Virk & Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 434
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Virk & Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 434
File number: MLG 18 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 29 May 2023 Catchwords: MIGRATION – Student (Subclass 572) visa – No legal unreasonableness in refusal of adjournment – Applicant did not satisfy mandatory criteria for the grant of a visa because she was not currently enrolled or the subject of a current offer of enrolment in a relevant course of study –No relevant breach of s. 359A of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss. 359A, 363, 427, 476, Part 7
Migration Regulations 1994 (Cth) cl. 527.233
Cases cited: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103
Kaur v Minister for Immigration [2016] FCA 132
Minister for Immigration and Border Protection v Singh (2014) [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Nathanson v Minister for Home Affairs [2022] HCA 26
Division: Division 2 General Federal Law Date of last submissions: 10 May 2023 Date of hearing: 8 May 2023 Place: Melbourne Number of paragraphs: 38 Date of last submissions: 10 May 2023 Date of hearing: 8 May 2023 Place: Melbourne Applicants: First Applicant appearing in person Solicitor for the Respondents: Mills Oakley ORDERS
MLG 18 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHUPINDER KAUR VIRK
First Applicant
KULTAR SINGH GILL
Second Applicant
YUVRAJ SINGH GILL (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
29 May 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants pay the first respondent’s costs in a sum to be fixed, if not agreed.
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 CHAMPION:
INTRODUCTION
This is an application for judicial review filed on 3 January 2018 pursuant to s. 476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Administrative Appeals Tribunal dated 13 December 2017. The Tribunal affirmed the decision of a delegate of the first respondent (Delegate) dated 23 June 2016 to refuse to grant the applicants’ Student (Subclass 572) visas.
BACKGROUND
The first applicant (Applicant) is a female citizen of India (CB 27) who arrived in Australia on 10 November 2007 as the holder of a Student (Subclass 573) visa (CB 93). The second applicant is her husband (Second Applicant) (CB 31) and the third and fourth applicants are her children (together, the Applicants) (CB 32-33).
On 12 October 2015, the Applicant applied for a Student (Subclass 572) visa (CB 1-22) on the basis of her enrolment in a Diploma of Hospitality Management (CB 25).
On 23 June 2016, the Delegate refused to grant the Applicants’ Student visas (CB 96-101). The Delegate was not satisfied the Applicant met cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which required the Minister to be “satisfied that the applicant intend[ed] genuinely to stay in Australia temporarily …” [Emphasis added].
The Delegate’s decision
The Delegate’s decision included the following (CB100):
While a person may change careers, I note that your study and career plans have changed significantly over the preceding 8 years, from nursing, community welfare, hairdressing, business and management to hospitality, and that you have not actualized any of the intentions you have stated. I also note that the courses you have chosen are typically of a short duration and low cost.
Given the length of time you have been in Australia on a student visa, the limited academic progression, the number of different skills studied and only a generic plan for utilitsing these skills, I give weight to the lack of apparent value of the courses to your future which indicates that you do not genuinely intend to stay in Australia temporarily and are using the student visa program as a means of maintaining residence in Australia.
You have informed us that your sister in law resides in Australia permanently and while you have advised us that you have ties to your home country you have an incentive to remain in Australia which may affect your intention to reside in Australia temporarily.
These indicate that you are not a genuine student. Rather, you appear to be using the Student visa program as a means of maintaining ongoing residence in Australia and you do not genuinely intend to stay in Australia temporarily.
THE TRIBUNAL PROCEEDING
On 17 November 2017, the Applicants were invited to attend a hearing before the Tribunal scheduled for 13 December 2017 (CB 114-8). The Tribunal’s hearing invitation asked the Applicant to provide a copy of her certificate of enrolment or other document/s that showed she was enrolled in a course of study as required for the grant of a student visa (CB 117). Specifically, the Tribunal’s invitation asked for information as follows (CB117):
Additionally, please provide this information so that a decision can be made as quickly
as possible:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
On 28 November 2017, the Tribunal accessed the Provider Registration and International Student Management System (PRISMS) records, which indicated that the Applicant had completed her Diploma of Hospitality on 31 May 2017. The Applicant had not been enrolled in a course of study since 31 May 2017 (CB 140-2).
On 12 December 2017, the day before the scheduled hearing, the Applicant’s representative sent an email to the Tribunal requesting a two-week adjournment of the hearing due to a “medical and family condition” (CB 143). The adjournment request attached a medical certificate (CB 146) and a psychologist’s report (CB 147-9) that indicated the Second Applicant had been in India for nine months resulting in stress to the Applicant and her two children, particularly the younger child. The Tribunal responded by email the same day (CB 150). The Tribunal wrote that it intended to continue with the hearing in circumstances in which the Applicant’s medical certificates did not state that she was unfit to attend a Tribunal hearing for approximately an hour and that her medical evidence was insufficient to warrant a postponement.
On 13 December 2017, the Applicant attended the Tribunal hearing (CB 160-2).
The Tribunal made an oral decision to affirm the Delegate’s decision (CB 171). The Tribunal provided written reasons to the Applicant the following day (CB 172-7).
The Tribunal Decision
The Tribunal decision included the following (CB176- 7):
7. […] the issue now is whether, at the time of this decision, the primary applicant meets the enrolment requirements for a student visa.
8. With limited exceptions, …the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study
9. On 17 November 2017, a written invitation to attend the Tribunal hearing was sent to the primary applicant via the migration agent. The primary applicant confirmed at hearing that she had received this invitation. In that invitation she was requested to provide a copy of her current Certificate of Enrolment or letter of offer to the Tribunal at least seven days before the scheduled date of hearing. No such certificate or letter was provided. At the hearing on 13 December 2017, the primary applicant was again requested to provide the Tribunal with a copy of her current Certificate of Enrolment or letter of offer, and she was unable to do so.
10.In her evidence at hearing, the primary applicant confirmed that she completed her last course, a Diploma of Hospitality Management, in May 2017. At hearing, she confirmed that she has not been the subject of a valid enrolment since that time.
11. The primary applicant provided a medical certificate to the Tribunal stating that she has been experiencing a stressful time with family issues. I acknowledge this submission however; I find that the primary applicant has had sufficient notice of the requirement to provide the Tribunal with a Certificate of Enrolment or letter of offer for an applicable course. As suggested to the applicant at hearing, since completing her last course in May 2017, the applicant has had sufficient time to enrol in another course, or make alternative arrangements including returning home until such a time as she is able to study, or enrolling in a course but deferring for personal reasons.
12. There is no evidence before the Tribunal that the primary applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
[…]
14. For these reasons, the decision under review must be affirmed.
JUDICIAL REVIEW APPLICATION
On 3 January 2018, the Applicants commenced this application for judicial review. The grounds of the application are identified in the originating application as follows:
I am not satisfied with AAT decision because I was not able to submit documents because of medical condition of me and my child. So I want to apply for review and willing to submit additional documents as required. as I was unable to study because of my and my son’s health issues so I could not study for a while as I requested to administrative appeals tribunal for some extension for my case but I could not get that. I was attending psychologist for my son and me as I was depressed because my son was in depression so in that mean time I was not in condition to study so could not submit my supporting document to the administrative appeals tribunal. As I already had applied for the next course COE but I was waiting for seat to get in the semester. If AAT would be issued extension to me then I was able to submit my COE for the next course of my study. So I would like to review my case once again so that I can get decision for my future to complete my study.
[As written]
The Applicants filed an affidavit in support of the originating application. The affidavit does not meaningfully advance the application.
On 14 January 2022, the court made consent orders for the Applicants to file and serve any amended application and written submissions 28 days before the hearing. The Applicants have not filed any further material in support of their case. At hearing, the Applicant made submissions that her primary grievance with the Tribunal’s decision was that she intended to enrol in another course but was not able to do so in December 2017 because of her family situation. She had the care of two young children and her husband was in India.
Ground 1
Ground 1 of the originating application contains various allegations. Two issues emerge from the material which need to be assessed on the question of whether there was any jurisdictional error:
(a)Whether it was legally unreasonable for the Tribunal not to adjourn the matter given the medical material, the Applicant’s personal circumstances and her stated intention to enrol in another course; or
(b)Whether the Tribunal mistook its statutory functions as to the granting of a student visa having regard to the fact that the applicant did not have a Certificate of Enrolment (COE) or an offer of enrolment as of the date of the hearing (13 December 2017);
(a) Did the Tribunal make a jurisdictional error by not adjourning the proceeding as requested because of the medical material, the Applicant’s personal circumstances and her stated intention to enrol in another course?
On 12 December 2017 (the day before the hearing) the Applicant’s representative sent an email to the Tribunal in the following terms (CB143):
I would like to request to the tribunal to postpone the hearing dated 13/12/2017 for two weeks due to the medical and family condition of Mrs Bhupinder Kaur Virk. I have attached the medical certificate to this email for your attention
The letter attached medical certificates the most recent of which was dated 6 December 2017 that stated: “[the] mother is currently stressed about the family situation as her partner is currently in India” (CB145). The letter also attached a psychologist’s letter which noted as to the younger of the Applicant’s children (CB 147–9):
The current medical diagnostic opinion is that separation from his father (who is overseas and waiting visa approval to re-connect with his son) is causing a level of psychological distress…
The Tribunal responded as follows (CB150):
The Member has considered [the applicant’s] application for postponement. However in this instance the Member has decided that the matter will proceed as listed tomorrow morning. [The applicant’s] medical certificates do not state that she is unfit to attend a Tribunal hearing for approximately an hour. The Member understands that she may be experiencing a stressful situation, however that is the case for most of the Tribunal applicants. In this case her medical evidence is unsatisfactory to warrant a postponement.
The Tribunal had a statutory discretion to adjourn the proceeding under s 363(1)(b) of the Act.
As Tracey and Mortimer JJ observed (in their majority judgment) in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 at [75] of the discretion in s. 427(1)(a) of the Migration Act 1958 at [75]:
The discretion in s 427(1)(a) is like any other statutory discretion: unless there is a clear contrary intention, it is to be understood as conditioned by a requirement that it be exercised in a legally reasonable way: [citations omitted].
Although Their Honours’ observations were made as to a different statutory discretion in Part 7 of the Act, the observations are equally applicable to the Tribunal’s statutory discretion set out in s.363(1)(b) to adjourn a Part 5 review from time to time. The Tribunal must exercise its statutory discretion reasonably, assessed through reference to the individual facts and circumstances of each case.
There must be “an evident and intelligible justification” as to the exercise of the power: Minister for Immigration and Border Protection v Singh (2014) FCAFC 1; [2014] 231 FCR 437, [44]–[45].
Reasonable minds might differ as to whether an adjournment was necessary because of the Applicant’s medical material and family situation. Having considered the adjournment application as it did (CB150) it was open to the Tribunal to refuse the adjournment. The refusal of an adjournment was not legally unreasonable.
As to whether it was unreasonable for the Tribunal not to adjourn the hearing because of the Applicant’s stated intention of enrolling in another course any such contention would need to be assessed against the Tribunal’s finding as follows (CB177, [11]):
I find that the primary applicant has had sufficient notice of the requirement to provide the Tribunal with a Certificate of Enrolment or letter of offer for an applicable course. As suggested to the applicant at hearing, since completing her last course in May 2017, the applicant has had sufficient time to enrol in another course, or make alternative arrangements including returning home until such a time as she is able to study, or enrolling in a course but deferring for personal reasons.
There was an evident and intelligible justification for the Tribunal to decline the adjournment so that the Applicant could enrol in another course. The Applicant had not been a student for more than six months (between 31 May 2017 and the Tribunal hearing on 13 December 2017). In my view, it was within the “area of its decisional freedom” (see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Wigney J) [92]) for the Tribunal to refuse the adjournment.
(b) Did the Tribunal make a jurisdictional error by mistaking its statutory function in circumstances in which the Applicant submitted that the reason she did not have a Certificate of Enrolment was that she and/or her son had been medically unwell?
Subclause 572.231 of Schedule 2 to the Regulations imposed a time of decision requirement that the primary visa applicant was enrolled in, or the subject of a current offer of enrolment, in a course of study that was a principal course of the type specified for a subclass 572 visa. That is, the mandatory criteria for a visa under cl. 572.231(a) was:
…. the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course;
The question for the Tribunal was whether the Applicant was enrolled in a course, or the subject of a current offer of enrolment in a course, at the time of its decision. This is a different question from why the Applicant had not been studying since completing her Diploma in Hospitality Management in May 2017.
The Tribunal found (CB177, [10]):
In her evidence at hearing, the primary applicant confirmed that she completed her last course, a Diploma of Hospitality Management, in May 2017. At hearing, she confirmed that she has not been the subject of a valid enrolment since that time.
The Applicant does not challenge the correctness of that finding.
It was mandatory for the Applicant to satisfy the primary criteria for her to be granted the visa. As to the scheme of the Act and the Regulations, in Kaur v Minister for Immigration [2016] FCA 132, Perry J held at [27]–[28] and [30]–[31].
[27] Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister “is to grant the visa“ if satisfied that the criteria prescribed by the Act and regulations are satisfied and, if not so satisfied, “is to refuse to grant the visa”. By s 349 of the Act, on a review the Tribunal may exercise all of the powers and discretions conferred by the Act on the person who made the decision. It is well established that the Tribunal therefore “stands in the shoes” of the Minister or Minister’s delegate to make the correct or preferable decision: [citations omitted]. As such, it is for the Tribunal on review to be satisfied that the relevant criteria have been met.
[28] Section 31(3) of the Act provides that the regulations may prescribe the criteria for a visa or visas of a specified class. Regulation 2.03 of the Regulations prescribes the criteria for the grant of a visa for the purposes of s 31(3) and provides that:
(1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a)the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
(emphasis added.)
….
[30] Importantly, the primary criteria are prescribed in mandatory and exhaustive terms, as is apparent in particular from the phrase in reg 2.03 that “the prescribed criteria … are”. The language does not indicate the existence of any discretion. In this regard, the language used by the legislator is the surest guide to legislative intent: [citation omitted] It follows that in my view that the legislator intended that the primary criteria must be met before a visa can be granted in line with s 65(1) of the Act. It also follows that, where these criteria are not satisfied, the Tribunal has no option under s 65(1) but to affirm the decision of the Minister’s delegate not to grant the visa.
[31] I therefore agree with the primary judge that, where there was no evidence of current enrolment or of an offer of enrolment before the Tribunal, it was not open to the Tribunal to grant a visa for those subclasses for which the appellant applied. The reasons why an applicant may be unable to satisfy those criteria are not relevant in the absence of any discretion.
[Emphasis in original]
Justice Perry’s observations in Kaur are equally applicable to this case. Because the Applicant was not currently enrolled in, or the subject of a current offer of enrolment, in a relevant course she did not satisfy the mandatory criteria for the granting of a visa. The Tribunal did not mistake its statutory function.
(c) PRISMS – s. 359A
As a model litigant, the First Respondent raised a third issue as to whether the Tribunal had contravened s. 359A of the Act by not putting certain adverse information to a review applicant for comment or response. The Tribunal had accessed PRISMS records on 28 November 2017 (CB140). The PRISMS records set out that the Applicant was not enrolled in any course of study at that date.
The relevant passage of the Tribunal’s reasons is at (CB177, [10]):
10. In her evidence at hearing, the primary applicant confirmed that she completed her last course, a Diploma of Hospitality Management, in May 2017. At hearing, she confirmed that she has not been the subject of a valid enrolment since that time.
That the Applicant “confirmed” that she had completed her last course in May 2017 may be a reference to the face that the Tribunal had accessed the PRISMS records on 18 November 2017 (CB140).
The Tribunal’s reasons disclose that the Applicant’s own evidence was that she was not enrolled in a course of study, or the subject of a current offer of enrolment, at the date of the hearing. Section 359A(4) operates to exclude the Applicant’s own evidence from the operation of s. 359A(1). I do not infer that the Tribunal had any regard to the PRISMS records. Alternatively, even if (contrary to my finding) the Tribunal had regard to the PRISMS records and there was a failure to comply with s. 359A(1) because the Tribunal did not bring the adverse information in the PRISMS records to the Applicant’s attention, any error was not material.
In Nathanson v Minister for Home Affairs [2022] HCA 26 Kiefel, Keane and Gleeson JJ held at [1]:
[…]the Tribunal’s error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal’s decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.
[Emphasis added]
Any failure to bring the PRISMS records to the Applicant’s attention was immaterial. It could not have led to a different outcome, given the Applicant’s own evidence to the Tribunal that she was not currently enrolled in a course of study: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4].
CONCLUSION
The application will be dismissed. The first and second applicants’ should pay the first respondent’s costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 29 May 2023
SCHEDULE OF PARTIES
MLG 18 of 2018 Applicants
Fourth Applicant:
LAKHJOT KAUR GILL
5
0