Truong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 304
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Truong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 304
File number(s): ADG 428 of 2019 Judgment of: JUDGE EGAN Date of judgment: 28 April 2022 Catchwords: MIGRATION – where Prisms Records indicated that first applicant’s enrolment had been cancelled – where claim made that the Tribunal ought to have found that first applicant’s enrolment had been deferred – where no evidence of deferral of course – where no utility demonstrated for any adjournment of the Tribunal hearing – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss. s. 65, 359AA and 363(1)(b). Migration Regulations 1994 (Cth) Sch 2, Cl. 500.211 and 500. 212. Cases cited: Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 8 April 2022 Date of hearing: 8 April 2022 Place Sydney Counsel for the Applicant: Ms H Veale Solicitor for the Applicant: Corsers Counsel for the First Respondent: Mr T Goodwin Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 428 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI BICH DUYEN TRUONG
First ApplicantTHANH NHAN NGUYEN
Second ApplicantTHEIN AN DYLAN NGUYEN
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
28 APRIL 2022
IT IS ORDERED THAT
1.The Amended Application for Review filed on 1 November 2021 be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondents costs of and incidental to the Application for Review fixed in the amount of $7,853.00.
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 Egan
Introduction
The applicants are citizens of the Socialist Republic of Vietnam. The primary first applicant was the first named female applicant. The second and third applicants were the first applicant’s husband and the child of the first applicant and the second applicant.
On 13 March 2017, the first applicant applied for a Student (Temporary) (Class TU) Subclass 500 Visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act). The second and third applicants applied for a visa as members of the first applicant’s family unit.
On 26 June 2017, a delegate of the Minister refused the first applicant’s visa application on the basis that she did not satisfy the criteria under Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.212 relevantly provided as follows:
“500.212 The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
On 11 October 2019, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate on a different ground. At [5] – [12] inclusive of its reasons, the Tribunal set out its reasons for finding that the applicant had not relevantly been enrolled, at the time of the Tribunal decision, in a relevant course of study as required by Clause 500.211 of Schedule 2 to the Regulations. The Tribunal found as follows:
“[5] The applicants appeared before the tribunal on 2 October 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reason, the tribunal has concluded that the decision under review should be affirmed. In relation to the evidence, there was information provided by the applicant to which the tribunal had regard, which was a decision of the delegate of Immigration and Border Protection dated 26 June 2016. There were various submissions made by the representative, in particular those dated 27 September 2019 and received on 1 October 2019, together with various annexures.
[6] The criteria for a Subclass 500 student visa are set out in part 500 of Schedule 2 of the Regulations. All of the primary criteria in clause 500.212 to clause 500.218 must be satisfied by the applicant. When the matter was before the delegate, the issue was whether the applicant met the criterion in clause 500.212, which I have previously referred to as the genuine temporary entrant criterion. However, the issue is now, whether at the time of this decision, the applicant meets the enrolment requirements for a student visa, as required by subclause 500.211. The tribunal explained that the effect of clause 500.211 - the enrolment requirement - on her application, is that she must be enrolled in a relevant course of study, or her application must fail.
[7] The applicant’s PRISMS records were put to her at the hearing. It was explained that the information in those records would be the reason or part of the reason for affirming the decision made by the delegate of the Department. The applicant was advised that the information is relevant to the review, because it suggests that the last course in which she was enrolled - a Certificate III in barbering - had been cancelled or her enrolment in that course had been cancelled on 28 June 2017 and that she had not enrolled in a relevant course of study since then. It was explained to the applicant that if the Tribunal relies on the information to find she is not enrolled in a relevant registered course, she would not satisfy criterion 500.211, the Tribunal will affirm the delegate’s decision.
[8]She was invited to comment on that information. She was invited to seek further explanation if she did not understand the relevance of that information. And she was invited to seek more time to comment, if she so wished. The applicant sought a brief adjournment to discuss the matter with her representative. After that, by way of comment, she said that her Confirmation of Enrolment was cancelled by TAFE after the refusal of her visa. She said that she has not attempted to enrol in any other course since. The applicant asked the tribunal to consider a chain of emails, copies of which she had on her mobile phone.
[9]An offer of a deferral was made in email from the TAFE on 27 June 2017. In a response made on 28 June it was evident that the applicant had advised TAFE that she was appealing, but it was not clear whether she sought the deferral or not.
[10]On 31 July there was an email from the applicant’s representative to the TAFE seeking a deferral. That email was effectively taking up the offer apparently made in TAFE’s email of 27 June 2017.
[11] There was no response from the TAFE to that request for a deferral and the Tribunal is not satisfied that a deferral was granted. The applicant, through her representative, has submitted that a conditional offer of a deferral was made and that it was accepted and that therefore a Confirmation of Enrolment is available. The Tribunal is not satisfied that the applicant is enrolled as required to satisfy criterion 500.211. Aside from the documents referred above and the records that were put to the applicant under section 359AA, the tribunal has not relied on any other documents in reaching this decision.
[12]The applicant’s evidence, which the Tribunal accepts, is that she is not enrolled in any course. There is no evidence before the tribunal that she is enrolled in any relevant course of study. Therefore, the applicant does not meet clause 500.211(a). The applicant has not claimed or sought to demonstrate that she meets 500.211(b), (c) or (d). The primary applicant does not therefore meet clause 500.211 of Schedule 2 to the Migration Regulations at the time of this decision. For these reasons, the decision under review must be affirmed. So the decision is that the tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.”
Grounds of Review
On 5 November 2019, the applicants filed an Originating Application for Review. At the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 1 November 2021, the Grounds of which were as follows:
“1. The Administrative Appeals Tribunal (“the Tribunal”) erred in its construction of cl. 500.211(a) of schedule 2 of the Migration Regulations 1994 (Cth) in that, on the material before it, it should have been satisfied that:
•the applicant had been offered a deferral of her enrolment;
•this deferral had been accepted;
•the applicant was therefore enrolled in a full-time course of study within the meaning of the regulation,
and this error constituted jurisdictional error.
2. In the alternative, the Tribunal erred in that:
Pursuant to s359A(2) it elected to give the information it had obtained, namely a cancelled confirmation of enrolment, orally at the hearing. By making that election, the Tribunal was bound to apply the procedure set out in s359AA.
a. The Tribunal failed to apply the procedure set out in s359AA in that it:
b. Did not give the applicant adequate details of the information it was relying on;
i.Did not give the applicant a copy of the cancelled confirmation of enrolment;
ii.Did not meaningfully advise the applicant she could seek further time to comment on the information; and
iii.Did not adjourn the review.
3.In the alternative, the Tribunal erred in not exercising its discretion under s. 363(1)(b) of the Migration Act 1958 (Cth) to adjourn the review so as to permit the applicant to obtain such evidence as it required from TAFE confirming her enrolment and this error constituted jurisdictional error.
Ground 1 was a claim that the Tribunal had erred in its construction of Clause 500.211(a) of Schedule 2 to the Regulations by failing to find that the applicant had been offered a deferral of her enrolment, that the deferral had been accepted, and that the applicant was therefore enrolled in a full-time course of study at the time of the Tribunal hearing. Clause 500.211 of 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.”
There is no merit to the applicants’ claim. First, the Prisms Record recorded that at the time of the tribunal hearing the applicant was not enrolled in a course of study. The record indicated that the Certificate III course in Barbering had been cancelled as at 6 July 2018. [1] There was further evidence before the Tribunal that the Certificate III Barbering course was recorded as having been cancelled on 6 July 2018. [2]
[1] Exhibit 1 – Court Book (CB) p. 100
[2] CB p. 101
Secondly, there was nothing in the documents relied upon by the applicants which evidenced the granting of a deferral of the course so as to constitute enrolment under the Regulations. Nothing in Annexure TBDT-6 to the affidavit of the applicant filed on 5 November 2019 constituted any confirmation that there had been a deferral of the Barbering course. That which was contemplated by Clause 500.211 of the Regulations was an actual enrolment which had not been subsequently cancelled. The applicant did not satisfy the relevant criteria in that regard.
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.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to Ground 1 of the Amended Application for Review.
Ground 2 of the Amended Application for Review was a claim that after the Tribunal had orally given notice to the applicant at the time of the hearing that the contents of the PRISMS record and the cancellation of enrolment document could constitute the reason, or part of the reason, why the application for the visa might be refused, the Tribunal had erred by failing to comply with the provisions of s. 359AA, which relevantly provided as follows:
“s. 359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
There is no merit to the applicants’ claim. The Tribunal provided copies of the relevant documentation to the first applicant at the time of the hearing, and made clear to the first applicant that on the face of such documentation she did not meet the relevant criteria under Clause 500.211 relating to enrolment. The applicants have not demonstrated that the Tribunal failed to comply with s. 359AA in any respect. The applicant was represented at the hearing. The Tribunal offered to adjourn the hearing of the matter so that the first applicant could confer with her representative, and she accepted that offer. No request for any further adjournment of the hearing was made. The applicant had confirmed in evidence before the Tribunal that she was not enrolled in a course of study.
In Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046, when addressing the question of the relevance of an applicant not being able to satisfy the Tribunal at the time of the hearing before it that such applicant was relevantly engaged in a course of study, Justice Greenwood, at [25], [27] and [34] of his reasons, said as follows:
[27]As to ground 1 of the grounds of appeal, the Tribunal found that the requirement under cl 500.211(a) that the applicant for the Visa be enrolled in a course of study at the time when the Tribunal was called upon to make a decision on the application (on review) was a “mandatory requirement” otherwise described as one of the “primary criteria” under the Regulations. The Tribunal accepted the appellant’s evidence that he had not held a Certificate of Enrolment (“COE”) since March 2018 and concluded that the failure to satisfy the relevant requirement at the date of the Tribunal’s review decision was fatal to his application.
…
[34]In circumstances where the additional comments the appellant might have put to the Tribunal would concern an explanation for non-compliance with the requirement to hold a COE at the date of review (and recognising that the appellant had not held a COE for such a long period of time prior to the Tribunal hearing), due to the emotional factors relating to his family’s circumstances in Nepal, any additional time to provide comments on that topic would not answer the Tribunal’s proper concern about the appellant’s failure to satisfy the primary requirement to hold a COE at the date of the Tribunal’s decision. There was no discretion to be exercised by the Tribunal relieving the appellant of the need to comply with the primary criteria should something in the nature of humanitarian considerations have prevented the appellant from complying with the relevant requirement. There was no suggestion at the hearing that a short adjournment would have resulted in a relevant institution providing the applicant with a COE which was otherwise pending or that there was any prospect whatsoever of the appellant obtaining a COE within a reasonable period of time.”
The Court finds that the Tribunal did not fail to comply with any of the requirements under s. 359AA(1)(b) of the Act. Ground 2 of the Amended Application for Review is without merit and is dismissed.
Ground 3 of the Amended Application for Review was a claim that the Tribunal erred by failing to exercise its discretion under s. 363(1)(b) of the Act to adjourn the Tribunal hearing “ … so as to permit the applicant to obtain such evidence as it required from TAFE confirming her enrolment and this error constituted jurisdictional error.” There is no merit to such ground.
Though represented at the hearing, no application for an adjournment was made. In circumstances where the first applicant had confirmed that she was not enrolled in a course of study at the time of the hearing, and further in circumstances where the relevant Prism Records indicated that the applicant’s course of study had been cancelled, there was no basis upon which it could be submitted that the Tribunal was unreasonable in failing to adjourn the hearing to a later date. There would have been no utility in it taking such course of action.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
21 I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 28 April 2022
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