FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768
File number(s): SYG 1506 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 21 August 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – review of Registrars decision – application for extension of time. Legislation: Migration Act 1958 (Cth) ss 338, 348, 353, 357359
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Agar v Hyde [2001] 201 CLR 552
Khant v Minister for Immigration and Citizenship [2009] FCA 1247
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WZAVW & Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 21 August 2023 Date of hearing: 21 August 2023 Place: Parramatta Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Saunders appeared on behalf of the First Respondent. ORDERS
SYG 1506 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NARSING RAO VAVILALA
First Applicant
PUSHPA VAVILALA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.Pursuant to r 21.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the application for an extension of time is refused.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondent’s costs fixed in the amount of $1300.00.
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
(As revised from transcript)JUDGE D HUMPHREYS
INTRODUCTION
The first applicant is a citizen of India. On 7 April 2020, the first applicant lodged an application for a Student visa. The applicant’s wife was included in that application as a member of the family unit.
On 12 November 2021, a delegate of the Minister for Immigration (“the delegate”) refused to grant the first and second applicants their visas.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The applicants lodged an application of review for the delegate’s decision with the second respondent, being the Administrative Appeals Tribunal (“the Tribunal”). The applicant was represented by a Migration Agent as their representative. The matter took a little while to come on, however, on 1 July 2022, the Tribunal invited the first applicant to provide information pursuant to s 359 of the Migration Act 1958 (Cth) (“the Act”) by way of a request for Student visa information and any confirmation that he had that he was registered or enrolled in a registered course of study.
That invitation was sent to the applicants’ representatives email address. The first applicant was provided until 15 July 2022 to respond to that invitation. The Tribunal did not receive a response to the s 359 of the Act invitation within the period specified.
On 18 July 2022, the applicant’s representative wrote to the Tribunal seeking an extension to submit “the requested information”. On 19 July 2022, the Tribunal wrote to the applicants, noting that no response to the s 359 of the Act invitation or an extension request had been received by 15 July 2022, and, in accordance with the s 359 of the Act invitation, the Tribunal determined that the applicants had lost their right to a hearing.
On 29 July 2022, the Tribunal invited the applicants to comment or respond on information pursuant to s 359A of the Act. That invitation was sent to the applicants’ representative’s email address. The information was that a recent check of the Provider Registration and International Student Management System, known as PRISMS, indicated that the first applicant did not hold a current Confirmation of Enrolment (“COE”), and this information was relevant as it was a requirement for the grant of a Student visa that the first applicant be enrolled in a registered course of study as at the time of the decision, pursuant to
cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal requested that the first applicant respond to the invitation by 12 August 2022.
On 12 August 2022, the applicant provided to the Tribunal a document titled Student Letter of Offer and Student Acceptance Agreement. The offer letter was not signed or dated by the first applicant. On 26 September 2022, the Tribunal affirmed the decision of the delegate to refuse to grant the applicants’ Student visas. The Court is informed that the PRISMS recorded showed that previous Certificates of Enrolment had been cancelled. The refusal by the Tribunal was on the basis that the applicant did not meet the requirements of cl 500.211 of the Regulations.
The applicant now seeks judicial review in this Court.
APPLICATION FOR JUDICIAL REVIEW
The matter came before a Registrar of this Court, and, on 20 July 2023, the Registrar dismissed the application summarily pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), on the basis that the application had no reasonable prospects of success.
APPLICATION FOR REVIEW OF REGISTRARS DECISION AND EXTENSION OF TIME
The first applicant has now sought a Review of the Registrar’s Decision. The application for a Review of Registrar’s Decision was filed some 19 days outside of the required seven day period.
The Court is therefore required to consider whether or not an extension of time should be granted. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, it was set out that there are four considerations in relation to an extension of time application.
The first is, the extent of the delay. The extent of the delay is some 19 days, which is not a particularly long period. This points towards an extension being granted.
Second is the explanation for the delay. The first applicant indicates that he mistakenly sought to file the application for review in the Federal Court and was directed to file the matter in this Court. Noting that the first applicant is unrepresented by a legal practitioner, the Court considers the explanation to be plausible, and this points towards an extension of time being granted.
Ms Saunders, who appears for the first respondent, quite properly conceded that there is no particular prejudice to the Minister due to the delay.
The last matter concerns the merits of the proposed application. It would be pointless to grant an extension of time if the application itself had no reasonable prospects of success. As pointed out to the Court by the First Respondent, the summary dismissal power needs to be exercised cautiously. In Agar v Hyde [2001] 201 CLR 552, the following was said at [57]:
[57] Ordinarily, a party is not to be denied the opportunity to place his or her case … in the ordinary way and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
The first applicant has appeared before the Court unrepresented. He has been assisted by an Interpreter. Notwithstanding orders of the Registrar, no written submissions or other material other than an Affidavit explaining the delay has been put before the Court. There are no written submissions in support of the grounds of judicial review.
When the first applicant was asked to outline and provide any oral submissions in relation to the grounds of judicial review, he was unable to do so as he conceded, again, honestly, that they were not drafted by him but by someone else. The Court explained that when it is undertaking judicial review, the Court has to find a legal error in the decision of the Tribunal. Only if there is a legal error in the decision can the Court intervene.
That is different to merits review, which looks at the decision itself. In merits review, the decision can be remade, but the Court cannot do that here. The Court also indicated to the first applicant during the course of the hearing how the hearing would take place, and he was also advised that as this decision is being given orally, a transcript of the judgment would be undertaken, and he would be provided with a copy of it as soon as it was available. The first applicant was also provided with a pen and paper.
CONSIDERATION
In terms of the grounds for judicial review, they may be best described as broad but un-particularised. Grounds one and three contend that the Tribunal denied the applicant procedural fairness. The Court is satisfied that the Tribunal complied with its procedural fairness requirements.
The Tribunal invited the first applicant to provide written evidence on two separate occasions being, on 1 July 2022, pursuant to s 359(2) of the Act and again, on 29 July 2022, pursuant to s 359A of the Act. The Court is satisfied that each of those invitations was valid because they complied with the various regulations and, in particular, the latter s 359A of the Act. It set out clear information that would be reason, or part of the reason, for affirming the decision under review. That information was that the first applicant did not appear to have a valid Certificate of Enrolment and further, a check of PRISMS indicated that he did not have such a Certificate of Enrolment.
The Court is satisfied that the Tribunal was entitled to determine that the first applicant was no longer entitled to a hearing as he did not respond to the first invitation within the prescribed timeframe. The Court is also satisfied that the Tribunal properly complied with the requirements under s 359A of the Act and that the information provided by the applicant, which were unsigned documents, did not satisfy the legislative requirement of a confirmed Certificate of Enrolment. In these circumstances, the Tribunal had no choice other than to affirm the decision not to grant the applicants their visas.
The Court is not satisfied that there was any failure to provide the applicant with procedural fairness in the way it went about its decision-making and that, in the circumstances, it had no choice other than to make the decision that it did. Grounds one and three have no merit.
Ground two of the grounds of judicial review is an un-particularised assertion the Tribunal did not consider the applicant’s evidence. Firstly, an un-particularised ground of judicial review may be dismissed for that reason alone: (see; WZAVW & Minister for Immigration and Border Protection [2016] FCA 760 at [35]). The Court is satisfied, however, that the Tribunal did properly consider all of the material that was before it. However, the dispositive issue in this case was the fact that the first applicant did not have a Certificate of Enrolment that was current. Ground two has no merit.
Ground four is a contention that the Tribunal breached s 338, 348, 353 and 357A of the Act. The applicant asserts that the Tribunal failed to properly review the decision and failed to act in a manner that was fair and just. The First Respondent submitted, and the Court accepts, that the sections are not a source of rights for the applicant but are only facilitative or exhortative provisions: (see; Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [31] , per Cowdroy J). To the extent that this can be taken to be another complaint that the first applicant was not afforded procedural fairness, there was no basis to find that the Tribunal failed to comply with procedural fairness obligations.
Ground five contends that the Tribunal’s reasons were not made in accordance with
s 368 of the Act. The Court is satisfied that the Tribunal’s reasons clearly comply with that section. Reasons for the decisions, the findings, the questions of fact and the evidence relied upon are all clearly set out in a statement of decision and reasons.
The Court is of the view that none of the proposed grounds of judicial review has any merit. The Court is satisfied that the matter cannot succeed even if it went to a full trial, because in all of the circumstances the Tribunal had no choice but to affirm the decision under review because there was no current Certificate of Enrolment.
CONCLUSION
Accordingly, Pursuant to r 21.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the application for an extension of time is refused.
The application is dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 21 August 2023
- AGLC
- Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768
- Case
- [2023] FedCFamC2G 768
- Decision Date
CaseChat Overview and Summary
The Court considered several factors in determining whether to grant an extension of time. Firstly, the extent of the delay was relatively short at 19 days. Secondly, the explanation for the delay was deemed plausible, as the first applicant had mistakenly filed the application in the Federal Court. Thirdly, the Minister did not suffer any particular prejudice due to the delay. Lastly, the Court had to consider the merits of the proposed application. However, the Court noted that the first applicant, who appeared unrepresented, had not provided written submissions or any material other than an affidavit explaining the delay. The first applicant was also unable to outline the grounds of judicial review as they had not been drafted by him. The Court held that the application for judicial review had no reasonable prospects of success as the first applicant was unable to particularise the grounds for review.
The Court found that the Tribunal had complied with its procedural fairness obligations and had properly considered all the material before it. The Tribunal had invited the first applicant to provide written evidence on two separate occasions and had determined that the first applicant was no longer entitled to a hearing as he did not respond within the prescribed timeframe. The Court concluded that the Tribunal had no choice but to affirm the decision not to grant the applicants their visas. The Court also found that the Tribunal had properly considered the material before it and that the dispositive issue was the fact that the first applicant did not have a current Certificate of Enrolment. The Court held that the application for review was dismissed, and the first applicant was ordered to pay the Minister's costs.
In summary, the Court refused the first applicant's application for an extension of time and dismissed the application for review of the Registrar's decision. The Court held that the Tribunal had complied with its procedural fairness obligations and had properly considered all the material before it. The Court found that the application for review had no reasonable prospects of success as the first applicant was unable to particularise the grounds for review.
Orders
Orders of the court
1. Pursuant to r 21.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the application for an extension of time is refused.
2. The application is dismissed.
3. The First Applicant is to pay the First Respondent’s costs fixed in the amount of $1300.00.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
That is different to merits review, which looks at the decision itself. In merits review, the decision can be remade, but the Court cannot do that here. The Court also indicated to the first applicant during the course of the hearing how the hearing would take place, and he was also advised that as this decision is being given orally, a transcript of the judgment would be undertaken, and he would be provided with a copy of it as soon as it was available. The first applicant was also provided with a pen and paper.CONSIDERATION In terms of the grounds for judicial review, they may be best described as broad but un-particularised. Grounds one and three contend that the Tribunal denied the applicant procedural fairness. The Court is satisfied that the Tribunal complied with its procedural fairness requirements. The Tribunal invited the first applicant to provide written evidence on two separate occasions being, on 1 July 2022, pursuant to s 359(2) of the Act and again, on 29 July 2022, pursuant to s 359A of the Act. The Court is satisfied that each of those invitations was valid because they complied with the various regulations and, in particular, the latter s 359A of the Act. It set out clear information that would be reason, or part of the reason, for affirming the decision under review. That information was that the first applicant did not appear to have a valid Certificate of Enrolment and further, a check of PRISMS indicated that he did not have such a Certificate of Enrolment. The Court is satisfied that the Tribunal was entitled to determine that the first applicant was no longer entitled to a hearing as he did not respond to the first invitation within the prescribed timeframe. The Court is also satisfied that the Tribunal properly complied with the requirements under s 359A of the Act and that the information provided by the applicant, which were unsigned documents, did not satisfy the legislative requirement of a confirmed Certificate of Enrolment. In these circumstances, the Tribunal had no choice other than to affirm the decision not to grant the applicants their visas. The Court is not satisfied that there was any failure to provide the applicant with procedural fairness in the way it went about its decision-making and that, in the circumstances, it had no choice other than to make the decision that it did. Grounds one and three have no merit. Ground two of the grounds of judicial review is an un-particularised assertion the Tribunal did not consider the applicant’s evidence. Firstly, an un-particularised ground of judicial review may be dismissed for that reason alone: (see; WZAVW & Minister for Immigration and Border Protection [2016] FCA 760 at [35]). The Court is satisfied, however, that the Tribunal did properly consider all of the material that was before it. However, the dispositive issue in this case was the fact that the first applicant did not have a Certificate of Enrolment that was current. Ground two has no merit. Ground four is a contention that the Tribunal breached s 338, 348, 353 and 357A of the Act. The applicant asserts that the Tribunal failed to properly review the decision and failed to act in a manner that was fair and just. The First Respondent submitted, and the Court accepts, that the sections are not a source of rights for the applicant but are only facilitative or exhortative provisions: (see; Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [31] , per Cowdroy J). To the extent that this can be taken to be another complaint that the first applicant was not afforded procedural fairness, there was no basis to find that the Tribunal failed to comply with procedural fairness obligations.