Sripathi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sripathi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 903

File number:

SYG 1594 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

3 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where applicant had no course of enrolment – no arguable jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s 476

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Number of paragraphs:

10

Date of hearing:

3 May 2021

Place:

Sydney

First Applicant:

In person

Solicitor for the First Respondent:

Ms M Kelly, Sparke Helmore

ORDERS

SYG 1594 of 2020

BETWEEN:

RISHITA SRIPATHI

First Applicant

GANGADHAR RAOSRIPATHI

Second Applicant

JEDIDIAH YUVARAJSRIPATHI

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	3 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The first and second applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 May 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the first applicant a Student (Temporary) (Class TU) visa. 

2. The Court adopts the first respondent’s submissions  from paragraph 3 up to paragraph 19, as follows:

   Background

   (3)The first applicant (applicant), a citizen of India, arrived in Australia on 3 July 2013 as the holder of a Higher Education Sector visa (Court Book (CB) 98). The applicant was subsequently granted a further Student visa on 1 September 2015 valid until 29 February 2016 and a Temporary Graduate visa on 15 July 2016 valid until 15 July 2018 (CB 88,98).

   (4)On 5 June 2018, the applicant lodged an application for the visa which is the subject of these proceedings to undertake a Diploma of Early Childhood Education and Care due to be completed on 13 March 2020 (CB 1-21, 70). The second and third applicants, the applicant’s husband and child respectively, were included in the application for the visa as members of the applicant’s family unit (CB 4-5).

   (5)On 18 July 2018, a delegate of the Minister refused the grant of the visas on the basis that they were not satisfied that the applicant was a genuine applicant for entry and stay as a student (CB 95-101).

   (6)On 7 August 2018, the applicants sought review of the delegate’s decision at the Tribunal (CB 102). On 2 March 2020, the Tribunal invited the applicant to provide information under s 359(2) of the Act (s 359(2) invitation) (CB 117-118). The invitation informed the applicant that a requirement for the grant of the visa, amongst other things, was that she was enrolled in a registered course of study. It requested that the applicant provide evidence that she was currently enrolled in a registered course of study by 16 March 2020.

   (7)It was not until 27 and 29 April 2020 that the applicant provided a response to the s 359(2) invitation. The applicant completed the ‘Request for Student Visa Information’ form (CB 125-136) and provided the same Confirmation of Enrolment (CoE) provided with her application for the visa to undertake a Diploma of Early Childhood Education and Care to be completed by 13 March 2020. The applicant did not tick whether she held a current CoE (CB 130) and provided an ‘Intervention Strategy Record’ from her education provider which detailed that her course progression had been unsatisfactory and an ‘Enrolment Summary’ which marked her enrolment status in the Diploma as “Completed” (CB 137-140). The applicant also indicated that she had not been enrolled between April and June 2020 because of COVID-19 (CB 132).

   (8)On 31 May 2020, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 144-146).

   (9)The evidence before the Court reveals that at the time of the Tribunal’s decision, the applicant was not enrolled in a registered course of study.[1]

   [1] See the Provider Registration and International Student Management System (PRISMS) annexed to the affidavit of Danielle Stone affirmed 8 December 2020.  

   Tribunal Decision

   (10)The Tribunal recorded that it wrote to the applicant, in accordance with s 359(2) of the Act, inviting her to provide information by 16 March 2020 and put her on notice of the consequences of her failure to respond (CB 145, [5]). The Tribunal recorded that the applicant had failed to provide that information within the prescribed period and did not request an extension of time to respond (CB 145, [6]). In those circumstances, the Tribunal identified that pursuant to s 360(3), the applicant was not entitled to appear before the Tribunal and that it had no power to permit the applicant to appear, referring to s 363A and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (CB 145, [6]).

   (11)The Tribunal identified that the issue before it had become whether at the time of its decision the applicant met the criteria in cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 145, [8]). In this regard, it identified that the applicant had supplied a CoE which indicated that she was due to finish her Diploma of Early Childhood Education and Care on 13 March 2020 (CB1 46, [11]).

   (12)Whilst the Tribunal was cognisant of the applicant’s response to the s 359(2) invitation that she intended to continue to study the Diploma course, it considered the evidence from her education provider that the applicant was required to complete 240 hours of work placements and practical assessments to complete her course and that while she could not enrol in the present semester due to COVID-19 restrictions, she could enrol in the following term (CB 146, [14]).

   (13)The Tribunal identified however that there was no evidence before it that the applicant had re-enrolled or was enrolled in a course of study as at the time of the Tribunal’s decision and, therefore, it was not satisfied she was presently enrolled in a course of study. Accordingly, it found that the applicant did not meet cl 500.211 and her husband and child did not meet cl 500.311 (CB 146, [16]-[19]). For these reasons, the Tribunal affirmed the decision under review ([20]).

   Proceedings in the Federal Circuit Court

   (14)By an application to show cause filed on 2 July 2020, the applicants seek judicial review of the Tribunal’s decision advancing three grounds of review (without alteration):

   1. Failure to procedural fairness, I was not given a chance nor my clarification was considered. I have provided the genuine reason and the personal need to complete my course i.e Diploma of Early Childhood education and care and as enrolled I have almost completed my course.

   2. The decision was devoid of plausible justification, I tried my best to abide by the student visa conditions and due to my personal issues such as the condition of my son’s health initially I could not concentrate on the course and submit assessments on time and later I successfully tried to complete.

   3. It is a Jurisdictional Error because the some of the relevant facts are not considered by the decision maker. Such as performance in the course and my sons medical history which was nothing less than a miracle that helped me in taking care of my son.

   (15)Procedural orders were made by the Court on 6 August 2020 permitting the applicants to file an amended application, affidavit evidence and submissions by 29 October 2020. As at the date of these submissions, nothing further has been filed by the applicants.

   (16)The applicant’s contention in ground one that the Tribunal failed to afford her procedural fairness as she was not given a chance to clarify that she has a “genuine reason” and “personal need” to complete her course is misguided, at its highest, is an invitation to the Court to engage in impermissible merits review.[2]

   (17)The s 359(2) invitation dated 2 March 2020, notified the applicant that should she fail to provide information about her enrolment status and her entry and stay in Australia as a student by 16 March 2020, the Tribunal may make a decision without taking further action to obtain the information and that she would lose her entitlement to appear at a hearing. As the applicant failed to provide the information before the prescribed date, she lost her entitlement to appear at a hearing by way of the operation of ss 360(3) and 363A of the Act. Furthermore, even though the Tribunal was not obliged to obtain information due to the applicant’s failure to respond under s 359C of the Act, it nevertheless considered the evidence provided by her on 27 and 29 April 2020. The Tribunal was not compelled to take further action to obtain information about the applicant’s enrolment status due to the applicant’s failure to respond to the s 359(2) invitation.

   (18)The applicant’s contention in ground two, again, rises no higher than an invitation to engage in impermissible merits review.[3] It is apparent from the decision record that the Tribunal gave clear reasons for finding that cl 500.211 was not met. Namely, the applicant had failed to provide evidence that she had re-enrolled in her course. Further, the evidence before the Court, in the form of the applicant’s PRISMS records,[4] reveals that as at the date of the Tribunal’s decision her enrolment was “Finished”. Accordingly, even if the Tribunal had erred in any respect (which the Minister does not concede), such error could not be said to be material as it would have made no difference to the outcome of the applicant’s review.[5] In circumstances where the applicant was not enrolled in a course of study at the time of the Tribunal’s decision, no useful result would have ensued if the Tribunal had obtained further information. Such inquiry would have simply revealed that fact leading it to the same finding in respect of cl 500.211(a) that the Tribunal nonetheless made.

   (19)The applicant’s contention in ground three that the Tribunal failed to consider the relevant factors of her performance in her course and her son’s medical history is not a relevant factor that the Tribunal was required to consider for the purpose of determining whether the applicant was enrolled in a course of study at the time of its decision, as required by cl 500.211. This ground rises no higher than an invitation for impermissible merits review.

   [2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

   [3] Ibid.

   [4] Affidavit of Danielle Stone affirmed 8 December 2020.  

   [5] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45] (Bell, Gageler and Keane J).

   BEFORE THE COURT

3. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

4. The applicant made reference to her particular circumstances alleging that the need for child care in relation to the third applicant, who has been the subject of a litigation guardian order (the second applicant being the first applicant’s husband) and the COVID impact contributed to her not being enrolled, as well as information she got from the college.

5. Any negligent advice from the college does not identify any arguable ground of relevant error by the Tribunal in circumstances where the Tribunal gave the applicant an opportunity to provide relevant information and the applicant failed to respond within the time required. The Tribunal was not compelled to take further action because of the failure to respond within the relevant timeframe. 

6. The applicant’s personal circumstances are not ones that give rise to there being any arguable case of relevant error by the Tribunal. It is clear the applicant did not have a current course of enrolment, nor are the applicant’s circumstances in relation to COVID matters giving rise to any basis to find that there is an arguable case of relevant error by the Tribunal.  

7. In these circumstances, nothing said by the applicant or in the applicant’s affidavit filed on 15 April 2021 and admitted subject to relevance, identifies any arguable case of relevant error. 

8. For the reasons identified in the Minster’s submissions, which the Court adopts, none of the grounds in the originating application identify any arguable case for relevant error. 

9. The Court is satisfied that the application has not raised an arguable case for the relief claimed. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. 

10. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021