Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 889
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889
File number: PEG 9 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 27 October 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the application for judicial review did not state the orders sought or the basis on which those orders would be sought – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal properly assessed the relevant legislative provisions – whether the applicant responded to the “invitation to provide information” within the prescribed timeframe and, if not, whether the Tribunal erred by allowing the applicant to appear at a hearing before it – ministerial intervention – no jurisdictional error – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth), ss 36 & 37
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.07 & 4.02
Federal Court Rules 1976 (Cth)
Migration Act 1958 (Cth), ss 351, 357A, 359, 359A, 359AA, 359B, 360 & 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cl 500.212 in Schedule 2 and condition 8202 in Schedule 8
Cases cited: BXT18 v Minister for Immigration [2019] FCCA 2455
C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663
Craig v State of South Australia (1995) 184 CLR 163
Dashti v Minister for Immigration & Multicultural Affairs [2000] FCA 1631
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EBE17 v Minister for Immigration & Anor [2018] FCCA 45
Lee v Minister for Immigration and Citizenship [2008] FCA 162
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Naqvi v Minister for Immigration & Anor [2016] FCCA 2891
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAQB v the Minister for Immigration [2012] FMCA 688
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of hearing: 25 October 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 9 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARABJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
27 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 25 October 2022) 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 KENDALL:
Background
The applicant is a citizen of India (Court Book (“CB”) 16). He first arrived in Australia in February 2016 as the holder of a student visa (CB 61). He has not departed Australia since that time (CB 75).
Initially, the applicant was granted a student visa to study an Advanced Diploma of Engineering Technology (Electrical). He was then granted a subsequent student visa to study a “Diploma and Advanced Diploma of Hospitality Management” (CB 61).
On 2 October 2019, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 14-30). Annexed to that visa application were a variety of supporting documents (CB 31-56).
On 25 November 2019, the Department of Home Affairs invited the applicant to comment on his enrolment history and “gaps” in his study history (CB 60-64). That letter also asked the applicant to provide “evidence of completion of all of [his] studies undertaken in Australia” (CB 63).
The applicant responded to that invitation, explaining that he was unable to continue with his studies from 2018 to 2019 because of “severe back pain”. He also explained that he was not able to secure enrolment in a Certificate IV in Commercial Cookery course because he did not meet the course requirements (CB 65-66).
On 14 February 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 72-79). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, as such, did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 78).
On 4 March 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 83-84).
On 19 August 2021, the Tribunal asked the applicant to provide further information in relation to his review application (CB 89-97). That “request for information” provided as follows (CB 91-92):
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 2 September 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
On 2 September 2021, the applicant’s representative provided a response to the above request via email, attaching a copy of a completed “Request for Student Visa Information” form (CB 98-112).
On 27 October 2021, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 10 December 2021 (CB 114-118).
On 29 October 2021, the Tribunal invited the applicant to comment on or respond to information about his lack of enrolment in a course of study (CB 119-122).
On 11 November 2021, the applicant’s representative provided the Tribunal with copies of the applicant’s Overseas Student Confirmation-of-Enrolment forms and letters indicating that the applicant was enrolled in a Diploma of Community Services course (scheduled to run from 18 November 2021 to 16 November 2022) and an Advanced Diploma of Community Sector Management (scheduled to run from 3 December 2022 to 8 September 2023) (CB 134-140).
On 8 December 2021, the applicant’s representative provided written submissions to the Tribunal (CB 143-144). Those submissions addressed the “genuine temporary entrant criteria” set out in cl 500.212 in Schedule 2 of the Regulations.
On 10 December 2021, the applicant appeared before the Tribunal. He was assisted by his representative and an interpreter in the Punjabi language (CB 146-149).
At the Tribunal hearing (on 10 December 2021), the Tribunal made an oral decision in which it affirmed the delegate’s decision refusing to grant the applicant the visa (CB 153).
On 12 January 2022, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-7). In support of that application, the applicant affirmed an affidavit on 11 January 2022 (filed in this Court on 12 January 2022) (CB 8-13). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
On 31 January 2022, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 157-170). A copy of those written reasons was provided to the applicant (via his representative) by email on 1 February 2022 (CB 154-156).
The Tribunal’s decision
The Tribunal’s written statement of decision and reasons is 15 pages long and spans 73 paragraphs.
The Court notes the Minister’s detailed summary of the Tribunal’s decision (in written submissions filed by the Minister on 11 October 2022 at [14]-[28]). Having reviewed the Tribunal’s decision in detail, the Court is satisfied that the summary provided is thorough and accurate. In the circumstances, the Court adopts the Minister’s summary as its own. With some additions and minor amendments, the summary provides as follows.
The Tribunal began by outlining the delegate’s decision, relevantly:
(a)noting that in his visa application, the applicant had declared his marital status as “never married”, that his parents and a brother reside in India, he has not undertaken any overseas travel in the past 10 years and no evidence of financial ties to India were provided (at [2]);
(b)noting that the applicant was employed at Hungry Jack’s, the Tribunal explained that the delegate had determined that this would act as a financial incentive for the applicant to remain here in Australia after completion of his studies (at [4]);
(c)summarising the applicant’s evidence regarding his studies, including that he had completed a Certificate III in Commercial Cookery between July 2016 and January 2018 (at [4]) and that he had not declared having undertaken any further studies after January 2018 (at [5]) but had provided letters of offer for courses. Based on these matters, the delegate was not satisfied that the applicant had continued studying and found that it appeared that he was using the student visa to maintain ongoing residency in Australia (at [5]);
(d)explaining that in considering the value of the Diploma of Hospitality Management course to the applicant’s future, the delegate noted that the applicant had not undertaken any research on employment opportunities (at [6]);
(e)identifying that the applicant has at all times been subject to condition 8202 in Schedule 8 of the Regulations, requiring that he remain enrolled and achieving satisfactory course attendance and progress (at [7]); and
(f)summarising the applicant’s study history, specifically that the applicant arrived in Australia to study an Advance Diploma of Engineering (Electrical), however, this was cancelled and the applicant then studied and completed Certificates III and IV in Commercial Cookery (at [8]-[10]).
The Tribunal confirmed that it had considered all of the information before it, summarised its role and specified the issue in the review (namely, whether the applicant satisfied cl 500.212 in Schedule 2 of the Regulations) (at [11]-[14]).
The Tribunal also referred to Ministerial Direction No 69 as relevant to its consideration (at [15]).
The Tribunal then detailed the following information and evidence before it:
(a)the applicant has not returned home to India since he first arrived in Australia in February 2016 (at [16]). The applicant said that this was because he was worried about progressing with his studies (at [34]). He keeps in contact with his family but was not privy to a possible health issue his mother had. His parents can afford to pay his fees (at [34]);
(b)the applicant had studied until senior secondary school in India. He has no employment history in India and submitted to the Tribunal that he had made some unsuccessful attempts to obtain employment (at [17]);
(c)the applicant had indicated, in his response to the Tribunal, that he did not have a current confirmation of enrolment (at [18]). He was enrolled in a Certificate III in Commercial Cookery at Stanley College between July 2016 and January 2018 which he completed. However, he did not complete the Certificate IV in Commercial Cookery which he was enrolled in between 11 February 2019 and 13 October 2019 (at [19]);
(d)the applicant submitted that he chose to come to Australia to complete his studies so he could achieve more in life and to gain as much knowledge as possible, that Australia has many opportunities, that Australia provided quality education and that he wants the best for his future (at [25]). He had provided no information as to why he had chosen the particular education providers (at [20]);
(e)the reason the applicant did not pursue similar courses in India was because they were theoretically based and it would be difficult to get a job without any practical experience (at [21]-[22]). This response was vague and unsupported by evidence, which was common in applications of this sort (at [23]);
(f)the applicant acknowledged that he had not been enrolled in a course in Australia from January 2019 to September 2021 due to health issues and that he currently works as a driver or a taxi driver (at [24]);
(g)the applicant’s parents and brother live in India and the applicant is in contact with them regularly. His family provide a significant incentive to return to India and he has no military service commitments, nor is there any political or civil unrest in India (at [32]). The applicant’s wife resides in Australia, and they live together (at [25]);
(h)soon after the Tribunal had invited the applicant to comment on his enrolment status, he enrolled in a Diploma of Community Services and an Advanced Diploma of Community Sector Management. The Tribunal considered that it was open to it to infer that the motivator (or the prime motivator) for the enrolments was the Tribunal’s letter (at [27]-[28]); and
(i)the applicant’s migration agent submitted, on 8 December 2021, that the applicant was a genuine student, he could not maintain his enrolment due to personal and health reasons and that he wanted to obtain skills and knowledge in Australia from the currently enrolled courses and then return to India with his wife to join his parents (at [32]). Other submissions were received but were not consistent with the evidence given at hearing (at [32]).
The Tribunal then summarised, in more detail, the evidence and exchanges which occurred during the hearing. The Tribunal noted, in particular, that the applicant was currently living with other people (not his wife – from whom he had been estranged for 3 to 4 weeks) (at [32] & [36]). The applicant also confirmed that he was earning a living as a taxi driver (at [32]) and that he has no bank accounts in India and no property or assets in his name in India. The Tribunal further noted that, in Australia, the applicant has two bank accounts (with approximately $2,300 in them) and is making payments on a car. Further, it was noted that the applicant’s parents have not paid for his course fees since September 2016 and make no contribution to his living expenses (at [35]);
The Tribunal then explained that it had put the applicant’s study history to him pursuant to s 359AA of the Act. The Tribunal explained that the applicant was provided an adjournment of 35 minutes to consider his response (at [38]) and that the applicant’s response was as follows:
(a)in relation to the Advanced Diploma of Engineering (Technology), the applicant had visited an agent with his father and the course was chosen for him. He did not follow through with the course and his enrolment was cancelled (at [39]);
(b)the applicant studied a Certificate III in Commercial Cookery between 18 July 2016 and 14 July 2017, which he completed and which caused him to gain an interest in cookery (at [39]);
(c)the applicant enrolled in a Certificate IV in Commercial Cookery in 2017 which he stated that he did not complete, however, PRISMS records indicated that he did (at [40]). The applicant told the Tribunal he went to the classes and finished the studies but was never awarded the certificate (at [42]). He then tried to re-enrol in the same course in 2019 (at [42]);
(d)the applicant enrolled in a Diploma of Hospitality in 2018, which was cancelled due to non-payment of fees and health related issues (at [40]); and
(e)the applicant enrolled in a Diploma of Hospitality Management which was also cancelled as the applicant could not pay the fees upfront. The applicant then enrolled in an Advanced Diploma of Hospitality Management, however this was also cancelled (at [40]).
The Tribunal explained that a core concern in relation to the applicant’s “course completion” related to a lack of funds and noted that the applicant had not contacted his family to request assistance. The Tribunal found it “difficult to understand” why the applicant had not done so (at [44]). The Tribunal noted that the applicant had indicated that he did not do so “out of self-respect” (at [54]).
The Tribunal also asked the applicant why he “kept enrolling in courses” and noted that the applicant responded that his “health issues were why he was unable to finish his studies” (at [45]). It was also noted that the applicant had acknowledged that he had not been enrolled in any course of study for almost 18 months prior to the Tribunal hearing.
The Tribunal further explained that, when asked why he had “changed to study community services”, the applicant stated that he had wanted to show his parents that he could, in fact, succeed in his studies. The Tribunal considered this to be inconsistent with the applicant’s “attitude of setting his own direction for his studies over the last few years” (at [46]).
The Tribunal noted that the applicant had provided information about a business called “Nanny Care” (where he had previously worked) and that he thought that there were “possibilities for using his studies in a non-government organisation back in India” (at [47]).
The applicant was questioned about the units he would be studying. The Tribunal determined that the applicant’s response was inconsistent with the course outline which he had provided and considered this to be “reflective of somebody that had not done any research or had any understanding of what the commitments would be to the course” (at [48]-[50]).
The Tribunal also noted that the applicant was not aware of whether the same course was available in India, but considered the Australian courses to be more advanced (at [51]). Further, the applicant explained that he would be able to show his parents that he had progressed during his time in Australia and would have opportunities to join various departments upon his return to India (at [52]).
The Tribunal was not satisfied that the applicant had undertaken “any level of significant research” in relation to what options might be open to him in India and the applicant himself had confirmed that he had not researched employment opportunities or possible remuneration (at [53]).
The Tribunal also noted that the applicant had explained that he had been suffering from back spasms since 2017 and was receiving medical treatment. He had not been able to work or walk for a period of time. The Tribunal stressed that that no corroborative evidence had been provided in relation to this issue (at [55]).
The Tribunal also noted that the applicant had conceded that he had not been making the best of his opportunities in Australia and was now “obsessed” with doing so. He was of the view that his “marriage issues” had contributed to this (at [57]).
The Tribunal accepted that the applicant’s enrolment had been cancelled by education providers and that he had experienced family and other issues outside of his control (such as his age, youth and lack of family support) which had had an adverse impact on him. However, the Tribunal concluded that these factors did not provide an adequate explanation for what had occurred while he had been in Australia (at [58]).
The Tribunal assessed the applicant as a frank and open witness (at [59]).
The Tribunal then assessed “the relevant matters for consideration”, finding that:
(a)it would be “really surprising” if similar courses to those that the applicant intended to study would not be offered by some university or college in India, based purely on the size of India and the population (at [54]);
(b)although the applicant had some ties to his home country, they were not significant (at [61]). The applicant had not travelled to see his family and his family had not travelled to see him (at [60]);
(c)the applicant’s economic circumstances in Australia provide a greater incentive for him not to return to India (at [62]-[63]). The applicant has no military service commitments, and there is no political or civil unrest in his home country (at [63]);
(d)the applicant has no significant ties to Australia but, having assessed them, they are a greater incentive than the incentives that exist for him in India (noting that there was some possibility of the applicant reconciling with his wife) (at [64]);
(e)the applicant’s explanations for why he had not progressed further with his studies were unpersuasive and not demonstrative of the sort commitment expected (at [65]);
(f)the Tribunal could not give weight to applicant’s explanation about why the courses were cancelled because the applicant did not “do anything about it when he could have”. When considered in conjunction with the fact that the applicant had not returned to India in nearly six years, the Tribunal determined that there was ample evidence that the student visa program was being used to “get around the intentions of the migration program and to maintain ongoing residence” (at [66]-[67]);
(g)the Tribunal was not satisfied that the applicant understood the nature of the courses he proposed to study and was not satisfied that the applicant had undertaken a reasonable level of research into his proposed courses of study (at [68]). The Tribunal was also not satisfied that the applicant had demonstrated a capacity or commitment to finish courses or that his intended study was consistent with his level of education (at [70]); and
(h)the Tribunal was not satisfied that the courses the applicant proposed to undertake would improve his employment prospects in India or that the applicant would even finish the courses he was currently enrolled in (at [71]).
On the basis of the above, the Tribunal ultimately concluded:
72.They are my considerations in relation to ministerial direction number 69 concerning assessing your intention to genuinely stay in Australia temporarily as a student. Having had regard to all of those requirements in ministerial direction number 69, clear weight on balance is that in relation to your intention to genuinely stay in Australia temporarily, that you do not intend to genuinely stay in Australia temporarily. Your track record suggests very strongly otherwise. I find that in relation to your intention to comply with visa conditions, as the delegate pointed out in your decision, it is a condition of a student visa that a person remains enrolled and achieves satisfactory course attendances and progress; condition 8202. I find that you do not intend to comply with the visa conditions.
73.Taking into account your explanations, my overall assessment is that you have not demonstrated any intention to comply in the past, and I am not persuaded that you would intend to comply in the future. There are no other relevant matters in relation to whether you are a genuine applicant to enter and stay as a student.
Based on the applicant’s circumstances as a whole, the Tribunal was not satisfied that the applicant was a genuine applicant (as per cl 500.212 in Schedule 2 of the Regulations). The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [73]).
Application to this Court
The applicant filed an application for judicial review on 12 January 2022. That application did not contain any grounds of review and was, arguably, incompetent.
On 1 April 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file any amended application, evidence and written submissions. Unfortunately, no further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 12 January 2022, a Court Book numbering 170 pages (marked as Exhibit 1), written submissions filed by the Minister on 11 October 2022 and the affidavit of service of Madisen Anne Scott affirmed and filed on 18 October 2022 (which was taken as read and in evidence at the hearing of this matter).
The applicant appeared before this Court on 25 October 2022 without legal representation. The Court confirmed with him that he had copies of the materials before the Court (as outlined above).
The Court noted that the application for judicial review filed by the applicant did not seek any orders. That is, it did not seek an order quashing the Tribunal’s decision or a writ of mandamus requesting that the matter be remitted to the Tribunal. In the circumstances, this Court’s jurisdiction under s 476 of the Act was not properly invoked. On that basis alone, the Court was entitled to dismiss the application for incompetence: Naqvi v Minister for Immigration & Anor [2016] FCCA 2891 at [2] (citing WZAQB v the Minister for Immigration [2012] FMCA 688 at [28]-[33]).
The Minister was agreeable to the applicant orally amending the application to rectify the oversight. The Court explained this issue to the applicant and made an order amending the application for judicial review to include the seeking of orders for the Tribunal’s decision to be quashed and a writ of mandamus.
The Court also noted (as outlined above) that the application for judicial filed by the applicant review does not include any grounds of review. This is despite the applicant having been given a further opportunity by a Registrar of this Court to file an amended application.
Rule 4.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) requires that an application “must precisely and briefly state the orders sought and the basis on which the orders are sought”. That did not occur here.
In the circumstances, as outlined in BXT18 v Minister for Immigration [2019] FCCA 2455 (citing Dashti v Minister for Immigration & Multicultural Affairs [2000] FCA 1631 at [4]; EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [19]), it was noted that the application was, again, arguably incompetent and could be dismissed on this basis alone.
In C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663 (“C”), the Federal Court assessed an application in which no grounds of review had been provided but had ultimately made oral submissions at the hearing which sought to identify “errors” on the part of the Refugee Review Tribunal. In the circumstances, the Federal Court relied upon a provision of the then Federal Court Rules 1976 (Cth) to dispense with the non-compliance of any requirement to set out grounds of judicial review because the Court was of the view that it “was in the interests of justice to do so”: C at [6].
This Court adopts that approach here, relying on r 1.07 of the Rules.
Noting the above, the Court gave the applicant an opportunity to explain orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions in matters of this sort, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant stated that he was unable to study for extended periods of time due to severe back pain and muscle spasms. He then met and married an Australian woman and focussed “on being a good husband and spending time with his family”. The applicant also stressed that he had suffered from a lot of anxiety and stress due to issues with his wife (who was “not ready to be married” and who “kept leaving him”). The applicant explained further that his wife “fell pregnant with his child”, told him “the baby may not be his” but that a subsequent DNA test confirmed that it was in fact his biological child. Finally, he explained that he is now “dealing with family law proceedings” with his now ex-wife “to sort out the custody arrangements” for his infant child.
Consideration
Unfortunately, the applicant’s oral submissions to the Court largely address “compassionate and compelling” circumstances. They do no more than invite the Court to engage in impermissible merits review and do not address jurisdictional error on the part of the Tribunal. It is noted further that before this Court the applicant agreed that the Tribunal did not make any “mistake”. Rather, he was simply unable to do what needed to be done with his studies at the time (but had now done so).
Despite this, in its duty to assist self-represented litigants, the Court has assessed for itself whether any error arises in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Was Procedural Fairness Afforded?
Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes as follows:
(a)the Tribunal exercised its powers under ss 359 and 359A of the Act to get information from and invite the applicant to comment on or respond to information (CB 89-97 & 119-122). The Tribunal’s invitations, on both occasions, complied with the requirements set out in s 359B of the Act and responses were received from the applicant’s representative in response to both invitations;
(b)
the Tribunal invited the applicant to attend a hearing before it and he did so
(CB 146-149). The applicant gave evidence at the hearing in support of his application. Accordingly, the Tribunal complied with s 360 of the Act;
(c)during the course of the hearing, the Tribunal put information to the applicant about his study record and asked him to provide comment in that regard. To enable him to do so, the Tribunal adjourned the hearing for a period of 35 minutes to allow the applicant time to consider his response. There is no evidence to suggest that the applicant requested additional time or that he was unable to respond to the information because he was not given sufficient time to do so. The Tribunal thus complied with s 359AA of the Act;
(d)the dispositive issue before the Tribunal (being whether the applicant was a genuine temporary entrant as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicant’s visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter and the Tribunal complied with s 360 of the Act; and
(e)the Tribunal questioned the applicant, listened to his responses and actively sought further information from him about his circumstances and study history. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
Did the Tribunal Properly Assess the Relevant Legislative Provisions?
The issue before the Tribunal was whether the applicant was a genuine temporary entrant and satisfied cl 500.212 in Schedule 2 of the Regulations.
It is clear from the Tribunal’s decision that it was not satisfied in this regard, with the Tribunal finding as follows:
72.They are my considerations in relation to ministerial direction number 69 concerning assessing your intention to genuinely stay in Australia temporarily as a student. Having had regard to all of those requirements in ministerial direction number 69, clear weight on balance is that in relation to your intention to genuinely stay in Australia temporarily, that you do not intend to genuinely stay in Australia temporarily. Your track record suggests very strongly otherwise. I find that in relation to your intention to comply with visa conditions, as the delegate pointed out in your decision, it is a condition of a student visa that a person remains enrolled and achieves satisfactory course attendances and progress; condition 8202. I find that you do not intend to comply with the visa conditions.
This conclusion followed a forensic assessment of the information and materials before it, a thorough consideration of the applicant’s claims and submissions and an assessment of that evidence against the requirements set out in Ministerial Direction No 69. The Tribunal’s findings were based on a number of factors, including the applicant’s study history (and the significant gaps in that study history), the lack of incentive to return to his home country and the value of the applicant’s intended study. Ultimately, the Tribunal was not satisfied that the applicant was “a genuine temporary entrant for stay as a student”.
The Court agrees with the Minister that there is no evidence before this Court to suggest that the Tribunal misunderstood the legislative principles applicable to this case or the task before it.
Further, the Tribunal’s findings were entirely open to it on the evidence before it.
No error arises in this regard.
Otherwise
At the hearing of this matter, counsel for the Minister (in his capacity as a model litigant) raised “a potential error” for consideration by the Court.
Specifically, it was noted that on 19 August 2021, the Tribunal invited the applicant (through his representative) to “provide information” (CB 89-97). Relevantly, the Tribunal requested evidence that confirmed that the applicant was enrolled in a registered course of study and which supported the applicant’s claim that he was a genuine applicant for entry and stay as a student (CB 91). The letter also advised as follows (CB 92):
The written information requested in the Request for Student Visa Information form should be received by 2 September 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 2 September 2021, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 2 September 2021 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
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.
The applicant was required to provide a response to the Tribunal by 2 September 2021.
If an applicant is invited, pursuant to s 359(2) of the Act, to provide information to the Tribunal, but fails to do so, he or she may lose the right to attend a hearing before the Tribunal.
The applicant’s representative in this matter responded to the Tribunal’s request by email at 22.01pm (AWST) or 23.31pm (ACST) on 2 September 2021. This was 0.01am (AEST) on 3 September 2021.
If the time by which the documents were provided is considered using AWST or ACST, the response was provided within time. However, if the time the documents were provided was considered using AEST, the documents were provided outside of the requisite time period and the applicant then lost his right to attend a hearing before the Tribunal.
In oral submissions before this Court, counsel for the Minister submitted that, because the matter was being heard in Perth, the timeframe within which the applicant was required to provide a response was also calculated using Perth time. That is, the applicant was required to provide a response on 2 September 2021 and he did so, having provided the documents before midnight in Perth on 2 September 2021.
In the alternative, counsel for the Minister submitted that even if the Tribunal had erred, such an error would not be jurisdictional.
The issue here relates to the timing of the provision of the response to the Tribunal. The email correspondence from the applicant to the Tribunal shows three different time zones. Relying on two of those time zones would have the material being provided before midnight on 2 September 2021 (the due date). The third would see the material being provided after midnight (that is, on 3 September 2021).
The question then is: which time is the “correct” time for consideration here?
The Acts Interpretation Act 1901 (Cth) (the “AIA”) provides as follows:
36 Calculating time
(1)A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
…
37 Expressions of time
Where in an Act any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the legal time in that State or part of the Commonwealth.
The applicant’s time to provide the information was expressed as ending on a specified day (being 2 September 2021). Pursuant to item 4 in s 36(1) of the AIA, the time to comply included the whole of the day of 2 September 2021. That is, up to midnight. Pursuant to s 37 of the AIA, the end of the day is deemed to be the end of the day in each state.
In this matter, the applicant was residing in Western Australia. The Tribunal registry dealing with the matter and corresponding with the applicant and his representative was the Perth registry (in Western Australia).
The Court considers that, as the response was provided at 22.01pm (AWST) on 2 September 2021, the response was provided within the requisite time period and the applicant had not lost his right to attend the hearing.
In the event that the Court is wrong and the response was provided outside of the requisite time period (and the applicant had thus lost his entitlement to attend a hearing), the Tribunal would have exceeded its powers (and its jurisdiction) by allowing the applicant to attend a hearing.
However, the Court does not consider that this would amount to jurisdictional error for the reasons that follow.
In Lee v Minister for Immigration and Citizenship [2008] FCA 162 (“Lee”), the Federal Court stated as follows:
20Even if (as the learned Federal Magistrate held) the Tribunal exceeded its jurisdiction when it held a hearing (see M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 at 345-346), it had plainly not denied the applicant procedural fairness as he alleged or occasioned him any relevant prejudice.
…
22In the circumstances of the case, the Federal Magistrate was entitled to find that the Tribunal’s discretion to refuse an extension of time to respond to the s 395A notice had not miscarried and that the Tribunal had no obligation to inform the applicant that his case was hopeless. Accordingly, the Federal Magistrate was correct in finding that, although the Tribunal exceeded its jurisdiction, the Tribunal had not denied the applicant procedural fairness in doing so.
That reasoning applies and is adopted here.
As outlined above, in the event the material was provided to the Tribunal after midnight and outside of the required time period, the Tribunal will have exceeded its jurisdiction by allowing the applicant to appear at a hearing before it.
However, as was the case in Lee, the applicant was not denied procedural fairness by the Tribunal allowing him to do so. Indeed, the applicant would have been given more of an opportunity than he was otherwise entitled to. That is, there was “no practical unfairness to the applicant” by the Tribunal exceeding its powers in this regard.
No jurisdictional error arises in relation to this issue.
Ministerial intervention
Before this Court, the applicant explained that he had experienced health issues, in the form of severe back pain, resulting in an inability to study. He was also dealing with a complex relationship with his wife and infant child which proved to be extraordinarily stressful.
The Court is not unsympathetic to the applicant’s situation. While the Court cannot assist the applicant (as no issue of jurisdictional arises here), the Court draws the applicant’s attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision refusing to grant the applicant’s visa and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
Conclusion
The application for judicial review (as orally amended on 25 October 2022 and filed by the applicant on 12 January 2022) has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 October 2022
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