Tamrakar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 925
•4 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Tamrakar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 925
File number: SYG 1180 of 2020 Judgment of: JUDGE STREET Date of judgment: 4 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where the applicant had no current course of enrolment – no arguable case for the relief claimed– amended application dismissed Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Number of paragraphs: 8 Date of hearing: 4 May 2021 Place: Sydney Solicitor for the Applicant: Mr H Bhatta Solicitor for the First Respondent: Ms C Juarez, MinterEllison ORDERS
SYG 1180 of 2020 BETWEEN: SUZAN TAMRAKAR
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:
4 MAY 2021
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely on the amended application filed on the 18 March 2021.
2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
3.The applicant pay the first respondent’s costs fixed in the amount of $3, 737.00
REASONS FOR JUDGMENT
JUDGE STREET:
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 the 24th of April 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student visa.
The proceedings were commenced on the 18th of May 2020.
The three grounds in the amended application are as follows:
(1)The decision of the Second Respondent was affected by jurisdictional error in that the Tribunal misconstrued and misapplied clause 500.111 Migration Regulations 1994 by wrongly interpreting the expression “enrolled in a course of study” to mean the Applicant must hold a Confirmation of Enrolment (COE)
Particulars
(a)The Second Respondent states at [15] that the applicant does not currently hold a COE and hence is not enrolled in a course of study.
(b)The Tribunal at [12] noted that the applicant has made reference to a “future enrolment”. The applicant’s course start date was 13 April 2020 while the Tribunal’s decision date was 24 April 2020. At the time of decision of the Tribunal, the start date of the course cannot be a “future enrolment”.
(2)The Second Respondent made jurisdictional error by constructive failure to exercise jurisdiction and/or by being procedurally unfair including under section 358, 359, 359A and 360 of the Act.
Particulars
(a)The Tribunal failed to consider documents and submission provided by the Applicant under s358 or s359 before making the decision under review.
(b)The information and documents provided by the Tribunal did not foreshadow the course of action that the Tribunal took.
(c)The Tribunal was required to invite the applicant to a hearing under s360 once the Applicant respond to request for documents under s359.
(d)The Tribunal made error as to requirement under section 359A in not giving an opportunity to comment or respond to information that the Applicant was not enrolled in a course which was to be the reason for the decision of the Tribunal as required under s359A.
(3)The Second Respondent made jurisdictional error by constructive failure to exercise jurisdiction under section 348 as to clause 500.212 (GTE requirement) and under section 360(2)(b) as to ‘consent’.
Particulars
(a)The Applicant lodged the review application for the Tribunal to review ‘the decision’ (made by the delegate) that ‘the delegate was not satisfied that clause 500.212’ which is related to genuine temporary entrant criteria.
(b)The Tribunal did not review ‘the decision’ as required under s348 and hence fell into error.
(c)The Tribunal failed to obtain ‘real and meaningful consent’ from the Applicant as required under s360(2)(b) for a crucial aspect of ‘losing entitlement to appear’ and ‘ability for the tribunal to make a decision without invitation or further action’ and hence fell into jurisdictional error.
The background, Tribunal decision, grounds and argument is summarised in the first respondent’s submissions, from paragraphs 3 through to paragraph 32:
B Background
(4)The applicant is a citizen of Nepal: CB 20. On 5 September 2018, the applicant lodged an application for the visa to study a Diploma of Leadership and Management at the Australian Ideal College Pty Ltd: CB 18–43.
(5)On 5 November 2018, a delegate of the Minister (the delegate) refused to grant the student visa, on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily: CB 52–55.
(6)On 16 November 2018, the applicant sought review of the delegate's decision before the Tribunal, assisted by a migration agent: CB 56–57.
(7)On 1 April 2020, the Tribunal wrote to the applicant, by her representative, pursuant to section 359 of the Act, inviting her to provide further information by 15 April 2020 about the course(s) of study she was undertaking and her entry and stay in Australia as a student (the section 359 letter). Relevantly, the section 359 letter stated that it was a requirement of the visa for the applicant to be 'enrolled in a registered course of study': CB 74–75.
(8)The applicant responded to the section 359 letter by lodging the online form 'Request for Student Visa Information': CB 81–91. In response to the question 'Does the main applicant have a current Confirmation of Enrolment (CoE) (COE) in a registered course of study?' the applicant responded 'No': CB 85. The applicant annexed a bundle of documents relating to her past studies and an unsigned offer letter from the Sydney School of Business and Technology for a Diploma of Early Childhood Education and Care, commencing 13 April 2020: CB 92–110. Relevantly, the applicant also consented to the Tribunal deciding the review without a hearing: CB 82.
(9)On 24 April 2020, the Tribunal affirmed the decision under review: CB 117–119.
C Tribunal Decision
(10)The Tribunal set out the procedural history to the matter and noted that the applicant had consented to the Tribunal conducting the review without a hearing under paragraph 360(2)(b) of the Act in her completed 'Request for Student Visa Information' form: CB 118 [1]–[8].
(11)The Tribunal noted that the delegate had refused to grant the student visa because the applicant did not meet clause 500.212 of Schedule 2 to the Regulations, as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily: CB 118 [3].
(12)The Tribunal noted that the applicant made reference in the completed 'Request for Student Visa Information' form to a 'future enrolment' in a course which had already started when the applicant submitted that form: CB 119 [12]. However, the Tribunal recorded that the applicant also conceded in her completed 'Request for Student Visa Information' form that she did not have a current COE in a registered course of study: CB 119 [11], [15]. Accordingly, the Tribunal found that the criteria for the grant of a student visa were not met and affirmed the decision under review: CB 119 [16]–[17].
D Application for Judicial Review
(13)The applicant is represented by Steven Stefanic of Residency Legal. Pursuant to order 3 of Judge Street of 2 March 2021, the applicant filed an amended application on 18 March 2021, which appears to abandon the grounds of the original application and pleads the following new grounds (particulars omitted):
1. The decision of the Second Respondent was affected by jurisdictional error in that the Tribunal misconstrued and misapplied clause 500.111 Migration Regulations 1994 by wrongly interpreting the expression “enrolled in a course of study” to mean the Applicant must hold a Confirmation of Enrolment (COE).
2. The Second Respondent made jurisdictional error by constructive failure to exercise jurisdiction and/or by being procedurally unfair including under section 358, 359, 359A and 360 of the Act.
3. The Second Respondent made jurisdictional error by constructive failure to exercise jurisdiction under section 348 as to clause 500.212 (GTE requirement) and under section 360(2)(b) as to ‘consent’.
(14)The applicant filed written submissions on 6 April 2021 (AS).
E Consideration
Ground 1
(15)This ground appears to contend that the provision of an 'Overseas Student Enrolment Agreement' to the Tribunal should have satisfied the Tribunal that the applicant was enrolled in a course of study: AS [13]–[26]. The applicant further contends in her written submissions that Item 1222 of Schedule 1 to the Regulations and Evidence of Intended Course of Study IMMI 17/013 provides guidance as to the construction of subclause 500.211(a) of Schedule 2 to the Regulations: AS [17]–[20].
(16)This is misconceived. The relevant portions of Item 1222 and IMMI 17/013 are both directed to determining an applicant's intended course of study in the context of completing a valid visa application. The validity of the applicant's visa application is not in issue. The requirement of subclause 500.211(a) of Schedule 2 to the Regulations requires that, at the time of decision, the applicant is enrolled in a course of study, not intending to enrol, and so cannot be informed by either Item 1222 or IMMI 17/013.
(17)The applicant intends to extrapolate from the definition of 'school student' provided in clause 500.111 of Schedule 2 to the Regulations the inclusion of 'college student': AS [23]. This too is inappropriate.
(18)The course that had been offered to the applicant was to commence on 13 April 2020, and at the time of the Tribunal decision on 24 April 2020, there was no evidence before the Tribunal to suggest that the applicant had in fact enrolled in that course. Although there may be other ways in which the applicant can provide evidence of their enrolment in a course of study, where a COE provides this evidence and the applicant confirmed she did not have a COE, or provide any other evidence of having actually enrolled, the Minister submits that the Tribunal was correct to find this meant the applicant was not enrolled in a course of study.
(19)In respect of the Tribunal referring to the applicant's 'future enrolment', the Minister notes that the Tribunal was merely quoting what the applicant had said in her section 359 response (at CB 86) and further, the Tribunal correctly identified that this future enrolment was 'in a course the Tribunal notes had commenced when she provided the 359(2) response': CB 119 [12].
(20)The applicant also appears to submit that, as the Tribunal does not grant or refuse to grant a visa, it does not require a COE: AS [25]. This submission has no merit. Clause 500.211 of Schedule 2 to the Regulations is a time of decision criterion. The 'time of decision' is the time of decision for the relevant decision-maker. There is nothing to suggest that the 'time of decision' is confined to the time of the delegate’s decision: Hoang v Minister For Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 554 at [55]–[57] per Judge Kendall.
Ground 2
(21)In circumstances where it is clear the Tribunal did consider the evidence provided by the applicant in response to the section 359 request (CB 118–119 [7], [11], [12] and [15]), the Minister submits that the allegation contained in particular (a) to this ground is baseless.
(22)The Minister submits that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act which is an exhaustive statement of the natural justice hearing rule (section 357A of the Act): Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [66] per Heerey, Conti and Jacobson JJ. In this regard, we make the following submissions:
(a)pursuant to subsection 359(1) of the Act, the Tribunal may get information that it considers relevant, and, if it gets such information, it 'must have regard to that information in making the decision on the review'. The Tribunal invited the applicant to provide further information in writing pursuant to subsection 359(2) about the course(s) being undertaken by the applicant and had regard to that information in accordance with subsection 359(1) of the Act. In fact, the applicant's evidence expressly given in the completed 'Request for Student Visa Information' form that she did not hold a current COE in a registered course of study was the factual basis for the Tribunal's decision;
(b)the section 359 letter and 'Request for Student Visa Information' form made it clear that the Tribunal may also consider the criteria under clause 500.211 of Schedule 2 to the Regulations which required the applicant to be 'enrolled in a course of study'. Specifically, the section 359 letter stated that it was a requirement of the visa for the applicant to be 'enrolled in a registered course of study' and that the applicant would need to provide 'sufficient information' to satisfy the Tribunal that she met that visa requirement. The 'Request for Student Visa Information' form further requested that the applicant 'enter your proposed dates of study as shown on your CoE' and advised that:
Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
(c)in circumstances where the applicant consented to the Tribunal deciding the review without a hearing, the combined effect of paragraph 360(2)(b) and subsection 360(3) of the Act was that the applicant had no right to appear at a hearing before the Tribunal: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [25]–[32] per Jacobson, Gilmour and Foster JJ. Consequently, no error arises in relation to the Tribunal proceeding to make a decision without having invited the applicant to appear before it.
(23)The applicant submits in support of particulars (b) and (c) to this ground that the combined effect of sections 358, 359 and 360 of the Act is such that the Tribunal had to consider all of the documents provided under section 359(1) and after having considered those documents, invite the applicant to attend a hearing under section 360(1), and only after having received that invitation could the applicant choose to consent to the Tribunal proceeding to a decision without a hearing under section 360(2): AS [30]–[34], [43]–[48]. The applicant makes similar submissions in support of particular (c) of ground 3, which amplify the submission by asserting that the consent should be only be initiated by an applicant, and provided in a manner not including a document requesting further documents: AS [70]–[73]. However, seemingly contrary to these submissions, the applicant submits that 'The Applicant can provide voluntary consent not to attend done at any time': AS [31].
(24)The Minister submits that these submissions seek to assert a temporal limitation to the operation of subsections 360(2) and 360(3) of the Act, which is misconceived. The consent from an applicant under section 360(2) can be provided to the Tribunal, and the ensuing loss of that right under section 360(3) can follow, at any time after the entitlement to attend a hearing has arisen, which is the time at which an applicant lodges a valid application for review to the Tribunal. This is not dependent upon an invitation under subsection 360(1) having been sent: Singh v Minister for Immigration & Border Protection (2017) 251 FCR 110; [2017] FCAFC 67 at [33]–[40] per North, Bromberg and Bromwich JJ.
(25)The applicant submits in support of particular (d) that the applicant responding 'No' to the question 'Does the main applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?' constituted information for the purposes of section 359A of the Act: AS [35]–[42]. The Minister submits that the Tribunal was not required to give the applicant notice that it considered the absence of a COE would be the reason, or part of the reason, for affirming the decision under review in accordance with subsection 359A(1) of the Act, as this information was given by the applicant herself for the purpose of the application for review: subsection 359A(4)(b) of the Act; Syeda v Minister for Home Affairs [2019] FCA 768 at [12] per Davies J.
Ground 3
(26)Particulars (a) and (b) of this ground rest on an erroneous assumption that the Tribunal was required to review the delegate's findings regarding the genuine temporary entrant criterion alone and not the applicant's substantive application for a visa: AS [49]–[57], [59]–[60], [63]–[65]. This demonstrates a misunderstanding of the de novo nature of the review process under Part 5 of the Act: BOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1476 at [11] per Bromwich J.
(27)Having found that the applicant did not satisfy clause 500.211 of Schedule 1 to the Regulations, the Tribunal was under no obligation to consider the other criteria for the grant of the visa in the context of its review: Kwarta v Minister for Home Affairs [2019] FCA 1308 at [20] per Burley J.
(28)The applicant submits that the Tribunal's reference to future enrolment is indicative of its awareness of the applicant's intention to study and that it did not check or confirm in any way whether or not the applicant did so, despite having the power and discretion to do so: AS [58], [62].
(29)The Tribunal has only a limited duty to inquire, particularly in respect of facts that are known to an applicant and are within his or her power to adduce: cf. Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (SZIAI). The Minister submits that it was reasonably justifiable for the Tribunal not to have made any further inquiries, observing that:
(a)the circumstances in which there will be such a duty are 'rare or exceptional': Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [77] per Kenny J;
(b)the applicant was represented by a migration agent at all relevant times during the course of the Tribunal proceeding;
(c)the applicant and her representative were put on notice of the dispositive issues on the review in the section 359 letter and the 'Request for Student Visa Information' form, one of which was whether the applicant was currently 'enrolled in a registered course of study'; and
(d)the applicant gave evidence in the completed 'Request for Student Visa Information' form that she did not hold a current confirmation of enrolment in a registered course of study, which indicated that she had not accepted the unsigned offer from the Sydney School of Business and Technology to study a Diploma of Early Childhood Education and Care.
(30)Consequently, the Minister submits that no error arises in respect of the Tribunal's exercise of its discretion to proceed to make its decision without taking further action to obtain information from the applicant or the PRISMS database about the applicant's enrolment status.
(31)For completeness, we refer to the affidavit of Zachary Newcombe Payne McCaughan filed on 20 April 2021 in these proceedings, which annexes at ZM1 a screenshot of the PRISMS record for the applicant, indicating that she has not been enrolled in a course of study since 16 January 2019.
(32)Particular (c) alleges that the Tribunal failed to obtain 'real and meaningful consent' from the applicant in respect of her waiver to a hearing before the Tribunal. This particular is amplified in the applicant's submissions to suggest that the applicant, in consenting to the Tribunal proceeding without a hearing, was only consenting the Tribunal to proceed without a hearing on the determinative issue before the delegate, being on the genuine temporary entrant criterion: AS [66]–[69].
(33)In circumstances where the applicant was represented by a migration agent before the Tribunal and the section 359 response clearly stated 'If you consent to us deciding your review without a hearing: You will not be invited to a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker' (emphasis added), the Minister submits that this complaint must fail.
BEFORE THE COURT
Mr Hem Raj Bhatta is the solicitor who appeared for the applicant and who purported to develop arguments in support of the three grounds, none of which identified a reasonable argument as to why there was a jurisdictional error.
The amended application was, on its face, hopeless and doomed to failure. The amended application had no reasonable prospect of success. The arguments advanced by the applicant were untenable and, for the reasons in the first respondent’s submissions, which the Court adopts, identify no arguable case for the relief claimed.
The Court is not satisfied that the application has raised an arguable case for the relief claimed, for the reasons identified in the first respondent’s submissions which the Court adopts. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Accordingly, the amended application is dismissed under r 44.12 of the Rules.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 9 July 2021
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