Sinsap v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 687
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sinsap v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 687
File number(s): SYG 1205 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 3 August 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (class TU) (Subclass 500) visa – whether Tribunal failed to comply with s 360(1) of the Migration Act – whether Tribunal failed to take into account relevant information – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359, 363,
Migration Regulations 1994 (Cth) r 4.14, cl 500.211 of Schedule 2
Cases cited: Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3;
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 2 August 2023 Date of hearing: 2 August 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Applicant: Mr Goodwin.
Table of Corrections Heading preceding [28] Amended to “jurisdictional error” ORDERS
SYG 1205 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KIATCHANA SINSAP
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
3 August 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the amount of $6000.00.
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 D HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Thailand who had been studying in Australia from 2008 to 2012. He told the Court he returned to Thailand and then came to Australia on a visitor visa.
The applicant applied for a Student (Temporary) (class TU) (Subclass 500) visa (“Student visa”) on 29 August 2018. On 3 October 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Student visa. The delegate refused the visa on the basis that they were not satisfied that the applicant genuinely intended to stay in Australia as a full time student
On 16 October 2018, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. The Tribunal affirmed the delegate’s decision not to grant the applicant a Student visa on 24 April 2020.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below the application is dismissed
THE ADMINISTRATIVE APPEALS TRIBUNAL
Paragraphs 1 to 3 of the Tribunal’s decision record outline the background to the applicant’s Student visa application. At paragraph 4, the Tribunal was satisfied that the applicant was properly sent an invitation to provide further information under s 359(2) of the Migration Act 1958 (Cth) (“the Act”). This invitation was sent to the applicant’s nominated email address provided in connection with his application for review.
At paragraph 6, the Tribunal noted that it had not received a response to its invitation and the applicant was therefore not entitled to appear before the Tribunal pursuant to s 360(3) of the Act. The Tribunal further noted that s 363A of the Act meant that the applicant had no entitlement to appear before the Tribunal at a hearing and the Tribunal had no power to permit the applicant to appear. The Tribunal proceeded to make its decision considering the information that was before it.
Paragraphs 10 to 12 outline the legislative requirements for the grant of a Student visa. Notably, cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires that the visa applicant be enrolled in a course of study.
At paragraph 13, the Tribunal noted that when the applicant applied for a Student visa, he was the holder of a Certificate of Enrolment (“COE”). The Tribunal further noted that the applicant provided two more COEs with his review application with end dates on 23 August 2019 and 20 August 2021. The Tribunal stated that these COEs were created approximately 20 months before the Tribunal decision and that they had, without more, lost their timeliness.
At paragraph 14, the Tribunal acknowledged the information contained within the applicant’s October 2018 Genuine Temporary Entrant Statement. At paragraph 15, the Tribunal considered the applicant’s expressed intention to study and thereafter return to Thailand to not hold sufficient weight to conclude that the applicant was, at the time of the decision, enrolled in a course of study. Based on the applicant’s study history, the Tribunal considered that the applicant had not completed a course of study, other than an English language course, after September 2012, which weighed against a conclusion that the applicant was enrolled and studying.
In paragraph 16 and 17, the Tribunal considered that without recent and cogent evidence that the proposed studies, of themselves, do not provide evidence that the applicant was enrolled in a course of study. Given the passing of time, the Tribunal considered that there could be many possible events that could lead the applicant to cease his enrolment. The failure to respond to the s 359(2) of the Act request meant that there could be many possible scenarios that may be reasonably contemplated.
At paragraph 18, the Tribunal stated that it did not make its decision on the basis of the speculation outlined in paragraphs 16 and 17. Rather, it considered that recent and cogent evidence of a current COE had to be presented to the Tribunal before it could make a finding that the applicant was enrolled in a course of study.
At paragraph 19, the Tribunal considered that there was no recent and cogent evidence before it to be satisfied that the applicant was enrolled in a course of study as required by cl 500.211 of Schedule 2 to the Regulations. Accordingly, the Tribunal was satisfied that the criteria for the grant of a Student visa were met and the decision under review had to be affirmed.
THE GROUNDS OF JUDICIAL REVIEW
The Applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 20 May 2020. The grounds are as follows as they appear in the Initiating Application:
1. The second respondent (the Tribunal) made jurisdictional error by failure to comply with its obligations under s 360(1) of the Act, to invite the applicant to appear before the Tribunal give evidence and present arguments relating to the issues arising
Particulars
a.No evidence is available to show that the Tribunal has issued such an evidence to the applicant
2. The second respondent (the Tribunal) made a jurisdictional error by failure to take into account relevant information, resulting in not having exercised its jurisdiction to it.
Particulars
a.No evidence is available to show that the Tribunal has considered information before it before it made a decision.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter.
Before the commencement of the Hearing, the Court ensured that the applicant had received a copy of the relevant Court Book and the first respondent’s written submissions. The Court also ensured the applicant had access to a pen and paper so he could take notes if he wished to.
At the commencement of the hearing, the Court explained it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.
Despite Court order, the applicant did not file or serve any written submissions or other material in support of the application. At the hearing the applicant told the Court that he understood that he had not provided material to the Tribunal within he time period he requested. He now understood that as a result he was not entitled to attend a hearing before the Tribunal to give evidence and make submissions. He had no other submission in relation to ground one.
In relation to ground two, when asked what other information the Tribunal should have taken account of he was unable to point to any information the Tribunal did not consider.
The applicant told the Court since his arrival in Australia in 2018, he had been looking after his nephew who was now aged 9 years.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that the applicant’s first ground of judicial review was misconceived. The s 359 invitation was validly issued as it was sent to the applicant’s email address nominated by the applicant in his application for review, information, comments or responses are to be given to the Tribunal within 14 days after the day of the invitation pursuant to s 359B(2) of the Act and r 4.14(4) of the Regulations, and the invitation stated that the applicant could for an extension of time and a failure to respond meant that the Tribunal may make its decision without taking further actions to obtain the information.
As the applicant did not provide the requested information within the prescribed period, the Tribunal had discretion to make its decision without taking any further steps to obtain the information. Section 360(3) of the Act meant that the applicant was not entitled to appear at a hearing and the Tribunal did not have the power to invite the applicant to a hearing pursuant to s 363A of the Act.
In relation to ground 2, the first respondent conceded that the Tribunal did make an error in stating that the applicant provided two COEs with his application, when it was in fact three. However, this error was merely factual and not material to the outcome of the decision and did not amount to jurisdictional error.
The Tribunal’s reasons demonstrate that it did not consider the applicant’s COEs to be determinative of the enrolment issue as they had lost their timeliness. Apart from the factual error, the first respondent submitted that the Tribunal did not fail to take into account of any information relevant to the application.
It was submitted that the lack of current evidence before the Tribunal as to the applicant’s enrolment prompted it to request the applicant for further information. The applicant’s failure to respond meant that the only material before the Tribunal was the COE provided one and a half years prior to the decision. The Tribunal found that the COEs were out of date and in the absence of updated evidence, it could not be satisfied that cl 500.211(a) of the Regulations was met.
The first respondent also considered whether it was legally reasonable for the Tribunal to make its decision without obtaining information from the Provider Registration and International Student Management System (“PRISMS”). The mere fact that it may have been reasonable for the Tribunal to make this enquiry does not mean that a failure to make the enquiry is unreasonable. It was submitted that there needs to be something particular about the circumstances of the case that would require the Tribunal to obtain information from PRISMS under s 359C(1) of the Act before the Tribunal’s failure could be characterised as unreasonable.
It was not necessary for the Tribunal to enquire with PRISMS carry out its review because the Tribunal does not need to be positively satisfied that the applicant was not enrolled at the time of its decision. It was submitted that it was not unreasonable for the Tribunal to exercise its discretion under s 359C of the Act in the way that it did.
It was further submitted that even if it was unreasonable for the Tribunal to not consult with PRISMS, this was not material to the outcome of the decision as the applicant was no in fact enrolled in any courses at the time of the decision. The first respondent relied on an Affidavit of Mengqi Ren which annexes a copy of PRISMS records showing that the applicant’s courses were cancelled and that he did not enrol in any further course after that point.
IS THERE JURSDICTIONAL ERROR IN THE TRIBUNAL’S DECISION?
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… 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, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Ground one is a claim that the Tribunal failed to comply with the requirements under s 360(1) of the Act to invite the applicant to appear before the Tribunal. This ground is misconceived as the Tribunal wrote to the applicant pursuant to s 359 of the Act inviting him to provide information it regarded as relevant to the review. At CB 70-72 are copies of the invitation sent to the applicant at his nominated email address. The invitation specified a 14 day time frame for the provision of this information. The Court is satisfied that the applicant failed to respond to this invitation. As a result, by virtue of s 360(3) of the Act, the applicant lost his entitlement to appear before the Tribunal and give evidence. The Tribunal was thus entitled to proceed on the basis of the evidence that was before it. Ground one has no merit.
Ground two is a claim that the Tribunal failed to take account of relevant information. The ground is silent as to what information the Tribunal failed to take account of. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Be that as it may, the Court notes that the first respondent has conceded that the Tribunal did make a factual error in stating that the applicant had provided two COE’s with his application, when he had in fact provided three. It was submitted that apart from that factual error, the Tribunal did not fail to take account of any relevant information.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [50] Abrahams J said the following:
In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (SZMTA); MZAPC at [2]-[4]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson) at [32]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the appellant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]; Nathanson at [32]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60]; Nathanson at [32].
In the Courts view this factual error had no bearing on the outcome. No jurisdictional error arises as a result of this error.
In this case, the Court is reasonably satisfied the Tribunal did consider all relevant information that was before it. The Tribunal concluded that COE’s provided some considerable time before the Tribunal hearing were out of date. They did not provide sufficient evidence that the applicant was, at the time of the Tribunal hearing, currently enrolled in a registered course of study. The Court is satisfied this conclusion was within the legitimate decisional freedom of the Tribunal. The Court does not consider that this conclusion was legally unreasonable, irrational or illogical, or lacking in a proper evidentiary base. The Tribunal was thus entitled to conclude that the applicant had not satisfied the Tribunal that he met the requirements of
cl 500.211(a) of the Regulations.
The Court notes the final submission of the first respondent as to whether the Tribunal should have consulted the PRISMS record of the applicant. The Court is of the view that this would have been preferable but that the failure does not give rise to jurisdictional error. The Court notes if the Tribunal had consulted the applicant’s PRISMS record, it would have merely confirmed that as at the date of the Tribunal decision, the applicant was not currently enrolled. His courses had been cancelled. Thus any failure, even if it constituted jurisdictional error, would not have resulted in a different outcome and was therefore not material. Ground two has no merit.
Accordingly, the application is dismissed
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 3 August 2023
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