Thlork v Minister for Immigration

[2020] FCCA 1388

FEDERAL CIRCUIT COURT OF AUSTRALIA

THLORK & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1388

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa application lodged when all applicants outside Australia – application for judicial review of decision of the Administrative Appeals Tribunal which found that it did not have jurisdiction to review a Delegate’s decision to refuse to grant Student (Temporary) (Class TU) (Subclass 500) visas to them – Tribunal found that it did not have jurisdiction because the Delegate’s decision by the combined effect of ss.347(2) and 338(2) of the Migration Act 1958 (Cth) was not a Part 5–reviewable decision – applicants contended that the erroneous view and advice of both the Delegate and their former migration agent that the Delegate’s decision was reviewable by the Tribunal was effective to give them a right of review by the Tribunal – this contention wrong in law and the Tribunal was correct to find that it did not have jurisdiction to review under s.347(2)(a) of the Migration Act 1958 (Cth) – no jurisdictional error established by the applicants – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 338, 347

Migration Regulations 1994 (Cth)

First Applicant: RUMDOH THLORK

Second Applicant: RATANA THAY

Third Applicant: KETHYAKAUL THLORK

Fourth Applicant: KETHYABOROMEY THLORK

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3041 of 2018

Judgment of: Judge Dowdy

Hearing date: 26 February 2020

Delivered at: Sydney

Delivered on: 26 February 2020

REPRESENTATION

The First and Second Applicants appeared on behalf of all of the Applicants.

Counsel for the First Respondent: Ms A. Zinn

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Amended Application filed in this Court on 10 February 2020 is dismissed.

2. The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 29 June 2020 to file any Notice of appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3041 of 2018

RUMDOH THLORK

First Applicant

RATANA THAY

Second Applicant

KETHYAKAUL THLORK

Third Applicant

KETHYABOROMEY THLORK

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicants in this proceeding are as follows:

   a)the First Applicant is a male citizen of Cambodia aged 37 years;

   b)the Second Applicant is a female citizen of Cambodia aged 38 years and is the wife of the First Applicant;

   c)the Third Applicant is a female citizen of Cambodia aged 14 years and is the daughter of the First and Second Applicants; and

   d)the Fourth Applicant is a female citizen of Cambodia aged 10 years and is the daughter of the First and Second Applicants.

   (collectively the Applicants)

2. By Amended Application filed in this Court on 10 February 2020 (the original Application having been filed within time on 16 October 2018) the Applicants seek to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 11 September 2018 which found that it did not have jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 2 August 2018 refusing to grant to them Student (Temporary) (Class TU) (Subclass 500) visas (Student visa(s)).

Background

1. The First Applicant first arrived in Australia on 15 January 2014, the Second Applicant on 30 March 2014 and the Third and Fourth Applicants on 27 June 2014. They have thereafter been granted a number of temporary visas. With the assistance of his registered migration agent (migration agent), the First Applicant applied for the Student visa on 28 July 2018 in the Higher Education Sector stream to study at the Australian Catholic University for a Master of Social Work degree.

2. The First Applicant was the primary applicant for the Student visa, with the other Applicants applying as members of his family unit. The success of their application for Student visas was dependent, pursuant to cl.500.311 of Sch.2 to the Migration Regulations (1994) (Cth), on the First Applicant being granted the Student visa.

3. I note that the evidence establishes, and it is in fact common ground, that on 28 July 2018 all of the Applicants were not in Australia.

Decision of Delegate

1. In her Decision Record the Delegate found that the Applicants had made a valid application for the Student visas, but was not satisfied that the First Applicant was a genuine applicant for entry and stay as a student because:

   …If the applicant were to be granted this student visa, I consider it likely that [the First Applicant] would further extend their stay in Australia as a temporary resident. As such, it appears that the applicant intends to continue to use the student visa program to remain as a de facto resident in Australia, rather than to further their education as a genuine student.

2. Accordingly the Delegate refused to grant the Student visas to the Applicants. I note that in her Notification of Refusal of Application letter also dated 2 August 2018 the Delegate indicated that her decision could be reviewed by the Tribunal (see Court Book page 101).

Decision of Tribunal

1. The Applicants lodged an application for merits review of the Delegate’s decision with the Tribunal on 14 August 2018 and nominated as their representative Mr Seth Vruthan, who did not claim to be a registered migration agent but was apparently a friend of the Khmer Community. By letter dated 21 August 2018 the Tribunal invited the Applicants and their representative to comment on the validity of their review application. The point raised by the Tribunal in this letter was that the Applicants needed to have been in Australia (i.e. the “migration zone” as defined in s.5 of the Migration Act 1958 (Cth) (the Act)) at the time they lodged their Student visa application with the Department of the Minister (Department) on 28 July 2018, but it appeared, as indeed as I have already noted was in fact the case, that they were not in Australia on that date.

2. By letter dated 29 August 2018 the First Applicant responded to the Tribunal in which he relevantly stated verbatim as follows:

   Having seen the letter from the AAT officer dated on 21 August 2018 has made me feel significantly frustrated as it was mentioned that my application for a merits review of the student visa application refusal was invalid. In accordance with a reference made to the refusal latter – pages 1 & 2 dated 02 August 2018, which has entitled me to apply to the Administrative Appeals Tribunal (AAT) for a merits review of the decision, it seems very clear to me that I have been provided a legal right concerning the review rights of my case.

   Though my family members and I were not in Australia on 28 July 2018 at the time the visa was lodged, we were physically present in Australia by the time I received a refusal letter from the Department. I strongly believe that the Department case officer could be right by providing me review rights of the decision because the student VISA can be granted either onshore or offshore. Therefore, my review right entitlement may be a major asset for me to apply to the AAT for the merits review.

   In this regard, I would be greatly delighted should the AAT validate my application for the merits review made on 14 August 2018. I remain at your entire disposal for any further information you may require and look forward to receiving your response soon.

   (emphasis added)

3. In its Decision Record the Tribunal found, in my view correctly, that it did not have jurisdiction to review the Delegate’s decision because the Applicants applied for the Student visas on 28 July 2018 when none of them were in Australia and that meant that the application for review could not satisfy s.347(2)(a) of the Act which required that the review application be covered, relevantly here, by s.338(2). However, s.338(2) did not cover and render the Delegate’s decision a Part 5 – reviewable decision because s.338(2)(b) mandated that the original Student visa application which was refused by the Delegate had to have been made while the Applicants were in the migration zone, which of course on 28 July 2018 they were not.

4. Accordingly, the Tribunal found that the Delegate’s decision was not a Part 5 – reviewable decision under s.338 of the Act and therefore the Tribunal was not given jurisdiction under s.347 to review the Delegate’s decision.

5. I note that the decision of the Tribunal was a decision as to the existence of a condition precedent to its jurisdiction, which I should determine for myself as being correct or not. In my view, it was correct.

Ground of Attack on Decision of Tribunal in this Court

1. The Ground in the Amended Application filed in this Court is verbatim as follows:

   1. I applied to the AAT for merits review of a decision of the Minister to refuse my student visa (subclass 500) application. The AAT determined that there was no jurisdiction, and they considered my review application to be invalid. I believe my application is valid. The AAT fell into jurisdictional error by declining to hear my application.

   Particulars

   a. Delegates act on powers given to them by the Minister.

   b. The Minister’s delegate notified the Applicant of their refusal of my application for a Student Visa on 2 August 2018.

   c. Paragraph 4 states “The decision can be reviewed”.

   d. Paragraph 5 states “…you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision”.

   e. This suggests that the Minister through the delegate was exercising a power (whether explicit or implied in the Migration Act) to over-ride S338888 of the Act, and to grant appeal rights where none had previously existed in S338.

   f. Where a delegate provides such a notification the Minister and the AAT should be prevented from denying natural justice to the receiver of that notification.

   (emphasis added)

Consideration

1. In effect, the Ground argues that the Tribunal is estopped and precluded from finding that it lacked jurisdiction to conduct a merits review because of the actions of the Delegate or perhaps, in the circumstances which I will set out below, because of a mistake made by the Applicants’ migration agent.

2. In the First Applicant’s Written Submissions, he repeats the Ground at [1], and at [2] asserts that:

   [2] The Minister’s delegate’s decision over-rides s338 of the Act.

3. I explained to the First Applicant at the hearing that as a matter of law the Tribunal did not have jurisdiction and that the Delegate, by advising the Applicants in her Notification of Refusal of Application letter that her decision could be reviewed by the Tribunal, did not establish or mean that the requirements contained in s.338 of the Act did not apply to the Tribunal. I explained to the First Applicant that the Notification of Refusal of Application letter could not change or alter Australian law and that any mistaken view of the law by the Delegate could not affect the statutory requirements of the Act.

4. At the hearing the First Applicant also complained of his migration agent and asserted that he had obtained mistaken advice from her. It is clear that although his migration agent was not his nominated representative for the purposes of the review application that he consulted her after the Tribunal’s letter of 21 August 2018, which questioned the validity of the review application. He has established on the evidence that his migration agent was also wrong in believing that the Applicants had rights of review with respect to the decision of the Delegate. He put into evidence an email from her dated 29 August 2018 in which she advised the First Applicant as follows:

   Sorry I was wrong. After reading the Migration Act carefully, yours is not a reviewable decision.

   Also, there is no point to seek review even if you had review rights because it would not extend your current Bridging Visa.

5. Nevertheless, the simple fact of the matter is that, whilst the Applicants’ migration agent appears to have been wrong in initially believing that the Applicants had rights of review of the Delegate’s decision, the error or mistaken apprehension had nothing to do with the operative provisions of the Act or the Tribunal’s finding that it did not have jurisdiction because on 28 July 2018 the Applicants were outside Australia. When the migration agent lodged the application for the Student visas on 28 July 2018 the Applicants were all outside Australia which means that the Tribunal was correct in coming to the view that it had no jurisdiction to review the decision of the Delegate.

Conclusion

1. Relevantly the Tribunal only had jurisdiction to review a Part 5 – reviewable decision covered by s.338(2) of the Act. Section 338 provides an exhaustive list of the decisions that are Part 5 – reviewable decisions. Section 338(2)(b) provided that a decision to refuse to grant a non-citizen a visa is a Part 5 – reviewable decision if the non-citizen made the application “for the visa while in the migration zone”. There is no dispute that the Applicants were not in the migration zone when the application for the Student visas was made and the Tribunal was correct to find that the Delegate’s decision was not a Part 5 – reviewable decision and that it had no jurisdiction in the matter.

2. The Ground asserted by the Applicants does not establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 1 June 2020