BAPATLA Venkata v Minister for Immigration

[2016] FCCA 2161

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAPATLA VENKATA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2161

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: RADHA KRISHNA MURTHY BAPATLA VENKATA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2452 of 2014

Judgment of: Judge Riethmuller

Hearing date: 13 July 2016

Date of Last Submission: 13 July 2016

Delivered at: Melbourne

Delivered on: 13 July 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 3 December 2014 be dismissed.

2. The name of the Second Respondent be amended to Administrative Appeals Tribunal.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG2452/2014

RADHA KRISHNA MURTHY BAPATLA VENKATA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) (as it was then described) with respect to the cancellation of a student visa. The applicant, who is a citizen of India, came to Australia to study a Masters of Information Technology by course work at Charles Sturt University. He came in 2012 and he appears to have completed a semester of studies, although not done the examination and thereafter, has not been participating in a course. The issues with respect of the examinations may have related to fees or may have related to the applicant’s health (he did spend some time back in India as a result of health issues). 

2. Ultimately, in August of 2013, a notice was issued to him of an intention to cancel the visa on the basis that he was not studying, nor enrolled. The cancellation occurred in February 2014. The applicant complains that once his visa was cancelled and he was on a bridging visa it was difficult for him to obtain an enrolment, on the basis that the course providers wished to see a visa before they would give him an enrolment.

3. The Tribunal recounted the relevant facts and circumstances and quite properly came to the view that he was not complying with the visa conditions, in that he was not achieving satisfactory course attendance and progress and nor indeed, at that stage, even enrolled in a course.

4. In turning to consider whether the visa should have been cancelled, the Tribunal had regard to the studies that he had undertaken and had regard to the illness that he said he suffered. There was an issue before the delegate as to whether or not medical evidence from New Delhi was evidence that could be relied upon. Whilst the delegate did not rely upon it, the Tribunal accepted for the purposes of that hearing, that medical evidence, and did not draw any negative inference from the delegate’s conclusions that the hospital documents were not genuine (see paragraph [20]).

5. The Tribunal also recounted the version of events that the applicant gave at paragraph [17], saying:

   ·He was never warned by the university that his enrolment was to be cancelled.

   ·He has successfully completed 2 semesters of the course;

   ·Charles Sturt University are withholding his results for the two semesters until they receive payment of fees;

   ·He attempted to discuss his circumstances with the University after he received the NOICC but without success; and

   ·He wishes to complete his course in the master degree and is attempting to gain enrolment in other universities.

6. The Tribunal ultimately concluded that given that the applicant had been in Australia for some two and a half years, had only studied for a semester and ceased to be enrolled about a year before the Tribunal’s decision, even in light of the medical material, that there was not material that persuaded the Tribunal that the visa ought not to be cancelled, given the non-compliance with the condition.

7. The applicant, in his written application, lists a large number of matters as being grounds of the application. It is, in effect, a short summary of the arguments that he raises. As counsel for the Minister identifies, paragraphs [6], [7], [10] and [11], in substance, provide a basis for a ground that may be argued.

8. In ground 6, the applicant outlines that because of his bridging visa he was unable to study, saying:

   6. My visa was cancelled on the basis that I am not enrolled in a registered course for a period of around one year while I am holding Subclass 573 student visa, it was totally wrong which has mentioned in the Migration review Tribunal Decision, Because of I am on the “bridging visa C” which doesn’t allow me study them How it is possible to enrol even no education provider is offering me the master’s program.

9. As the Minister points out, it was not an error for the Tribunal to take into account that the applicant was not enrolled, as it was a requirement for the visa conditions. Once the visa had been cancelled, it may be that he could not formally enrol, but as a minimum, he could have attempted to provide an offer of enrolment conditional upon a visa being available.

10. Even without that, the circumstances, as relied upon the Tribunal, are correctly set out in the Tribunal’s decision. I am not persuaded that this amounts to a ground of judicial review on the basis of jurisdictional error.

11. Ground 7, as numbered in the application, outlines that the Tribunal ought to have asked him exactly what his situation was and what compelling reasons there were for not having enrolment in the Masters program. In the Tribunal decision, it is clear that the Tribunal did, in fact, go over issues relating to medical matters, both in India and in Australia, issues relating to his non-enrolment and indeed, even asked him if he wished to provide information to them about a personal relationship that may have impacted upon his circumstances, which he chose not to discuss with them (see paragraph [25]).

12. In these circumstances, it cannot be said that the Tribunal did not inquire of him, his circumstances, nor that they did not consider his circumstances, given the reasons that they have given. Even if it were the case that they had not formally inquired as to his circumstances that of itself would not be an error: only if they had failed to have regard to matters that he had raised. Given the terms of the decision, it appears clear that the Tribunal have considered the matters that the applicant raised as circumstances he says support the exercise of the discretion not to cancel the visa. 

13. In grounds 10 and 11, the applicant suggests that the Tribunal have not had regard to various documents: in ground 10, documents from India with respect to a hospital in Hyderabad and in ground 11, simply a general claim that not every document has been referred to by the Tribunal. In submissions before me, the applicant didn’t identify any particular document that had not been considered by the Tribunal. It also appears clear that the Tribunal did have regard to the documents from the Hyderabad hospital at paragraph [18] of the decision and unlike the delegate, drew no negative inference against the applicant with respect to them (see paragraph [20] of the decision). These matters do not amount to a basis for a finding of jurisdictional error.

14. The applicant, in oral submissions, asked that I overturn the decision of the Tribunal to give him another opportunity to have a further hearing and hopefully, have his circumstances arranged for an enrolment to be able to successfully obtain a visa. The way that the system is structured in Australia, it is not open to me to exercise a general discretion to overturn a decision of the Tribunal. I can only do so if the Tribunal has committed jurisdictional error. That involves a finding of an error of law, either of substantive law or procedural law, with respect to the way in which the Tribunal has conducted itself and made a decision. In this case, I am not able to identify any jurisdictional error on the part of the Tribunal and therefore, I have no choice but to refuse the current application. I therefore dismiss the application.

    [Further argument ensued]

15. In this matter, there is no reason that costs should not follow the event. Quite properly, costs are an indemnity, not a damages claim, and therefore if the costs incurred are less than the scale it is appropriate that a costs order in the amount that has been incurred, not the scale amount, be made in this case. In this case, the costs incurred are $4,000.00. This is less than the scale. I will order the applicant pay the Minister’s costs fixed at $4,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 22 August 2016