Suksawat v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 577
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Suksawat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 577
File number(s): SYG 2056 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether applicant met the requirements for the grant of a Student visa – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359, 363 Cases cited: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 27 June 2023 Date of hearing: 27 June 2023 Place: Parramatta Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Evans appeared on behalf of the Respondents. ORDERS
SYG 2056 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VANITCHA SUKSAWAT
First Applicant
YEW FOONG LOW
Second Applicant
YI LI LOW (and another named in the Schedule)
Third 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:
7 July 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 Respondent’s costs, fixed in the amount of $5000.00.
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 first applicant is a citizen of Thailand. She arrived in Australia on 1 September 2008 and has stayed in the country as the holder of multiple types of study visas. The second, third and fourth applicants are respectively the husband and children of the first applicant.
The applicant applied for a Student (Temporary) (Class TU) visa (“Student visa”) on 26 May 2017. On 4 August 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her Student visa on the basis that it was not satisfied that the applicant was a genuine temporary entrant for the purpose of studying.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”) on 15 August 2017. In a decision dated 26 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant her Student visa.
The applicant now seeks judicial review of the Tribunal’s decision. For the reasons set out below, none of the grounds of judicial review has merit. The application is dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
Paragraphs 1 to 3 of the Tribunal’s decision record outline the background to the applicant’s Student visa applicant.
The Tribunal wrote to the applicant on 20 February 2019, in accordance with s 359(2) of the Migration Act 1958 (Cth) (“the Act”) to request further information, including information relevant to enrolment. The applicant did not respond to the Tribunal’s request within the prescribed time, being 6 March 2019. However, on 11 March 2019, the Tribunal did receive and considered a response that was provided by the applicant outside of the prescribed time.
Given that the applicant did not respond within the prescribed time, the Tribunal noted that
s 359C(1) of the Act applied and that the applicant was no longer entitled to appear before the Tribunal pursuant to s 360(3) of the Act. The Tribunal highlighted that the effect of s 363A of the Act is that where a review applicant has no entitlement to appear at a hearing the Tribunal has no power to permit them to appear.
At paragraph 9, the Tribunal considered whether the information required to satisfy the relevant statutory criteria would be forthcoming and whether the applicant had a fair opportunity to provide the relevant information. The Tribunal also considered whether it should adjourn the review to provide the applicant additional time to provide further evidence to support their application. However, the Tribunal considered that the applicant had a fair opportunity to provide the relevant information and decided not to exercise its discretion to adjourn the review.
Paragraphs 15 to 18 outline the relevant criteria for the grant of a Student visa, namely cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly, this includes that the applicant be enrolled in a course of study.
In response to the s 359 of the Act request for information, the applicant advised the Tribunal that she was, at that time, studying an Advanced Diploma in Accounting and that the course was scheduled to conclude on 14 July 2019. She did not advise of any further enrolments or proposed future study plans. She provided the Tribunal with a copy of a Confirmation of Enrolment for her current course, which expired on 14 July 2019.
At paragraph 23, the Tribunal found that it had no evidence before it that the applicant was, at the time of the decision, being 26 July 2019, enrolled in a course of study as required by cl 500.211(a) of Schedule 2 to the Regulations. As such, the Tribunal was not satisfied that the applicant was enrolled in a course of study as required by the Regulations and the decision under review had to be affirmed.
GROUNDS FOR JUDICIAL REVIEW
The grounds for judicial review are set out in an application filed with the Court on 12 August 2019. They are as follows verbatim:
1. I met all the requirement to grant the student visa.
2. There is administrator error in AAT:
a)AAT knows my current study finishes on 14/07/2019 but they didn’t make decision before 14/07/2019
b)AAT should confirm with me about new enrolment if the decision is going to be made after 14/07/2019, because I need around 3 weeks to get my complete letter, transcript for my new offer.
c)I got conditional offer for bachelor of Accounting (02/09/2019-12/08/2022) in GCA. I submitted to AAT but AAT still refuse for no further study.
d)My agent told me that in her 13 years work history, AAT never do decision after current COE expiry date or not asking for further study enrolment before make decision.
THE APPLICANT’S SUBMISIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter in the Thai language. Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court Books and a copy of the first respondent’s written submissions interpreted to the applicant before the hearing commenced.
At the commencement of the hearing, the Court carefully explained the difference between judicial review and merits review. The Court also explained the process by which the Court hearing itself, would be undertaken.
Despite Court orders, no written submissions or other material was provided by the applicant in support of her case. The applicant told the Court that she had some issues with her migration agent. She had a doubt in her mind as to why she was not called into the Tribunal for a hearing. She had a plan to undertake further study after the course she was enrolled in finished.
Following the first respondent’s oral submissions, the applicant was invited to, again, make any further submissions that she may wish to. She stated she had nothing further to say.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one it was submitted that it is a bare assertion that does not reveal any jurisdictional error in the Tribunal decision. The ground cables with the finding that the applicant did not meet the requirements of cl 500.212 of the regulations and rises no higher than to seek impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] .
Ground two appears to be a complaint about the Tribunal’s decision not to adjourn the review under s 363(1)(b) of the Act or that the Tribunal’s findings were not reasonably open. The applicant was on notice from the s 359(2) invitation that if the Tribunal did not receive the information requested within the period is allowed or extended, the Tribunal may make a decision on the review without taking any further action to obtain the invitation. The letter also advised that the applicant would lose any entitlement she might otherwise have under the Act to appear before to give evidence and present arguments if no response was received.
In circumstances where the applicant was validly invited to provide further information, but failed to respond in time, the Tribunal was entitled to proceed in the manner that he did under s 360(1) of the Act. Once the entitlement to appear was lost, the Tribunal did not have power to invite the applicant to appear before it pursuant to s 363A of the Act: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413.
It was submitted the tribunal’s decision not to adjourn and to make a decision on the review without taking any further action was entirely reasonable in the absence of any adjournment request from the applicant and in circumstances where the evidence before it indicated the applicant was studying an advanced diploma which was due to conclude on 14 July 2019 and did not have any future study plans.
Having considered not to adjourn the review, the Tribunal was entitled to proceed as it did and make its decision on the information that was before it. In that regard, it is relevant to note that cl 500.211(a) of the Regulations is a time of decision criterion requiring the applicant to be enrolled in a course of study as at the time of the Tribunal’s decision. As at the date of the Tribunal’s decision, being 26 July 2019, the applicant was not so enrolled. In these circumstances the Tribunal had no option other than to conclude as it did, being that the applicant did not meet the legislative requirements for the grant of a further Student visa.
Ground three consists merely of a statement regarding advice given by the applicants Migration Agent and does not constitute a proper ground of judicial review.
CONSIDERATION – DO THE GROUNDS OF JUDICIAL REVIEW HAVE MERIT
The applicant came to Australia in 2008 as the holder of a Student visa. She was refused a further Student visa by a delegate as the delegate was not satisfied the intended to stay in Australia temporarily.
When the applicant was asked to provide information to the Tribunal in support of her claims, she failed to do so within the stipulated time frame. The Tribunal correctly found that as the applicant had failed to provide the required information within the stipulated time frame, she had lost her right to appear before the Tribunal to give evidence and present argument.
The Court is reasonably satisfied that the decision of the Tribunal not to adjourn the matter was reasonably open to it, based on the material it had before it and for the reasons it gave. Based on the material that was before the Tribunal, as at the time of the decision, there was no other alternative outcome open to the Tribunal other than to find that the applicant did not meet the requirements, as she did not have a current Certificate of Enrolment.
In relation to ground one, it is not a proper ground of review in that it simply cables with the outcome arrived at by the tribunal. Ground one has no merit.
Ground two, in so far as it alleges there was an administration error by the Tribunal is misconceived. There was no requirement on the Tribunal to confirm with the applicant as to any future plans of study, or additional certificates of enrolment, noting that the applicant had failed to provide information requested within the stipulated time frame. There was nothing unreasonable in the Tribunal proceeding in the manner that it did, that concluding the applicant did not meet the relevant requirements for the grant of the visa. Ground two has no merit.
Ground three consists merely of a statement as to what the applicant was told by her Migration Agent and is not a proper ground of judicial review. Ground three has no merit.
As the applicant is unrepresented, the Court has perused the decision of the Tribunal. No jurisdictional error which has not been articulated by the applicant is apparent on the face the record.
CONCLUSION
As none of the grounds of judicial review have merit, the application is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 July 2023
SCHEDULE OF PARTIES
SYG 2056 of 2019 Applicants
Fourth Applicant:
YI DE LOW
0
4
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