Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 196
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 196
File number(s): MLG 2709 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal incorrectly interpreted the criteria set out in cl 572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal denied the applicant a meaningful opportunity to participate – whether the Tribunal was biased – whether the Tribunal took “too long” to assess the application – whether the applicant’s migration agent failed to do what was required of her – whether the Department or delegate misunderstood the relevant legal principles – whether the Tribunal should have provided an interpreter – whether the applicant should have been permitted to file a post-hearing submission – whether the Tribunal ignored relevant material or considered irrelevant material – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 358, 359, 359A, 359AA, 360, 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cll 572.222 and 572.223 of Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Khaja v Minister for Immigration and Border Protection [2014] FCA 890
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of last submissions: 18 March 2022 Date of hearing: 3 March 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms H Cameron Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2709 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIMRANJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The application 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 (“CB”) 1). He arrived in Australia in April 2010 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa (CB 44). That visa was valid until 13 July 2011 (CB 44).
Since arriving in Australia, the applicant has obtained a Certificate III in Automotive Technology (in November 2011), an Advanced Diploma of Business (in April 2015) and a Diploma of Automotive Technology (in July 2016).
On 30 June 2015, the applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (the “visa”) (CB 1-8).
On 9 July 2015, the then Department of Immigration and Border Protection (the “Department”) invited the applicant to provide further information in relation to the genuine temporary entrant criteria in cl 572.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 15-24).
On 10 August 2015, the applicant responded to the request via email and attached a genuine temporary entrant statement (CB 25-35).
On 10 March 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa. The delegate determined that the applicant did not satisfy the genuine temporary entry criteria prescribed in cl 572.223 of Schedule 2 of the Regulations (CB 42-47).
On 22 March 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 48-49).
On 6 October 2017, the Tribunal invited the applicant (by email) to attend a hearing scheduled on 14 November 2017 and give evidence and present arguments (CB 69-84). Importantly, that correspondence asked the applicant to confirm that he was enrolled in a course of study in Australia (CB 71).
On 14 November 2017, the applicant appeared before the Tribunal at the scheduled hearing. The Tribunal made an oral decision affirming the delegate’s decision to refuse to grant the applicant the visa (CB 110).
On 12 December 2017, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (CB 116-120). The application and accompanying affidavit did not list or discuss any grounds of review (CB 116-123).
On 8 January 2018, the Tribunal provided to the applicant a copy of its written statement of its decision (CB 113-115).
On 23 January 2018, the applicant filed an amended application for judicial review in this Court. The amended application lists 5 grounds of review (discussed further below)
(CB 131-136).
The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal’s decision is affected by jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s written decision is two pages long and spans eight paragraphs.
The Tribunal began by identifying the visa decision under review and acknowledged that it had initially given an oral decision on 14 November 2017 (at [1]-[2]).
The Tribunal then identified the basis on which the delegate refused to grant the applicant the visa, as follows:
4.… The applicant did not satisfy the requirements of clause 572.223 of Schedule 2 to the Migration Regulations because the delegate was not satisfied that the applicant was genuine student who intended to genuinely stay in Australia temporarily.
The Tribunal then clarified the issue the Tribunal would address:
5.The issue before the delegate was whether the applicant met the criterion of clause 572.223; however, this issue now is whether at the time of this decision the applicant meets the enrolment requirements for a student visa … the Regulations require that at the time of decision an applicant must be enrolled in, or be subject of a current offer of enrolment in a course of study that is the principal course and is of the type specified under the relevant subclass.
The Tribunal continued as follows:
6.On 6 October 2017 an invitation to attend a hearing of the tribunal today was sent to the applicant. In that invitation the applicant was requested to provide a copy of his current Certificate of Enrolment to the Tribunal at least seven days before the scheduled date of the hearing. A copy of the certificate was not provided. At the hearing the applicant was again requested to provide the Tribunal with a copy of his current certificate but he was unable to do so. In his sworn evidence before the tribunal the applicant confirmed that the last time he was enrolled was in the Diploma of Business Administration course in October or September 2016. The applicant further confirmed in his sworn evidence that he was not currently enrolled, nor does he have an offer of enrolment in a course of study in Australia.
7.Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment and, therefore, the criteria in the relevant clauses are not met. Furthermore, there is no evidence that the applicant meets the criteria for either a subclass 576 or subclass 580 visa which are the remaining subclauses of class TU. For these reasons the Tribunal affirms the decision not to grant the applicant a temporary student visa.
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [8]).
PROCEEDINGS IN THIS COURT
As noted above, on 23 January 2018, the applicant filed an amended application for judicial review in this Court. That amended application identifies 5 “grounds of review” which provide as follows (without alteration):
(1)I had genuine intention to study but the tribunal did not give me a chance to explain the reasons for the refusal. I had complete documentation to explain my credentials.
(2)I was not given the complete time and proper proceedings were not followed
(3)If given an opportunity, I can explain every claim which I have mentioned in the MRT
(4)I have been gravely victimized for not being given the opportunity to comment and put my case forward.
(5)I hope judicial review would give me a chance to be able to successfully explain GENUINE TEMPORARY CRITERION which is the crucial component for respective visa.
The applicant was given an opportunity to file any affidavit evidence and written submissions. No further materials were received from the applicant prior to the hearing of this matter. Written submissions were received from the Minister on 17 February 2022.
This matter was heard on 3 March 2022. At that time, the materials before the Court included the amended application for review filed on 23 January 2018, a Court Book numbering 139 pages (marked as Exhibit 1) and the Minister’s written submissions filed on 17 February 2022.
The applicant appeared before the Court without legal representation. The Court confirmed with him that had a copy of the Court Book and the Minister’s submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review in his amended application and to outline any concerns he might have with the Tribunal’s decision (as per the principles outlined in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7]).
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision 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 and Multicultural Affairs (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker is biased: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant 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 on 14 November 2017: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In this context, although not entirely clear, the applicant seemed to suggest that his primary concern was that the “AAT member had already made up his mind”. The Court interprets this statement to suggest bias on the part of the Tribunal. This issue will be addressed below. The applicant’s oral submissions did not otherwise address the issue of jurisdictional error or his stated grounds of review.
Following the hearing (and noting that the applicant was not legally represented) the Court allowed the applicant to file written submissions outlining any concerns he had with the Tribunal’s decision. The applicant filed written submissions on 11 March 2022. The Minister filed written submissions in reply on 18 March 2022. To the extent that the applicant’s post-hearing written submissions address the issue of jurisdictional error, these submissions are discussed below in the consideration that follows.
CONSIDERATION
Grounds of Review
The applicant’s amended application for review purports to list 5 “grounds of review”.
Noting that the applicant was unrepresented and struggled to articulate his concerns at the hearing of this matter, the Court has interpreted the applicant’s grounds of review as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and interprets the applicant as raising two main concerns in this regard:
(g)the Tribunal incorrectly interpreted and applied the criteria in clause 572.223 (grounds 1 and 5); or
(h)the Tribunal denied the applicant a meaningful opportunity to participate (grounds 2 and 4).
In effect, ground 3 requests impermissible merits review and is not, as a result, addressed below.
(a) Did the Tribunal incorrectly interpret and apply the criteria in clause 572.223?
At the time of the Tribunal’s decision, the applicant needed to satisfy the requirements in Part 572 of the Regulations.
The Tribunal’s decision explains that, at the time of the Tribunal’s decision, the applicant:
5.… must be enrolled in, or be subject of a current offer of enrolment in a course of study that is the principal course and is of the type specified under the relevant subclass.
In assessing whether the applicant satisfies this requirement, the Tribunal looks for evidence in the form of a valid Confirmation of Enrolment certificate (“CoE”) or an offer to enrol in an eligible course of study from a registered course provider: Khaja v Minister for Immigration and Border Protection [2014] FCA 890 (“Khaja”).
In this matter, the evidence before the Tribunal detailed the applicant’s enrolment in courses which the applicant had already completed before the date of the Tribunal’s decision or courses with CoE’s which were cancelled as at 14 November 2017 (CB 67). The Court notes that a CoE appears at page 68 of the Court Book. This shows the applicant to have been enrolled to study for a Diploma of Business Administration with a course commencement date of 15 July 2016 and a course end date of 14 January 2017. However, that document shows, underneath the heading “Overseas Student Confirmation-of-Enrolment (CoE)”, text which reads: “THIS CONFIRMATION-OF-ENROLMENT HAS BEEN CANCELLED”.
It is noted that the applicant was asked to provide evidence of the sort required. Unfortunately, nothing that might assist the applicant was provided. Indeed, the applicant himself confirmed that he was not currently enrolled in a course of study. In that regard, the Tribunal noted (emphasis added):
6.On 6 October 2017 an invitation to attend a hearing was sent to the applicant. In that invitation the applicant was requested to provide a copy of his current Certificate of Enrolment to the Tribunal at least seven days before the scheduled date of the hearing. A copy of was not provided. At the hearing the applicant was again requested to provide the Tribunal with a copy of his current certificate but he was unable to do so. In sworn evidence before the Tribunal the applicant confirmed that the last time he was enrolled was in the Diploma of Business Administration course in October or September 2016. The applicant further confirmed in his sworn evidence that he was not currently enrolled, nor does he have an offer of enrolment in a course of study in Australia.
In written submissions filed in this Court on 17 February 2022, the Minister contends that, in the circumstances, the Tribunal had no obligation to make findings on the genuine temporary entrant criterion.
The Court agrees.
As stressed by Justice Mortimer in Khaja (at [22]), where there was incontrovertible evidence before the Tribunal that an applicant does not hold a current certificate of enrolment, “the consequence is that one of the required statutory criteria for the grant of a visa was not and could not be met at the time of the Tribunal’s decision”.
Hence, the Tribunal’s “statutory task” required it to be satisfied that the applicant met, at the time of its decision, each of the criteria for the grant of the visa. Once the Tribunal determined, on the evidence before it, that evidence of the sort required did not exist, no further statutory analysis or assessment (of the sort arguably advanced by the applicant here) was required.
No jurisdictional error arises in this regard. The Tribunal undertook the statutory task required of it.
(b) Did the Tribunal deny the applicant a meaningful opportunity to participate?
In effect, the applicant contends that he was denied procedural fairness as per the requirements codified in Division 5 of Part 5 of the Act.
As per the principles detailed in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31], the Act requires the Tribunal to:
(a)give the applicant the opportunity to provide documentation which he or she wishes the Tribunal to consider, including the opportunity to provide written statements and arguments relation to any aspect of the decision under review: s 358 of the Act;
(b)seek information it considers relevant to a review and then have regard to that information: s 359 of the Act;
(c)invite the applicant to give evidence and present arguments about any aspect of his case: s 360 of the Act; and
(d)give the applicant, orally or in writing, clear particulars of information that the Tribunal considers would have be the reason for affirming the decision under review: ss 359AA and 359A of the Act.
On 16 October 2017, the Tribunal extended an invitation to the applicant to appear at a hearing before it on 14 November 2017 to give evidence and present arguments (CB 70-72). Relevantly, the invitation letter provided:
What you should do within 7 days of receipt of this letter
…
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
Additionally, please provide this information so that a decision can be made as quickly as possible:
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.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
This request for information put the applicant on notice about what would be assessed by the Tribunal and what information was required from him.
As noted above, the applicant did not provide any material relating to his enrolment in a course of study.
It is noted that, at the hearing, the Tribunal assessed whether the applicant met the enrolment requirements for the visa. The applicant was also asked if he did, in fact, have any evidence that would assist him in this regard. As noted by the Tribunal, the applicant confirmed that he was not currently enrolled and did not have an offer of enrolment in a course of study in Australia.
It cannot be said here that the applicant was denied an opportunity to participate or present his case.
It is noted that (arguably pursuant to its power to seek information deemed relevant to the decision under review – under s 359(1) of the Act), the Tribunal sent an email to the Department of Immigration and Border Protection on 12 October 2017 requesting a copy of a statement the applicant had given to the Department that set out how he satisfied the relevant statutory criteria (CB 85-89).
The Tribunal’s decision does not expressly refer to this information or how it was assessed or weighed by the Tribunal.
The statement in question does not direct the Tribunal to any evidence that the applicant held either the certificate of enrolment or an offer enrolment. The statement simply gives an account of the applicant’s completed and attempted courses of study in Australia and his aspirations upon his return to India.
In the context of the evidence as a whole and the information before the Tribunal, it cannot be said here that the Tribunal erred by not specifically addressing the statement in its decision or by not asking the applicant to address it. The Tribunal is not obliged to refer to every piece of evidence before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, any failure to expressly refer to evidence does not mean it that it was not considered by the Tribunal: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34]
Although not to expressly referred to in the Tribunal’s decision, the statement’s contents are arguably subsumed in the Tribunal’s ultimate finding that, at the time of its decision:
… there was no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment and, therefore, the criteria in the relevant clauses are not met.
Importantly, this finding was substantiated by the applicant’s own evidence given under oath at the Tribunal hearing on 14 November 2017 that “he was not currently enrolled, nor does he have an offer of enrolment in a course of study in Australia” (at [6]).
No error rises in this regard. The applicant was given ample opportunity to present his case and provide evidence that would have assisted him.
OTHER
Allegation of bias
In oral submissions, the applicant stated that he thought the Tribunal had already “made up its mind” before it had heard from him.
In relation to any concerns about bias, it is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing, advised him of what would be assessed and what evidence would assist him. The applicant provided no evidence of the sort required by the Tribunal and he, himself, admitted to not having any evidence of the sort required.
The Court is satisfied that no issue of bias arises here.
Written Submissions Post-Hearing
As noted above, the Court allowed the applicant to file written submissions following the hearing of this matter. The applicant asked that he able to do so in circumstances where he had not been able to get legal assistance. Noting that the applicant was legally unrepresented and struggled to convey his concerns to the Court orally, the Court agreed to further written submissions being provided.
The applicant filed further written submissions on 11 March 2022. The Minister replied to those submissions on 18 March 2022.
The applicant raises a number of concerns in his post-hearing submissions. These can be summarised as follows:
(a)the Tribunal took too long to assess the application and hand down its decision;
(b)the applicant’s migration agent did not do what was required of her;
(c)the Department and/or delegate misunderstood the relevant legal principles;
(d)the Tribunal member was biased
(e)the applicant did not understand what was being said to him by the Tribunal and should have been given an interpreter;
(f)the applicant wasn’t allowed to file a post-hearing submission;
(g)the Tribunal ignored relevant material and/or considered irrelevant material; and
(h)the Tribunal’s decision is illogical, irrational or unreasonable;
In relation to these concerns, the Court determines as follows.
Whether the Tribunal took “too long” to assess the application
On 22 March 2016, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 48-49).
On 6 October 2017, the Tribunal emailed the applicant inviting him to attend a hearing on 14 November 2017 to give evidence and present arguments (CB 70).
On 14 November 2017, the Tribunal made an oral decision affirming the delegate’s decision refusing to grant the applicant the visa (CB 106).
On 8 January 2018, the Tribunal sent the applicant a written statement of its oral decision (CB 111).
It is noted that the Tribunal’s objectives, as set out in s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth), provide that:
Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
…
(b) is fair, just, economical, informal and quick;
The applicant asserts that the Tribunal took too long to assess his application. The Court disagrees. It took approximately 18 months for the Tribunal to process and ultimately assess the applicant’s application before the Tribunal. The Tribunal then handed down an ex tempore decision on the day of the hearing and provided a written statement within two months from that date. While perhaps not “quick enough” for the applicant, the timeframe here cannot be seen as unjust or in any way indicative of a failure to address the applicant’s concerns as soon as administratively possible.
In any event, even if the Court is wrong in this regard, the objective to act “quickly” is, legally, only aspirational. There is no legal authority that imposes a timeframe within which to have a matter heard and decided by the Tribunal: Minister for Immigration v Eshetu (1999) 197 CLR 611; Li.
While the “delay” here was undoubtedly frustrating for the applicant, there is nothing in relation to this issue that goes to jurisdictional error.
Whether the applicant’s migration agent failed to do what was required of her
It appears that, generally, the applicant believes her was not properly advised by his migration agent about the need for a confirmation of enrolment or his statutory obligations and that this, ultimately, made it impossible to succeed before the Tribunal.
The Court is sympathetic to the concerns of all applicants who express frustration with what they perceive to be poor migration advice. However, the concerns raised by the applicant here about the advice provided by his migration agent do not assist the applicant in relation to the issue of jurisdictional error. There is nothing, for example, that leads the Court to conclude here that the agent’s conduct amounts to a fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
If the applicant has concerns about the advice he was given by his migration agent, the way in which she conducted herself in relation to his visa application and/or the Tribunal proceedings generally, the Court refers the applicant to the services of the Office of Migration Agents Registration Authority. Unlike this Court, that entity is legislatively empowered to investigate and address migration services in Australia.
Otherwise, no error arises in this regard.
Whether the Department and/or delegate misunderstood the relevant legal principles
Throughout his post-hearing written submissions, the applicant expresses frustration with the Department’s approach to his application and the decision, generally, of the delegate tasked with assessing his visa application.
Unfortunately, the Court cannot assist the applicant in this regard.
The Court has no jurisdiction in relation to the concerns raised in this regard: ss 476(2) and (4) of the Act.
No error arises in this regard.
Whether the Tribunal was biased
The applicant writes as follows in his post-hearing submissions:
At 1:36 into the hearing the Tribunal Member stated that he would be looking at my case fresh but this was not the case as he was biased; a breach of procedural fairness and constitutes a jurisdictional error.
For the reasons outlined above at [56]-[58], the Court does not accept that an allegation of bias has been made out here. There is no reason to accept that the Tribunal was unwilling to hear or accept any evidence of the type needed to assist the applicant. Unfortunately, without evidence of a confirmation of enrolment and, without any indication that one was forthcoming, the Tribunal did the only thing open to it. The Tribunal’s actions in his regard do not demonstrate a closed mind or an unwillingness to accommodate the applicant’s concerns.
Whether the Tribunal should have provided an interpreter
In his post-hearing written submissions the applicant writes:
At 2:44 into the hearing the Tribunal Member asked me whether I understood why my was refused and for me to explain it to him. It is clear and very obvious that I did not understand this because had I understood this, I would have been able to speak and express myself confidently. I was struggling. The Tribunal Member made no effort to make me comfortable and did not offer to get me a Punjabi interpreter – this is a breach of procedural fairness and constitutes a jurisdictional error.
In relation to this issue, the Court notes the Minister’s further written submissions (at [8]) wherein the Minister contends:
In relation to the interpreter issue articulated in the First assertion, the Minister further submits that there is no evidence before the Court that the Applicant requested an interpreter either in the lead up to or at the Tribunal hearing. In the circumstances, it was open to the Tribunal to not offer the Applicant an interpreter at the Tribunal hearing. In relation to the Third assertion, the Minister further submits that the Tribunal's decision record reveals that the Applicant was given the opportunity to give evidence and present arguments (see CB 114, [6]).
The Court agrees.
There is no transcript before the Court. Without more, there is simply no evidence that the applicant failed to understand what we being said to him or what was required of him. Indeed, in that regard, the correspondence from the Tribunal to the applicant made it quite clear what would be assessed and what evidence the applicant needed to produce to support his case.
Further, there is no evidence that the applicant requested the assistance of an interpreter (either before or during the Tribunal hearing) or indicated that he was confused by what was happening and needed assistance.
No error arises in this regard.
Whether the applicant should have been permitted to file a post-hearing submission
The applicant asserts as follows in his post-hearing submissions:
I was not given an opportunity to provide a post hearing submission and the Tribunal Member had come to the hearing having decided that an unfavourable decision was going to be made because he gave me an oral decision to affirm the decision just within minutes of the hearing being conducted – my hearing lasted about 10 minutes. Is this reasonably fair and just to conduct my hearing that had so many issues within minutes? How was it even possible for the tribunal member to get all of the information from me within minutes? To be able to understand me?
In this regard, the Minister submits (at [6]):
The Applicant's assertion that the Tribunal erred by failing to provide the opportunity to make post- hearing submissions as well as the fact that he should have been able to provide the Tribunal with his confirmation of enrolment after the hearing cannot be made out. There is no satisfactory evidence to suggest that the Applicant sought this request from the Tribunal. Further, it was legally reasonable for the Tribunal to proceed to make its decision on the basis that 572.222 of the Migration Regulations 1994 (Cth)) was not satisfied in circumstances where the Applicant was not enrolled at the time of the hearing (CB 114 at [6]).
The Court agrees with the Minister in this regard. There is, again, simply no evidence that the applicant requested an adjournment or any reason to accept that the Tribunal should have been alive to the fact that the applicant needed “more time” to present his case. On his own evidence the applicant did not have a confirmation of enrolment. Nor did he indicate that he would get one in the foreseeable future. In the circumstances, the Tribunal proceeded in a manner that was entirely open to it.
No error arises in this regard.
Whether the Tribunal ignored relevant material and/or considered irrelevant material
In relation to this issue, the Minister submits that the Tribunal considered all of the material relevant to its determination that cl 572.222 of Schedule 2 of the Regulations was not satisfied – namely, the fact that the applicant was not enrolled in a course of study at the time of the Tribunal's decision (CB 114, [6]).
The Court agrees.
As discussed above, at the time of the Tribunal’s decision, the applicant needed to satisfy the requirements in Part 572 of the Regulations.
Relevantly, the applicant needed to demonstrate that he was enrolled in, or the subject of, a current offer of enrolment in a course of study that is the principal course and is of the type specified under the relevant subclass.
This requirement was clearly explained to the applicant – both before and during the Tribunal hearing.
In assessing whether the applicant satisfies this requirement, the Tribunal will look for evidence in the form of a valid CoE or an offer to enrol in an eligible course of study from a registered course provider: Khaja.
The Tribunal did so here. Once it was clear that no CoE existed or was forthcoming, no further evidence needed to be scrutinised.
It is noted that the applicant also asserts that the Tribunal failed to actively consider the delegate’s decision. It may well be that the applicant believes that the Tribunal should have assessed the same factors assessed by the delegate. That is not the case. As clearly explained to the applicant and as referenced in the Tribunal’s decision:
5.The issue before the delegate was whether the applicant met the criterion of clause 572.223; however, this issue now is whether at the time of this decision the applicant meets the enrolment requirements for a student visa […] the Regulations require that at the time of decision an applicant must be enrolled in, or be subject of a current offer of enrolment in a course of study that is the principal course and is of the type specified under the relevant subclass.
No error arises in this regard.
The Tribunal’s decision is illogical, irrational or unreasonable
The applicant states, simply, that the Tribunal’s decision was “illogical, irrational or unreasonable”. No particulars are provided in this regard.
The threshold for illogicality and irrationality is as articulated in SZMDS as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Here, the Court is satisfied that the Tribunal’s reasons are neither illogical nor irrational. Rather, they are entirely sound. As explained by the Tribunal, the Regulations require that, at the time of decision, an applicant must be enrolled in, or be subject of, a current offer of enrolment in a course of study that is the principal course and is of the type specified under the relevant subclass. On the evidence before the Tribunal, no CoE existed and there was no evidence that one was forthcoming. The Tribunal came to a sound conclusion open to it on the evidence before it. It cannot be said that the Tribunal acted in a way that was “clearly unjust”, “arbitrary”, “capricious” or “unreasonable”.
No error arises in this regard.
CONCLUSION
The applicant has failed to identify any jurisdictional error in the Tribunal’s decision. The Court has otherwise unable to identify error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2022
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