Shimizu v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 88
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shimizu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 88
File number(s): SYG 2461 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 3 February 2025 Catchwords: MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – de novo hearing – whether applicant has no reasonable prospect of successfully prosecuting proceeding – application dismissed Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, r 21.02, r 21.04
Migration Regulations 1994 (Cth) cl 500.211 of Schedule 2, cl 500.212 of Schedule 2
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Munir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1184
Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 4 December 2024 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms J Schultz of Mills Oakley ORDERS
SYG 2461 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ICHIYA SHIMIZU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application lodged on 26 November 2024 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $500.
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 ZIPSER
INTRODUCTION
On 26 November 2024, the applicant lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 19 November 2024 (Registrar Decision). The registrar summarily dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 October 2020.
For reasons that follow, the Review Application is dismissed.
FACTUAL BACKGROUND
The applicant, a citizen of Japan, first arrived in Australia in July 2007 holding a subclass 570 student visa. Between 2007 and 2018, the applicant held a student visa, a guardian visa or a visitor visa.
On 16 October 2018, the applicant applied for a further student visa to undertake a diploma of interpreting and an advanced diploma of interpreting.
On 21 February 2019, a delegate of the first respondent refused to grant the applicant a student visa. The delegate was not satisfied the applicant met cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2), which required the applicant to be a genuine applicant for entry and stay as a student.
On 5 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
By letter dated 17 April 2020, the Tribunal invited the applicant to provide information in support of her application. The letter stated in part that “it is a requirement of the visa for you to be enrolled in a registered course of study”. The letter invited the applicant to provide “sufficient information to satisfy” the Tribunal that she was enrolled in a registered course of study.
Shortly afterwards, the applicant provided information in response to the 17 April 2020 invitation. The applicant asserted in her response that she was currently enrolled in “Advance diploma of interpreting”.
On 25 September 2020, the Tribunal invited the applicant to attend a hearing by telephone on 12 October 2020.
On 12 October 2020, the applicant attended the scheduled hearing by telephone, accompanied by a representative. During the hearing, the Tribunal put to the applicant information obtained from PRISMS records which indicated that the applicant was not currently enrolled in a registered course of study. The applicant’s representative confirmed that the applicant was not currently enrolled in a registered course of study. Since a “time of decision” criterion for the visa was that the applicant was currently enrolled in a course of study (see cl 500.211), the Tribunal was not satisfied that the applicant met this criterion. At the end of the hearing, the Tribunal made an oral decision affirming the delegate’s decision to refuse to grant the applicant a student visa.
On 26 October 2020, the Tribunal provided to the applicant a written statement of reasons for its decision.
PROCEEDINGS IN THIS COURT
Judicial review application
On 30 October 2020, the applicant filed an application (Originating Application) with the Court under s 476 of the Migration Act 1958 (Cth) (Act) seeking judicial review of the Tribunal’s decision. The Originating Application pressed a single ground of review (as written):
1.The Tribunal failed to get confirmation from the school that I was enrolled in that I did have enrolment. The Tribunal affirmed the refusal decision of the Department on the basis that I was not enrolled in a course of study. Therefore, the Tribunal has failed to conduct review as required by the Migration Act.
Particulars
At the hearing on 12 October 2020, I explained to the Tribunal that I did have enrolment and asked the Tribunal to talk to the school that I was enrolled in to verify my enrolment. The Tribunal ignored my request without a proper reason.
On 4 October 2024, the first respondent filed an amended response which sought, among other orders, that the matter be summarily dismissed pursuant to r 13.13 of the Rules.
Summary dismissal hearing
On 15 October 2024, a registrar made orders in chambers that:
(a)the first respondent’s summary dismissal application was listed for hearing before a registrar by video link on 19 November 2024; and
(b)the applicant file and serve any amended application and/or affidavit evidence, and a written submission in opposition to the summary dismissal application, by 12 November 2024.
On 15 October 2024, the Court emailed to the parties the orders referred to in the above paragraph.
The applicant did not, prior to the summary dismissal hearing, file or serve a written submission or evidence other than an affidavit filed with the Originating Application on 30 October 2020 which merely annexed the Tribunal’s decision.
On 19 November 2024, the summary dismissal hearing took place. Following the hearing, and on the same day, the registrar made the Registrar Decision in which he ordered that the judicial review application filed in October 2020 be summarily dismissed pursuant to r 13.13(a) of the Rules. The registrar did not publish reasons for this order.
Filing of Review Application
On 26 November 2024, the applicant lodged the Review Application. The orders sought by the applicant in the Review Application were (as written):
1.The orders of Registrar Foster of 19 November 2024 be set aside.
2.The judicial review application be heard by the Court.
On 28 November 2024, the Court made orders including:
1.The application for review lodged by the applicant on 26 November 2024 is listed for hearing at 2:15 pm on Wednesday 4 December 2024 before Judge Zipser.
2.The applicant is to file and serve any submission or evidence in support of the application for review by 4:00 pm on Monday 2 December 2024.
On the same day, the Court emailed the orders to the parties and provided details of the hearing date and place in the covering email.
The applicant did not file any submission or evidence in support of the Review Application before the hearing on 4 December 2024.
Hearing of Review Application on 4 December 2024
On 4 December 2024, the hearing of the Review Application took place. The applicant appeared in person, assisted by an interpreter between Mandarin and English.
At the commencement of the hearing, I explained to the applicant that the Court cannot set aside the decision of the Tribunal unless there is a jurisdictional error in the decision. I explained the main categories of jurisdictional error. I directed the applicant’s attention to the Tribunal’s reasons for decision contained in a court book prepared by the first respondent’s solicitor (Court Book) which was tendered during the hearing. I explained that, while the first respondent as the moving party bears the onus of persuading the Court that the Originating Application has no reasonable prospects of success, the applicant must identify a possible jurisdictional error in the Tribunal’s reasons for decision.
I then offered the applicant an adjournment of about 15 minutes to allow her to consider submissions she wanted to make. The applicant declined this offer.
The applicant then made oral submissions. The submissions are referred to below.
At the hearing on 4 December 2024, Jessica Schultz of Mills Oakley appeared for the first respondent and made oral submissions on behalf of the first respondent.
RELEVANT RULES AND PRINCIPLES
Rule 13.13(a) of the Rules states:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim …
Aided by Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]-[7], some principles concerning the test for summary dismissal are:
(a)The respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of success.
(b)An application need not be hopeless or bound to fail for it to have no reasonable prospects of success.
(c)The determination of a summary dismissal application requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.
(d)An application for summary dismissal must be determined according to its particular circumstances. The particular circumstances include the stage the proceeding has reached. In the present matter, the applicant was ordered on two occasions, on 15 October 2024 and 28 November 2024, to file evidence on which she wished to rely in the Court. She has neither filed evidence nor indicated that she wishes to file evidence. In the circumstances, the Court can assume that there is no further or additional evidence on which she wishes to rely.
(e)The discretion to summarily dismiss an application must be exercised with caution, given that it is an order made at a preliminary stage in proceedings and without the benefit of fully developed argument.
To successfully prosecute her application for judicial review, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.
Where a registrar of the Court exercises a power, Part 21 of the Rules permits a dissatisfied party to apply for review by a judge of the exercise of power. Rule21.4 states that the review “must proceed by way of a hearing de novo”.
CONSIDERATION
Ground in Originating Application
Clause 500.211 of Schedule 2 provided at the time of the Tribunal’s decision, as a “time of decision” criterion, that “the applicant is enrolled in a course of study”.
The nub of the applicant’s complaint in the ground in the Originating Application appears to be:
(a)contrary to a finding made by the Tribunal, the applicant was enrolled in a course of study at the time of the Tribunal’s decision on 12 October 2020; and
(b)the Tribunal unreasonably refused to seek confirmation from the educational institution at which the applicant was enrolled concerning the enrolment.
The Tribunal stated in its decision at [13]-[19]:
[13] At the hearing today you were again asked whether you had a confirmation of enrolment. In your sworn evidence before the tribunal you said that you did have a confirmation of enrolment in an interpreting course. It was difficult to follow your evidence, but the tribunal understands that you said that your studies had gone online due to the COVID-19 pandemic, and you suggested the tribunal talk to your school.
[14] The tribunal explained to you the PRISMS records that it had obtained that indicated that you are not currently enrolled in a registered course of study. These records indicate that you were enrolled in an Advanced Diploma of Interpreting and that your enrolment in this course expired on 6 July 2020.
[16] …you told the Tribunal that the studies had gone online, and that you suggested that the tribunal talk to your school and that you did have enrolment.
[17] The tribunal also heard from your migration agent. He confirmed that you are not currently enrolled in a course of study and that the last course that you were enrolled in ended in July 2020. He explained that after being refused your Student visa by the delegate you became frustrated, and then the COVID pandemic arrived which has had a devastating effect on the tourism industry where you wanted to work as a travel guide.
[19] There is no evidence before the tribunal that you are currently enrolled in a course of study. Therefore the tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly clause 500.211 is not met.
The PRISMS record referred to by the Tribunal in its decision at [14] appears at page 120 of the Court Book. The document records an access date by the Tribunal of 9 October 2020. The document lists courses in which the applicant was enrolled between 2007 and July 2020. Based on information in the document, the applicant’s last enrolment in a course of study expired on 6 July 2020, and the applicant was not enrolled in a course of study on 9 October 2020. I consider there is no error by the Tribunal in its finding at [14] that, according to the PRISMS record, the applicant was “not currently enrolled in a registered course of study”.
The Tribunal at [17] referred to oral evidence provided by the applicant’s migration agent at the hearing that the applicant was “not currently enrolled in a course of study and that the last course that you were enrolled in ended in July 2020”. At the hearing before the Court on 4 December 2024, the applicant did not challenge this evidence given by the migration agent.
The remaining evidence before the Tribunal concerning whether the applicant was enrolled in a course of study at the time of the Tribunal’s decision was oral evidence from the applicant. According to the Tribunal at [13], the applicant told the Tribunal that she “did have a confirmation of enrolment in an interpreting course”. However, that a person has a confirmation of enrolment in respect of a course of study does not mean the person is currently enrolled in the course of study. For example, at page 112 of the Court Book is a Confirmation of Enrolment in the name of the applicant for an interpreting course which ran from December 2019 to July 2020. But this was not evidence that the applicant was enrolled in a course in October 2020. According to the Tribunal at [16], the applicant told the Tribunal that “she did have enrolment”. The meaning of this answer by the applicant is not clear, but appears to be a re-statement by the applicant that she had a confirmation of enrolment.
In the above circumstances, it appears to have been open to the Tribunal at [19]:
(a)to find, based on the evidence before the Tribunal, that there was “no evidence before the Tribunal that [the applicant was] currently enrolled in a course of study”; and
(b)to not be satisfied that the applicant was enrolled in a course of study at the time of its decision.
As stated in paragraph 32 above, the ground in the Originating Application also appears to include a contention that the Tribunal unreasonably refused to seek confirmation from the educational institution at which the applicant was enrolled concerning the enrolment. As correctly stated in the written submission of the first respondent, the Tribunal’s power to get information under s 359 of the Act is discretionary, the Tribunal is under no general duty to get information, and the Tribunal may ordinarily decide a review on what the applicant puts forward. Where the Tribunal fails to exercise its power under s 359 to get information in a manner which is legally unreasonable, this may involve jurisdictional error. However, case law indicates that the circumstances in which the Tribunal’s procedural decision not to exercise the power might involve jurisdictional error are very limited, such as “a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertainable”: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]. Taking into account the PRISMS record referred to in paragraph 34 above and the evidence from the applicant’s agent referred to in paragraph 35 above, there is no reasonable prospect of the applicant persuading a court that the Tribunal’s failure to contact the educational institution was legally unreasonable.
Further, if the applicant was enrolled in a course of study in October 2020, it was open to her to tender evidence in the Court proceeding to prove this. She has not tendered such evidence. To the contrary, as explained below, at the hearing on 4 December 2024 she acknowledged that she was not enrolled in a course of study in October 2020. In the circumstances, even if the applicant persuaded the Court that the Tribunal unreasonably failed to contact the educational institution, such an omission by the Tribunal would appear not to be “material” in the manner explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.
In conclusion, in respect of the ground in the Originating Application, I am satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceeding.
Potential grounds raised by applicant at hearing on 4 December 2024
At the hearing on 4 December 2024, the applicant complained about the delegate’s finding in a decision dated 21 February 2019 that the applicant was not a genuine temporary entrant. However, even if there was an error in this finding, it does not establish an arguable ground for jurisdictional error in the Tribunal’s decision.
At the hearing on 4 December 2024, the applicant acknowledged that she was not enrolled in a course of study in October 2020 and sought to justify her non-enrolment. First, she appeared to contend that she could or should only be enrolled in a course of study if she held a student visa and, since she did not hold a student visa in October 2020, this justified or explained why she was not enrolled in a course of study. However, in light of the statutory scheme which includes cl 500.211, and which does not bar or prevent a person from enrolling in a course of study without holding a student visa, this contention does not establish a possible jurisdictional error in the Tribunal’s decision.
Second, the applicant contended that she did not understand at the hearing in October 2020 that a criterion for the visa was that she be enrolled in a course of study at the time of the Tribunal’s decision and, if she had been aware of this criterion, she would have been enrolled in a course of study in October 2020. To fit this contention into an established category of jurisdictional error, the argument appears to be that the Tribunal did not notify the applicant prior to the hearing in October 2020 that an “issue arising in relation to the decision under review” within the meaning of s 360 of the Act was whether the applicant was enrolled in a course of study. However, on 17 April 2020 the Tribunal sent the applicant a letter which stated that “it is a requirement of the visa for you to be enrolled in a registered course of study” and asked the applicant to provide information to satisfy this visa requirement: see page 76 of Court Book. Further, on 25 September 2020 the Tribunal sent the applicant a letter which asked the applicant to provide “a copy of your current Certificate of Enrolment or other documents that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 for the grant of the visa”: see page 98 of Court Book. In light of the letters dated 17 April 2000 and 25 September 2000, the Tribunal notified the applicant of this issue.
The delegate refused to grant the applicant a student visa because the applicant was not a genuine temporary entrant within the meaning of cl 500.212. The Tribunal affirmed the delegate’s decision because the applicant was not enrolled in a course of study and therefore did not satisfy cl 500.211. At the tail end of the hearing on 4 December 2024, the applicant appeared to contend that it was not open to the Tribunal to affirm the delegate’s decision on a basis different to the basis on which the delegate made its decision. For reasons explained in Munir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1184 at [36]-[39], this contention does not have reasonable prospects of success.
In conclusion, with reference to potential grounds raised by the applicant at the hearing on 4 December 2024, I am satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceeding.
Conclusion
For the above reasons, I am satisfied that the applicant has no reasonable prospects of prosecuting the proceeding commenced by the filing of the Originating Application on 30 October 2020. Therefore, the Review Application must be dismissed.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Schultz sought an order that the applicant pay the first respondent’s costs fixed in the sum of $500 if the Review Application is dismissed. The applicant did not oppose this amount. The amount sought by the first respondent is reasonable. I will make this order.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 3 February 2025
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