Unsab v Minister for Immigration
[2020] FCCA 1704
•27 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNSAB v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1704 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found to be not enrolled at the time of decision – whether the Tribunal erred by refusing to adjourn to enable him to complete the conditions on an offer of enrolment considered – no jurisdictional error. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Migration Act 1958 (Cth), ss.65, 359A, 359AA, 363, 348, 368, 368D Migration Regulations 1994 (Cth) |
| Cases cited: Abbas v Minister for Immigration & Anor [2019] FCCA 2577 AZAAD v Minister for Immigration (2010) 189 FCR 494 BLU18 v Minister for Immigration [2020] FCA 706 BPI17 v Minister for Immigration (No 2) [2020] FCA 252 BUP17 v Minister for Immigration & Anor [2019] FCCA 3193 CCQ17 v Minister for Immigration [2018] FCA 1641 CCR18 v Minister for Immigration [2020] FCA 9 GPV18 v Minister for Home Affairs [2020] FCA 393 Kaur v Minister for Immigration (2014) 144 ALD 292 Kaushik v Minister for Immigration & Anor [2019] FCCA 2850 Minister for Home Affairs v CSH18 (2019) 269 FCR 206 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Pandey (2014) 143 ALD 640 Minister for Immigration v SZGUR (2011) 241 CLR 594 Mushinwa v Minister for Home Affairs & Anor [2019] FCCA 1963 Singh v Minister for Immigration [2019] FCCA 2679 SZFDE v Minister for Immigration (2007) 232 CLR 189 SZRUI v Minister for Immigration [2013] FCAFC 80 |
| Applicant: | MUHAMMAD UNSAB |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 443 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 June 2020 |
| Date of Last Submission: | 8 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2020 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 18 November 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 443 of 2019
| MUHAMMAD UNSAB |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Unsab, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made orally on 11 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Unsab a temporary student visa. The following statement of background facts is derived from the submissions of the Minister filed on 10 June 2020.
On 30 August 2017, Mr Unsab applied for a Student (Temporary) (class TU) Student (subclass 500) visa (student visa) under s.65 of the Migration Act 1958 (Cth) (Migration Act) and subclass 500 of Schedule 2 of the Migration Regulations1994 (Cth) (Regulations).[1]
[1] Court Book (CB) 1
On 26 October 2017, the delegate refused the student visa application.[2] The delegate concluded that Mr Unsab did not satisfy the “access to funds” requirement for the student visa as set out in clause 500.214 in Schedule 2.[3]
[2] CB 36-38
[3] See CB 37
On 14 November 2017, Mr Unsab applied to the Tribunal for a review of the delegate’s decision.[4]
[4] See CB 39
On 25 October 2019, the Tribunal invited (hearing invitation) Mr Unsab to attend a hearing before the Tribunal in Perth on 11 November 2019 to give evidence and present arguments.[5] The following features of the hearing invitation should be noted:
a)the hearing invitation stated that Mr Unsab should provide to the Tribunal all documents on which he intended to rely to establish that he met the criteria for the student visa;[6]
b)the hearing invitation stated that Mr Unsab should provide to the Tribunal, at least seven days prior to the hearing, a copy of his current Certificate of Enrolment or other documents to show that Mr Unsab was currently enrolled in a course of study as required by clause 500.211 (a) of Schedule 2;[7]
c)the hearing invitation stated that Mr Unsab should provide to the Tribunal, at least seven days prior to the hearing, attendance certificates, academic transcripts and such like;[8]
d)the hearing invitation stated that Mr Unsab should provide to the Tribunal, at least seven days prior to the hearing, documents to show that he met the “access to funds” requirement for a student visa.[9]
[5] See CB 47 & 53
[6] See CB 47
[7] See CB 48 [1]; Note affidavit of Marie Therese Azar made on 29 April 2020 annexing a transcript of the Tribunal hearing conducted on 11 November 2019 (Transcript) at page 12 [35]–[45]
[8] See CB 48 [2]
[9] See CB 48 [3]
On 4 and 5 November 2019, a new registered migration agent for Mr Unsab lodged with the Tribunal a notice of appointment.[10]
[10] See CB 54–59
On 5 November 2019, the Tribunal emailed the new registered migration agent a copy of the hearing invitation.[11]
[11] See CB 59
On 8 November 2019, Southern Cross University offered (SCU offer) Mr Unsab a two year course of study for a Master of Business Administration.[12] Note the SCU offer was conditional upon the matters set out in the bullet points at CB 64–65.[13]
[12] See CB 64
[13] Note also Transcript at page 15 [10]–[20]
During the Tribunal hearing on 11 November 2019, Mr Unsab tendered the SCU offer.[14]
[14] See CB 64; Transcript at pages 9 [40], 11 [45], 15 [20]–[25]
At the hearing on 11 November 2019, it emerged that the issue, which the Tribunal was concerned about, was satisfaction of the enrolment (rather than “access to funds”) criteria for a student visa.[15] Mr Unsab admitted that he was not then currently enrolled but referred to the SCU offer.[16] Mr Unsab then applied for an adjournment of two to four weeks, or possibly less than a week, to obtain enrolment based on the SCU offer.[17]
[15] See Transcript at pages 9 [40], 12 [10]-[35], 13 [1]–[10]
[16] See Transcript at page 9 [40]
[17] See Transcript at pages 13 [35] - 14 [35]
On 11 November 2019, after the completion of the hearing, the Tribunal made an oral decision.[18]
[18] See CB 62, 77–78; Transcript at page 17
On 21 January 2020, the Tribunal made a written statement of the Tribunal decision.[19] The gist of the Tribunal decision was that Mr Unsab was not enrolled in a course of study as required by clause 500.211 (a) of Schedule 2.[20]
[19] See affidavit of Ms Azar made on 24 March 2020 annexing the Tribunal’s written reasons produced on 21 January 2020 (Ms Azar’s decision affidavit)t at pages 5–6
[20] See Ms Azar’s decision affidavit at page 5 [8] and [10]
These proceedings began with a show cause application filed on 18 November 2019. Mr Unsab continues to rely upon that application. There are nine unparticularised grounds in it:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision.
2.That procedures that were required by law to be observed in connection with the making of the decision were not observed.
3.That the person who purported to make the decision did not have jurisdiction to make the decision.
4.That the decision was not authorised by the enactment in pursuance of which it was purported to be made.
5.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
6.That the decision involved an error of law, whether or not the error appears on the record of the decision.
7.That the decision was induced or affected by fraud.
8.H that there was no evidence or other material to justify the making of the decision.
9.That the decision was otherwise contrary to law.
Mr Unsab also relies upon his affidavit made on 18 November 2019 which I received as a submission.
In addition to the court book filed on 20 January 2020, I have before me as evidence two affidavits made by Marie Therese Azar. The first was made on 24 March 2020 and annexes the Tribunal’s written reasons produced on 21 January 2020. The second was made on 29 April 2020 and annexes a transcript of the Tribunal hearing conducted on 11 November 2019.
Having regard to the course of oral argument[21] I invited closing written submissions from Mr Unsab. He submitted by email to my chambers that he had paid the required tuition fees to Southern Cross University, although the University required more time to issue a Confirmation of Enrolment. Mr Unsab submitted further that he could, if required, obtain a Confirmation of Enrolment from some other institution.
[21] and the fact that the hearing was not completed until after 6.00pm on 24 June 2020
Mr Unsab also asserts, incorrectly, that at the time of his Tribunal hearing he had an unconditional offer of enrolment but that he was “unable to focus on my admission process” at the time of that hearing. He acknowledges that he had to pay tuition fees in advance (of $17,000) but asserts that once having paid that amount, he could have gained admission and started studying.
Consideration
There are a number of unusual features about this case. The first is that the written record of the Tribunal’s decision was produced two months after its oral decision was made. The second is that it is clear from the transcript that the Tribunal dealt with the case on a different basis to the delegate. The delegate had refused the visa on the basis that Mr Unsab could not satisfy the financial support criterion. The Tribunal dealt with the case on the basis that Mr Unsab was not enrolled in a course of study. The transcript discloses that Mr Unsab furnished to the Tribunal a conditional letter of offer from Southern Cross University.[22] At the Tribunal hearing Mr Unsab sought additional time to comply with the conditions in the letter of offer so that he could be enrolled at the University. That request was twice refused during the course of the hearing by the Tribunal.
[22] CB 64-74
None of this is mentioned in the Tribunal’s written record of its decision.
Having heard Mr Unsab’s oral submissions, I called upon the Minister’s counsel to address three issues. The first was whether Mr Unsab was properly notified of the Tribunal hearing. The second was whether the conditional letter of offer was itself sufficient to satisfy the enrolment criterion, and the third was whether the Tribunal had unreasonably refused to adjourn the hearing to permit Mr Unsab to attempt to satisfy the conditions in the letter of offer he had received.
The notification issue
Mr Unsab complains that he was only notified of the Tribunal hearing five days before that hearing. That would not be sufficient notification. For reasons best known to himself, Mr Unsab engaged a registered migration agent located in Williamstown, Victoria.[23] The Tribunal sent its hearing invitation to the migration agent, as it was required to do, by email on 16 November 2017.[24]
[23] CB 40
[24] CB 41-49
It appears that that electronic invitation was not received by Mr Unsab’s representative.[25] On 28 October 2019, the Tribunal emailed a copy of the hearing invitation directly to Mr Unsab, using an email address he had provided in his review application.[26] Mr Unsab did two things in response to that email. First, he appointed a new representative (again in Melbourne).[27] Secondly, he sought to obtain a Certificate of Enrolment from Southern Cross University. Mr Unsab’s new representative was sent a copy of the hearing invitation by email on 5 November 2019. Mr Unsab was, however, notified of the hearing personally 14 days before the hearing date and his then authorised recipient had been sent the hearing invitation prior to that date.
[25] CB 50
[26] CB 53
[27] CB 54-58
In these circumstances I am satisfied that Mr Unsab received proper notification of the Tribunal hearing.
The relevant criterion
Section 65(1)(b) of the Migration Act provides that if the Minister is not satisfied that the criteria for the grant of the visa have been satisfied, the Minister must refuse to grant the visa.
Section 348(1) of the Migration Act provides that the Tribunal must conduct a review of a Part 5 reviewable decision.
Section 363(1)(b) of the Migration Act provides that, for the purpose of the review of a decision, the Tribunal may adjourn the review.
Section 368(1)(b) of the Migration Act provides that, where the Tribunal makes its decision on a review, other than an oral decision, the Tribunal must make a written statement that “sets out the reasons for the decision”.
Section 368D(2)(a)(ii) of the Migration Act provides that, if a decision on a review is given orally, the Tribunal must make an oral statement that “describes the reasons for the decision”.
Section 368D(4) of the Migration Act provides for an applicant to request the Tribunal to reduce an oral statement under s.368D(2)(a) to writing.
Clause 500.111 of Schedule 2 provides (relevantly) that “course of study” means a “full time registered course”.
Clause 500.111 of Schedule 2 provides (relevantly) that “higher education course” means a “masters degree (course work)”.
Clause 500.111 of Schedule 2 provides that “[a]ll criteria must be satisfied at the time a decision is made on the application”.[28]
[28] Note Minister for Immigration v Li (2013) 249 CLR 332 at [77]
Clause 500.211 (a) of Schedule 2 requires the applicant to be “enrolled in a course of study”.
Clause 500.214 (1) of Schedule 2provides that the applicant “will have genuine access to funds of a kind mentioned in subclause (2)”.
Clause 500.214 (2) (a) of Schedule 2 provides that, “[w]hile the applicant holds the visa, sufficient funds will be available to meet… the costs and expenses of the applicant during the applicant’s intended stay in Australia”.
I am satisfied that a conditional letter of offer, such as the one obtained by Mr Unsab, was insufficient to satisfy the enrolment criterion on which the Tribunal relied. In particular, it required payment of course fees and acceptance of the offer.
Was the refusal to adjourn unreasonable?
At the Tribunal hearing, the presiding member informed Mr Unsab that the Tribunal would deal with the case on the basis of the enrolment criterion rather than the financial support criterion.[29] The Tribunal also noted that Mr Unsab had not been enrolled in a course of study since July 2018.[30] Mr Unsab responded by stating that he could satisfy the financial and enrolment criteria within the week. He stated that he had sought enrolment two weeks prior to the hearing (presumably upon receipt of the hearing invitation) and he expected that the process would normally take about four weeks. The presiding member took this to mean that Mr Unsab was seeking an adjournment for two to four weeks.[31] The presiding member then crystallised this into an assumed request for adjournment for a month.[32] Mr Unsab made clear that he did not need that much time. He stated that he was only seeking to the end of the week in which the hearing took place. He showed the Tribunal the letter of offer that he had received from Southern Cross University.[33] The Tribunal noted that the letter of offer was conditional and had only been received a few days before the Tribunal hearing. The presiding member stated that he would not grant an extension of time and proceeded to affirm the decision under review.
[29] Transcript at page 9
[30] Transcript at page 10
[31] Transcript at pages 13-14
[32] Transcript at page 14
[33] Transcript at pages 11-12
An examination of the offer from Southern Cross University[34] discloses that the offer would lapse on 15 November 2019, that is four days after the Tribunal hearing. The offer required Mr Unsab to pay within that period fees of $11,250. The letter of offer stated that on payment of required fees and on receipt of the signed acceptance of the letter of offer, the university would issue an electronic confirmation of enrolment so that he could apply for the student visa. It was a condition subsequent to the offer that Mr Unsab would hold a student visa. In other words, he could not commence studying without the visa.
[34] CB 64
The upshot of this is that Mr Unsab only required an adjournment of four or five days in order to determine whether he could satisfy conditions in the offer. It thus appears that the refusal of such a short adjournment was harsh.
Nevertheless, I am not persuaded that the refusal to adjourn the hearing was legally unreasonable. It is clear from the transcript that the Tribunal took into account that Mr Unsab had not been enrolled in a course of study since July 2018 and that he had only sought to enrol on receipt of the hearing invitation. There was also a disconnection between his previous studies in geology and his then proposed study of a Masters of Business Administration. It was further apparent that there was a substantial financial hurdle that Mr Unsab would have to clear in order to obtain the confirmation of enrolment. All of these factors, while not made pellucidly clear at the hearing, and not mentioned at all in the written record of the Tribunal’s decision, logically supported the refusal of the adjournment.
The Minister accepts that the written version of the Tribunal decision does not refer to any adjournment application by Mr Unsab. Since, however, the decision whether or not to grant an adjournment is procedural in nature, the Tribunal was not obliged by ss.368 or 368D of the Migration Act to refer to any issue about an adjournment in the written reasons for decision.[35]
[35] See Minister for Immigration v SZGUR (2011) 241 CLR 594 at [31]–[32]; BUP17 v Minister for Immigration & Anor [2019] FCCA 3193 at [79] and [84]
Mr Unsab bears the onus of proof in a challenge of legal unreasonableness, including a challenge that is based upon an alleged failure to consider the exercise (or a decision not to exercise) a discretionary power.[36]
[36] See BUP17 at [76]
Legal unreasonableness does not involve substituting the Court’s view as to how a discretion should be exercised for that of the Tribunal.[37]
[37] See Kaur v Minister for Immigration (2014) 144 ALD 292 at [43]; Minister for Immigration v Pandey (2014) 143 ALD 640 at [41](j)
The Tribunal considered whether Mr Unsab had been given a reasonable opportunity to give evidence and present arguments concerning the issues arising in relation to the decision under review as per Pandey at [32] and [41](g).[38]
[38] See Transcript at pages 13 [30] - 14 [25]
The Tribunal considered, as to whether Mr Unsab should have more time to provide evidence to the Tribunal, the explanation as to why he required more time as per Pandey at [32].[39] Such a consideration involved the reasons why the evidence had not been provided as at 11 November 2019 and the length of time required to provide that evidence.[40]
[39] See Transcript at page 15 [20]-[25]
[40] See Pandey at [32]
The test of legal unreasonableness is a stringent one.[41]
[41] See Kaur at [43]; Pandey at [41] (j); BUP17 at [40]; Mushinwa v Minister for Home Affairs & Anor [2019] FCCA 1963 at [47] (last sentence)
Cases in which it is established that an administrative decision made in the exercise of a discretionary statutory power was affected by legal unreasonableness will be rare.[42]
[42] See BUP17 at [40]
Regardless of whether or not Mr Unsab can establish that the Tribunal did not consider whether to exercise the power to adjourn the hearing of the application to review the delegate’s decision, Mr Unsab must further establish that the failure to so consider was legally unreasonable.[43]
[43] See CCQ17 v Minister for Immigration [2018] FCA 1641 at [42]; BLU18 v Minister for Immigration [2020] FCA 706 at [37] (3); CCR18 v Minister for Immigration [2020] FCA 9 at [44]; GPV18 v Minister for Home Affairs [2020] FCA 393 at [47]
The Tribunal is not under an obligation to afford every opportunity to an applicant to present her/his best possible case.[44]
[44] See Abbas v Minister for Immigration & Anor [2019] FCCA 2577 at [40]
Having regard to the content of the hearing invitation and the chronology referred to at [5]-[8] above, it was not unreasonable for the Tribunal to adopt an “enough is enough” approach.[45]
[45] See Abbas at [41]–[42]; Pandey at [41](i) and [51]
In the present case, the refusal of an adjournment cannot be described as arbitrary, capricious, without common sense or plainly unjust. The transcript of the Tribunal hearing on 11 November 2019 discloses an evident and intelligible justification for the Tribunal refusing an adjournment.[46]
[46] See Pandey at [42]; Transcript at pages 13 [35]–15 [25]
In this case, the refusal of an adjournment does not fall outside the range of possible, acceptable outcomes which are defensible in respect of fact and law.[47]
[47] See Pandey at [51]-[52], [55]
The grounds of review
I agree with the Minister’s submissions concerning the nine unparticularised grounds of review advanced in the application.
Whilst a failure to provide particulars can be a basis for dismissing an application for judicial review, the merits of the grounds are insufficient in any event to establish jurisdictional error by the Tribunal. The grounds appear to have simply been adopted from s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
As to Ground 7 (fraud), this is a serious allegation that must be distinctly pleaded and proved.[48] Nothing in any of the material filed in this Court comes close to establishing fraud.
[48] See SZFDE v Minister for Immigration (2007) 232 CLR 189 at [15]
Grounds in Mr Unsab’s affidavit
Mr Unsab’s affidavit at [8]–[11] complains about the fairness of the course followed by the delegate. There are also implied references to the delegate at [14]–[17]. Such matters are irrelevant because the Tribunal conducts a full merits review of the delegate’s decision.[49]
[49] See Minister for Home Affairs v CSH18 (2019) 269 FCR 206 at [55]
So far as the Tribunal is concerned, the complaint in Mr Unsab’s affidavit at [13]–[16] is that the Tribunal conducted itself in such a way as to give rise to a reasonable apprehension of bias by pre-judgment. The complaint is without merit.
Reasonable apprehension of bias by reason of prejudgment must be clearly proved, firmly established and not too readily accepted.[50]
[50] See SZRUI v Minister for Immigration [2013] FCAFC 80 at [22], [33]-[34]
The transcript of the Tribunal hearing on 11 November 2019 shows that the Tribunal:[51]
a)acknowledged that, unlike the delegate, the issue which troubled the Tribunal was different to that which caused the delegate to reject the student visa application (ie “access to funds”);
b)clearly informed Mr Unsab that “currency of enrolment” was the issue which the Tribunal considered was determinative; and
c)gave Mr Unsab an opportunity to establish that he did have a current enrolment.
[51] See Transcript at pages 13 [35]-14 [35]
The Tribunal was obliged to act in the manner described above so as to afford Mr Unsab procedural fairness.[52]
[52] See AZAAD v Minister for Immigration (2010) 189 FCR 494; Kaushik v Minister for Immigration& Anor [2019] FCCA 2850 at [43]. Note also ss.359AA and 359A of the Migration Act
There is nothing in the transcript of the Tribunal hearing on 11 November 2019, or the written version of the Tribunal decision, to suggest that the Tribunal had a closed mind (ie was not open to persuasion) concerning the “currency of enrolment” issue.[53]
[53] See BPI17 v Minister for Immigration (No 2) [2020] FCA 252 at [50]; Singh v Minister for Immigration & Anor [2019] FCCA 2679 at [37]–[42]; Kaushik at [50] and [67]
Mr Unsab’s affidavit at [17] is unintelligible.
Conclusion
Mr Unsab is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 July 2020
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