Balraj v Minister for Immigration
[2014] FCCA 501
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALRAJ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 501 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant not enrolled in a course of study at the time of decision – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Gazi v Minister for Immigration [2013] FCA 1094 SZBEL v Minister for Immigration (2006) 228 CLR 152; (2006) 93 ALD 300 SZROZ v Minister for Immigration [2012] FCA 843 |
| Applicant: | SANDHU BALRAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 78 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the First Respondent: | Ms J Cumming Clayton Utz |
ORDERS
The application filed on 5 December 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CAG 78 of 2013
| SANDHU BALRAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 31 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Balraj, a student visa. The following statement of background facts bearing upon this matter is derived from the Minister’s outline of submissions.
On 15 March 2012, Mr Balraj applied for a student visa[1] on form 157A. At the time of the application, Mr Balraj held a certificate of enrolment (COE) for an advanced diploma of management at Unique International College with a course start date of 2 April 2012 and an end date of 24 February 2013[2].
[1] Court Book (CB) 1-23
[2] CB 19
On 30 July 2012, a delegate of the Minister refused to grant the student visa to Mr Balraj on the grounds that Unique International College had cancelled Mr Balraj’s COE on 22 April 2012, due to non-commencement of studies, and accordingly Mr Balraj had not provided evidence of a current COE to demonstrate that he was currently enrolled in a course of study as required by regulation 572.222 of the Migration Regulations 1994 (Cth) (Regulations)[3] (first delegate's decision). A COE is defined to mean[4]:
a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant.
[3] CB 30-41
[4] regulation 1.03 of the Regulations
On 23 August 2012, Mr Balraj applied for review of the first delegate's decision by the Tribunal. On 6 May 2013, the Tribunal remitted the application for a student visa with a direction that Mr Balraj met the requirements of clause 572.222 of Schedule 2 to the Regulations (previous Tribunal decision)[5] as Mr Balraj had a COE for a diploma of business at JP International College with a course start date of 4 February 2013 and an end date of 17 July 2013[6].
[5] CB 46-49
[6] CB 42
On 30 May 2013, a delegate of the Minister again refused Mr Balraj’s application for the student visa as Mr Balraj had not been enrolled in an appropriate course of study between 14 June 2011 and 13 March 2013 and had therefore failed to comply with condition 8516 (continuing to satisfy the criteria for the grant of the visa). The delegate found that Mr Balraj had not complied substantially with the conditions that applied to the last of his substantive visas as required by clause 572.235 (second delegate's decision)[7]. Mr Balraj had previously been granted (on 14 December 2007) a student visa valid to 15 March 2012 to study a bachelor of business at La Trobe University. However, on 14 June 2011, La Trobe University cancelled Mr Balraj’s COE on the basis of non-commencement of studies. Mr Balraj’s next intended course of study was to have been Unique International College with a start date of 2 April 2012. Mr Balraj had not responded to the Minister’s invitation of 14 May 2013 to explain the gap in enrolment[8].
[7] CB 86-98
[8] CB 57-63
Decision of the Tribunal
On 21 June 2013, Mr Balraj applied for review of the second delegate's decision by the Tribunal[9].
[9] CB 99-115
On 7 August 2013, the Tribunal invited Mr Balraj to attend a hearing and present evidence or submissions[10] in accordance with s.360 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal also invited Mr Balraj to provide evidence of a current COE as required for the grant of a student visa (in addition to evidence of his past studies in Australia and an explanation of gaps in his enrolment)[11].
[10] CB 159-165
[11] CB 159-160
On 30 October 2013, the Tribunal held a hearing and received evidence from Mr Balraj[12]. He told the Tribunal that he was not currently enrolled and did not have a current COE[13].
[12] CB 174-176
[13] CB 181 [8], 182 [12]
On 31 October 2013, the Tribunal affirmed the decision to refuse to grant Mr Balraj a student visa[14]. The Tribunal found that it was a requirement for the grant of a student visa that an applicant give the Minister (and the Tribunal) a COE relating to the applicant undertaking a course of study, the provider of which is not a suspended education provider (an acceptable course)[15] (and Mr Balraj had not provided evidence of a current COE[16]. The Tribunal therefore found that Mr Balraj did not meet the requirement of clause 570.222, 571.222, 572.222, 573.222, 574.222 or 575.222 at the time of the decision[17]. It was unnecessary for the Tribunal to consider whether Mr Balraj had substantially complied with the conditions of his previous substantive visa as required by clause 572.235[18].
[14] CB 177-184
[15] CB 183 [19]
[16] CB 183 [21]
[17] CB 183-184 [22]-[24], [26]
[18] CB 184 [27]
The present application
These proceedings began with a show cause application filed on 5 December 2013.
That application has two grounds of review expressed in general terms:
1. The Second Respondent committed jurisdiction error failing to comply with mandatory provision of the Act.
2. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
In the absence of particulars, the grounds of review convey little meaning. The application was accompanied by a short affidavit which I received.
I also have before me as evidence the court book filed on 10 January 2014.
The parties made oral submissions and I also have the benefit of the Minister’s outline of written submissions.
Mr Balraj recognised that he is confronted by a significant difficulty in this case. That is, that at the time of the Tribunal decision he was not enrolled in an acceptable course of study with an approved provider. In fact, it does not appear that he was enrolled at all. He had had experience of that issue as his case had previously been remitted by the Tribunal to the Department on the basis that, while at the time of the first delegate’s decision, Mr Balraj had not been enrolled, he had become enrolled subsequently and before the first Tribunal decision. The problem, however, recurred when the case returned to the Tribunal. It seems, from what Mr Balraj told me from the bar table today, that he was reluctant to spend the money on paying for an enrolment when he could not be certain of the outcome of his visa application.
However, the insuperable difficulty he faced before the second Tribunal was that both at the time of application and at the time of decision he needed to be enrolled in a course of study. He had been enrolled in various courses between the time he first applied for the visa and the time of the second Tribunal decision. Mr Balraj did not seek additional time in order to become enrolled. It follows that there is no issue of the Tribunal acting unreasonably.
The second ground advanced by Mr Balraj, while on its face asserting the Tribunal lacked jurisdiction, could only logically mean the Tribunal acted in excess of its jurisdiction.
There is nothing to support the proposition, either that the Tribunal failed to comply with any mandatory provision of the Migration Act, or that the Tribunal otherwise acted in excess of its jurisdiction under that Act. The Tribunal plainly understood the applicable criteria and applied those criteria. Mr Balraj was unable to satisfy the immediately material criterion of enrolment in a course of study. It was, therefore, inevitable that he would be unsuccessful before the Tribunal. The point was considered succinctly by Foster J of the Federal Court in Singh v Minister for Immigration[19]. The circumstances are dealt with in the Minister’s submissions. I agree with and adopt those submissions.
[19] [2013] FCA 669 at [27]
Non compliance with the Migration Act
Mr Balraj has not specified which of the mandatory provisions of the Migration Act was contravened.
The Tribunal complied with Part 5, Division 5 of the Migration Act which is an exhaustive statement of the requirements of the natural justice hearing rule[20]. In particular, Mr Balraj was invited to and in fact attended a hearing, he was invited to provide evidence of a current COE and it was put to him that he did not hold a COE.
[20] Migration Act, s.357A
Mr Balraj did not meet the eligibility requirement in subclause 572.222 (nor 570.222, 571.222, 573.222, 574.222 or 575.222) in Schedule 2 to the Regulations in that he was required to provide, at the time of the decision, a COE relating to him indicating that he was undertaking an acceptable course. Mr Balraj did not dispute at the Tribunal hearing on 30 October 2013 that he did not have a current COE. The Minister, and therefore the Tribunal, was required to refuse to grant a visa (or affirm the decision) if not satisfied that the criteria prescribed by the Regulations had been satisfied: s.65 of the Migration Act. I accept that “a prerequisite for eligibility in respect of the particular visa sought by the appellant had not been satisfied” and that the “absence of that prerequisite was and is fatal to the [applicant's] application”[21].
[21] Singh v Minister for Immigration [2013] FCA 669 at [27]
Further, Mr Balraj was on notice from the first delegate's decision dated 30 July 2012 that his visa was refused because he did not hold a valid COE, and had succeeded in the previous Tribunal decision on the grounds that he had subsequently obtained a COE[22]. The second Tribunal requested that Mr Balraj provide evidence of a current COE in the invitation to hearing of 7 August 2013. Mr Balraj did not request any additional time to obtain a COE that might have engaged the High Court's reasoning in Minister for Immigration v Li[23].
[22] see SZBEL v Minister for Immigration (2006) 228 CLR 152; (2006) 93 ALD 300
[23] [2013] HCA 18 (Li). Noting that Li was distinguished by the Federal Court in Singh v Minister for Immigration [2013] FCA 669 at [30]-[33] and Gazi v Minister for Immigration [2013] FCA 1094
No jurisdiction
The Tribunal clearly has jurisdiction to review decisions to refuse to grant student visas. As set out above in relation to the first ground of review, the Tribunal complied with the Migration Act in reviewing the second delegate's decision.
This ground of review has been considered by the Courts in a number of cases. As the Federal Court stated in SZRAG v Minister for Immigration[24]:
It is difficult to come to grips with the substance of the appellant’s complaint reflected in [this ground]. The question of reasonable satisfaction was a matter which the Tribunal addressed by the whole of its Reasons for Decision. I must say that I have the same difficulty as the Federal Magistrate had with this ground which caused him, at [34]–[36] of his Reasons for Judgment, to say the following:
One of a number of unfortunate aspects of the application is that this particular ground is expressed at such a level of generality that it is not possible for either the Minister to address the specific grounds or for the Court to determine what is intended to be understood by this particular contention.
To the degree that the Court could perhaps only speculate what is intended by this ground of appeal, and to the degree that it is claimed that the Tribunal had no jurisdiction to make the said decision, that is a proposition I reject because the Tribunal clearly does have jurisdiction to deal with appeals from a delegate of the Minister.
[24] [2013] FCA 202 at [19]. See also SZQRD v Minister for Immigration [2012] FCA 874 ; SZQZH v Minister for Immigration [2012] FCA 1251; SZROZ v Minister for Immigration [2012] FCA 843; and SZQMR v Minister for Immigration [2012] FCA 122
And also, to the degree that the Court can glean what is understood by:
...reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act –
in my view, having regard to the evidence before it, the decision of the Tribunal is not attended by sufficient doubt to warrant this Court to intervene, or more accurately stated, the decision reached was open to it on the limited evidence available. That being so, for this Court to intervene would be to encroach upon the fact-finding exercise undertaken by the Tribunal. Such a course is not open.
Mr Balraj is unable to establish that the Tribunal fell into any jurisdictional error. It follows that the decision of the Tribunal is a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. Mr Balraj did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2014
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