SHUKLA v Minister for Immigration

[2019] FCCA 1273

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHUKLA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1273

Catchwords:
MIGRATION – Student visa – show cause hearing – applicant not enrolled in any course of study at time of Tribunal hearing – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), ss.4E, 65, 338, 359AA, 368D, 474, 476

Migration Regulations 1994 (Cth), reg.4.27B, Sch.2 cl.573.233

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Morad v El-Ashey [2017] FCA 1136

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZAJQ v Minister for Immigration [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Siddique Siddique v Minister for Immigration and Border Protection [2014]

FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118

SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018]

FCA 2051

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant: BHARTENDU SHUKLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2720 of 2017

Judgment of: Judge A Kelly

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Orders Pronounced: 13 May 2019

Delivered at: Melbourne

Delivered on: 16 May 2019

REPRESENTATION

The Applicant: In person

Solicitor advocate for the Respondents: Mr D Baddeley

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed on 13 December 2017 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the costs of the first respondent fixed at $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2720 of 2017

BHARTENDU SHUKLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 13 December 2017, the applicant seeks judicial review of an oral decision of the Administrative Appeals Tribunal (Tribunal) made on 16 November 2017, affirming a decision of a delegate of the first respondent (Minister) to refuse his application for a Student (Temporary) (Subclass 573) visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2. These reasons for judgment explain why orders were made dismissing the application.

Background

1. The applicant, an Indian national aged 32 years, first travelled to Australia on 12 November 2011 on a Student (Subclass 573) visa. On 22 May 2014, he was granted a second Student (Subclass 573) visa which was valid until 11 December 2015.

2. On the day of expiry of his second Student (Subclass 573) visa, the applicant applied for a third such visa so as to undertake a number of courses comprising: (a) Certificate IV in Commercial Cookery; (b) Diploma of Hospitality; and (c) Bachelor of Business.  He appointed a migration agent for the purposes of that visa application.

3. The applicant was required to satisfy the primary criteria for the Student visa, including cl 573.223 of Sch 2 (cl 573.233) of the Migration Regulations 1994 (Cth) (Regulations), which required him to be a genuine applicant for entry and stay in Australia as a student.

4. On 11 December 2015, the applicant enrolled in Stott’s College and later provided the Tribunal with a Certificate of Enrolment (CoE) for this study.

5. On 21 December 2015, the Department requested more information from the applicant and on 18 January 2016 the applicant provided the Department with: (a) evidence of his Overseas Student Health Cover and medical documents; (b) education documents; (c) a genuine temporary entrant criteria statement; (d) bank statements; and (e) an extract of pages from his Indian passport.

6. On 17 February 2016, a delegate of the Minister refused the application and provided a decisional record explaining the basis on which the application had been refused.

7. On 18 February 2016, the applicant lodged an application for review of the delegate’s decision and provided a copy of the delegate’s decisional record. For this purpose, the applicant again appointed a registered migration agent to act as his representative.

8. On 10 October 2017, the Tribunal invited the applicant to a hearing scheduled for 16 November 2017 and provided a copy of Ministerial Direction No 53 which outlined certain guidelines for assessing whether an applicant met the genuine entrant criteria for a Student visa.  It also invited the applicant to provide a current CoE in his course of study at least seven days before the hearing.  He did not do so.

9. Instead, in the course of the hearing, the applicant provided the Tribunal with a copy of a CoE for a Bachelor of Business.  The Tribunal invited[1] the applicant to comment on information contained in a record derived from the Provider Registration and International Student Management System (PRISMS). The PRISMS record indicated that the applicant’s enrolment in the Bachelor of Business course had been cancelled on 20 April 2017.

   [1] See s 359AA of the Act.

10. In the course of giving sworn evidence, the applicant accepted that he was not currently enrolled in an approved course (being a pre-requisite for all subclasses of Student visa).

11. On 16 November 2017, the Tribunal delivered an oral decision affirming the decision under review.  On 28 February 2018, the Tribunal furnished a written record of the reasons for its decision (Reasons).

Procedural history

1. On 13 December 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit to which he annexed a copy of the delegate’s decision record.  His affidavit deposed that he was dissatisfied with the decisions of the delegate and Tribunal.  No other evidence was adduced by that affidavit.

2. By a Response filed on 19 February 2018, the Minister opposed the grant of relief on the basis that no jurisdictional error was demonstrated.

3. By an order made on 13 May 2018, the application was set down for a show cause hearing, and procedural orders were made affording the applicant an opportunity to file any amended application, supplementary court book and submissions.  None of those opportunities were taken.

4. The Minister’s submissions were therefore responsive to the application.

Applicable principles

1. If the Tribunal’s decision was a privative clause decision[2], it is not amenable to judicial review.  A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3]  In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4]  Whether it should do so is a separate issue.

   [2] Act, s 474(2).

   [3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [4] Act, s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[5] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] 

   [6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

4. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.

5. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described as a form of summary dismissal: MZAJQ v Minister for Immigration;[7] SZUTB v Minister for Immigration & Border Protection.[8] More recently, however, it has been questioned, with respect correctly, whether the principles applicable to summary judgment ought be applied on a show cause application under r 44.12.

   [7] [2015] FCCA 593, [13] (Whelan J).

   [8] (2015) 298 FLR 6, [10] (Smith J).

6. It is convenient to identify the principles relating to summary judgment which are well settled: see Spencer v The Commonwealth.[9]  It is appropriate to consider those principles if only to emphasise that the caution which must be exercised when considering summary judgment is no less applicable upon the determination of a show cause hearing.

   [9] (2010) 241 CLR 118.

7. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim.  Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding.  So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.

8. In Upaid Systems Ltd v Telstra Corporation Limited,[10] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:

   a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;

   b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;

   c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved; and

   d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;

   The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited.[11]

   [10] [2016] FCAFC 158, 122 IPR 190, [46]-[49].

   [11][2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).

9. In SZUTB, Smith J held[12] that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; and (2) a residual discretion whether or not to dismiss the application. In Siddique Siddique v Minister for Immigration and Border Protection, Gilmour J explained, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”[13]  That is, the residual discretion remains to be considered.

   [12](2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J).

   [13] [2014] FCA 1352, [19]-[21].

10. The doubts which have been expressed in relation to the direct application of the principles applied in relation to summary judgment upon a show cause application, recognise that the statutory foundation of the two applications is different.  In Takhi v Minister for Immigration, Citizenship and Multicultural Affairs,[14] Perry J observed that the approach to be taken on a show cause application differed from that taken on summary judgment inasmuch as: (1) the court was authorised to determine the application at a reasonably impressionistic level; (2) the applicant was confined on a show cause application to the grounds stated in the application;[15] (3) contrastingly, summary judgment involved a critical evaluation of the available materials to determine whether there was a real question of fact or law that ought go forward for trial; (4) the onus in the two applications was different, with the applicant under r 44.13 having to demonstrate an arguable case such as to warrant the matter going forward for final hearing.

    [14] [2018] FCA 2051, [4], [17]-[18].

    [15]           Rule 44.13(1).

11. In reaching those conclusions Perry J considered it appropriate to rely upon the principles applied in an application for an extension of time.  As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[16] MZABP v Minister for Immigration and Border Protection.[17]  Such considerations are also instructive in relation to a show cause application.

    [16][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).

    [17][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).

12. In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary evaluation of the merits of a substantive application involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim.  Mortimer J’s reasoning is instructive.  Her Honour stated:[18]

    . . .  it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[19]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .

    [18][2015] FCA 1391, [62]-[63].

    [19](1998) 195 CLR 516 at [7]-[9].

13. Two of the factors identified by Mortimer J were that it would not be in the interests of the administration of justice to grant an extension of time where the proposed appeal had little or no prospects of success and that the matter should be assessed at an impressionistic level.  While her Honour identified those matters in relation to an application for an extension of time, I consider that each of those principles should be applied in determining this show cause application.

Consideration

1. The applicant was self-represented before me and assisted by an interpreter.  In the course of making his submissions he spoke in English to the interpreter who then restated those submissions to me more loudly.

2. As he was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and application for review.

3. Although it contained 12 numbered paragraphs, the application for review contained 10 grounds of review.[20]

   [20]           Paragraphs 4-5 contain no grounds.

4. At the outset I note that the application also complained, and sought judicial review, of the delegate’s decision. This court has no jurisdiction to review that decision because it has no jurisdiction in relation to a ‘primary decision’ which, relevantly includes a privative clause or purported privative clause decision that is reviewable under Part 5 of the Act: s 476(2), 476(4)(a). A decision of a delegate of the Minister refusing to grant an application for a Student visa is a decision that is reviewable under Part 5: s 338(2). It is also a privative clause decision: ss 4E, 474(2). It follows that the court has no jurisdiction to conduct the review of the delegate’s decision to refuse the visa application.

5. To the extent that the applicant may seek judicial review it is confined to review of the Tribunal’s decision.

Ground 1:

1. Ground 1 reads:

   I am the applicant and I came to Australia on student visa and after completion of my studies, I applied for the further extension of my student visa application which was refused by the Department of Immigration and border protection on 17/02/2016.

2. By Ground 1, the applicant merely stated that he had come to Australia on a Student visa and, upon completion of his studies, had applied for a further extension of his visa application which was refused by the delegate.  This is not a proper ground of review and identifies no error, including any jurisdictional error on the part of the Tribunal.

3. Ground 1 is rejected.

Grounds 2 and 6-8:

1. Grounds 2 and 6-8 read:

   2.  That the member erred in affirming the review application by relying on the evidence DIBP provided to refuse my student visa.

   6.  Tribunal erred by not assessing and considering the ability of applicant to meet the primary criteria for the subclass 500 visa.

   7.  Tribunal erred in not considering the circumstances at the time of application and he gave the decision as the whole not on the individual merits.

   8.  The Tribunal failed to independently assess whether the applicant satisfies cl. 573.233.

2. In Grounds 2 and 6-8, the applicant contended that the Tribunal failed to consider the circumstances of his case and the merits of his review application including whether he satisfied cl 573.233.

3. Although the delegate found the applicant did not satisfy cl 573.233, the issue before the Tribunal was whether the applicant met the enrolment requirements for the grant of a Student visa.

1. The Tribunal correctly found that obtaining a CoE certificate was a pre-requisite for obtaining a Student visa.  The applicant was put on notice by the Tribunal’s hearing invitation that his ability to meet the enrolment requirement was directly in issue and that he had an opportunity to give evidence and present arguments on that dispositive issue at a hearing on 16 November 2017.  The applicant was not entitled to assume that an issue which the delegate considered dispositive was not an issue arising upon the decision under review.

2. As there was no evidence that the applicant was enrolled in, or had a current offer of enrolment in an applicable course of study, the Tribunal correctly found that the applicant did not meet the enrolment requirement for all Student visa subclasses.  The Tribunal’s findings were open on the materials before it and for the reasons that it gave.

3. These grounds are rejected.

Ground 3:

1. Ground 3 reads:

   The DIBP Case Officer erred in considering the grounds for not to refuse the student visa. The Tribunal erred in misconstruing and interpreting clause 573.233

2. Ground 3 takes issue with the delegate’s findings.  As noted above, the court has no jurisdiction to review the delegate’s decision.

3. Ground 3 is rejected.

Grounds 4-5:

1. Paragraphs 4-5 contain no grounds of review.

Ground 9:

1. Ground 9 reads:

   The applicants request to provide the written decision of the hearing was denied arbitrarily and without any basis in law and fact.

2. In Ground 9, the applicant contends that his request for the Tribunal to provide a written decision was denied arbitrarily and without any basis in law and fact.

3. Relevantly, the applicant attended the Tribunal hearing on 16 November 2017, at the end of which the Tribunal gave an oral decision.[21]  It was open to the applicant to request written reasons within 14 days after the oral decision was delivered.[22]

   [21] Act, s 368D(1).

   [22] Act, s 368D(4); Regulations, reg 4.27B.

4. On 23 November 2017, the applicant’s authorised representative was informed of the applicant’s right to request written reasons. The letter confirmed the oral decision and provided a written record of the outcome of review. There is no evidence that the applicant made a request for written reasons in accordance with s 368D(4).

5. On 20 February 2018, the Minister requested a written statement pursuant to s 368D(5). The Reasons were then provided to both the applicant and the Minister on 28 February 2018. In all the circumstances, I consider that the complaint is devoid of substance.

6. Ground 9 is rejected.

Grounds 10-12:

1. Grounds 10-12 read:

   10.Tribunal member refused and failed to consider that the applicant in view and gave the oral decision on the basis of available documentation but didn’t request for any additional documents which he may need to make a rightful decision on my case.

   11.That the decision of the Tribunal is affected by the jurisdictional error.

   12.The Tribunal failed to accord to the applicants procedural fairness and natural justice as a short hearing was organised to provide the verbal evidences in support of my application. No extra time was provided to the applicants. My visa application raises an arguable case in relation to not refuse the visa. That, the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.

2. By Grounds 10-12, the applicant contends that the Tribunal erred by failing to provide extra time and failing to request any additional documents.  The applicant’s complaint cannot be maintained on the facts.

3. The Tribunal’s hearing invitation dated 10 October 2017 set out the enrolment requirement and requested that the applicant provide, at least seven days before the hearing date, “a copy of your current Certificate of Enrolment . . . as required for the grant of a student visa” and “Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa”.   HE did neither of those things in that time.

4. The Tribunal’s hearing invitation plainly put the applicant on notice that his ability to meet the enrolment requirement for the grant of a Student visa was in issue. The applicant had some five weeks until the scheduled hearing on 16 November 2017 to give the Tribunal evidence of his enrolment. Although the applicant provided a CoE to the Tribunal at the hearing, when confronted with evidence that he was not currently enrolled and did not hold a current CoE, he conceded on oath that his enrolment in that course had in fact been cancelled.

5. The only evidence before the court about what occurred at the Tribunal hearing is the Tribunal’s Reasons.  There is no evidence that the applicant sought further time to obtain a current CoE or Offer of Enrolment at the hearing or to adduce any other evidence.  It was for the applicant to provide evidence that he met the enrolment requirements for the grant of the visa, and the Tribunal was not required to make the applicant’s case for him. 

6. As noted above, the applicant’s affidavit in this proceeding adduced no evidence as to whether in fact, or why, the applicant had sought further time or had sought any opportunity to provide further documents.

7. It was for the applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction of compliance with the criteria for the grant of the visa that he sought. In all of the circumstances, there was no error in the Tribunal proceeding to deliver an oral decision at the conclusion of the hearing.

8. Grounds 10-12 are rejected.

Conclusion

1. For the reasons set out above, I was not satisfied that the applicant had demonstrated an arguable basis for judicial review of the Tribunal’s decision.  Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of a show cause application, I was not satisfied that any basis was shown why this application should be permitted to go forward.

2. For these reasons, the application was be dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 16 May 2019