FEDERAL COURT OF AUSTRALIA

Kwiatkowska v Minister for Home Affairs [2019] FCA 388

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The appellants appeal a judgment and orders of the Federal Circuit Court of Australia dismissing the appellants’ application for judicial review of an Administrative Appeals Tribunal decision dated 12 December 2017.

2    On 4 November 2015, Barbara Maria Kwiatkowski (the First Appellant), a citizen of Poland, applied to the then Department of Immigration and Border Protection, now the Department of Home Affairs, for a Student (Temporary) (Class TU) visa.

3    Her husband, (the Second Appellant) and younger son (the Third Appellant), were included in the First Appellant’s application for the visa as members of her family unit.

4    On 17 December 2015, a delegate of the Department refused to grant the visa on the basis that the First Appellant did not satisfy the genuine temporary entrant criterion in cl 572.223(1)(a) of the Migration Regulations 1994 (Cth).

IN THE TRIBUNAL

5    The appellants applied to the Tribunal for review of the delegate’s decision. The Tribunal emailed the appellants inviting them to attend a hearing before it to give evidence and present arguments. The invitation concerned a hearing scheduled for 27 November 2017.

6    On 23 November 2017, the First Appellant’s representative, her elder son, emailed the Tribunal requesting an adjournment attaching a referral for an MRI Scan for the First Appellant. That request was refused and on 24 November 2017 the First Appellant provided a response to hearing invitation.

7    On 27 November 2017, the First Appellant appeared at the hearing before the Tribunal. The First Appellant’s elder son also appeared and sought to represent her and act as an interpreter. As the son was not a registered migration agent, the Tribunal did not allow him to represent the appellants or act as an interpreter but he did appear as a witness.

8    The Tribunal deferred its decision until 4 December 2017, to allow the First Appellant to submit evidence of a current confirmation of enrolment (COE) and any medical evidence that she wished the Tribunal to take into account.

9    On 28 November 2017, the Tribunal emailed the appellants a letter requesting certain information and documents. On the same day the Tribunal received the following documents from the appellants:

    an Overseas Student Confirmation-of-Enrolment for the First Appellant in a Certificate IV in Spoken and Written English, with course dates from 8 March 2017 to 18 August 2017;

    a Certificate of Completion of a Certificate II in Spoken and Written English, dated 6 May 2016, and academic transcript; and

    a Certificate of Completion of a Certificate III in Spoken and Written English, dated 9 February 2017, and academic transcript.

10    The Tribunal recorded that the issue before the delegate was whether the First Appellant met the genuine temporary entrant criterion in cl 572.223 of the Migration Regulations. In contrast, the Tribunal noted that the issue before the Tribunal was whether, at the time of its decision, the First Appellant met the enrolment requirements for the visa.

11    The Tribunal recorded that, with limited exceptions, cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 is Sch 2 of the Migration Regulations required for the grant of the relevant visa that at the time of decision an appellant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r 1.40A for the subclass at the time of application.

12    At the hearing before the Tribunal, the First Appellant:

    confirmed that she was not currently enrolled in a course of study;

    claimed that, following the completion of her Certificate III in Spoken and Written in English in February 2017, she had enrolled in a Certificate IV. However, she did not finish this course because she had experienced some problems with her health;

    claimed to have experienced women’s problems, which she specifically identified as endometriosis from which she said she had experienced a lot of pain from this condition; and

    claimed she had recently been experiencing headaches.

13    The Tribunal:

(a)    discussed with the First Appellant the MRI referral letter she had submitted to the Tribunal that recorded that she had been experiencing headaches for four weeks and the First Appellant confirmed that this was probably correct;

(b)    noted that the First Appellant had been requested to provide evidence of her current enrolment and advised that this was required for the grant of the visa;

(c)    discussed with the First and Second Appellants that it was a ‘time of decision’ requirement for the grant of the visa that the Appellant be enrolled or subject to an offer of enrolment in a course of study; and

(d)    noted that the Confirmation-of-Enrolment provided by the First Appellant was in respect of the course that the First Appellant did not complete; and that:

(i)    the enrolment dates for this course had passed; and

(ii)    no further evidence had been provided by the First Appellant as at the date of the Tribunal’s decision.

14    The Tribunal found that there was no evidence before it that the First Appellant was enrolled in, or had a current offer of enrolment in, any applicable course of study and, therefore, cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Migration Regulations had not been met by the First Appellant. As the First Appellant had not satisfied cl 572.231 of the Migration Regulations, or any similar provision of another Subclass of student visa, the Second and Third Appellants could not be granted a visa under cl 572.322 of the Migration Regulations.

15    The decision of the delegate not to grant the appellants the visa was affirmed.

IN THE FEDERAL CIRCUIT COURT

16    On 27 December 2017, the First Appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The ‘Grounds of application’ were stated as follows:

1.    The tribunal commited [sic] jurisdictional error[.]

2.    There was no requirement for a confirmation of enrolment at the time of [the] tribunal’s decision.

17    The First Appellant also filed an affidavit in support of the application, which merely annexed the Tribunal’s decision.

18    In relation to ground one of the appellants’ application for judicial review, the Federal Circuit Court noted that ground one of the application for judicial review raised two issues, being (i) whether the First Appellant was treated fairly as regards to the translation services provided at the Tribunal hearing; and (ii) the First Appellant’s poor health on the day of the Tribunal hearing and whether or not the hearing should have occurred on that day or should have been adjourned as requested by the First Appellant (at [34]);

19    In relation to the first issue which arose for consideration in respect of ground 1, the primary judge considered, in detail, the translation services offered by the Tribunal to the First Appellant at hearing, noting that the First Appellant did not provide the Federal Circuit Court with a transcript of the Tribunal hearing (at [35]-[41]).

20    As it is relevant to the grounds of appeal, it is appropriate to set out the primary judge’s reasons in relation to the Tribunal’s refusal to allow the First Appellant’s elder son to assist with translation (at [41]):

In the circumstances and on the evidence available, it cannot be said that the applicant was treated unfairly or denied an opportunity to participate fully. The Tribunal’s decision to deny the applicant’s son (who is not a qualified translator or migration agent and whose own visa is dependent on his mother’s evidence before the Tribunal) is entirely appropriate. This is particularly so in circumstances where the applicant claims to understand English, is offered an adjournment and reject the offer made.

21    The primary judge concluded from the evidence that no jurisdictional error had occurred in relation to the provision of translation services to the First Appellant and the ability of the First Appellant to present her evidence at the Tribunal hearing (at [42]).

22    His Honour then turned to the second issue where he:

    addressed, in some detail, the Tribunal’s consideration of the First Appellant’s poor health on the day of the Tribunal hearing and whether or not the hearing should have occurred on that day or should have been adjourned, as requested by the First Appellant (at [43]-[44]);

    found that there was no evidence before it that would point to a conclusion that the First Appellant was physical or mentally incapable of appearing before the Tribunal on the day of the Tribunal hearing (at [46]);

    concluded that it was satisfied on the evidence before Federal Circuit Court that the First Appellant was treated fairly by the Tribunal at the hearing before it and the Tribunal acted reasonably in denying the adjournment requested by the First Appellant and proceeding with the scheduled hearing (at [47]-[48]); and

    concluded that there was no evidence of jurisdictional error by the Tribunal and ground one of the appellants’ application for review must fail (at [49]).

23    In relation to ground two of the appellants’ application for judicial review, the Federal Circuit Court:

    referred to the relevant clauses of the Migration Regulations (at [50]);

    considered the evidence before the Tribunal concerning whether the First Appellant was enrolled in a course of study at the time of the Tribunal Decision (at [51]);

    referred to relevant case law in relation to ground two of the appellants’ application for review (at [52]-[55]);

    concluded that the Tribunal did not err in its interpretation of the Migration Regulations, that the Tribunal examined all the relevant evidence and did not rely on or assess any irrelevant evidence (at [56]-[58]);

    concluded that the First Appellant was afforded procedural fairness at the Tribunal hearing (at [59]-[60]);

    concluded that the Tribunal’s decision to affirm the delegate’s decision was open to it and reasonable given the factual circumstances of the case (at [60]); and

    concluded that there was no evidence of jurisdictional error by the Tribunal and ground two of the appellants’ application for review should fail (at [61]).

24    On 28 September 2018, the Federal Circuit Court ordered that the appellants’ application for judicial review be dismissed and that the First Appellant pay the cost of the Minister for Home Affairs.

IN THIS COURT

25    The Notice of Appeal contends:

Grounds of appeal

1.    The Federal Circuit Court erred in failing to find that the [Minister] committed jurisdictional error by not allowing adequate translation services.

Particulars

The Federal Circuit Court’s finding was based on the misconception that the visa of the First Appellant’s own son was dependent on her evidence (see [41] of the judgment). The First Appellant’s son held a visa independently of her.

(Emphasis in original.)

26    Somewhat ironically the first hearing of the matter on Friday, 1 March 2019 was adjourned because no interpreter was available. The matter was adjourned to the following Thursday, 7 March 2019, when an interpreter was available to assist the First Appellant. In the resumed hearing before me, the First Appellant was assisted by a Polish interpreter who translated her submissions, my questions and the submissions of counsel for the Minister, Ms Walsh.

27    The First Appellant argued that she thought that her elder son, who contrary to [41] of the Federal Circuit Court’s decision was not dependent upon her visa (unlike her younger son, the Third Appellant who was dependent), should have been permitted to interpret for her. She stressed that he had no conflict of interest because he had his own temporary student visa. This argument went to her ground of appeal. She raised additional matters.

28    The First Appellant made the point that she was taken by surprise by this fact on the day and regrets now that she made submissions on her own behalf, rather than accepting the offer to adjourn the proceedings and obtain an independent interpreter, an offer which had been presented to her by the Tribunal.

29    In support of her argument that she was stressed on the day, she provided certain medical documents to this Court. As an abundance of caution, I clarified with the First Appellant through her interpreter that she did not also contend that she was unable to present her arguments on this appeal. She confirmed that she was able to do so.

30    Unfortunately, the medical material produced to this Court was not before the Tribunal. As the First Appellant explained, she had been unable to obtain medical evidence on the day to explain that she had been stressed. Not that I consider the evidence properly admissible or relevant in determination of whether the Federal Circuit Court erred in concluding there was no jurisdictional error on the part of the Tribunal, but I must say that the medical evidence does not, by any means, make clear that the First Appellant could not on that day satisfactorily present her case. I can undoubtedly accept that the First Appellant regarded herself as being in a stressful situation in the way that most personal litigants experience unease and that she reacted accordingly. Further, I infer that her health difficulties would have compounded this reaction.

31    That said, she had the opportunity for an adjournment which was offered to her in clear terms. She did not take advantage of that opportunity. Neither did she put any medical evidence before the Tribunal on the day. And finally, her condition at the time is no part of the appeal ground.

Consideration

32    It is against that background that it is necessary to consider whether there is appellable error in the reasoning of the Federal Circuit Court.

33    As mentioned, the Federal Circuit Court reasons (at [41]) appear to contain understandable confusion as to which son was referred to in relation to the translation request. The younger son, the Third Appellant, was indeed dependent upon the First Appellant’s visa application as indicated at [41], but the son seeking to translate or, as the First Appellant put it, present her case in the Tribunal was the elder son. However, that is certainly not the end of the question of whether the ruling by the Tribunal was correct or otherwise.

34    There are two points. The first is that the only ground of appeal is that the Federal Circuit Court was wrong to conclude that the Tribunal was entitled to decline to permit the elder son to translate and present the case for the First Appellant. The second point is whether, if that were an error on the part of the Tribunal, it would constitute a jurisdictional error.

35    These points must be considered in light of the fact that what was being argued in the Federal Circuit Court was to the effect that, although the First Appellant was not enrolled in a course, it was not necessary for her to be so enrolled in order to be granted the visa.

36    The fundamental difficulty was that the First Appellant was not enrolled in any relevant course. The Tribunal correctly explained that enrolment was an essential requirement. This is unchallenged in this Court, although it was raised in the Federal Circuit Court.

37    However, the challenges regarding the conduct of the Tribunal hearing do not go to material errors for the basic reason that the First Appellant was given the opportunity to have the hearing adjourned to have an appropriate interpreter provided. She declined that opportunity.

38    No medical evidence establishes that she did not understand her options on that point. Further, the elder son was permitted the opportunity to give evidence for the First Appellant at the hearing. So in that sense she has had a fair hearing.

39    The Federal Circuit Court noted that the First Appellant’s son proposed to act as the interpreter for the First Appellant. The Tribunal refused this request, noting that the First Appellant had earlier advised in her hearing response that she did not require an interpreter. Furthermore, in its decision the Tribunal states that it offered to adjourn the hearing if the First Appellant required an interpreter and reschedule it for a later date. However, the First Appellant told the Tribunal that she wished to continue with the hearing.

40    The Federal Circuit Court noted that the Tribunal also stated that the First Appellant confirmed at the conclusion of the hearing that she had understood the Tribunal’s questions and the Tribunal considered that she provided meaningful responses.

41    It was noted by the Federal Circuit Court that a Court can only work with the evidence it has. The First Appellant did not provide that Court with a transcript of the hearing before the Tribunal and there was nothing before the Federal Circuit Court that indicated that there was a lack of understanding on the part of the First Appellant. On the contrary, her own evidence before the Tribunal was that she did understand and that she wanted to continue with the hearing.

42    In the circumstances, and on the evidence available, it cannot be said that the First Appellant was treated unfairly or denied an opportunity to fully participate. The Tribunal’s decision to deny the First Appellant’s elder son (who is not a qualified translator or migration agent) was entirely appropriate. This is particularly so in circumstances where the First Appellant claims to understand English, was offered an adjournment and rejected the offer made.

43    Despite the confusion between the two sons in a position of the bracketed part of [41], there is no reason to otherwise doubt the correctness of the decision of the Federal Circuit Court. The Federal Circuit Court considered, in detail, the translation services offered by the Tribunal to the First Appellant at the Tribunal hearing, noting that the First Appellant did not provide it with a transcript of the Tribunal hearing and concluded that no jurisdictional error had occurred in relation to the provision of translation services to the First Appellant and the ability of the First Appellant to present her evidence at the Tribunal hearing. The only ground of appeal before this Court cannot succeed.

CONCLUSION

44    The appeal must be dismissed with costs.

Associate:

Dated:    21 March 2019