Virdi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 282
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Virdi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 282
File number(s): MLG 1869 of 2019 Judgment of: JUDGE LAING Date of judgment: 21 April 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – where the applicant was not enrolled at the time of the Tribunal’s decision – whether the Tribunal ignored evidence – whether the Tribunal denied the applicant procedural fairness – allegations of bias – application dismissed. Legislation: Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth) ss 359A, 359AA
Migration Regulations 1994 (Cth) reg 1.03, Schedule 2 cl 500.211, 500.212
Cases cited: Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NAOA v Minister for Immigration and & Multicultural & Indigenous Affairs [2004] FCAFC 241
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 12 April 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared via telephone Solicitor for the First Respondent: T Martin of Sparke Helmore Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
MLG 1869 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIRENDER SINGH VIRDI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
21 April 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a citizen of India. He applied for the student visa on 25 October 2017.
The Delegate refused to grant the student visa on 15 December 2017 on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant applied for review by the Tribunal.
The Tribunal invited the applicant on 8 April 2019 to provide information regarding whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student in Australia. The applicant responded on 16 April 2019.
The applicant attended a hearing before the Tribunal on 13 May 2019.
On 13 May 2019, the Tribunal affirmed the Delegate’s decision orally and provided reasons. A written record of reasons was produced on 31 May 2019.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter and the criterion in issue at [1]-[6] of its decision. At [7]-[10] it reasoned as follows:
7.On 26 April 2019 a written invitation to attend today's hearing was sent to the applicant. In that invitation he was requested to provide evidence of enrolment in a full-time registered course, to the tribunal, at least seven days before today's hearing. Such evidence has not been provided. In the applicant's section 359(2) response the applicant stated that he was enrolled in two courses, namely a Certificate III in EAL, and a Diploma of Leadership and Management.
8.In his response he stated that he had never started either of those two courses. The Certificate III in EAL was to commence on 15 November 2017, and was to end on 16 May 2018. The Diploma of Leadership and Management course was to commence on 15 June 2018, and was expected to end on 14 June 2019. However, the tribunal has obtained Prism records that show that the applicant's enrolment in those two courses was cancelled. These two courses were cancelled on 7 February 2018.
9.The applicant was asked to respond to the Prism records. He said that he came to Australia with study rights and that he wanted - and that he just wanted to learn. In relation to the Leadership and management Course he queried how long the duration of that course was. Based on the information that he provided to the tribunal in his response, it was a course of one-year duration. The applicant stated that he did not attend the courses because he was not granted a student visa.
10.Accordingly there is no evidence before the tribunal that the applicant is enrolled in any course of study. Therefore the tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study, and accordingly clause 500.211 is not met. Given the above findings, the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.
On this basis, the Tribunal affirmed the Delegate’s decision (at [11]-[12]).
RELEVANT CRITERION
The criterion in issue before the Tribunal was cl 500.211 of Schedule 2 to the Regulations, which provided:
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.
“Course of study” was relevantly defined in cl 500.111 as a “full-time registered course”. “Registered course” was defined in reg 1.03 by reference to a course provided by an institution, body or person relevantly registered under the Education Services for Overseas Students Act 2000 (Cth).
PROCEEDINGS BEFORE THE COURT
The applicant commenced the current proceedings through an application filed on 14 June 2019. The following was stated under “Grounds of application”:
4. Applicant do meet all the criteria for student visa to be granted
5. The Tribunal ignored the evidence of the applications
6.The decision of AAT was made without jurisdiction. The Tribunal failed to give procedural fairness to the applicant.
7.Response by the Tribunal was affected by actual bias and decision was based on pre-judgment
Ground 4
The first ground, which was labelled 4, contended that the applicant met the criteria for the visa.
As was explained at the hearing, however, this Court is unable to revisit the merits as opposed to the lawfulness of the Tribunal’s decision. The Court cannot set aside the Tribunal’s decision based upon the applicant’s disagreement alone.
It was, clearly enough, open to the Tribunal to find that the applicant was unable to meet the enrolment criterion for the visa in circumstances where the applicant had informed the Tribunal in writing that he had never started his courses, the PRISMS database indicated that his enrolment in them had been cancelled, and the applicant does not appear to have disputed this at the Tribunal hearing. As the Tribunal found at [10] of its decision, there was no evidence before it at the time of decision that the applicant was enrolled in any course of study and therefore able to meet cl 500.211.
Ground 4 is therefore unable to succeed.
Ground 5
The second ground, which was numbered as ground 5, contended that the “Tribunal ignored the evidence of the applications”. However, the applicant did not explain what evidence he contended that the Tribunal had ignored.
The Tribunal was not obliged to refer to every aspect of the evidence that was before it: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (per McHugh, Gummow and Hayne JJ). The only evidence that was relevant to the Tribunal’s decision concerned the applicant’s ability to meet the enrolment criterion. The Tribunal’s reasoning indicates that it considered the evidence before it regarding the currency of the applicant’s enrolment at [7]-[9] of its decision, including the applicant’s oral evidence given at the hearing before the Tribunal. To the extent that the applicant had provided previous confirmations of enrolment, that evidence had been superseded by the time of the Tribunal’s decision. I would therefore not draw an inference that such evidence was overlooked, simply because the detail of it was not referred to in the Tribunal’s decision.
Ground 5 is therefore unable to succeed.
Ground 6
The third ground raised by the applicant, which was numbered as ground 6, contended that the Tribunal denied the applicant procedural fairness.
In this regard, I note that the Tribunal had before it material from the PRISMS database. Such material was potentially capable of enlivening s 359A of the Migration Act 1958 (Cth) (Act): see Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296 at [37]-[44].
However, I accept the Minister’s submission that there is insufficient evidence before me to establish that the Tribunal failed to comply with its obligations in this regard. There is, for example, no transcript in evidence: as to which, see NAOA v Minister for Immigration and & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. The Tribunal’s decision record indicates that the PRISMS information was put to the applicant, although it does not set out the exact manner in which this occurred. It also indicates that the applicant responded, with that response including an admission on the applicant’s part that he had not attended his courses because he had not been granted a student visa. This reflected the applicant’s written response to the Tribunal’s invitation to provide information, in which the applicant had provided information that he had never started his courses and indicated generally that he “was not enrolled because [his] visa was refused due to no study rights” (notwithstanding his having earlier ticked the “Yes” box in relation to having a current confirmation of enrolment).
There is therefore insufficient evidence before me to establish that the PRISMS information was not put to the applicant pursuant to the procedure in s 359AA, and that, regardless, the applicant did not respond in a way capable of bringing the material within the exception contemplated under s 359A(4)(b): see Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [30].
There is also no evidence before the Court indicating any other potential failure on the part of the Tribunal to comply with its procedural fairness obligations under Part 5 of the Act.
In these circumstances, ground 6 is unable to succeed.
Ground 7
Ground 7 contended that the Tribunal’s decision was affected by actual bias.
It is well established that bias is a serious allegation that is required to be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J.
There is nothing that has been raised by the applicant, or that is apparent from my own review of the materials, that appears to be capable of establishing that the Tribunal’s mind was closed to persuasion in the present case. Nor have I identified any matter that may cause a fair minded lay observer reasonably to apprehend that the Tribunal may not have brought an impartial mind to the review. The fact that the Tribunal decided the matter adversely to the applicant is not sufficient to demonstrate this. The Tribunal decided the matter in this case on the basis of the applicant’s inability to meet the enrolment criterion, which was an objective criterion for the visa of which the applicant had been forewarned.
For these reasons, ground 7 is unable to succeed.
Further argument raised by the Minister
The Minister additionally raised that if relevant error were established, then an inference ought to be drawn that the applicant is using these proceedings for the ulterior purpose of maintaining residence in Australia. The Minister accordingly submitted that the proceedings were an abuse of process and that relief ought to be refused (referring generally to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82). In support of my drawing this inference, the Minister relied upon a submission that the original course(s) that the applicant had proposed “should have been completed” and emphasised the applicant’s “history of failing to start or complete courses”.
I would not have been inclined to draw such a serious inference, on the basis of the limited submissions and matters relied upon by the Minister. Whilst the applicant has not put before the Court specific evidence of his intentions in this regard, he was not required to do so. He submitted at the hearing that he wishes to study. The Minister has not developed the submission that relief should be refused on this basis beyond the general suggestions that were made in one paragraph towards the end of the Minister’s written submissions. This is summarised above.
Regardless, I have accepted the Minister’s primary argument, which is that no jurisdictional error has been demonstrated in relation to the decision of the Tribunal.
CONCLUSION
For the above reasons, no jurisdictional error has been demonstrated by the grounds relied upon by the applicant. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 21 April 2023
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