Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 363
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363
File number: MLG 2723 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 16 May 2022 Catchwords: MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – student visa – applicant not enrolled in a course of study - whether the making of an oral decision suggested that the Tribunal had made the decision in haste without properly considering the issues – whether the applicants were denied procedural fairness – no jurisdictional error – application dismissed. Legislation: Constitution s 75(v)
Migration Act 1958 (Cth), ss 359A, 359AA, 360, 368D, 476, 477, Div 5 of Pt 5
Migration Regulations 1994 (Cth), cll 572.222, 572.223, 572.322 in Sch 2
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 9 May 2022 Place: Perth Applicants: The first applicant appeared in person Counsel for the Respondent: Ms A Zinn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2723 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRIK SINGH
First Applicant
MANDEEP KAUR
Second Applicant
SACHJOT SINGH, BY HIS LITIGATION GUARDIAN, AMRIK SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 MAY 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 17 November 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Student (Subclass 572) visas (student visa).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application for judicial review.
BACKGROUND
The applicants are non-citizens who applied for the student visa on 27 October 2015. The first applicant was the primary visa applicant and the second and third applicants, who are respectively the spouse and child of the first applicant, were included in the application as members of the same family unit.
On 5 September 2016 a delegate of the Minister refused to grant the student visa to the applicants. The delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student as required by cl 572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second and third applicants were members of the family unit of a person who holds a student visa as required by cl 572.322.
On 10 September 2016 the applicants lodged an application to the Tribunal for review of the delegate’s decision.
On 2 November 2017 the Tribunal sent a letter to the applicants inviting them to a hearing and requesting that they provide further information, relevantly including a current confirmation of enrolment and documents showing that the first applicant was currently enrolled in a course of study or had an offer of enrolment. The only evidence provided in response by the applicants was a cancelled confirmation of enrolment in relation to an Advanced Diploma in Marketing.
On 17 November 2017 the applicants attended the Tribunal hearing to give evidence and present arguments. At the conclusion of the hearing, the Tribunal affirmed the delegate’s decision and delivered an oral statement of reasons. A written statement of reasons was subsequently published on 1 December 2017.
TRIBUNAL DECISION
The Tribunal identified that the issue before the delegate was whether the first applicant met the genuine temporary entrant criterion. However, the Tribunal did not assess whether the first applicant met this criterion because it determined that the first applicant did not meet one of the mandatory time of decision criteria, namely the enrolment requirement.
The Tribunal noted that the only certificate of enrolment provided by the first applicant, which related to a Diploma and Advanced Diploma in Marketing, had been cancelled. The Tribunal also observed that the first applicant told the Tribunal that he wished to re-commence study towards an incomplete certificate in air conditioning, but that he was not enrolled in any such course. The Tribunal was not satisfied that the first applicant had an offer of enrolment, actual confirmed enrolment, or that he provided a certificate of enrolment for a relevant course of study which was not cancelled or expired.
The Tribunal found that the first applicant did not satisfy the requirements in cll 572.222 and 572.231 or their equivalents for other subclasses in the Regulations and affirmed the decision made by the delegate.
PROCEEDINGS BEFORE THIS COURT
The application to this Court was filed on 13 December 2017, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The application raises four grounds of review, reproduced without alteration below:
1.THE DELEGATE HAS MADE FINDINGS WHICH APPEARS INCOMPREHENSIVE. THE VISA APPLICANT IS AN ELIGIBLE GENUINE STUDENT FOR HIGHER STUDIES.
2.THE DECISION OF THE TRIBUNAL WAS PASED IN HASTE. THE ISSUE INVOLVED THEREIN WAS NOT CONSIDERED APPROPRIATELY.
3.THE MERITS OF APPLICATION COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETERMINE A LEGAL ISSUE OF SOME IMPORTANCE.
4.THE DETERMINATION OF APPLICATION HAS RESULTED IN UNFAIRNESS TO THE VISA APPLICANT.
On 6 September 2018 a Judge of this Court made orders to progress the matter to hearing. Those orders required the applicants to file and serve 28 days before the hearing any amended application, supplementary court book and written submissions. The applicants did not file any documents in accordance with these orders. The Minister filed written submissions on
18 February 2022.
The matter came before me for hearing on 10 March 2022. The applicants were self-represented with the assistance of an interpreter in the Punjabi and English languages and the Minister was represented by Ms Arielle Zinn.
The Minister’s lawyers properly drew to the Court’s attention that the only relief sought by the applicants was a writ of certiorari for the Tribunal’s decision to be quashed. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which does not extend to matters where only a writ of certiorari is sought. At the hearing, I made an Order to allow an oral amendment to the applicants’ application to the effect that they also seek a writ of mandamus. The Minister did not object to this.
CONSIDERATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicants must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
The categories of jurisdictional error set out in SZMTA are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; SZMTA at [81]. Relevant to the allegations of error in the present matter, there might also be jurisdictional error in a Tribunal decision if the Tribunal fails to affords an applicant procedural fairness.
Ground 1
Ground 1 alleges that the delegate made incomprehensive findings. The ground also asserts that the first applicant is a genuine student. As submitted by the Minister, the delegate’s decision cannot be judicially reviewed by the Court. This is because it is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act, as it is a privative clause decision, or a purported privative clause decision, that is reviewable under Part 5 of the Migration Act. The Court does not have jurisdiction in relation to a primary decision: s 476(2)(a) of the Migration Act.
In circumstances where the applicants are self-represented, I have treated ground 1 as asserting error in the Tribunal decision.
Insofar as the first applicant asserts that he is an eligible genuine student, the ground is misconceived because this issue was not considered by the Tribunal, and did not need to be considered given the Tribunal’s other findings. In any event, the applicants’ assertion in this ground essentially invites the Court to engage in merits review. This Court has no jurisdiction to consider the merits of the Tribunal decision or to decide for itself whether the applicants meet the criteria for a student visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Tribunal’s reasons, summarised at [9]-[10] above, were otherwise clear and comprehensive. The Tribunal found that applicant did not have an offer of enrolment or actual confirmed enrolment, and that he had not given a confirmation of enrolment for a relevant course that was not cancelled or expired. It followed from this finding that the Tribunal was not satisfied that the first applicant met a mandatory time of decision criteria for any relevant student visa subclass and he therefore was not eligible for the grant of the visa. It was not then necessary for the Tribunal to consider whether the first applicant met any of the other criteria for the visa.
Ground 1 is not established.
Ground 2
Ground 2 alleges that the Tribunal decision was made in haste and that the issue in the Tribunal decision was not considered properly. In circumstances where:
(a)the Tribunal hearing took place over one year after the application for review was lodged;
(b)the applicants were put on notice of the evidence that was required ahead of the hearing;
(c)there is no evidence before the Court to suggest that the applicants ever requested additional time to provide evidence or documents; and
(d)there is no evidence before the Court to suggest that the applicants ever requested any adjournment of the hearing,
I infer that the real complaint raised by this ground is that the Tribunal made an oral decision at the hearing, rather than reserving its decision and publishing reasons at a later date.
As identified by the Minister in his submissions, the Tribunal was permitted to make an oral decision on the review under s 368D of the Migration Act. The Tribunal gave an oral statement setting out the decision, reasons for decision, findings of material fact and evidence relied on in making the decision as required by s 368D(2)(a). The written statement of reasons required by s 368D(2)(b) was subsequently provided.
The simple fact that a decision was made orally at the hearing does not suggest that the decision was made in haste without proper consideration of the issues. The reasons given by the Tribunal clearly show that it had considered the issues relevant to its decision. The determinative issue was that the first applicant was not enrolled in a course of study at the time of the Tribunal decision. The confirmation of enrolment provided by the applicant clearly indicated on its face that it had been cancelled and the first applicant gave evidence to the Tribunal that he was not currently enrolled in a course. I do not accept that the Tribunal failed to properly consider the determinative issues in the review.
Ground 2 is not established.
Ground 3
By ground 3 the applicants assert that ‘the merits of the application could properly be taken into consideration to determine a legal issue of some importance’.
It is not clear what the applicants mean by this ground and the ground was not explained by the applicants in oral submissions. The Tribunal considered the merits of the applicants’ application and made findings that were open to it on the evidence. As mentioned above, this Court cannot consider for itself the merits of the student visa application.
Ground 3 is not established.
Ground 4
Ground 4 asserts that the Tribunal decision has resulted in unfairness to the applicants.
To the extent that this ground reflects the applicants’ views of the consequences of the Tribunal decision, it does not disclose jurisdictional error. The applicants may wish that they had been granted student visas, but this does not affect the lawfulness of the Tribunal decision. In circumstances where the Tribunal found that the first applicant did not meet one or more of the mandatory time of decision criteria, and that finding was open to it on the evidence before it, the Tribunal could not make any decision other than to affirm the delegate’s decision.
This ground might also be interpreted generously as an assertion that the Tribunal failed to afford the applicants procedural fairness.
I am satisfied that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act in conducting the review and has not otherwise denied the applicants procedural fairness. In particular, I note that:
(a)The Tribunal invited the applicants to attend a hearing in accordance with s 360 of the Migration Act. There is no evidence before me to suggest that the invitation was not a real and meaningful one.
(b)The invitation to attend a hearing sent on 2 November 2017 also requested that the applicants provide various evidence, including, amongst other things:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.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.
This request for evidence was relevant to the issues that the Tribunal ultimately considered to be determinative in the review.
(c)The information which formed the reasons for the Tribunal affirming the delegate’s decision was information provided by the applicants. In these circumstances, it was not necessary for the Tribunal to invoke its procedures in ss 359A or 359AA of the Migration Act to give the applicants clear particulars of information that would be the reason or part of the reason for affirming the delegate’s decision: see s 359A(4)(b) and (ba) of the Migration Act.
Ground 4 is not established.
Applicant’s oral submissions
At the hearing, the first applicant made oral submissions to the Court explaining that he wanted to complete one unit in his air conditioning course, and giving reasons for why he wanted to do this. These submissions did not address or expand on any of the grounds in his written application. Further, as Ms Zinn orally submitted, the first applicant’s oral submissions have not in any way grappled with the basis upon which the Tribunal made the decision that it did, nor did the first applicant take any issue with the Tribunal’s finding that he was not enrolled in a course of study as at the time of its decision.
No jurisdictional error is discernible from the first applicant’s oral submissions to the Court.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 May 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Grounds of Review
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