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

The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The application is dismissed.
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)

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bajwa v Minister for Immigration

Details

AGLC: Bajwa v Minister for Immigration [2016] FCCA 533
Case: [2016] FCCA 533
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Hartnett considered the application of Mr. Bajwa against the Minister for Immigration. The dispute arose from the Migration Review Tribunal's decision to affirm the refusal of Mr. Bajwa's application for a student visa. The Tribunal had invited Mr. Bajwa to provide specific documentation and explanations to support his application, including details of his enrolment, past studies, financial capacity, English language proficiency, and educational qualifications, requesting this information at least seven days prior to the hearing.

The central legal issue before the Court was whether the Migration Review Tribunal had failed to provide Mr. Bajwa with adequate notice of the specific information and evidence it required to make a decision on his visa application, particularly in light of the Tribunal's request for information to be provided seven days before the hearing. This involved an examination of the Tribunal's correspondence and the applicant's subsequent appearance and submissions.

Justice Hartnett reasoned that the Tribunal's invitation to the applicant, dated 30 September 2014, clearly outlined the extensive documentation and explanations required for the assessment of his student visa application. The request for this information to be provided at least seven days before the hearing on 7 November 2014 was considered a reasonable and specific requirement. The Court found that the Tribunal had provided sufficient notice of the information it needed, and the applicant had the opportunity to present his case and evidence at the hearing. Consequently, the Court dismissed Mr. Bajwa's application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 sourceoif 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 applicationoif 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 given6. 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 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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