Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 220
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220
| File number(s): | PEG 5 of 2021 |
| Judgment of: | JUDGE LUCEV |
| Date of judgment: | 4 November 2021 |
| Catchwords: | MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Bhutan – student visa – where consent to a review on the papers – where no current confirmation of enrolment – whether jurisdictional error PRACTICE AND PROCEDURE – Application in a Proceeding for adjournment of hearing – factors for consideration – overarching civil practice and procedure provisions – where substantive application had no prospect of success |
| Legislation: | Education Services for Overseas Students Act 2000 (Cth), Pt 2, Div 3 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 7, 8, 174, Ch 4, 190, 217 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) rr 1.04, 1.07 Migration Act 1958 (Cth) ss 359A, 474, 476 Migration Regulations 1994 (Cth) reg 1.03, Sch 2 cll 500.111, 500.211, 500.212 |
| Cases cited: | Bala v Minister for Immigration and Border Protection [2019] FCA 600 BHG16 v Minister for Immigration and Border Protection [2017] FCCA 2745 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163; 82 A Crim R 359; 69 ALJR 873; 131 ALR 595; 39 ALD 193 Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48 Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 Minister for Immigration and Citizenship v Li [2003] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (201) 115 ALD 248 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 363 ALR 599; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 Patel v Minister for Immigration AND Border Protection [2014] FCCA 2000 Patel v Minister for Immigration and Citizenship [2012] FCA 958; (2012) FCR 384 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 Singh v Minister for Immigration & Citizenship [2012] FMCA 1005 Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 231 ALR 592; (2006) 93 ALD 300 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 Tamang v Minister for Immigration and Citizenship [2013] FCCA 450 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 |
| Division: | Division 2 General Federal Law |
| Number of paragraphs: | 46 |
| Date of hearing: | 26 October 2021 |
| Place: | Perth |
| Applicant: | In person |
| Counsel for the First Respondent: | Arran Gerrard |
| Solicitor for the First Respondent: | Australian Government Solicitor |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
| PEG 5 of 2021 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | TSHERING WANGCHUK Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
ORDER MADE BY: | JUDGE LUCEV |
DATE OF ORDER: | 4 NOVEMBER 2021 |
THE COURT ORDERS THAT:
The originating application filed on 8 January 2021 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 LUCEV
Before the Court is an application for judicial review filed by Mr Tshering Wangchuk (“Mr Wangchuk”) on 8 January 2021 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 4 December 2020. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent,
the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Mr Wangchuk a Student Subclass 500 visa (“Student Visa”) made on 4 October 2019.
On 25 October 2021 Mr Wangchuk forwarded to the Court an Application in a Proceeding seeking an adjournment of the proceedings listed for hearing on
26 October 2021. That application, which was dismissed at hearing, is dealt with at [28]-[40] below.
At hearing the Court Book (“CB”) was marked as exhibit 1.
BACKGROUND PRIOR TO THE TRIBUNAL DECISION
By way of background prior to the Tribunal Decision the Court notes that:
(a)Mr Wangchuk is a 52 year old citizen of Bhutan: CB 10;
(b)on 23 December 2008 Mr Wangchuk arrived in Australia on a Student Visa granted on 8 September 2008: CB 136;
(c)
on 28 August 2019 Mr Wangchuk applied for a further Student Visa.
The information supplied in support of that application included a letter dated 26 August 2019 from the proprietor of a tourism business in Bhutan which stated that Mr Wangchuk would be employed at that business if he obtained a Diploma in Business: CB 61;
(d)
on 4 October 2019 the Delegate’s Decision was to refuse to grant
Mr Wangchuk the Student Visa on the basis that the Delegate was not satisfied that Mr Wangchuk met the genuine temporary entrant criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 66-74;
(e)on 4 October 2019 Mr Wangchuk applied to the Tribunal for review of the Delegate’s Decision: CB 75-85;
(f)
on 29 October 2020 the Tribunal contacted Mr Wangchuk with an invitation to provide information by 12 November 2020 to satisfy the Tribunal that
Mr Wangchuk met certain visa requirements including evidence that:
(i)Mr Wangchuk was enrolled in a registered course of study; and
(ii)
a genuine applicant for entry and stay in Australia as a student
(“Visa Requirements”): CB 103-110;
(g)
the Tribunal informed Mr Wangchuk that he needed to provide sufficient information to satisfy the Tribunal that he had met both of the
Visa Requirements: CB 104;
(h)
on 25 November 2020, following an extension of time granted by the Tribunal to provide the information concerning the Visa Requirements: CB 121,
Mr Wangchuk sent the Tribunal an email including a completed Request for Student Visa Information Form: (“Information Form”): Migration Act;
s 359(2). In the Information Form Mr Wangchuk consented to the Tribunal determining the review on the papers without an oral in person hearing:
CB 122-132;
(i)in the email referred to at (h) above Mr Wangchuk also confirmed that he did not have a current confirmation of enrolment (“COE”) in a registered course of study: CB 128; and
(j)on 4 December 2020 the Tribunal Decision affirmed the Delegate’s Decision to refuse Mr Wangchuk a Student Visa: CB 139-143.
TRIBUNAL DECISION
In the Tribunal Decision at CB 141-143, the Tribunal:
(a)set out the visa history of Mr Wangchuk: at [2];
(b)set out why the Delegate refused to grant the Student Visa: at [3];
(c)set out the primary criteria Mr Wangchuk was required to satisfy: at [5];
(d)set out the meaning of the terms of the requirement in the Migration Act that Mr Wangchuk had failed to satisfy: at [6]-[7];
(e)noted that recent PRISM records indicated that at the time of the Tribunal Decision Mr Wangchuk had enrolled in 20 courses of study since February 2012, of which:
(i)eight courses of study were finished;
(ii)12 were cancelled for various reasons;
(iii)seven courses from 2015 which Mr Wangchuk had enrolled in had been cancelled; and
(iv)
at the time of the Tribunal Decision there were no indications that
Mr Wangchuk was enrolled in a registered course of study: at [8];
(f)noted that it had written to Mr Wangchuk on 29 October 2020 and invited him to comment on or respond to certain information, namely, the PRISM records which indicated that Mr Wangchuk did not hold a COE (“PRISMS Records Information”): at [9];
(g)observed that the PRISMS Records Information was relevant to the review of the Delegate’s Decision because, in the absence of explanation, it indicated that Mr Wangchuk did not meet cl 500.211 of Sch 2 to the Migration Regulations: at [9];
(h)
observed that if the PRISMS Records Information was relied upon,
the Tribunal was entitled to make a finding that Mr Wangchuk was not currently enrolled in a registered course of study, and therefore did not meet the criterion in cl 500.211 of Sch 2 to the Migration Regulations: [9];
(i)noted that Mr Wangchuk was invited to give comments or respond to the PRISMS Records Information in writing, and that he did respond:
(i)acknowledging that he was not enrolled in a registered course of study and provided no explanation in relation thereto; and
(ii)consenting to the Tribunal deciding the review without an oral hearing: at [10];
(j)was satisfied that, at the time of the Tribunal Decision, Mr Wangchuk was not enrolled in a registered course of study and cl 500.211 of Sch 2 to the Migration Regulations was not met: at [11]; and
(k)affirmed the Delegate’s Decision to refuse to grant Mr Wangchuk a Student Visa: at [13].
JUDICIAL REVIEW APPLICATION
Procedural matters
The Judicial Review Application filed on 8 January 2021:
(a)sought an extension of time in which to file the Judicial Review Application, which was unnecessary as the Judicial Review Application was filed within time;
(b)also sought unnecessary, and unspecified, interlocutory, interim or procedural orders; and
(c)sought final orders in terms (which were the same terms in which he sought interlocutory, interim or procedural orders) as follows:
That I could not explain clearly in the form because of my poor English and due to my stress and sickness.
On 28 January 2021 a Registrar of the Court made orders allowing Mr Wangchuk to file and serve an amended Judicial Review Application and any affidavits by
18 March 2021, and written submissions 28 days prior to hearing. Mr Wangchuk did not file any amended application or affidavits.
On 24 and 26 October 2021 (the latter being the day of the hearing) Mr Wangchuk emailed materials to Chambers. At hearing the Court indicated that it would treat these materials as written submissions and further written submissions (“Mr Wangchuk’s Written Submissions” and “Mr Wangchuk’s Further Written Submissions” respectively).
Submissions
In Mr Wangchuk’s Written Submissions Mr Wangchuk:
(a)made reference to ongoing health conditions, including a major depressive illness dating (on the provided medical documents) from 2019;
(b)appealed for the Court to consider extending his ability to complete his course of study as he claimed to have “a job assurance back home”, and that he had wanted to “appeal” much earlier but that he could not because the company (being the company in Bhutan that had agreed to make Mr Wangchuk a conditional job offer in 2019: see [4(c)] above) had waited until now to “investigate his problem”;
(c)said he has previously had two COE’s cancelled but that he submitted to the Tribunal all his emails to the college where he studied and the Tribunal remitted his matter back to the Department, and that once he “got his visa back” he paid his fine and fees to the college to complete what was left of his course and submitted all his assignments but that he did not get a certificate of completion. He said he was then forced to take the course again and had wasted all his money; and
(d)that he wished to go back to college and finish his course, and wanted the Court to give him an opportunity to do this, if necessary by “delaying the hearing”.
In Mr Wangchuk’s Further Written Submissions Mr Wangchuk:
(a)annexed emails between him and Stanley College from 2015-2016 in which Mr Wangchuk makes various enquiries about completing an already commenced Diploma Business, enrolling in various leadership/management courses, and evidencing certain payments made to the College; and
(b)requesting the Court to “look into” the alleged failure of Stanley College to issue a new COE (seemingly in 2015-2016) and “delay my case so that I can take a course as soon as possible”.
Noting the remarks of the Federal Court in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [9] per Anastassiou J (“Bala”), at hearing the Court advised Mr Wangchuk that the Court’s task was to assess whether the Tribunal had committed jurisdictional error (and explained the general nature of jurisdictional error), and that if jurisdictional error was established the Court would, generally,
remit the matter to the Tribunal for determination, and that the Court was not tasked with determining whether or not Mr Wangchuk might actually be granted a Student Visa.
In his oral submissions at hearing Mr Wangchuk said, in summary, that he:
(a)had been suffering from “deep, deep depression” at the time of the Tribunal hearing (and perhaps before), and he could not follow anything;
(b)just wanted to “finish the course and go home”; and
(c)was not presently enrolled in any course.
The Minister made the following submissions:
(a)Mr Wangchuk can only succeed before this Court if he can establish that the Tribunal Decision is affected by jurisdictional error: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163; 82 A Crim R 359; 69 ALJR 873; 131 ALR 595; 39 ALD 193, CLR at 177-178 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (201) 115 ALD 248 at [131] per Gummow ACJ and Kiefel J; Minister for Immigration and Citizenship v Li [2003] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [26]-[28] per French CJ; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [44] per Flick J;
(b)Mr Wangchuk does not directly assert any jurisdictional error in the Tribunal Decision, but rather offers an explanation that Mr Wangchuk could not explain his situation clearly in the Information Form he completed which confirmed that he was not enrolled in a registered course of study, and in respect of this claim noted that Mr Wangchuk had:
(i)consistently corresponded with the Department and the Tribunal in competent English;
(ii)expressly indicated to the Tribunal on two occasions that he did not require an interpreter: CB 76 and 124, and further noted that he had indicated that he did not require an interpreter for these proceedings: CB 5; and
(iii)not advised the Tribunal that he had any difficulties in communicating in English, and nor was any difficulty apparent from his prior communication with the Tribunal;
(c)that the determinative issue before the Tribunal was whether Mr Wangchuk met the Student Visa criteria, the primary criteria for which at cl 500.211 of Sch 2 to the Migration Regulations required Mr Wangchuk to hold a current COE at the time of the Tribunal Decision, and which was a mandatory requirement that the Tribunal had no discretion to dispense with, and in relation to which the Tribunal did not have any discretion to consider information about why Mr Wangchuk did not have a COE;
(d)that, importantly, Mr Wangchuk does not claim, and has provided no evidence, that he did in fact have a COE in evidence before the Tribunal and which was not considered, but rather, he expressly confirmed that he did not have a COE;
(e)that considering the evidence concerning the lack of a COE at the time of the Tribunal Decision, and other evidence before the Tribunal including the PRISM Records Information, the Tribunal could not have made a different decision as the mandatory enrolment requirement for the grant of the Student Visa was not met;
(f)
that although the Tribunal Decision does not correctly characterise its
29 October 2020 correspondence to Mr Wangchuk by stating that he was invited to comment or respond to information that the PRISM Records Information indicated that he was not currently enrolled in a registered course of study: at [9], and that this is not an invitation to comment on this or any other information pursuant to s 359A of the Migration Act, no error arises therefrom as it was Mr Wangchuk who volunteered that he was not currently enrolled in a registered course of study. Furthermore, the Information Form that Mr Wangchuk completed expressly cautioned that not being enrolled in a registered course of study may be a reason, or a part of the reason, for affirming the Delegate’s Decision; and
(a)even if the Tribunal did not correctly characterise its 29 October 2020 correspondence to Mr Wangchuk, such an error was not a jurisdictional error. The error was not material because Mr Wangchuk was not enrolled in a registered course of study and there could not have been a realistic possibility that the Tribunal Decision made could have been different: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 363 ALR 599; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”), CLR at [38], 44] and [45] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [1]-[3] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
CONSIDERATION OF JUDICIAL REVIEW APPLCIATION
Jurisdictional error required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise,
any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Yusuf at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may legal unreasonableness: see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J. To be a jurisdictional error the error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
2.Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Wangchuk to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine Mr Wangchuk’s claim for a Student Visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The relevant criteria
Clause 500.211(a) of Sch 2 to the Migration Regulations relevantly required that at the time of the Tribunal Decision Mr Wangchuk be “enrolled in a course of study”. “Course of study” is relevantly defined in cl 500.111 of Sch 2 to the Migration Regulations as a “full-time registered course”. “Registered course” is defined in
reg 1.03 of the Migration Regulations as a course of education or training provided by an institution, body or person that is registered under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
Some relevant law
There are many, many judgments of the federal courts dealing with applicants for a Student Visa without a COE at the time of decision by the Tribunal, and who therefore failed to meet the criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to be enrolled in a course of study. Brief reference to two fairly recent judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 at [29]-[31] per Banks-Smith J the Federal Court of Australia observed that:
29. Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant's desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal's part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 (“Dhawan”) at [58] per Judge Kendall the then Federal Circuit Court of Australia observed that (emphasis in original):
… it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
Reasoning
It is plain in this case that:
(a)Mr Wangchuk did not have a COE at the time of the Tribunal Decision; and
(b)the Tribunal:
(i)ascertained and understood that Mr Wangchuk did not have a COE at the time of the Tribunal Decision;
(ii)set out and understood the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations, and the associated definitions;
(iii)correctly applied the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to the facts; and
(iv)came to the correct conclusion that Mr Wangchuk did not meet the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations, and was therefore correct to affirm the Delegate’s Decision to refuse Mr Wangchuk’s application for a Student Visa.
It follows that there was no jurisdictional error in the Tribunal Decision.
In relation to the matters raised by Mr Wangchuk:
(a)it is not for the Court, on an application under s 476 of the Migration Act,
to undertake a general review of the conduct of any education provider in relation to the enrolment and assessment of a student, and particularly so here, where the matters which Mr Wangchuk seeks to have the Court “review” relate to conduct in 2015-2016 in circumstances where the relevant Student Visa application was not made until August 2019: see [4(c)] above, and where the relevant criteria for the grant of the Student Visa are simply not met:
Patel v Minister for Immigration and Citizenship [2012] FCA 958; (2012) FCR 384 at [56]-[58] per Collier J; Patel v Minister for Immigration and Border Protection [2014] FCCA 2000 at [25], [28]-[30] and [32] per Judge Lucev (“Patel 2014”); Singh v Minister for Immigration and Citizenship [2012] FMCA 1005 at [28] per Whelan FM . Further, no conduct of the college concerned could, in the circumstances, constitute a fraud on the Tribunal in any relevant sense: SZFDE vMinister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510.(b)on the materials before the Court Mr Wangchuk’s health issues, specifically his depression, appear to date from June 2019 (or possibly a few months earlier than that), but the medical certificates are very general in nature and do not specifically explain why it is that Mr Wangchuk was not able to be enrolled in a course of study at the time of the Tribunal Decision. And, although
Mr Wangchuk’s depression and the fact that he was still being medicated for it was adverted to in the Information Form: CB 128, it never appears to have been put to the Tribunal as a matter precluding Mr Wangchuk from enrolling in a course of study, but if it had been it would not have been relevant to whether the Student Visa ought to have been granted: Patel 2014 at [16] per Judge Lucev; Tamang v Minister for Immigration and Citizenship [2013] FCCA 450 at [30]-[32] per Judge Hartnett;(c)no issue was raised with respect to his capacity to speak and be understood in, or understand, the English language prior to this Judicial Review Application. Indeed, the contrary is the case as evidenced by:
(i)his Student Visa application form in which he indicated that in the two years prior to applying for the Student Visa he had successfully completed a substantial component of a course (conducted in English in Australia) leading to a qualification from the Australian Qualifications Framework at Certificate IV or higher as a holder of a Student Visa: CB 35;
(ii)academic records indicating that he studied English in Bhutan to at least Indian School Certificate Year-12 level: CB 51-53;
(iii)his application to the Tribunal for review of the Delegate’s Decision in which he indicated that he did not need an interpreter when communicating with the Tribunal: CB 76;
(iv)the Information Sheet which he completed and returned to the Tribunal in which he indicated that he did not need an interpreter if a hearing was required before the Tribunal: CB 124;
and on the above bases there was nothing before the Tribunal to indicate that Mr Wangchuk had any difficulty with English, let alone a difficulty which prevented him from putting significantly important information to the Tribunal, or which might have required the special assistance of an interpreter or translator to enable him to do so in order to ultimately be afforded fair process and a fair hearing: cf WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29] per Ryan J (with whom Tamberlin and Middleton JJ agreed) and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [73] per Griffiths J , and bearing in mind that there was not an oral in-person Tribunal hearing because Mr Wangchuk consented to the matter being determined on the papers: see [4(h)] above, and that all of his correspondence with the Tribunal was conducted in English; and
(d)
the oft-repeated assertions in Mr Wangchuk’s Written Submissions,
Further Written Submissions, and oral submissions at hearing that he wanted the Court to give him an “opportunity” to return to and complete his studies, misapprehends the role of the Court and the requirements under the relevant criteria: Dhawan at [58] per Judge Kendall , which is to determine if there was a jurisdictional error warranting remittal to the Tribunal for reconsideration of the Student Visa application (a matter which was explained to Mr Wangchuk at hearing by the Court in fulfilment of its obligations pursuant to Bala:
see [11] above). Furthermore, there was no indication when or how, or in what course or institution, Mr Wangchuk might seek to obtain, or be successful in obtaining, a COE to “continue” any course of study.
Even if some or all of the above matters were made out it does not matter: as explained in Dhawan at [58] per Judge Kendall the question for the Tribunal was whether
Mr Wangchuk was enrolled in a registered course of study at the time of the Tribunal Decision, not why he was not so enrolled.
No error arises from the Tribunal’s incorrect characterisation of the 29 October 2020 correspondence to Mr Wangchuk for the simple reason that that error was not material as Mr Wangchuk was not enrolled in a registered course of study, and consequently there was no realistic possibility that the Tribunal could have decided the matter differently: SZMTA at [38], [44] and [45] per Bell, Gageler and Keane JJ; MZAPC at [1]-[3] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
For the sake of completeness the Court observes that no issue of a denial of procedural fairness arises in this case. Mr Wangchuk was given the opportunity to provide information to the Tribunal, which opportunity he took, and he consented to the Tribunal determining his review on the papers without an oral in person hearing.
But even if there were a denial of procedural fairness it would, again, not have been material: SZMTA at [38], [44] and [45] per Bell, Gageler and Keane JJ; MZAPC at [1]-[3] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
For the above reasons nothing put by Mr Wangchuk in support of the Judicial Review Application establishes jurisdictional error in the Tribunal Decision.
APPLICATION IN A PROCEEDING SEEKING ADJOURNMENT
The Application in a Proceeding
The Application in a Proceeding seeking an adjournment of the hearing of the Judicial Review Application listed on 26 October 2021 was signed by Mr Wangchuk and forwarded to the Chambers of the presiding Judge on 25 October 2021. At hearing on 26 October 2021 the Court made an order that the Application in a Proceeding be treated as having been filed in Court that day.
The “orders” sought by Mr Wangchuk in the Application in a Proceeding were as follows, without alteration:
1.Requesting your honour to adjourn my hearing until I finish my diploma
2.If your honour accept my appeal and request than its very easy for me to get COE from college the the adjourn letter from court since the course is very important to me and my future and for my family.
3.If your honour accept my appeal I will get COE as soon as possible ad submit for your record.
4.I have attached all my medical report for your kind action pleas.
It suffices to observe that what was sought in the Application in a Proceeding was an order adjourning the hearing of the Judicial Review Application to an unspecified date to be fixed by the Court.
At hearing on the 26 October 2021 the Court made an order dismissing the Application in a Proceeding, and indicating that Reasons for Judgment in relation thereto would be published at a later date. These are those Reasons for Judgment.
Reasoning
Overarching purpose – civil practice and procedure provisions
With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48 at [15]-[20] per Judge Lucev and BHG16 v Minister for Immigration and Border Protection [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a)in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b)in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a)facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b)avoid undue delay, expense and technicality.
No prospect of success
The adjournment application was refused because the Judicial Review Application had no prospect of success, for the reasons set out at [21]-[26] above. Because the Judicial Review Application had no prospect of success an adjournment would have:
(a)delayed the hearing of the matter;
(b)added to the cost of resolving a matter where the outcome was beyond doubt;
(c)been an inefficient use of judicial resources (particularly where Judges in the Perth Registry of the Court are being used to hear the backlog of several thousand unheard cases filed in the Melbourne Registry of the Court: see, for example, Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550 at [7] per Judge Lucev); and
(d)been unjust to the Minister by reason of the lateness of the Application in a Proceeding and the increase in costs consequent upon a further hearing and the getting up for and appearance at that further hearing,
and in those circumstances an adjournment would have been contrary to the overarching purpose of the civil litigation practice and procedure provisions as set out in s 190 of the FCFCOA Act. Accordingly, the order dismissing the Application in a Proceeding referred to at [28] above was made at hearing.
For the sake of completeness the Court observes that nothing put in support of the Application in a Proceeding seeking the adjournment establishes jurisdictional error in the Tribunal Decision.
POST HEARING FILING
The Court reserved judgment at the hearing on 26 October 2021. There were no further orders for materials for filing made. Information was circulated to parties on 29 October 2021 regarding attendance at the Court for the handing down of the judgment on 4 November 2021. On 3 November 2021 at 1.03pm Mr Wangchuk forwarded to the Court the following:
(a)a written submission of three pages outlining his request to remain in Australia to complete his Diploma;
(b)an undated and unsigned letter from Mr Wangchuk’s wife, Ms Chimi Wangmo (“Ms Wangmo”), requesting he sign what is purportedly a divorce agreement;
(c)a court petition, untranslated and in a foreign script, and in respect of which no translation was provided;
(d)a bank statement dated 19 January 2017;
(e)
an agreement for a Member Education Loan signed by Ms Wangmo dated
16 September 2015; and
(f)a loan statement for the period of 1 November 2015 to 2 September 2016 for an account in Ms Wangmo’s name.
The Court has briefly read the documents to ascertain what they are about.
As indicated above, the relevant question is whether Mr Wangchuk had a COE not why he did not have a COE: see [24] above.
As such, the information supplied by Mr Wangchuk does not address the question relevant to his Judicial Review Application and does not alter the Court’s conclusion at [27] above that nothing put by Mr Wangchuk establishes jurisdictional error in the Tribunal Decision.
CONCLUSION
In conclusion the Court finds that:
(a)the adjournment sought at hearing was contrary to the overarching purpose of the civil litigation practice and procedure provisions as set out in s 190 of the FCFCOA Act, (and the Court therefore ordered at hearing that the Application in a Proceeding seeking an adjournment be dismissed);
(b)Mr Wangchuk held no COE at the time of the Tribunal Decision; and
(c)jurisdictional error in the Tribunal Decision has not been made out.
It follows from the conclusions in [44(b) and (c)] above that Mr Wangchuk’s Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
| I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. |
Associate:
Dated: 4 November 20201
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