Yammani v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 87

Federal Circuit and Family Court of Australia

(DIVISION 2)

Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 87

File number:

MLG 516 of 2018

Judgment of:

JUDGE LADHAMS

Date of judgment:

10 February 2023

Catchwords:

MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal affirming decision not to grant applicant Student (Temporary) (Class TU) visa – whether Tribunal denied applicant natural justice – whether Tribunal failed to take into account all relevant considerations – whether Tribunal took into account irrelevant considerations – no jurisdictional error – application dismissed

Legislation:

Constitution s 75

Migration Act 1958 (Cth) ss 360, 363, 368D, 476, 477

Migration Regulations 1994 (Cth) cll 572.223, 572.231

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1721

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of hearing:

2 February 2023

Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr M Daly

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Mills Oakley Lawyers

ORDERS

MLG 516 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RAVI KRISHNA YAMMANI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LADHAMS
DATE OF ORDER:	10 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application is 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 LADHAMS:

Introduction

1. The application before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 31 January 2018. The Tribunal affirmed a decision made by a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (a student visa).

2. For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. It follows that the application to this Court must be dismissed. 

   Background

3. The applicant is a non-citizen who arrived in Australia in July 2009 on a student visa.

4. The applicant applied for the student visa the subject of this application on 17 March 2016. 

5. On 13 July 2016 a delegate of the Minister made a decision not to grant the applicant the student visa. The delegate found that the applicant did not meet the criterion in cl 572.223(1)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as the delegate did not accept that the applicant genuinely intended to stay temporarily in Australia.

6. The applicant lodged an application for review by the Tribunal on 1 August 2016. 

7. On 16 November 2017 the Tribunal sent the applicant an invitation to attend a hearing on 31 January 2018. The invitation requested that the applicant provide certain documents ahead of the Tribunal hearing. Relevant to the grounds of the application before the Court, the Tribunal in the invitation requested that the applicant provide:

   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.

8. The applicant did not provide to the Tribunal any Confirmation of Enrolment or any evidence to show that he was enrolled in, or had an offer of enrolment in, a registered course.

9. The applicant appeared at the hearing convened by the Tribunal on 31 January 2018 to give evidence and present arguments. At the conclusion of the hearing, the Tribunal made an oral decision to affirm the delegate’s decision and delivered an oral statement of reasons.

   Tribunal Decision

10. The Tribunal noted that the basis of the delegate’s decision was the delegate’s finding that the applicant is not a genuine temporary entrant. The Tribunal further noted that the applicant had given sworn evidence at the hearing that he had not studied since July 2016, he was not currently enrolled in a course, and did not hold a current offer of enrolment. The Tribunal identified that this meant the determinative issue in the review was not whether the applicant was a genuine temporary entrant, but rather whether he met the primary requirement for the grant of the student visa of being enrolled in a registered course or having an offer of enrolment. 

11. The Tribunal decided not to grant the applicant’s request for additional time to obtain an enrolment or offer of enrolment because:

    (a)the applicant told the Tribunal he was not aware of the need to maintain his enrolment in an approved course, even though this was a condition of his student visa;

    (b)the applicant has held four student visas onshore and reasonably should have been aware of the common conditions attached to those visas and the obligations that the student visa placed on him, including the need to maintain his enrolment;

    (c)the applicant received an invitation to the Tribunal hearing some 10 weeks prior to the hearing, which clearly stated in two places that he needed to provide the Tribunal with confirmation or an offer of enrolment prior to the hearing;

    (d)the applicant chose not to ask the Department or a registered migration agent what to do when his visa application was refused;

    (e)the applicant did not check his visa conditions on the Department’s Visa Entitlement Verification Online service; and

    (f)the applicant has not studied since July 2016 and completed four vocational education and training sector level courses in the eight and a half years he has resided in Australia.

12. There was no evidence before the Tribunal to show that the applicant was, at the time of the Tribunal decision, enrolled in a course or that he had an offer of enrolment in any applicable course of study. The Tribunal therefore found that the applicant did not satisfy cl 572.231 and affirmed the delegate’s decision.

    Judicial Review Application

13. The applicant filed his application for judicial review on 28 February 2018, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act 1958 (Cth) (Migration Act).

14. The application contains the following three grounds:

    1.        The AAT member failed to observe the obligations of natural justice. 

    PARTICULARS

    a.The Tribunal Member reached an oral decision at the hearing and did not provide a written record of the decision. I was not able to properly respond to the Tribunal Member’s concerns during the hearing and adequately plead my case.

    b.The hearing was very stressful for me and I did not fully understand the reasons for the refusal. I should have been given a written record of the decision so that I could properly understand the reasons for the refusal and be able to properly appeal the Tribunal’s decision.

    2.The AAT Member failed to give consideration to the relevant factors in the decision. 

    PARTICULARS

    a.The Tribunal Member failed to comply with their obligation to give proper, genuine, and realistic considerations to the merits of the case and actively failed to examine the facts.

    b.The decision-maker was not considered the circumstances of my genuine temporary entrant criteria for my student visa application; actively ignored such a request. These were not referred to or reported in their decision.

    c.The Tribunal Member and the delegate of the Minister for Immigration failed to consider the decision made by the Minister for Immigration previously, under equivalent, if not more favourable, circumstances.

    3.The AAT Member based much of their decision on an irrelevant factor and should not have. 

    PARTICULARS

    a.The delegate of the Minister for Immigration relied heavily upon an irrelevant factor when reaching their decision. This is intended as a generic statement and is not an accurate representation of a store’s business operations or the activities of its employees. This is an irrelevant factor which should not have been considered. 

15. The only relief sought in the application as filed is an order that the decision of the Tribunal be quashed. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which extends to matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The Court does not have jurisdiction to determine this matter if the only relief the applicant seeks is an order that the Tribunal decision be quashed.

16. At the hearing, I raised this issue with the applicant and, upon the applicant indicating that he wished to amend his application to seek mandamus, I made an order to allow the applicant to orally amend his application to seek a writ of mandamus. Consequently, the application is now within the Court’s jurisdiction. I note that the Minister raised this issue about the relief sought by the applicant in his written submissions and clearly indicated that the Minister would not object to the course that I have ultimately taken in allowing the applicant to amend his application. I thank the Minister for raising this issue in submissions and taking this very pragmatic approach. 

17. Aside from his application, the only other document filed by the applicant in this proceeding is an affidavit deposed by him and filed on 28 February 2018. Amongst other things, the applicant in his affidavit identifies the grounds of review on which he relies, which are consistent with those in his application, and provides some further explanation in relation to some of the grounds. I have had regard to the affidavit in considering the applicant’s grounds of application. 

18. An Order was made by a Registrar of this Court on 23 January 2019 to progress this matter to hearing. The applicant was required to file and serve any amended application, any supplementary court book, and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order made by the Registrar. The Minister filed written submissions more than 14 days before the hearing in accordance with the Order. 

19. Aside from the applicant’s affidavit already referred to, the only other evidence before the Court is a court book filed by the Minister on 30 November 2022. 

    Consideration

    Need to establish jurisdictional error

20. The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

21. For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error. 

22. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s judgment in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

23. To amount to jurisdictional error, any error by the Tribunal must be material in the sense that the error could realistically have deprived the applicant of the possibility of a different outcome: SZMTA at [45].

    Ground 1

24. By ground 1, the applicant asserts that the Tribunal failed to observe the obligations of natural justice because:

    (a)the Tribunal gave an oral decision at the end of the hearing and did not provide a written record of the decision;

    (b)the applicant was not able to properly respond to the Tribunal member’s concerns during the hearing and adequately plead his case; and

    (c)the hearing was stressful and he did not fully understand the reasons for the refusal. 

25. In his affidavit, the applicant asserted that the Tribunal should have given him an adequate opportunity to plead his case and provided him with a written statement of the decision so that he could properly understand the case against him and the reasons behind the decision. 

26. In his oral submissions to the Court, the applicant submitted that he did not understand the reason his visa was refused and he did not understand the basis for the delegate’s decision. In particular, the applicant submitted that just because he changed courses does not mean that he should be found not to meet the genuine temporary entry criterion as the delegate had found. The applicant submitted that he was not really given an opportunity before the Tribunal. He answered questions but was not asked about the matters in his application and he was not given an opportunity to explain why he took a break in his studies. 

27. These matters do not establish jurisdictional error.

28. I first address whether the Tribunal denied the applicant natural justice by making an oral decision and not providing him with a written record shortly thereafter.

29. Section 368D of the Migration Act allows the Tribunal to make an oral decision and to give an oral statement. That is what the Tribunal did in the present case. On the same day as the Tribunal made its oral decision, the Tribunal sent to the applicant a letter notifying him of the outcome of the review. This letter simply enclosed the outcome and not the Tribunal’s reasons for decision. The letter did, however, advise the applicant that he could seek a written statement. The letter said:

    Under the Migration Act 1958 you may request a written statement of decision and reasons be provided. Your request must be in writing and received by us within 14 days of the date of your oral decision. 

30. The applicant did not request a written statement of the decision within 14 days. Rather, a written request for a written statement was received by the Tribunal on 14 December 2018. A written statement was then provided to the applicant within three days, namely on 17 December 2018. This is consistent with the Tribunal’s obligations in s 368D(4) of the Migration Act, which requires that the Tribunal provide a written statement within 14 days of a written request. There is no denial of natural justice as a result of the Tribunal making an oral decision in this matter.

31. The other matters referred to by the applicant in relation to ground 1 relate to whether he was afforded a real and meaningful opportunity to attend a hearing. 

32. In the circumstances of the present case, the Tribunal was required to invite the applicant to attend a hearing to give evidence and present arguments in relation to the issues arising in the decision under review: see s 360 of the Migration Act. It is well-established that the invitation must be a real and meaningful one: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]. Upon receiving the invitation, the applicant attended the hearing and there is no basis on the evidence before the Court to find that the opportunity for the applicant to give evidence and present arguments was anything other than a real and meaningful one.

33. The dispositive issue in the review had changed from the dispositive issue in the decision made by the delegate. As discussed above, the Tribunal decision was not based on whether or not the applicant met the genuine temporary entry criterion, but rather on its finding that he was not enrolled in a course of study and that he did not hold an offer of enrolment for a course of study at the time of the Tribunal decision. It is, however, evident from the Tribunal reasons that the applicant was advised at the hearing that the dispositive issue had changed. The Tribunal’s finding was based on the applicant’s oral evidence, which clearly suggests that he was given an opportunity to address at the hearing whether or not he was enrolled in a course of study. Further, the hearing invitation clearly put the applicant on notice that he would need to provide a certificate of enrolment or other proof of enrolment, and this was sent to him some 10 weeks before the hearing. 

34. I accept the Minister’s submission that the applicant should have been on notice of the need to be enrolled in a course at the time he received the invitation from the Tribunal some 10 weeks before the hearing. In his oral submissions at the hearing before the Court, the applicant submitted that he understood that the Tribunal sent him the email containing the invitation to attend a hearing, but he did not understand until the hearing that he needed to be enrolled in a course. He said that he had an agent assisting him and he was not informed at the time that he needed to be enrolled in a course of study. I have reviewed the hearing invitation in the court book and can see that it was sent directly to the applicant and the applicant confirmed at the hearing that the invitation was sent directly to him and that he received it. The applicant should, therefore, have understood at the time he received the notice that he needed to be enrolled in a course of study. 

35. The applicant said in his ground of application that he found the hearing to be stressful. Simply feeling stressed at a hearing does not indicate that the applicant was unable to participate in the hearing or that he was denied a real and meaningful invitation to a hearing. There is no evidence before the Court to show that any stress felt by the applicant at the hearing prevented him from meaningfully participating in the hearing and I do not find that any denial of natural justice arose based on the applicant’s stress. 

1. The applicant submitted that he was not given an opportunity to explain his personal circumstances. This appears to be an assertion that the applicant was not afforded an opportunity to discuss matters relevant to the genuine temporary entrant criterion. There is no transcript or other evidence before the Court to show that the applicant was denied an opportunity to give any evidence to the Tribunal. In any event, the dispositive issue had changed, and it appears from the Tribunal reasons that the applicant was afforded an opportunity to discuss the dispositive issue.

2. It is also clear from the Tribunal reasons that the applicant, upon learning that he needed to be enrolled in a course, requested that the Tribunal give him more time to obtain a confirmation of enrolment or an offer of enrolment. The Tribunal acknowledged this request for an adjournment in its reasons, but refused to grant an adjournment to the applicant.

3. The Tribunal has a discretion to adjourn a review from time to time: s 363(1)(b) of the Migration Act. The discretion must be exercised reasonably. The applicant has not asserted that the Tribunal’s refusal to adjourn the hearing was unreasonable. However, the Minister has addressed this in his submissions and it is appropriate that I also address it in the judgment. The Tribunal’s reasons for refusing the adjournment are summarised above at [11] of these reasons for judgment. Based on these reasons, I am satisfied that the Tribunal gave an evident and intelligible justification for refusing to grant the applicant an adjournment. In the circumstances of the present case, there is nothing unreasonable, in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, in the Tribunal not granting the applicant an adjournment to give him an opportunity to take steps to meet a mandatory time of decision criterion.

4. I also accept the Minister’s submission that the Tribunal has otherwise complied with its natural justice obligations contained in Division 5 of Part 5 of the Migration Act.

5. I am not satisfied that the applicant has been denied natural justice and ground 1 is therefore not established.

   Ground 2

6. By ground 2, the applicant asserts that the Tribunal failed to give consideration to relevant factors in making its decision. In particular, the applicant asserts that the Tribunal failed to give proper, genuine and realistic consideration to the merits of his case, that the Tribunal failed to consider the genuine temporary entrant criterion, and that neither the Tribunal nor the delegate considered a previous decision of the Minister that was made in the applicant’s favour. 

7. In his affidavit, the applicant deposed that he believes the Tribunal failed to comply with its obligations to give proper, genuine, and realistic consideration to the merits of his case and actively failed to examine the facts. The applicant also deposed that, when he applied for the student visa, the delegate failed to consider the circumstances relevant to the genuine temporary entrant criterion. 

8. At the hearing before the Court, when I asked the applicant about ground 2, he submitted that he did not get to plead his case and he was given no opportunity to explain his particular circumstances. 

9. To the extent that ground 2 refers to the delegate’s decision or complaints about findings made by the delegate, it cannot be reviewed by the Court. The decision of a delegate is a ‘primary decision’ within the meaning of s 476(4) of the Migration Act and, pursuant to s 476(2)(a) of the Migration Act, this Court does not have jurisdiction to review a primary decision.

10. The real complaint in relation to ground 2 appears to be that the applicant was not afforded an opportunity to discuss whether he met the genuine temporary entrant criterion, and the Tribunal did not consider matters relevant to the genuine temporary entrant criterion. This does not establish jurisdictional error in this case. 

11. As discussed above, the dispositive issue changed between the delegate’s decision and the Tribunal decision. The criterion in cl 572.231 in Schedule 2 to the Regulations requires that the applicant have a current offer of enrolment or currently be enrolled in a course of study at the time of the decision. It is a mandatory time of decision criteria. In circumstances where the Tribunal found that the applicant did not meet the enrolment criterion, it was not necessary for the Tribunal to consider whether the applicant met the genuine temporary entrant criterion: Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1721 at [47].

12. While ground 2 refers to a previous decision of the Minister under equivalent, if not favourable circumstances, I am unable to ascertain which decision the applicant is referring to. In any event, the applicant appears to be referring to a decision made by a delegate of the Minister, which cannot be reviewed by the Court as it is a primary decision (see [44] above), and the Tribunal is not bound by any earlier administrative decision in relation to a different visa application. 

13. In his written submissions, the Minister has interpreted the applicant’s suggestion that the Tribunal actively ignored a request to consider the genuine temporary entrant criterion as something that may be construed as an allegation of bias. I do not agree that the applicant is asserting bias by this ground. However, given that the Minister has addressed this issue, I will too.

14. I do not find that bias is established. As the Minister set out in his written submissions, an allegation of bias is a serious allegation that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. The Minister, in his submissions, set out the relevant test for apprehended bias, noting that the applicant would have to demonstrate that a fair-minded and informed lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision. The evidence before the Court in the present case does not establish that a reasonably informed lay observer might reasonably apprehend that the Tribunal might not have brought an open and impartial mind to the review. There is nothing in the evidence before the Court to suggest any form of pre-judgment on the part of the Tribunal.

15. Ground 2 is not established.

    Ground 3

16. By ground 3, the applicant asserts that the Tribunal made its decision based on an irrelevant factor. When I asked the applicant at the hearing what irrelevant factor the Tribunal took into account, he was unable to identify any such factor.

17. The particulars to this ground are confusing. They appear to refer to the delegate’s decision, which cannot be reviewed by the Court. The only other matter identified in the particulars as an irrelevant factor that should not have been considered is the applicant’s suggestion that:

    This is intended as a generic statement and is not an accurate representation of a store’s business operations or the activities of its employees.

18. I was unable to find any reference to this statement in the Tribunal decision or in any other evidence before the Court. I asked the applicant about this statement at the hearing and he was unable to identify where the statement came from or how it related to his case. I am not satisfied that the Tribunal took into account any irrelevant consideration based on any store’s business operations or the activities of employees.   

19. Having reviewed the Tribunal’s reason, I am unable to identify any irrelevant consideration that the Tribunal took into account in making its decision. Aside from its consideration of the enrolment criterion, the Tribunal referred to a number of background matters in its reasons, such as the application progress and delegate’s decision, the courses the applicant studied, his visa history, and his employment in Australia. It was not inappropriate for the Tribunal to refer to these background matters and the background matters were not material to the Tribunal’s finding that the applicant did not meet the enrolment criterion. 

20. Ground 3 is not established.

    Conclusion

21. The applicant has not established that there is jurisdictional error in the Tribunal's decision. It follows that his application for judicial review to this Court must be dismissed.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       10 February 2023