FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from transcript)
1 Syed Quadri is an Indian national. His wife, Asna Taskheer, is, too. On 18 September 2016, Mr Quadri applied for a Student (Temporary) (class TU) (subclass 500) visa. Ms Taskheer was included in the application as an “accompanying family member”. On 17 February 2017, a delegate of the then responsible Minister was not satisfied that Mr Quadri met one of the primary criteria for the grant of the visa and so refused the application. Mr Quadri and Ms Taskheer applied to the Administrative Appeals Tribunal for review and the Tribunal affirmed the delegate’s decision. They then applied to the Federal Circuit Court for relief, seeking, amongst other things, an order that the Tribunal’s decision be quashed and that a writ of mandamus be issued directed to the Tribunal requiring it to determine the application according to law. That application was also dismissed. This is an appeal from that judgment.
2 The power to grant a visa vests in the Minister and is subject to the terms of the Migration Act 1958 (Cth): Migration Act, s 29. All powers vested in the Minister under the Act may be delegated, however: Migration Act, s 496. Certain classes of visa are prescribed under the Regulations. One of those prescribed classes is the visa for which Mr Quadri applied. If, upon receipt of a valid application, the Minister (or his delegate, as the case may be) is satisfied that the criteria fixed by the Act and Regulations for the visa the subject of the application are satisfied, s 65 of the Act imposes an obligation on the Minister to grant the visa. If they are not, the Minister’s duty is to refuse to grant it.
3 The primary criteria for the grant of a subclass 500 visa are set out in cl 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth). Those criteria must be satisfied by at least one member of a family unit and they must be satisfied at the time a decision is made on the application: see the note to cl 500.2. The first of those criteria is contained in cl 500.211, which contains a number of alternatives. Mr Quadri claimed to satisfy the first of them, namely that he was enrolled in a course of study. The second of those criteria is contained in cl 500.212. It includes the requirement that the applicant intends genuinely to stay in Australia temporarily.
4 The delegate was not satisfied that Mr Quadri met the criterion in cl 500.212. The Tribunal was not satisfied that he met the criterion in cl 500.211.
5 In his visa application Mr Quadri represented that he held a certificate of enrolment (number 84698472) for an intended course of study in Australia.
6 The Tribunal wrote to the appellants on 7 March 2018 inviting them to attend a hearing. It informed them that they should provide to the Tribunal as quickly as possible, and at least seven days before the hearing date, a number of documents, including:
1. A copy of your current Certificate of Enrolment (CoE) or other documents that show you are currently enrolled in a course of study as defined in cl 500.111 of the Migration Regulations 1994, as required for the grant of a student visa.
7 Apparently in response to that invitation, Mr Quadri sent an email to the registry of the Tribunal attaching a number of documents one of which was an offer from Group Colleges Australia, dated 6 September 2016, of a place in its Bachelor of Business course which ran from 24 October 2016 to 16 August 2019. The document was not a certificate of enrolment. According to its terms, it was a conditional letter of offer valid for 60 days. It was conditional, amongst other things, upon students ensuring that they submitted and fulfilled the entry requirements. The material before the Court indicates that at no time did the appellants provide to the Tribunal a certificate of enrolment, current or otherwise. None of the other documents attached to Mr Quadri’s email corresponded to a certificate of enrolment or evidence of current enrolment.
8 According to the Tribunal’s decision record, at the hearing before the Tribunal the appellant was asked whether he had begun the course. He replied that he had. He also informed the Tribunal that he had completed a semester of the course. But he also told the Tribunal that he had discontinued study in about December 2016 in order to care for his wife, who was pregnant and suffering from very severe morning sickness, and that he had last attended classes in December 2016.
9 The essence of the Tribunal’s reasons for affirming the decision of the delegate appears at – of its decision record. There it is stated:
The applicant did not provide a current COE. He confirmed at the hearing that he read the invitation carefully. In the invitation it was clearly stated he should provide a COE as he needs to be enrolled in a course of study to be granted the visa.
In seeking to establish whether the applicant had an offer of enrolment, he was asked when he intends to resume study and said, “as soon as possible”. The applicant has not provided a COE or current offer of enrolment. The Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
As the applicant does not meet this threshold criterion, and because he must satisfy all cl.500.2 criteria at the time a decision is made, it is not necessary to assess him against the other criteria in cl.500.2.
10 Relief was available in the court below only if the appellants were able to establish a jurisdictional error affecting the Tribunal’s decision. The application in the court below alleged that the Tribunal made two errors.
11 The first was that it failed to comply with s 359A or s 359AA of the Migration Act by:
(a) failing to give notice to “the applicant” in the invitation to attend a hearing that the CoE had been cancelled;
(b) failing to give clear particulars in relation to the cancellation of the CoE; and
(c) failing to give notice to “the applicant” that a new certificate of enrolment was required.
12 It appears that the only evidence that Mr Quadri’s certificate of enrolment had been cancelled is a notation to that effect in the records of the Provider Registration and International Student Management System (PRISMS).
13 The second alleged error was that the Tribunal failed to afford Mr Quadri procedural fairness because it failed to determine whether the course was suspended, deferred or cancelled; it led him to believe that the CoE was still valid and he was simply required to resume his studies; and it misled him by informing him that the PRISMS records confirmed his own evidence which was that the CoE was valid until 2019.
14 Mr Quadri filed an affidavit in support of the application. In that affidavit, he stated, amongst other things, that, while he did tell the Tribunal that he had discontinued his studies, he meant that he had not continued to study, and that he informed the Tribunal that he was seeking to resume his studies as soon as possible. He also stated that, to the best of his knowledge, he was still enrolled in the Bachelor of Business course.
15 The matter came before the primary judge for a show cause hearing on 9 March 2019 at which time his Honour made an order, purportedly under r 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), requiring the Minister to show cause why the relief sought should not be granted “in relation to the following issues”:
(a) whether the Tribunal decision was “illogical, irrational or unreasonable in terms of the material that the Tribunal decision record discloses was before it”; and
(b) whether the Tribunal complied with its obligation under s 360 of the Migration Act to afford the applicants the opportunity of a fair hearing.
16 After the show cause hearing, the Minister filed an affidavit to which a transcript of the hearing before the Tribunal was annexed.
17 The primary judge resolved both issues in the Minister’s favour.
18 His Honour dealt with the second issue first, explaining that the issue arose because the Tribunal decided the review on a basis different from the basis upon which the delegate decided the application. In fact, as his Honour observed, the delegate accepted that, at the time of his decision, Mr Quadri was enrolled in the Bachelor of Business course. His Honour explained, by reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at , that the Tribunal is obliged, when conducting a hearing under s 425 of the Act, as the Tribunal in this case was doing, to identify to an applicant any issues it considers dispositive of the application if those issues are not issues that were dispositive before the delegate. After reviewing the transcript, his Honour said that it was clear that the conclusion reached by the Tribunal that Mr Quadri was not enrolled in the course was open to it. His Honour considered that the exchanges between the Tribunal and Mr Quadri recorded in the transcript disclosed that Mr Quadri was well aware that his enrolment in a course of study was in issue before the Tribunal. His Honour noted that Mr Quadri had acknowledged during the hearing that he was no longer studying and had discontinued his course. In fact, the transcript reveals that Mr Quadri volunteered that he had discontinued the course.
19 In relation to the first issue, the primary judge explained that the issue arose in the context of the assertion in the show cause application that the Tribunal had erred by failing to put to the applicants that Mr Quadri’s PRISMS record indicated that his CoE was cancelled. The primary judge accepted that the PRISMS record was before the Tribunal although it was not mentioned in the Tribunal’s decision. His Honour concluded that the failure to draw the applicants’ attention to the information in the PRISMS record was, in effect, immaterial and therefore could not amount to a jurisdictional error. His Honour referred in his reasons to an extract from the transcript which recorded an exchange between the Tribunal member and Mr Quadri in which the member referred to the PRISMS record and informed Mr Quadri, in effect, that it was unnecessary for her to take him to the document because there was nothing in the document that was inconsistent with the information he disclosed to the Tribunal. His Honour concluded that the Tribunal relied on the information provided by Mr Quadri and not on the PRISMS record. In these circumstances, his Honour held that any failure by the Tribunal to refer to the PRISMS record in its reasons was not illogical, irrational or unreasonable.
20 The notice of appeal contains two grounds in the following terms:
1. While I admit that His Honour Judge Driver treated my case with utmost respect, I continue to believe that his judgment delivered on 26 September 2019 is affected by error of law because His Honour agreed with the Tribunal that I provided Offer of Enrolment but not current and the issue is the Offer of Enrolment was before the Tribunal and the Tribunal failed to give me the opportunity based on my compelling circumstances which appear in the transcript.
2. The issue of enrolment is critical and I continue to believe that the Tribunal denied me procedural fairness by not requesting a confirmation of enrolment and by not considering the compelling and compassionate circumstances which existed at the time the Tribunal made a decision.
21 In effect, these grounds seek to re-agitate the issues determined against the appellants in the Court below.
22 No submissions were filed in support of the appeal. At the hearing, Mr Quadri, who was unrepresented as he had been before the primary judge, was unable to point to any error on his Honour’s part. Indeed, he went so far as to say that he agreed with his Honour’s judgment.
23 The appeal is without substance. I am unable to discern any error in the conclusions of the primary judge.
24 I respectfully agree with his Honour that the transcript of the hearing before the Tribunal discloses that the Tribunal made it clear to Mr Quadri that it would consider whether he was enrolled in a course of study and gave him an opportunity to be heard on that question. The transcript includes the following exchange:
Member: … I will also look at whether you are enrolled in any courses of study, because you need to be enrolled in a course of study to be granted a student visa.
Member: That’s one of the primary criteria.
25 In addition, the letter the Tribunal sent to the appellants inviting them to attend the hearing put them on notice that the question of Mr Quadri’s current enrolment would be in issue at the hearing. Contrary to the assertion in ground 2 of the notice of appeal, the Tribunal requested confirmation of enrolment in its invitation to attend the hearing. There was no denial of procedural fairness. Nor did the Tribunal mislead Mr Quadri. Furthermore, the Tribunal was not required to consider any compelling and compassionate circumstances that may have existed at the time of its decision in order to be satisfied one way or the other as to whether or not the criteria in cl 500.211 had been met.
26 I also agree with the primary judge that there was nothing illogical, irrational or unreasonable about the Tribunal’s decision or that it was obliged to draw to Mr Quadri’s attention that the CoE had been cancelled. Mr Quadri had been informed by the Tribunal in its invitation to attend the hearing that he needed to have evidence to show that he was currently enrolled in a course of study. The only documentary evidence of enrolment he had submitted to the Tribunal was two years old. He advised the Tribunal that he had discontinued the course. The PRISMS record stated that he had not commenced his studies on 22 February 2017. That was, indeed, consistent with his evidence before the Tribunal that he had last attended classes in December 2016 and had discontinued his course.
27 In certain circumstances, s 359A of the Act requires the Minister and the Tribunal on review to put to an applicant clear particulars of “information” the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, the consequences of relying on it to affirm the decision under review, and to invite the applicant to comment on, or respond to, the information. It appears from the reasons of the primary judge that his Honour considered that the only matter that could conceivably answer the description of “information” for the purpose of the section was the information in the PRISMS records. The Minister conceded that the Tribunal did not comply with s 359A (having regard to the terms of the section the concession would cover s 359AA, too), but submitted that the section was not engaged because, in effect, the Tribunal did not consider that the information in the PRISMS records would inform its decision or any part of its decision to affirm the decision under review. I accept the Minister’s submissions. The Tribunal’s reasons indicate that its decision was informed, not by the contents of the PRISMS records, but by Mr Quadri’s own evidence that he had discontinued his course of study and his failure to produce any evidence, such as a certificate of enrolment or a current offer of enrolment, to indicate that he was currently enrolled in a course of study,. The appellant’s own evidence is not information for the purposes of s 359A: see Migration Act, s 359A(4).
28 It follows that the appeal must be dismissed. The appellants should pay the Minister’s costs.