Sookoowareea v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 35
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sookoowareea v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 35
File number: MLG 3504 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 21 January 2025 Catchwords: MIGRATION – student (subclass 500) visa – review of the decision of the (then) Administrative Appeals Tribunal (AAT) refusing to grant the first applicant a student visa – refusal to grant the second and third applicants visas as members of the family unit – where Tribunal found first applicant was not enrolled in a course of study – where first applicant provided an offer of admission of study – where offer of admission was conditional on student visa approval from AAT – whether Tribunal unreasonably refused to adjourn hearing to allow the first applicant to obtain a confirmation of enrolment – whether Tribunal denied the applicants procedural fairness – Tribunal’s decision attended by jurisdictional error– writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 65, 363(1)(b)
Migration Regulations 1994 (Cth) sch 2, cls 500.211, 500.211(a) 500.211(b), 500.211(c), 500.211(d), 500.212, 500.212(a), 500.311
Cases cited: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 31 October 2024 Dates of hearing: 6 November 2024 and 4 December 2024 Place: Melbourne Counsel for the Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr A Gardner Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3504 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRATEEMA SOOKOOWAREEA
First Applicant
DEOBRUTH SOOKOOWAREEA
Second Applicant
PRANAV VAIBHAV SOOKOOWAREEA
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorariissue to quash the decision of the (then) Administrative Appeals Tribunal (AAT) made on 24 October 2018 in Case No 1712014.
2.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1712014.
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 Gostencnik
BACKGROUND
On 14 March 2017, the first applicant, a Mauritius citizen, applied for a Student (Temporary) (Class TU) (Subclass 500) visa: Court Book (CB)1-CB24, having nearly a decade earlier (on 11 September 2007) arrived in Australia on a Student (Class TU) (Subclass 572) visa: CB78. The second and third applicants were included in the visa application as members of the first applicant’s family unit. On 22 May 2017 a delegate of the (then) Minister for Immigration and Border Protection acting under s 65 of the Migration Act 1958 (Cth) (Act) refused the applicants’ visa application: CB69-CB83. The delegate was not satisfied the first applicant intended genuinely to stay temporarily in Australia, and so cl 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations) was not met: CB80.
The applicants applied to the (then) Administrative Appeals Tribunal (Tribunal) on 6 June 2017 for review of the delegate’s decision: CB84-CB86. They appointed a registered migration agent to be their representative in the review: CB85. The Tribunal acknowledged receipt of the application by correspondence to the applicants’ migration agent dated 6 June 2017: CB91. By correspondence attached to an email dispatched on 15 August 2018, the Tribunal invited the applicants to attend a hearing scheduled on 31 August 2018. The invitation correspondence also requested some information be provided to the Tribunal before the hearing including a current confirmation of enrolment (CoE) or “other document/s that show [the first applicant is] currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the [Regulations]”: CB98-CB107.
On 22 August 2018 the applicants’ migration agent sent to the Tribunal a submission and statement addressing cl 500.212 of Sch 2 of the Regulations, and attached various documents in support of the first applicant’s claims to have completed previous courses: CB113-CB280. None of these documents appear to establish that the first applicant was enrolled in a course of study at the time.
The Tribunal advised the applicants on 30 August 2018 that the hearing scheduled on 31 August 2018 was postponed: CB284, and on 10 September 2018 the Tribunal wrote to the applicants inviting them to attend a rescheduled hearing on 24 October 2018. The invitation again requested some information be provided to the Tribunal before the hearing including a current CoE or “other document/s that show [the first applicant is] currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the [Regulations]”: CB285-CB290.
Subsequently, the applicants provided some further documents to the Tribunal, including an “Offer of Admission” document from Kent Institute Australia (Kent) dated 30 August 2018, which was not signed by the first applicant, offering her enrolment in a Bachelor of Information Technology from 5 November 2018 to 5 November 2021: CB291-CB297. The Offer of Admission relevantly specified the following conditions:
Conditional upon providing a confirmation of approval from AAT regarding Student Visa prior to CoE Issuance. Student needs to submit the offshore study evidence prior to CoE issuance. Student has been conditionally approved for the Higher Education Bursary, the reduced tuition fees have been reflected on this Letter of Offer. Signed Higher Education Bursary Letter must be returned, accompanied by signed International Student Written Agreement upon acceptance of this offer.
(emphasis added)
On 24 October 2018, the applicants attended the scheduled hearing. They were assisted at the hearing by their migration agent and an interpreter: CB303-CB305. The Tribunal made an oral decision affirming the decision under review at the conclusion of the hearing: CB305, CB308-CB309, applicant’s affidavit and recording of the Tribunal’s hearing: Exhibit A2, and following a request for a written record of the Tribunal’s decision: CB313, the Tribunal provided the applicants with a copy of its Statement of Decision and Reasons (Decision) on 15 November 2018: CB318-CB324.
TRIBUNAL’S DECISION
After setting out some preliminary matters at [1]-[5] of the Decision, the Tribunal noted at [6]-[7] that while the issue before the delegate was whether the first applicant was a genuine temporary entrant, the issue before the Tribunal was whether at the time of the Tribunal’s decision the first applicant met the enrolment requirements for a student visa.
Clause 500.211 of the Regulations provides:
500.2--Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia--the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
(c) if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa.
The first applicant did not claim to meet any of the alternative criteria in cl 500.211(b), (c) or (d), and so the Tribunal notes at [7]-[9] of the Decision, whether the applicant was then enrolled in a course of study as required for the grant of a student visa would be determinative of the visa application.
The Tribunal records at [10]-[13] of the Decision that:
(a)on 10 September 2018 a written invitation to attend the hearing was sent to the applicants’ migration agent requesting that evidence of enrolment in an approved course of study be provided to the Tribunal at least seven days before 24 October 2018;
(b)the applicants did not provide such evidence; and
(c)the applicants provided a copy of an offer of admission from Kent dated 30 August 2018.
Noting that a CoE was the “customary form of proof provided as evidence of enrolment in an approved course in this jurisdiction”, the Tribunal concludes at [11] of the Decision that the offer of enrolment was not a CoE, the Offer of Admission itself stating that “a course placement … will not be fully reserved until a Confirmation of Enrolment (COE) is issued. It is simply an offer of admission”. The Tribunal notes at [13] that the Offer of Admission specified that the offer was “conditional upon providing a confirmation of approval from AAT regarding Student Visa prior to COE Issuance”. At [14]-[15] the Tribunal records that at the hearing the first applicant was asked to provide evidence of enrolment such as a CoE, but did not and instead gave oral evidence that she was last enrolled in an Advanced Diploma of Network Security which concluded some months ago, and she was not enrolled nor did the first applicant have a valid offer of enrolment in any course of study in Australia.
At [16] of the Decision the Tribunal records that the applicants’ migration agent:
(a)agreed it is a requirement to have a valid CoE and that the first applicant did not have a current CoE in an approved course;
(b)advised the first applicant had been unable to get a CoE; and
(c)requested an adjournment.
The Tribunal records that it considered the adjournment request and refused the request because the first applicant advised she was aware of the requirement to have a CoE; had received written advice to this effect from the Tribunal; had many months to obtain a CoE; and had not taken the opportunity to obtain a CoE in a course of study.
At [17]-[19] of the Decision the Tribunal concludes it was not satisfied that the first applicant was enrolled in a course of study and accordingly cl 500.211 of the Regulations was not met. The Tribunal found that the first applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. Accordingly, the second and third applicants did not meet the criteria for the grant of a visa in cl 500.311. The Tribunal affirmed the delegate’s decision not to grant the applicants student visas.
REVIEW GROUNDS
The applicants’ application for judicial review filed on 21 November 2018 contains seven grounds:
1. The AAT has failed to accord me procedural fairness/natural justice by declining my request for extension of time to obtain Certificate of Enrolment.
2. The AAT has failed to exercise its discretion in my favour by declining my request for extension of time to allow me to arrange the Certificate of Enrolment.
3. The AAT has failed to properly consider my claim that I have been relentlessly trying to arrange the Certificate of Enrolment and therefore, it refused my request to allow me time to get Certificate of Enrolment.
4. The AAT has failed to consider the fact while reviewing my application that I have been very studious and I have been progressing through my studies. And, the AAT did not take into account the fact while declining my request for extension of time that it would be extremely prejudicial to me because my study would be severely affected and my whole career planning would go down the drain.
5. The AAT has failed to properly perform its task by not enquiring with the college to ascertain the genuineness of the offer letter issued to me as the AAT raised doubts on the authenticity of the offer letter which was missing the signatures.
6. The AAT has failed to properly perform its task by reasoning that I have got enough time to arrange the Certificate of Enrolment by overlooking my particular circumstances that when my visa application was refused that I had a current Certificate of Enrolment at that time and I finished my that study and I wished to pursue the higher study in the same study field.
7. The AAT failed to properly exercise its authority despite the fact that I had a valid offer letter and I could have obtained the Certificate of Enrolment if the AAT had favourably considered my application because it was the very condition of the current offer letter that I must obtain a favourable decision to get the Certificate of Enrolment.
CONSIDERATION
For the reasons later explained, I consider the Tribunal unreasonably refused the first applicant’s request for an adjournment and thereby committed jurisdictional error in the exercise of its power under paragraph 363(1)(b) of the Act (as then in force), which it was required to, but did not, exercise reasonably in the circumstances.
Before turning to the real substance of the complaint made by the judicial review application which concerns the refusal of an adjournment request, it is convenient to deal with grounds 5 and 7 because they are each misconceived.
Grounds 5 and 7
By ground 5, the applicants contend the Tribunal erred in failing to inquire about the authenticity of the Offer of Admission from Kent. Although the Tribunal may be required to make enquiries about any critical facts the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25], here there was no issue about the authenticity of the Offer of Admission. The Tribunal expresses no doubt or concern about the authenticity of the Offer of Admission instead noting, correctly, that the document is not a CoE but merely an offer of a place in the course identified which the document plainly states. It did not evidence the first applicant was then enrolled in a course of study as required by cl 500.211(a) of the Regulations. Although the Tribunal notes at [11] of the Decision that the Offer of Admission was not signed, read fairly, that is a reference to the document not being signed by the first applicant as it contains a signature of a person described as the Manager Student Services. This is no more than an observation, rather than an expression of doubt as to the authenticity of the document. Ground 5 does not disclose jurisdictional error.
Ground 7 contends the Tribunal erred in exercising its authority because the first applicant had a valid course enrolment offer and could have obtained a CoE if the Tribunal decided the review favourably and granted her a student visa. This was because a condition of the offer letter which would result in the first applicant obtaining a CoE was a favourable decision of the “AAT regarding Student Visa”. As the first respondent correctly submits, this ground misunderstands the criteria in cl 500.211 of the Regulations. Relevantly, to meet the criteria, the first applicant had to have been enrolled in a course of study at the time of the Tribunal’s decision. The Tribunal could not have decided the review favourably to the first applicant at that time because the first applicant was not enrolled in a requisite course of study. That the first applicant was not so enrolled at the time is not in dispute. The condition stipulated in the Offer of Admission misunderstands the function of the Tribunal, but the Tribunal did not err in the manner alleged because it could not, absent the requisite enrolment, find in the first applicant’s favour. Ground 7 does not disclose jurisdictional error.
Grounds 1 to 4, and ground 6
Grounds 1 to 4, and 6 join issue with the Tribunal’s discretionary decision to refuse the applicant’s adjournment request to give her more time to obtain a CoE. These grounds variously allege a denial of procedural fairness and a failure by the Tribunal to consider the first applicant’s attempts to enrol in a course of study and the prejudice she would suffer if the adjournment was not granted. Ground 6 takes issue with the reasons the Tribunal gave for refusing the adjournment request. Although framed in this way, making allowance for the fact that the applicants are not represented before the Court, these grounds are better examined through the rubric of unreasonableness.
Section 363(1)(b) of the Act (as then in force) empowers the Tribunal to adjourn a review from time to time. In Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] the High Court observed:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
Where a discretionary power is statutorily conferred on a repository, as it was here by s 363(1)(b) of the Act (as then in force) on the Tribunal, the power must be exercised reasonably, because the legislature is taken to intend that the discretion be so exercised: see discussion in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [29], [63] and [88]-[94]. This is uncontroversial. However, the first respondent contends that the Tribunal exercised its power reasonably because it gave the adjournment request proper, genuine and realistic consideration and the Tribunal’s reasoning justified the refusal. Specifically, the Tribunal reasoned that the first applicant was aware of the requirements to have a CoE, had received written advice to this effect from the Tribunal, and had many months to obtain a CoE and chose not to do so.
I do not accept that the Tribunal exercised its power reasonably. The first applicant provided the Tribunal with a document she received from Kent congratulating the applicant on her “successful application” to study with Kent and offering her “admission” of enrolment in a three year Bachelor of Information Technology course commencing on 5 November 2018 on certain stipulated conditions: CB291. One condition was that the first applicant provide Kent with “confirmation of approval from AAT regarding Student Visa prior to CoE Issuance”: CB291. During the hearing, the Tribunal indicated that it was aware of a practice that some colleges in Melbourne are not providing CoEs to students who do not have a student visa, but it did not consider these practices to be the business of the Tribunal: Exhibit A2, recording at 00:09:27. That may be so, but the condition stipulated in the Offer of Admission given to the first applicant is materially different to the practice identified. Kent did not reject the first applicant’s enrolment application nor did it refuse to provide the first applicant with a CoE because she does not have a student visa. Instead, Kent congratulated the first applicant on her successful application to study with it but it propounded a condition – a CoE will issue if the Tribunal grants the first applicant a student visa – which could never be met because a student visa cannot be issued unless the first applicant is enrolled in a course of study and a CoE would evidence enrolment. The condition is wrong headed and confused, but it likely caused the first applicant to believe the condition was one she could possibly meet, particularly given the condition was imposed by an educational institution which offers courses to international students.
In refusing the adjournment request, the Tribunal noted that the first applicant was aware of the requirement to have a CoE; had received written advice from the Tribunal that she had to have a CoE as evidence of enrolment; that she had many months to obtain a CoE and had not taken the opportunity to obtain a CoE in a course of study: Decision at [16]. But this is not an accurate recitation of the facts, nor an accurate reflection of the requested information set out in the Tribunal’s hearing invitation. The evidence before the Tribunal of the first applicant’s awareness “of the requirement to have a CoE” appears to rise no higher than the Tribunal telling the first applicant that the law requires her to be enrolled in an approved course, not have an offer of admission: Exhibit A2, hearing recording at 00:08:07, and the first applicant responding that she understood what the Tribunal was saying: Exhibit A2, hearing recording at 00:08:16.
Further, the evidence before the Tribunal was that the first applicant had sought enrolment at Kent and at Deakin University. She had received the Offer of Admission from Kent and was awaiting advice from Deakin whether her application for enrolment had been accepted: Exhibit A2, hearing recording at 00:12:54. The Tribunal’s suggestion that the first applicant did not take the opportunity to obtain a CoE, is contrary to the evidence and not a valid criticism. As to the “written advice” about the requirement to have a CoE as evidence of enrolment, the information the Tribunal requested was a current CoE “or other document/s that show [the first applicant is] currently enrolled in a course of study as defined in cl. 500.111 of schedule 2 to the [Regulations]”. Thus, enrolment could be shown through documents other than a CoE. It is only at the hearing that the applicant is told by the Tribunal that only a CoE will suffice, and the Offer of Admission she provided was insufficient. It is in that context that the application for a short adjournment is made. At one stage the first applicant asks for an adjournment to the end of the day to endeavour to obtain a CoE. In the circumstances where representations to Kent about its wrong-headed condition could swiftly have been made and the Tribunal’s own correspondence had not stipulated that a CoE was the only form of enrolment evidence it would accept, a short adjournment as requested was not only appropriate, but its refusal was unreasonable. The Tribunal’s reasons for rejecting the adjournment request, wrongly assume the applicant was advised of the requirement to produce a CoE, when the hearing invitation discloses documents other than a CoE may suffice. The reasons also wrongly note that the first applicant did not take the opportunity provided to obtain a CoE, and they ascribe a greater level of knowledge about the requirement to produce a CoE to the first applicant than is disclosed by the record of the hearing. The Tribunal’s reliance on these reasons therefore does not provide an intelligible reason for refusing the request for a short adjournment. In the circumstances described, the refusal was legally unreasonable, and the decision is affected by jurisdictional error.
Given the wrongheaded nature of the condition imposed by Kent, one cannot exclude the real possibility that a short adjournment would have allowed for clarification to be given and the condition to be changed so that the first applicant’s enrolment in the course of study could be confirmed but making commencement of study in the course conditional on the first applicant obtaining a student visa. The possibility that the first applicant might, armed with a CoE, have then succeeded before the Tribunal also cannot realistically be dismissed. The jurisdictional error is in my view material and the application for judicial review should succeed. The Tribunal’s decision should be quashed and the application for review of the delegate’s decision should be remitted to the Administrative Review Tribunal for determination according to law.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 21 January 2025
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