Shen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 739
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 739
File number: MLG 1619 of 2019 Judgment of: JUDGE CHAMPION Date of judgment: 18 August 2023 Catchwords: MIGRATION LAW – Student Visa – Judicial review application as to the Administrative Appeals Tribunal’s decision – Tribunal refused visa because Applicant did not have a current Certificate of Enrolment (COE) –whether ss. 359A and 359AA were engaged – whether the Tribunal ought to proceed on the basis of the state of affairs as they existed at the time the Tribunal made its decision or on the basis of facts at the time of the initial Visa application– Application dismissed with costs Legislation: Migration Act 1958 (Cth) ss. 31, 360, 368D, 359A, 359AA, 424A, 424AA, 476
Migration Regulations 1994 (Cth) cl. 500.111, 500.211, 500.212
Cases cited: Kaur v Minister for Immigration (2016) 245 FCR 296; [2016] FCA 132
Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [2008] HCA 3
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submissions: 11 August 2023 Date of hearing: 19, 26 July 2023 and 2 August 2023 Place: Melbourne Applicant: Self-represented litigant Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 1619 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YUANYUAN SHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
18 august 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
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 CHAMPION:
INTRODUCTION
On 23 May 2019 Ms Yuanyuan Shen (Applicant) sought judicial review of a decision of the Administrative Appeals Tribunal made on 30 April 2019 that refused to grant the Applicant a Student (Temporary) (Class TU) Visa.
The Tribunal held that the Applicant was not enrolled in a course of study and therefore did not satisfy the mandatory criterion for the grant of the Visa set out in cl. 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth), namely that she be so enrolled (CB 131, [9]). In the absence of the Applicant’s enrolment in a course of study, the Tribunal did not have a discretion to grant the Visa. The Tribunal was correct not to grant the Visa. None of the Applicant’s five grounds of judicial review (or further matters she has raised either at or since the hearing) engage with that fundamental problem that the Applicant was required to be, but was not, enrolled in a course of study in order to be granted the Visa. I will dismiss the application. My reasons are below.
BACKGROUND
The Applicant is a citizen of China and is currently 34 years old (CB2).
On 6 October 2017 the Applicant applied for the Visa (CB1-16). The Applicant submitted a confirmation of enrolment (COE) in a course of study with her application. The COE detailed that her course would commence on 30 October 2017 and conclude on 8 April 2018 (CB 21). In circumstances in which the Applicant had then been in Australia for seven and a half years (and had held a number of student and bridging visas) on 7 November 2017 a Delegate of the Minister did not accept that “the applicant intend[ed] to stay in Australia temporarily” in accordance with cl. 500.212 of Schedule 2 to the Regulations (CB38–42) and refused the Visa.
TRIBUNAL APPLICATION
The Applicant made an application to the Tribunal for review of the Delegate’s decision (CB43).
On 28 February 2019, the Tribunal invited the Applicant “to give, in writing, information about the course(s) of study you are undertaking” (CB66).
On 13 March 2019, in answer to that letter of 28 February 2019, the Applicant provided a completed Request for Student Visa information form in which she answered “no” to question 14 when asked whether she had a current COE in a registered course of study (SCB7).
By a further letter dated 11 April 2019 inviting her to attend a scheduled Tribunal hearing, the Applicant was requested to provide (among other matters) “a copy of your current Confirmation 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 Schedule 2 to the Regulations, as is required for the grant of the visa” (CB88–89).
At the Tribunal hearing on 30 April 2019 the Applicant produced documents which confirmed that she had completed a Bachelor of Commerce in 2013 and a Master of Business in 2015 (CB 107–115).She also provided a three-page written statement in which she wrote (among other matters) that she “chose not to continue studying” (CB118).
On 30 April 2019, the Applicant attended the Tribunal hearing and the Tribunal made an oral decision in which it refused to grant the Visa (CB120). In due course, the Applicant requested written reasons. The written statement of the decision and reasons included the following (CB128-132):
9. At the commencement of today’s hearing, the Tribunal enquired of the Applicant as to whether she was currently enrolled in a registered course of study. She stated that she was not and confirmed that she was unable to produce any documents relating to her current enrolment status.
[…]
13.In summary, the Applicant does not meet the regulatory requirement for the grant of a student visa, because there is no evidence satisfying any of the criteria for clause 500.211 of the Regulations […]
[Emphasis added]
JUDICIAL REVIEW APPLICATION
Adjournment: 19 July 2023 and 26 July 2023 Hearings
On 19 July 2023 the hearing was adjourned because the Applicant was physically unwell and unable to present arguments in support of her case without unreasonable discomfort. I ordered that she be given permission to file written material in support of her case by 24 July 2023 ahead of the resumed hearing. No material was filed.
On 26 July 2023 the hearing was further adjourned because of technical difficulties the Applicant was experiencing in a Microsoft Teams hearing. The hearing resumed “in person” on 2 August 2023. At all hearings the Applicant was assisted by a Mandarin interpreter.
Grounds of review
The Applicant’s five grounds of judicial review (as written) are as follows (CB136):
1.The applicant has sufficient evidence including the third parties evidence to prove his claim, which was not considered or well considered by the first and second respondents.
2.The first respondent should give the applicant the opportunity to answer his questions of his claim rather than to make the decision.
3.The second respondent did not give the applicant a valid decision in writing.
4.The first respondent did not fairly assess the application.
5.The second respondent does not give the chance to the applicant for further explanation.
At the hearing, I gave the Applicant permission (it was not opposed) to rely on a further ground: namely, that she alleged that the Tribunal failed to give her procedural fairness by not considering her application pursuant to cl. 500.211(b) – (d) of Schedule 2 to the Regulations in addition to cl. 500.211(a). This matter is dealt with as Ground 6 below.
CONSIDERATION
Ground 1: Did the Tribunal fail to consider relevant evidence?
In Ground 1, the Applicant submitted that “the applicant has sufficient evidence including the third parties evidence to prove his [sic] claim, which was not considered or well considered [sic] by the first and second respondents”.
Any relevant “sufficient evidence” that the Tribunal had to consider (or well consider) needed to address the dispositive issue of whether the Applicant had material to show that she was enrolled in a course of study. Her own written material was that she had “chose[n] not to continue studying" (CB 116–118).The Applicant’s oral evidence to the Tribunal was that she was not currently enrolled in a course of study (CB 131, [9]). There was no failure to consider relevant evidence.
Ground 1 is without merit.
Ground 2: Did the Tribunal fail to afford the Applicant procedural fairness?
The Minister correctly notes that this Court has no jurisdiction in relation to a primary decision of the Delegate: s. 476(2)(a) of the Migration Act 1958 (Cth).
Given that the Applicant is self–represented, I have also considered whether the Applicant’s true grievance is that the Tribunal did not afford her procedural fairness.
The Delegate refused the Visa because the Delegate did not accept that the Applicant intended genuinely to stay in Australia temporarily: cl. 500.212(a). The Tribunal sent a letter dated 11 April 2019 in which it invited the Applicant to give information as to her enrolment in a course of study. The Tribunal afforded the Applicant procedural fairness in compliance with the statutory requirements because it put the Applicant on notice that it may deal with her Visa application on a different basis (than the basis on which the Delegate had dealt with the matter) namely, that she was not enrolled in a course of study: cl. 500.211(a).
In my view, the Tribunal complied with its procedural fairness obligations.
The Applicant has not proved Ground 2.
Ground 3: Did the Tribunal make a jurisdictional error by not giving the Applicant a decision in writing?
Ground 3 is that the Tribunal “did not give the applicant a valid decision record in writing.”
On 30 April 2019 the Tribunal made an oral decision to affirm the Delegate’s decision (CB120). On 9 May 2019, the Applicant requested a written statement of the decision (CB125). On 24 May 2019 the Tribunal gave the written statement of decision and reasons (CB127–132).
Section 368D(1) of the Act expressly contemplates oral decisions. Section 368D(4) of the Act provides for an applicant to make a written request for the oral statement to be provided in writing and obligates the Tribunal to reduce the oral statement to writing and provide a copy of a written statement to an applicant within a prescribed period. The Tribunal complied with its statutory obligations and provided a written statement of its oral reasons as the Applicant requested.
Ground 3 has not been made out.
Ground 4: Did the Tribunal fail to fairly assess the application?
I cannot characterise Ground 4 as other than an attempt to seek impermissible merits review. It is sufficient to note that the Tribunal properly considered the Applicant’s written evidence and oral evidence that she was not enrolled in a course of study which evidence established that she was not entitled to the grant of the Visa because she did not meet the mandatory criterion for the grant of the Visa under cl. 500.211(a).
Ground 4 has not been made out.
Ground 5: Did the Tribunal fail to give a chance to the Applicant for further explanation?
The Applicant alleges in Ground 5 that the “second respondent does not give the chance to the applicant for further explanation” [sic].
In accordance with s. 360(1) of the Act, the Tribunal invited the Applicant to appear before it to give evidence and present arguments in relation to the decision under review. The Applicant duly attended the hearing.
The determinative issue was confined to whether the Applicant was (or was not) enrolled in a course of study. Any “explanation” as to why the Applicant was not enrolled in a course of study was not relevant because the Tribunal did not have a discretion to grant the Visa if the Applicant was not enrolled in a course of study. Other possible issues, including the determinative issue for the Delegate as to whether the Applicant intended genuinely to stay in Australia temporarily, did not arise on the Tribunal’s determination.
The Tribunal had to be satisfied that the relevant criteria for the grant of the Visa had been met. The observations in Kaur v Minister for Immigration (2016) 245 FCR 296; [2016] FCA 132, at [27] – [31] are applicable in this case. In Kaur, Perry J observed s. 31(3) of the Act provides that the Regulations may prescribe the criteria for a Visa of a specified class. Regulation 2.03(a) provides that the “prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant part of Schedule 2.” For a student visa, cl. 500.211(a) of Schedule 2 prescribes that the visa applicant must be “enrolled in a course of study.” As Perry J observed at [30] the “primary criteria are prescribed in mandatory and exhaustive terms […]. The language does not indicate the existence of any discretion”. As a result, as Perry J concluded in Kaur at [31]:
[…] where there was no evidence of current enrolment or of an offer of enrolment before the Tribunal, it was not open to the Tribunal to grant a visa for those subclasses for which the appellant applied. The reasons why an applicant may be unable to satisfy those criteria are not relevant in the absence of any discretion.
[Emphasis added]
Ground 5 has not been made out.
Ground 6: Did the Tribunal fail to give the Applicant procedural fairness by not referring to cl. 500.211(b) – (d)
Clause 500.211(b) deals with a visa application made on the basis that an educational institution requires an applicant to remain in Australia during the marking of a postgraduate thesis. Clause 500.211(c) deals with an application made with the support of the Foreign Minister. Clause 500.211(d) deals with an application made with the support of the Defence Minister.
The Applicant’s initial Visa application was on the basis of an enrolment in an Advanced Diploma of Business (CB21). The Applicant’s own Visa application, and the facts that underpinned it, never suggested that any of these subparagraphs [cl 500.211(b) –(d)] was in any way applicable to her. She provided no material to the Tribunal that suggested that any of these subparagraphs was applicable. She confirmed at the hearing before me that none of these subparagraphs applied to her. The Tribunal had to decide the Applicant’s case as she framed it and was not required to refer to circumstances which were simply inapplicable to the case at hand.
There is no merit in Ground 6.
Additional matters
At the conclusion of the oral hearing on 2 August 2023, because the Applicant was self-represented, I gave her “permission to file any further written documents by way of reply submission on or before […] 7 August 2023". The Applicant in fact filed further submissions (beyond reply submissions) which raised new additional matters. As a result I gave permission to the First Respondent to respond in writing to those new matters. Subsequently, the Applicant sought further permission to put on yet more submissions which I denied because the Applicant had been given every chance to put her case.
The convenient course is to deal with the merits of the new additional matters the Applicant raised. In my view, they are without merit.
Section 359AA and 359A- information the Applicant gave did not engage those sections
The first new matter the Applicant raised in her written submissions made on 7 August 2023 was as follows:
During the AAT hearing, the member orally indicated that the absence of a valid COE would likely affirm the decision under review. Yet, the member did not, as required by s. 359AA(1)(b)(iii), advise me to seek more time to comment on or react to this information. Nor did the Member, under s. 359AA(1)(b)(iv), evaluate whether I reasonably required extra time. The Member hastened the decision, seemingly to avoid extra work for the AAT, prioritising convenience over justice.
The First Respondent accurately identifies that the gist of the complaint is that “the Tribunal failed to invite the applicant to comment on the fact that it would affirm the decision to refuse a student Visa if she did not have a Certificate of Enrolment”. The Applicant submits that s.359AA(1)(b)(iv) required the Tribunal to inform her that she may seek additional time to comment on or respond to the information that the fact that she did not have a COE was a reason to affirm the decision.
The fact that the Applicant herself disclosed that she did not have a current COE was not “information” which enlivened the Tribunal’s obligations under ss. 359A or s. 359AA. The provisions in s. 359A and s. 359AA operate in a “coherent and complementary fashion” and must be read together: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46, [80] (with reference to the cognate provisions in ss. 424AA and s. 424A). It is s. 359A which “prescribes what must be done”: SZMCD, [90]. In SZMCD, the Tracey and Foster JJ at [91] held that “the “information” covered by each section [s. 359A or s. 359AA] must be the same.”
The “information” that the Tribunal relied upon to find that the Applicant was not enrolled in a course of study was information “that the applicant gave for the purpose of the application for review" and therefore fell within the exception set out in s. 359A(4)(b) of the Act. That is, the fact that the Applicant herself disclosed that she did not have a current COE was not “information” of a type that engaged the operation of ss. 359A and ss. 359AA.
The Tribunal was correct to proceed on the basis of the state of affairs as they existed at the time the Tribunal made its decision
The second new matter that the Applicant raised in her post-trial submissions was that she had a valid COE at the time she made her student Visa application in 2017. When the Applicant first applied for the Visa on 6 October 2017 she was enrolled in a course of study from 30 October 2017 - 8 April 2018. Because she had a current COE she then met the cl. 500.211(a) primary criterion for the grant of a Visa. The Delegate had refused the Visa not because the Applicant did not have a current COE but because the Delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily: cl. 500.212(a). By the time the matter came before the Tribunal on 30 April 2019, events had moved on.
The Tribunal had to “stand in the shoes” of the Delegate as the original decision-maker: Kaur, [27] (Perry J). In my view, schedule 2, cl. 500.211 “invites attention to the state of affairs as they exist at the time the Tribunal makes its decision” rather than the state of affairs as they existed when the Applicant first made her Visa application: see, in a different context, Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [2008] HCA 31, [101] (Hayne and Heydon JJ).
At the date of the Tribunal decision (30 April 2019), the Applicant no longer had a current COE. Because the state of affairs as they existed when the Tribunal made its decision was that the Applicant did not have a current COE, the Tribunal had no discretion to grant to her the Visa. It was no answer for the Applicant to refer to the fact that she had a current COE at the time she initially applied for the Visa on 6 October 2017.
CONCLUSION
I will dismiss the application. I will order that the Applicant is to pay the First Respondent’s costs fixed in the sum of $7,467 as this is the amount sought by the First Respondent and the amount sought is less than scale costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 18 August 2023
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