contained a CoE or other evidence which proved the applicant was currently enrolled in a registered course of study. To the contrary, the applicant's response to the Tribunal made plain that the applicant was not currently enrolled in such a course. Accordingly, the Tribunal was not satisfied that the applicant was enrolled in a course of study and found that she did not meet clause 500.211 (CB 137, [10]).

   (14)In view of this finding, the Tribunal found the second applicant did not satisfy clause 500.311 (CB 137, [12]) and affirmed the decisions not to grant the applicants student visas (CB 137, [13]).

   D APPLICATION FOR JUDICIAL REVIEW

   (15)The application for judicial review, filed on 17 January 2020, pleads the following four grounds of review (reproduced as written):

   1. The Tribunal misunderstood my issue and ignored the detailed information (request for student visa information) in which I have stated all my academic achievements including Advanced Diploma of Leadership and Management at Australasian International Academy from 11/2019 until 11/2022. I have also explained that the Diploma in Leadership and Management suits my needs perfectly and that the Academy is the perfect place for my further studies.

   2. I do believe that the Tribunal ignored my explanation and concluded that there is no intention to further studies and the Tribunal ignored my circumstances and made a decision contrary to the information provided.

   I still believe that the decision of the Tribunal is affected by error of law and the failure to contact me and verify the information provided is in itself a denial of natural justice and fairness.

   4. Based on my academic achievement from 2011 until now the Tribunal failed to conclude that I have every intention to continue my education while I have the presence of my mother to look after my baby while I am committed to my studies.

   E CONSIDERATION
   Grounds one, two and four

   (16)In these grounds, the applicant essentially contends that the Tribunal erred in failing to consider evidence relevant to the applicant's claim to meet the genuine temporary entrant requirement in clause 500.212 of Schedule 2 to the Regulations, and in failing to find that the applicant met this criterion.

   (17)These contentions are plainly misconceived in circumstances where the determinative issue in the review was not the applicant's intention to study in Australia. Rather, the issue as identified by the Tribunal was whether the applicant was enrolled in a course of study at the time of its decision (CB 136, [7]). On the basis of the applicant's own evidence that she did not have a current CoE, and the applicant's enrolment history, the Tribunal was not satisfied that the applicant was enrolled in a course of study and found that she did not meet clause 500.211 (CB 137, [10]). The Minister submits that this finding was clearly open to the Tribunal on the material before it and, accordingly, these grounds must fail.

   Ground three

   (18)In ground three, the applicant argues that the Tribunal's failure to contact her and verify the information she provided was a denial of natural justice and fairness. In the circumstances of this case, this ground essentially takes issue with the Tribunal's finding that the applicants were not entitled to a hearing and the exercise of its discretion to proceed to make a decision without obtaining any further information from the applicants.

   Entitlement to hearing

   (19)By letter dated 15 October 2019, the Tribunal invited the applicants to provide information by way of a Request for Student Visa Information form (CB 110–111). The applicant subsequently provided the Tribunal with a completed form (CB 117–127).

   (20)On page 2 of the form, in response to the question 'Do you and any other applicants consent to the Tribunal deciding the review without a hearing?', the applicant answered, 'Yes I/we consent to the Tribunal deciding the review without a hearing' (CB 118). Immediately after this question, the form provided the following information (reproduced as written):

   Note: If you consent to us deciding your review without a hearing:

   You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

   (21)The Tribunal had regard the applicant's response to this question and was 'satisfied that the necessary consent ha[d] been given under s.360(2)(b) of the Act' and found that, pursuant to subsection 360(3) of the Act, the applicant was no longer entitled to appear before it (CB 136, [5]).

   (22)The Minister contends that the Tribunal's application of paragraph 360(2)(b) and subsection 360(3) of the Act in the circumstances of this case was legally correct. As the applicant consented to the matter being decided without a hearing, no hearing invitation was required to be issued and the Tribunal did not have the power to permit the applicant to appear a hearing pursuant to section 363A of the Act: Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110; [2017] FCAFC 67 at [54] per North Bromberg and Bromwich JJ.

   Reasonableness of decision to proceed

   (23)While the applicant had no entitlement to a hearing, it was open to the Tribunal to take steps to contact the applicant to give her a further opportunity to provide information prior to making its decision. In this respect, the Minister observes that the Tribunal's discretion to proceed to make a decision without taking any further steps to obtain information from the applicant must be exercised in a legally reasonable way, and that the question of whether a discretion was exercised reasonably is fact dependent: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30.

   (24)The facts of this case are such that:

   (a)the applicant was put on notice of the requirement to have a current CoE at the time of the Tribunal's decision in its letter to the applicants of 15 October 2019 (CB 110–111);

   (b)the applicant confirmed in her completed Student Visa Information form that she did not have a current CoE (CB 121); and

   (c)the fact that the applicant did not have a current CoE was confirmed by way of the applicant's PRISMS record (CB 107–108).

   (25)The Minister submits, in these circumstances, that the fact that the Tribunal did not take any further steps to contact the applicant to seek information prior to making its decision was plainly reasonable.

   Compliance with section 359A

   (26)To the extent the applicant's complaint in this ground could be taken to be a complaint that the Tribunal breached its obligations under section 359A by failing to put the information contained in the PRISMS records to the applicant, the Minister accepts that this constitutes 'information' within the meaning of subsection 359A(1) of the Act as, in its terms, it undermined the applicant's claims to be entitled to the student visa: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

   (27)However, in light of the applicant's clear evidence in her response to Tribunal's Request for Student Visa Information that she did not have a current CoE, it is evident that the exception in paragraph 359A(4)(b) applied such that the Tribunal was not required to put this 'information' to the applicant by way of a section 359A letter. That is to say, the information in the PRISMS record merely repeated the information which the applicant had already given to the Tribunal.

   (28)For completeness, the Minister contends that the PRISMS record did not contain any additional 'information', beyond which the applicant gave to the Tribunal, upon which the Tribunal relied that enlivened its obligations under subsection 359A(1) of the Act.

   BEFORE THE COURT

3. These proceedings were commenced on the 17th of January 2020. On the 6th of March 2020 a judge of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

4. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing. 

5. The applicant made reference to her desire to pursue further studies and acknowledged that she did not provide a current course of enrolment and that that was her error. The applicant indicated she wanted the Court to try to give her more time so that she could pursue her further studies. The applicant’s submissions were, in substance, an invitation to the Court to engage in merits review or to determine the matter on compassionate or discretionary grounds.  The Court has no power to do so. 

6. The applicant referred to not having a hearing; that was in circumstances where the applicant consented to not having a hearing. 

7. The applicant was on notice, from the communications from the Tribunal, as to the requirement for a current course enrolment. 

8. Nothing said by the applicant identified any arguable case of an error. 

9. For the reasons identified in the first respondent’s submissions, which the Court adopts, none of the grounds raise an arguable case of error and the Court is satisfied that the application does not raise an arguable case for the relief claimed. 

10. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

11. Accordingly, the application is dismissed under r 44.12 of the Rules. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021