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

[2021] FCCA 990

FEDERAL CIRCUIT COURT OF AUSTRALIA

Tang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 990   

File number(s):

BRG 332 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

14 May 2021

Catchwords:

MIGRATION – Application for student visa – failure by first applicant to provide Tribunal with documentation which established that the first applicant was enrolled in a registered course of study – decision made by Tribunal to refuse visa on the basis that the first applicant had failed to establish enrolment – where first applicant in fact enrolled – whether error was jurisdictional or not – no jurisdictional error established – application dismissed.   

Legislation:

Migration Act 1958 (Cth), s 359(2).

Migration Regulations 1994 (Cth), Schedule 2, cl 500.211, 500.212.

Administrative Appeals Tribunal Act 1975 (Cth) ss. 2A(b), 18A and 33(1)(b).

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.

Number of paragraphs:

27

Date of last submission/s:

7 May 2021

Date of hearing:

7 May 2021

Place:

Brisbane

Counsel for the Applicants:

Mr Balzamo

Solicitor for the Applicants:

Phoenix Law & Associates

Counsel for the First Respondent:

Ms Hoiberg

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 332 of 2020

BETWEEN:

MINFU TANG

First Applicant

SHUANG DAI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	14 MAY 2021

IT IS ORDERED THAT:

1.The Further Amended Application for Review filed on 21 April 2021 be dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The first applicant is a citizen of the Peoples Republic of China who arrived in Australia on 9 November 2013 as the holder of a Student (Class TU) (Sub Class 573) Visa. The first applicant had been enrolled in a series of English courses of study which he completed on 3 October 2014.

2. On 9 November 2015, the first applicant was granted a Student (Class TU) (Sub Class 572) Visa on the basis of his enrolment in a Diploma of Early Childhood Education and Care which was completed on 4 June 2017, and which was also based upon his enrolment in an Advanced Diploma of Leadership and Management which was completed on 24 June 2018.

3. On 23 July 2018, some four (4) days prior to the expiry of the Sub Class 572 Visa, the first applicant applied for a Visitor (Class FA) (Sub Class 600) Visa based on his expressed desire to travel around Australia. On 1 August 2018, the Visitor Visa was granted and was valid until 22 January 2019.

4. On 15 January 2019, the first applicant applied for a Student Visa on the basis that he was enrolled in an Advanced Diploma of Translating course. His partner, the second applicant, was included in such application as his dependant.

5. On 23 April 2019, a delegate of the Minister refused the visa application on the ground that the first applicant did not meet the criteria as set out in cl. 500.212 of Schedule 2 to the Migrations Regulations 1994 (Cth) (‘the Regulations’), namely that the first applicant genuinely only intended to stay in Australia temporarily.

6. On 10 May 2019, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

7. On 20 April 2020, the Tribunal sent to the first applicant by email, at his registered migration agent’s address, a letter asking that the first applicant provide information confirming that he was enrolled in a registered course of study, and that he was a genuine applicant for entry and stay as a student. That letter provided as follows: [1]

   [1]           Court Book (CB) p. 166 – 167.

   “20 April 2020

   Dear Mr Tang and Ms Dai

   INVITATION TO PROVIDE INFORMATION - MR MINFU TANG AND MS SHUANG DAI

   I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Student (Temporary) (Class TU) visas

   As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:

   •enrolled in a registered course of study; and

   •a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.

   Click here to complete the online Request for Student Visa Information form.

   Alternatively, you may print, complete and return a hard copy of the form to us should you prefer. Click here to open a printable copy of the Request for Student Visa Information form. Please do not return a hard copy of the form to us if you have already submitted it online.

   If you are unable to access the Request for Student Visa Information form by clicking on the links above, please contact us as soon as possible.

   In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No.69 'Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications'. A copy of this is attached for your reference.

   The written information requested in the Request for Student Visa Information form should be received by 4 May 2020. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you cannot provide the information by 4 May 2020, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 4 May 2020 and it must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

   Alternatively, if your circumstances have changed and you no longer wish to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.

   Click here to access the online Withdrawal form

   If you have any questions, please email [address omitted], or contact me on the number listed below, or telephone our national enquiry line on [number omitted] .For language assistance, please contact the Translating and Interpreting Service (TIS) on [number omitted].

   Yours sincerely”

   (phone numbers and addresses omitted, underlining added)

8. It is of significance that the letter requested that the first applicant provide information confirming his enrolment in a registered course of study by 4 May 2020. It is also of significance:

   (a)that the first applicant was advised that if the Tribunal did not receive the requested information within the period allowed, or within any extended period as allowed, the Tribunal not only could make a decision on the review “without taking any further action to obtain the information”, but also that the first applicant would lose any entitlement to appear before the Tribunal and present arguments; and

   (b)that a Request For Student Visa Information Form able to be completed and submitted online was sent to the first applicant with the letter of 20 April 2020.  

9. At the hearing before the Court, it was not disputed that the first applicant had not responded to the 20 April 2020 request for information sent to him by the Tribunal, nor that the requested information had not been provided by the first applicant to the Tribunal by the 4 May 2020 deadline. It was also not disputed that by a letter dated 11 May 2020 emailed to the first applicant on that date, the Tribunal recorded the fact that the first applicant had not provided the relevant information which had been requested by 4 May 2020. Nonetheless, the letter further invited the first applicant to “give us any additional information that you wish to be considered as soon as possible”. The letter of 11 May 2020 provided as follows: [2]  

   [2]           CB p. 176.

   “11 May 2020

   Dear Mr Tang and Ms Dai

   REQUEST FOR EXTENSION OF TIME TO PROVIDE INFORMATION -MR MINFU TANG AND MS SHUANG DAI

   I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Student (Temporary) (Class TU) visas.

   On 20 April 2020 we sent you an invitation to provide information by 4 May 2020. In this letter we advised you that if we did not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. We also advised that you would lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

   We received a request for an extension of time to provide the information on 6 May 2020.

   As you did not provide the information or request an extension of time to provide the information by 4 May 2020, you appear to have lost your right to a hearing however, this is a matter which must be determined by a Member.

   If the Member determines that you have lost your right to a hearing, the Tribunal may make a decision in your case at any time.

   As such, you should give us any additional information that you wish to be considered as soon as possible.

   If you have any questions, please email [address omitted], or contact me on the number listed below, or telephone our national enquiry line on [number omitted]. For language assistance, please contact the Translating and Interpreting Service (TIS) on [number omitted].

   Yours sincerely”

   (phone numbers and addresses omitted, underlining added)

10. It would appear that by email sent on 12 May 2020, the first applicant, by his registered migration agent, did forward the completed Student Visa Information Form sent to him by the Tribunal on 20 April 2020. In answer to Q. 14 of such form, the first applicant had indicated in the affirmative that he did have a current Confirmation of Enrolment (CoE), but it was common ground at the hearing before the Court that no physical evidence of such enrolment was provided to the Tribunal until after the handing down of the Tribunal’s decision on 21 May 2020.  

11. At the hearing before the Court, Counsel on behalf of the first applicant conceded that by reason of the first applicant’s failure to comply with the Tribunal’s requests for the provision to it of information relating to the first applicant’s enrolment in a registered course of study, the first applicant had lost the right to appear before the Tribunal and present arguments. It was further conceded that the Tribunal did not err in conducting the hearing in the absence of the first applicant and the second applicant.

12. At [8] – [12] inclusive of its reasons, the Tribunal set out its consideration of the first applicant’s claims, and of the evidence before it, as follows:

    “[8]The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to d.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is currently renrolled in a registered course of study

    Enrolment (cl. 500.211)

    [9]Clause 500.211 relevantly requires that at the time of this decision, the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

    [10] 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r. 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    [11]In a response to a request to provide information to the Tribunal pursuant to s. 359(2) of the Act, the applicant asserted that he was currently enrolled in a registered course of study. In a statutory declaration dated 12 May 2020, the applicant stated that he wanted to explain "the reasons for choosing the translation course at the National Institute of Education and Technology, Tasmania, Australia". However, notwithstanding those assertions the applicant has not provided any documentary corroboration of being currently enrolled in a registered course of study. This is a critical fact of which the Tribunal must be satisfied at the time of determining the application for review. Therefore, the Tribunals is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl. 500.211 is not met.

    [12] Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.”

    Consideration of Grounds of Review

13. At the final hearing before the Court, the applicants relied upon a Further Amended Application for Review filed on 21 April 2021, the grounds of which were as follows:

    “Grounds of application

    1.The decision of Administrative Appeals Tribunal (the “Tribunal”) is affected by jurisdictional error because it denied the Applicants procedural fairness by failing to consider or properly consider all relevant documents, and particularly:

    1.1The Member of the Tribunal refused to remit the Applicants’ review application in relation to a Student (Temporary) (Class TU) (Subclass 500) visa application (“student visa application”) on the basis that the First Applicant did not submit a Confirmation of Enrolment (COE) document to the Tribunal.

    1.2The First Applicant had provided the COE Code A44E4351 (“COE Code”) with the initial student visa application (“student visa application”) to the Department of Home Affairs (DHA).

    1.2.1.The visa applicants generally provide COE through provision of a COE Code rather than a hard copy of the COE, which enables verification of visa applicants’ enrolment through the Department of Education, Skills and Employment Provider Registration and International Student Management System ("PRISMS");

    1.2.2.Both DHA and the Tribunal have access to PRISMS and as a matter of general practice use PRISMS to verify visa applicants’ enrolment confirmation;

    1.3 The student visa application document containing the COE Code is included in the Applicants’ file which the DHA transfers to the Tribunal after the appeal of its decision in the normal course of these matters.

    1.4The relevant COE and COE Code has not been updated by the issuing school or college and remains current for the purpose of enrolment.

    1.5The Applicants did not have to obtain a new COE or COE Code and hence the original COE and COE Code remained current for the purpose of their review application to the Tribunal.

    1.5.1.Further, the delegate, on page 3 of the refusal decision letter, specifically confirmed that:

    “At time of application, the applicant was enrolled to undertake the following course:

    Advanced Diploma of Translating”

    1.6The Member of the Tribunal failed to consider the Applicants’ above documentations and more particularly the COE Code included in the Applicants’ file received from the DHA.

    1.6.1.The Member unreasonably failed to verify the primary Applicant’s enrolment through PRISMS, a database generally used by the Tribunal to verify students’ enrolment confirmation.

    1.6.2. The Tribunal failed to consider other documents or information reasonably available to the Tribunal through enquiries, amounting to a failure to make an obvious enquiry about a critical fact the existence of which was easily ascertained.

    1.7. The Tribunal's decision was legally unreasonable or unjust.

    1.7.1. The First Applicant was, and is, enrolled in a course of study;

    1.7.2. At the relevant time, the First Applicant satisfied cl 500.211(a);

    1.7.3. The First Applicant continues to satisfy cl 500.211(a).

    2.The decision of the Tribunal is affected by jurisdictional error because of a constructive failure by the Tribunal to exercise its review functions.

    2.1      The particulars of the ground 1 are repeated.

    2.2The Tribunal failed or refused to consider all available evidence or information before it, such that an extent of confinement in the requisite width of approach required occurred.

    2.3The Tribunal's failure to make enquiries regarding the First Applicant's state of enrolment at or near the relevant time (being the date of the Tribunal's decision, 21 May 2020) amounted to a failure to make an obvious enquiry about a critical fact the existence of which was easily ascertained.

    3. The decision of the Tribunal is affected by jurisdictional error because the Tribunal made an error of fact that amounts to a miscarriage of justice in finding that the First Applicant failed to satisfy cl 500.211(a).

    3.1At the date of the Tribunal's decision, being 21 May 2020, the First Applicant was in fact enrolled in a registered course of study.

    3.1.1.   The First Applicant was, and is, enrolled in a course of study;

    3.1.2. At the relevant time, the First Applicant satisfied cl 500.211(a);

    3.1.3.   The First Applicant continues to satisfy cl 500.211(a).”

14. As to Ground 1 of the Application for Review, there is no merit to the claim that the applicants were denied procedural fairness by the Tribunal. The claim was based upon the assertion that in fact the PRISMS confirmation of enrolment documentation available at the time of the Tribunal hearing erroneously recorded that the first applicant’s enrolment had ceased. It was conceded by Counsel on behalf of the first respondent that such enrolment had not ceased, and that such enrolment was current as at the date of the Tribunal’s decision on 21 May 2020.

15. The Tribunal was statutorily required to expedite the handing down of its decisions. [3] The Tribunal had duly invited the first applicant to provide further information pursuant to s. 359(2) of the Migration Act 1958 (Cth) (‘the Act’) in circumstances where the first applicant had been put on notice that confirmation of enrolment was required to be established. It was clear that considerations relevant to cl. 500.211 issues would be dispositive of the first applicant’s visa claims. [4] Clause 500.211 of Schedule 2 to the Regulations relevantly provided as follows:

    “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.”

    [3]           Administrative Appeals Tribunal Act 1975 (Cth) ss. 2A(b), 18A and 33(1)(b) .

    [4]           SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163-

    165.

1. The clear onus was on the first applicant to establish that he had satisfied a fundamental requirement for the grant to him of the visa, namely proof of his enrolment in a registered course of study. The first applicant failed to discharge that onus.

2. It was not for the Tribunal to prove the first applicant’s case. The Tribunal did not err in finding, as it did, that there was no proof of enrolment at the time that it made its decision and that, therefore, the first applicant had failed to establish, to the reasonable satisfaction of the Tribunal, that there was a right to have the relevant visa issued to him. The first applicant only provided confirmation of enrolment information after the handing down of the decision of the Tribunal. By then, the Tribunal had already carried out its statutory function, the exercise of which had been conditioned by the lack of responsiveness on the part of the first applicant to reasonable requests made of him for the provision of relevant documentation.  

3. As to Ground 2 of the Further Amended Application for Review, such ground is a claim that the Tribunal fell into jurisdictional error in that there was a constructive failure by the Tribunal to exercise its review functions. The same facts as were relied upon in respect of Ground 1 were relied upon in respect of this ground. It was submitted that the Tribunal failed to make an obvious enquiry about a critical fact. There is no merit to such ground.

4. As found in respect of Ground 1, the onus was on the first applicant to establish that he was duly enrolled in a registered course of study. It was not for the Tribunal to itself carry out investigations on such issue. The Tribunal was dealing with a situation where the first applicant had failed to satisfy a fundamental relevant criteria for the grant to him of the visa. In such circumstances, there was, relevantly, no enquiry, obvious or otherwise, which was required to be made.

5. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

6. As to Ground 3 of the Further Amended Application for Review, such ground relies upon the conceded fact that as at the relevant time of the decision, the first applicant was enrolled in a registered course of study. It was submitted that the decision of the Tribunal was a factual error which was jurisdictional in nature. There is no merit to such submission.

7. At the time the Tribunal made its decision, the Tribunal was not relevantly engaged with the question as to whether any PRISMS record, or any other record of enrolment, was correct or not. It had, rather, relevantly engaged with the question as to whether the first applicant had or had not discharged his onus of satisfying the Tribunal that he was enrolled in a registered course of study, the satisfaction of which was a pre-condition to the grant to him of the visa. On that very question, the Tribunal was not so satisfied because the first applicant had not produced evidence of enrolment. The factual error urged upon the Court as justifying the grant of relief on the part of the first applicant was not an error made in the exercise of jurisdiction. If the PRIMS record had been viewed by the Tribunal as at the date of its decision, the PRISMS record would have indicated that enrolment had ceased at an earlier time on 3 May 2020. In such circumstance, it could not be said that the factual error about enrolment was jurisdictional, because a viewing of the relevant enrolment evidence would not have made any difference to the decision, handed down as it was on 21 May 2020.

8. As Nettle J said in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [47]:

   “[47] There is also a degree of uncertainty about the extent to which a decision to cancel a visa should be conceived of as “tainted” or “affected” by an error in PRISMS. In a case of this kind, where there is only one fact to be determined by a binary process of fact-finding based primarily on PRISMS, it might not appear problematic that an incorrect statement of the fact in PRISMS should be conceived of as so fundamentally tainting or affecting the decision as to afflict it with jurisdictional error. But what of a case where a decision is based on an evaluation of a multitude of facts of which, say, only one is an incorrect entry in PRISMS? If reliance upon any incorrect information in PRISMS constituted a jurisdictional error it would follow that any decision which took into account any information that was wrongly entered in PRISMS would be vitiated by jurisdictional error, unless, in the circumstances of the particular case, it were clear that taking that information into account could not possibly have made any difference to the decision.”

9. Because the Tribunal did not err in the manner in which it carried out its statutory task, the question of the materiality of an asserted error does not arise.

10. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

11. The Further Amended Application for Review is without merit and is dismissed.

12. The Court will hear the parties as to costs.  

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       14 May 2021