Bajwa v Minister for Immigration

[2016] FCCA 533

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJWA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 533

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – no merit to the application – application dismissed.

Legislation:

Judiciary Act1903 (Cth)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.40A, cl. 5A407, Sch 2: cl.572.223

SZFDE v the Minister for Immigration and Citizenship [2007] HCA 35

Applicant: SANDEEP SINGH BAJWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2312 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 February 2016

Delivered at: Melbourne

Delivered on: 12 February 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Day

Solicitors for the First Respondent: DLA Piper Australia

ORDERS MADE ON 12 FEBRUARY 2016

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,600. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2312 of 2014

SANDEEP SINGH BAJWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an Application filed under the Judiciary Act1903 (Cth) and Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against the decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 7 November 2014. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.

2. The Applicant was granted an initial Student (Class TU) (Subclass 573) visa offshore on 21 July 2008, which was valid until 30 September 2012.  He arrived in Australia on 5 August 2008.  Since his initial arrival onshore, the Applicant has held either a student visa or associated bridging visa.  On 27 September 2012, the Applicant applied for a Student (Temporary) (Class TU) visa (‘the visa’).  The application was refused on 8 February 2013 and the Applicant subsequently lodged a review with the Tribunal on 14 February 2013.  The Tribunal made a decision on 7 October 2013 and the application was remitted back to the Department of Immigration and Border Protection (‘the Department’) for reconsideration and assessment. 

3. At the time of the Applicant’s visa application in September 2012, the Applicant was enrolled to undertake a Certificate IV in Business and Diploma of Management course at Berkeley College. 

4. On both 11 October 2013 and 10 January 2014, the Department requested the Applicant to provide further information in relation to the visa application so as to satisfy cl.5A407 (English Language Proficiency) of the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant did not respond. On 4 April 2014, a delegate of the First Respondent refused to grant the Applicant the visa on the basis that he did not satisfy the criterion in cl.572.223 of sch.2 to the Regulations.

5. The Applicant again applied to the Tribunal for review of the delegate’s decision in application received by the Tribunal on 14 April 2014.  In that application, the Applicant indicated that he did not want to appoint a representative to act on his behalf and to be his authorised recipient.  Further, he indicated that he did not need an interpreter when communicating with the Tribunal.

6. By correspondence dated 16 April 2014, the Tribunal wrote to the Applicant and acknowledged receipt of his application for review.  The Tribunal noted in that correspondence that if the Applicant wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.  On 30 September 2014, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues in his case.  The hearing date was noted as 7 November 2014.  That hearing invitation correspondence contained, relevantly, the following request of the Applicant:-

   “Additionally, please provide this information so that a decision can be made as quickly as possible:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

   4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

   5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   ·   evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

   ·   evidence of funds from an acceptable source

   oif you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

   oif you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   ·   evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

   ·   evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

   6. Evidence you meet the English language proficiency requirements (the requirements depend on your particular assessment level and visa subclass).

   7. Evidence you have successfully completed secondary schooling to the Year 12 level (or other educational qualifications as required for the visa you seek).

   The Tribunal requests that the above information and any other evidence are provided to the Tribunal at least 7 days before the hearing date.”[1]

   [1] Letter from the Migration Review Tribunal to Mr Bajwa dated 30 September 2014.

The Decision of the Tribunal

1. The Applicant appeared before the Tribunal to give evidence and present arguments on 7 November 2014.  The Tribunal also received evidence from the Applicant’s wife, Ms Ramanpreet Kaur.  The Tribunal gave its decision on the review at the conclusion of the hearing and orally.  The Tribunal advised the Applicant that a copy of its Statement of Decision and Reasons would be forwarded to him.  A copy of the Tribunal’s Statement of Decision and Reasons was forwarded to the Applicant by correspondence of 11 November 2014. 

2. The Tribunal correctly identified that the issue for it was whether, at the time of its decision, the Applicant met the enrolment requirements for the visa. The Tribunal noted that the relevant Regulations required that, at the time of decision, the Applicant 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 reg.1.40A of the Regulations for that subclass at the time of application.

3. The Tribunal, in its Statement of Decision and Reasons at paragraph 11, noted that the Applicant indicated he did not have any evidence of his past studies in Australia or an explanation for any study gaps in his enrolments or any documents that demonstrated he had sufficient funds, all of which were listed in the hearing invitation with a request the Applicant provide same seven days prior to the hearing.  Those documents were required to establish the Applicant met the other criteria for the grant of the visa.  It was not necessary for the Tribunal to make findings on these matters however, given, on the evidence before it, the Tribunal found that the Applicant did not have a current offer of enrolment; was not enrolled in any applicable course of study, and nor did he provide any evidence that he satisfied the English language requirement. The Tribunal said at paragraph 8 of its Statement of Decision and Reasons:-

   “8. The applicant claimed at hearing that he had completed ELICOS, cookery and hospitality courses, but despite being requested to do so he did not provide any evidence at the hearing.  I asked the applicant whether he was currently enrolled in a course.  he (sic) said he was.  I asked what that was and the applicant said it was also cookery.  I asked if he had a CoE and he said he did.  I asked where that was and he said it was at home.  I asked why he had not brought it with him to the hearing as requested in the hearing letter.  The applicant said that he did not know he needed it.  I referred him to the hearing letter, a copy of which he had at the hearing.  He said someone at the Tribunal had told him that was all he needed to bring. The applicant asked for more time to provide the CoE.  I explained that I considered he had had enough time to produce the CoE, that the hearing letter, which he had clearly received, requested he provide this information prior to the hearing, and no later than the date of the hearing, that I did not consider he had provided a good reason for me to wait any longer, and proceeded to make an oral decision. I do not accept that the applicant has a CoE or a current offer of enrolment, nor that he was told by someone at the Tribunal that he only had to bring the letter to the hearing.   There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study.  Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.”[2]

   [2] Migration Review Tribunal Decision Record dated 11 November 2014 at [8].

4. At the hearing, the Tribunal also raised with the Applicant the issue of whether the Applicant intended genuinely to stay in Australia temporarily.  The Applicant asserted that he and his wife could not return safely to India; that he wanted to open a restaurant in Geelong; that he had cousins in Australia; and that he wished to apply for a temporary skilled visa.  The Tribunal explained to the Applicant that the genuine stay criterion requires an assessment of an applicant’s intention to only stay temporarily whilst undertaking studies.  However, it was not necessary for the Tribunal to make findings on this matter given its earlier findings as to the Applicant’s lack of enrolment in, and lack of a current offer of enrolment in, any applicable course of study.

Application before the Court

1. The Application filed on 17 November 2014 pleads the following grounds:-

   “1. I am not satisfied with the decision because I am still studying here. 

   2. This has been done because of the lawyer’s mistake so, I need the review of this.” 

Consideration

1. This matter was first before the Court for hearing on 9 February 2016.  The Applicant appeared in person on that day and indicated that he required an interpreter in the Punjabi language.  No interpreter was present as the Applicant had indicated in his Application filed, that he did not require an interpreter.  At his request, the matter was adjourned to this day, and the Court made the necessary arrangements for an interpreter to be present to assist the Applicant.  The Applicant then sought a further adjournment of these proceedings so as to enable him to be a student in this country and complete a course of study.  The application for a further adjournment on those grounds was dismissed, that not being a satisfactory, or perhaps ever achievable, ground, on which to grant an adjournment of the proceedings. 

2. The Application for judicial review must be dismissed because there is absolutely no merit to this application.  No jurisdictional error attends the decision of the Tribunal. 

3. The Applicant’s first ground as set out in his Application is an expression of dissatisfaction and disagreement with the decision of the Tribunal.  Further, it is claimed in circumstances when there is no evidence before the Court, and nor was there before the Tribunal, that the Applicant is actually studying here.  The history of the Applicant’s study since arrival is illuminating, but that is not strictly relevant to this consideration. 

4. The Applicant’s second ground which refers to a lawyer’s mistake affecting the decision in his case is equally without merit. The Applicant did not appoint an agent or authorised recipient in the proceedings before the Tribunal.  The Applicant has been a litigant in person in the proceedings in the Court.  There is no evidence as to any legal advice received, from any person, by the Applicant.  In any event as correctly submitted by Counsel for the First Respondent, third party fraud causes a Tribunal decision to be affected by jurisdictional error where that fraud stultified the processes of the Tribunal in some way.[3]  There is no basis upon which any advice that may have been received by the Applicant can be said to have affected the Tribunal’s processes.  No particulars were provided by the Applicant in respect of this ground and it is, essentially, meaningless.

   [3] SZFDE v the Minister for Immigration and Citizenship [2007] HCA 35, (2007) 237 ALR 64, 81 ALJR 14101, per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ at 49.

5. The Application shall be dismissed and costs shall follow the event. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 March 2016