Bhangu v Minister for Immigration

[2016] FCCA 1520

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANGU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1520

Catchwords:
MIGRATION – Application for judicial review – Consideration of cl.572.223 requirements for the grant of a student visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 362(B), 476(1), 499(2A)

Migration Regulations 1994 (Cth), cl.572.223(1)(a) of Sch.2

Applicant: AMARPREET SINGH BHANGU

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2654 of 2014

Judgment of: Judge McNab

Hearing date: 20 June 2016

Date of Last Submission: 20 June 2016

Delivered at: Melbourne

Delivered on: 15 July 2016

REPRESENTATION

Applicant In Person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Second Respondent’s name be amended to ‘Administrative Appeals Tribunal’.

2. The applicant’s application filed 24 December 2014 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2654 of 2014

AMARPREET SINGH BHANGU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application dated 24 December 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 25 November 2014. The Tribunal had affirmed the decision of a delegate of the Minister not to grant the applicant a student (Temporary) (Class TU) visa (“the visa”) under s.65 of the

   
   Migration Act 1958

   (Cth) (“the Act”).

2. As the proceedings were brought pursuant to s.476(1) of the Act, the applicant must show jurisdictional error in the Tribunal’s decision.

Background

1. The background to the applicant’s application is relevantly set out in written submissions filed by the respondent on 14 June 2016 at paragraphs 3 to 7:

   The Applicant is a citizen of India. On 17 September 2013, the Applicant applied to the Department of Immigration and Citizenship (as it then was) (the Department) for the Visa:

   
   

   CB 1-20. The Applicant provided various documents in support of the application for the Visa, Confirmation of Enrolments (CoE) in Certificates III and IV in Information Technology as well as academic documents showing he had completed various courses in India: CB 21-31.

   On 20 September 2013, the Department wrote to the Applicant requesting further information including, amongst other things, evidence that the Applicant was a genuine temporary entrant:

   
   

   CB 32-39. The Department also invited the Applicant to comment on information in its possession which did not support the Applicant’s application and to provide evidence in relation to Department records, which indicated that he was not enrolled in a course of study between 26 May 2013 and 18 August 2013.

   On 19 October 2013, the Applicant provided a number of documents to the Department including a letter explaining his pattern of study and the gap in his study: CB 40-52.

   
   

   The Applicant stated that he had not breached any student visa conditions intentionally, that he had been continuously studying since arriving in Australia, that there was a gap between his management and IT courses, and that his migration agent told him that he could have a gap of two months between studies.

   
   

   He also stated that the gap between studies was only because of a misunderstanding between him and the education provider as to when he completed his diploma of management: CB 51-52.

   On 21 November 2013, the Department emailed the Applicant inviting him to provide a response to information obtained from Departmental records, which indicated that he was not enrolled in a course of study between 19 April 2009 to 28 September 2009 and 12 October 2009 to 17 May 2010, a total study gap of

   
   

   12 months: CB 91.

   On 13 December 2013, the Applicant provided more documents further explaining the gap in his studies: CB 53-74. This included evidence of his studies and a statement from the Applicant regarding the Delegate’s concern of the gap in studies in

   
   

   2009-2010. In relation to the study gap, the Applicant said that he had been continuously studying and that any gap was due to issues with “the college management” and that he had failed four units due to “the greediness of the college management”

   
   

   CB 73-74.

2. On 17 December 2013, the delegate refused to grant a visa on the basis that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Sch.2 to the Migration Regulations 1994 (Cth). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student within the meaning of cl.572.223(1)(a).

3. The applicant applied for a review of the delegate’s decision and provided the Tribunal with a copy of the primary decision record and appointed a registered migration agent as his representative and authorised recipient.  Paragraph 6 of the Tribunal’s reasons provide that by a letter dated 2 September 2014 the applicant was invited to attend a hearing on 7 October 2014 to give evidence and present arguments.  The letter advised the applicant of the issues that would arise at the hearing.  The applicant was invited to provide a statement addressing the requirement of the relevant criterion and evidence of current enrolment or an offer of enrolment in a registered course and evidence of all his academic achievements in Australia. No response was received to that letter.  The applicant did not appear at the hearing before the Tribunal, nor did his migration agent appear.

4. The Tribunal was satisfied that the Tribunal’s letters were correctly sent to the address provided for receiving correspondence (being the address of the migration agent appointed by the applicant and through whom documents were provided).  The Tribunal noted at paragraph 8:

   Given the sequence of events and invitations above and given that the applicant has not provided anything in support of his appeal of the Minister’s decision since he applied for review of it in December 2013, and noting that he has engaged a registered migration agent to represent and assist him, I am satisfied that the applicant has had sufficient opportunities to provide material, give evidence and present arguments, but as at the time of writing this decision, he has not availed (sic) himself of any of these opportunities.

5. The Tribunal then went on to consider the applicant’s claims and evidence that had been provided. In its reasons for decision, the Tribunal accepted the applicant’s explanations that he was, in fact, studying during periods which the delegate had identified as periods when he had not studied and the Tribunal accepted that, on the material before it, the applicant had not breached visa conditions.  At paragraphs 11 to 13 the Tribunal referred to the applicable legislative framework and, in particular, the criterion in the Genuine Temporary Entrant criterion and Direction No.53 and summarised the contents of the direction. At paragraph 25 the Tribunal held:

   The applicant’s expressed love for the internet and his desire to now undertake two courses for a total duration of around one year would mean that he has been studying in Australia for

   
   

   6.5 years before making a start on a career path.  Having regard to the Minister’s Direction and the applicant’s history of changing course and career directions, I formed the view that he is using the student visa for purposes other than its intended purpose and to circumvent the migration program and maintain ongoing residence in Australia.  I am not satisfied that the applicant is a genuine applicant for entry and stay as a student within the meaning of clause 572.223.

6. The Tribunal was not satisfied on the evidence before it that the applicant intended to stay in Australia temporarily, and found that the applicant did not meet the Genuine Temporary Entrant criterion. 

Proceedings in the Federal Circuit Court

1. On 15 April 2015 Registrar Caporale made orders which required the applicant to file and serve written submissions in support of his application 14 days prior to hearing.  The applicant did not file or serve any written submissions. The grounds for the application make reference to one ground being that the applicant:

   …is not satisfied with the decision from the Department of Immigration and Border Protection and also decision from MRT department.

2. A one-page document attached to the application states that the applicant does not agree with the decision of the Tribunal and the department and that he had, as requested by the delegate, provided a statement addressing whether he was a temporary entrant.

   
   

   The documents states that he did not attend a Tribunal hearing due to his bad health and that he had called the Tribunal for another hearing date.  He contends that this request was overlooked. 

Conclusions

1. I agree with the submissions of the respondent that the application seeks review of the Tribunal’s factual findings and does not identify any legal error in the decision. The ground for review and statement amounts to an impermissible request for a merits review of the Tribunal’s decision.

2. I am of the opinion that the Tribunal complied with its obligations in respect of Direction No.53. It summarised the factors to be considered and assessed the applicant’s circumstances by reference to the requirements contained in Direction No.53 which were relevant to its decision. I am of the view that the Tribunal has complied with its mandatory obligations in s.499(2A) of the Act.

3. In relation to the Tribunal’s decision to proceed under section 362B of the Act, I agree that the Tribunal properly exercised its discretion under that section to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In this proceeding, no substantial written submission was filed on behalf of the applicant before the Tribunal. It is noted that no submission of any substance has been filed in this application before the Court. The Tribunal was correct in finding that the applicant did not engage with the Tribunal during the review process and, likewise, the Court finds that the applicant did not engage with the Court in relation to this review. 

4. In these circumstances, I dismiss the application and will make orders accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 July 2016