Bhullar v Minister for Immigration

[2014] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHULLAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1925

Catchwords:
MIGRATION – Application to review decision of the Migration Review Tribunal not to grant the Applicant a student visa – previous visa held by Applicant subject to Condition 8516 of Sch.8 of the Migration Regulations 1994 (Cth) – breach of Condition 8516 found by the Tribunal – no jurisdictional error alleged or proven by the Applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Migration Regulations 1994 (Cth), cl.570.235 of Sch.2, Condition 8516 of Sch.8

Applicant: JASVEER SINGH BHULLAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2045 of 2013

Judgment of: Judge Whelan

Hearing date: 20 August 2014

Date of Last Submission: 20 August 2014

Delivered at: Melbourne

Delivered on: 26 August 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr Swan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 26 November 2013 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2045 of 2013

JASVEER SINGH BHULLAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) of 24 October 2013 in which the Tribunal affirmed a decision of a delegate of the

   
   

   First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.[1]

   [1] Court Book filed 29 February 2014, at pp.87-91.

2. The Applicant seeks an order that the decision of the Tribunal be quashed.[2]

   [2] Application filed 26 November 2013 at p.3.

Background

1. The Applicant arrived in Australia in February 2009 as a secondary visa holder, his wife being the holder of a Student (Subclass 573) visa.

2. On 15 June 2011, the Applicant and his wife were granted

   
   

   further Student (Subclass 572) visas, valid until 3 April 2013. On

   
   

   10 August 2012, the Applicant applied for his own Student

   
   

   (Subclass 570) visa. In correspondence between the Department of Immigration and Citizenship (“the Department”) and the Applicant,

   
   

   the Applicant conceded that he had been separated from his wife since July 2011. On 13 September 2012, a delegate of the First Respondent refused to grant the visa on the basis that the Applicant did not meet the requirements of cl.570.235 of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he had not substantially complied with the conditions of the last substantive visa held by him.

3. On 1 October 2012, the Applicant sought a review of the delegate’s decision by the Tribunal. The Applicant attended a hearing by the Tribunal on 24 October 2013 at which he was assisted by a

   
   

   migration agent.

The Tribunal’s decision

1. At the hearing, the Tribunal explained to the Applicant that his previous visa was subject to Condition 8516 of Sch.8 of the Regulations. This required that the Applicant must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. In his case, the basis for the grant of the visa was his spousal relationship. The Applicant confirmed that he had separated from his wife in July 2011.

2. The Tribunal observed that this was only one month after the visa was granted and the Applicant did not apply for a student visa in his own right until 10 August 2012, which meant that he had remained as a dependant on his wife’s student visa for over 12 months after the acknowledged breakdown of his relationship. The Tribunal found that the Applicant was in breach of Condition 8516 of Sch.8 of the Regulations for most of the time he held the visa. He had not complied substantially with the visa condition and he therefore did not meet the requirements of cl.570.235 of Sch.2 of the Regulations.

The grounds for review

1. The grounds as set out in the application consist mainly of a history of:

   ·The Applicant’s arrival in Australia;

   ·His application for the visa;

   ·The refusal of the visa; and

   ·His desire to study business management before he goes back to India as he would like to start his own business there.[3]

   The Applicant concludes: I request the honorable [sic] court to consider my genuine request to grant me student visa [sic].[4]

   [3] Application filed 26 November 2013 at p.3.

   [4] Ibid.

The First Respondent’s submissions

1. The First Respondent submits that it is not a function of the Court to grant the Applicant a visa. Further, the decision of the Tribunal is not in error as the Tribunal correctly identified:

   ·The issue, namely the Applicant’s ‘substantial compliance’ with the conditions attaching to the last substantive visa; and

   ·The relevant case law that provided guidance on the proper application of the ‘substantial compliance’ concept.

   The Tribunal’s finding on whether there was substantial compliance was a question of fact which cannot be directly challenged in this Court.

Conclusions

1. A review of the decision of the Tribunal under s.476(1) of the Migration Act 1958 (Cth) is not a rehearing of the original application by the Court or a review of the merits of the claim. The Court does not have the jurisdiction to grant visas and only in certain narrowly defined circumstances will it interfere with a finding of fact made by a Tribunal. The Applicant must show that the Tribunal has made a jurisdictional error in its decision. The Applicant in this case has not either alleged, nor shown, any such error.

2. Indeed, the Applicant does not challenge the basis upon which the Tribunal reached its decision. There is no challenge to the essential finding of fact, namely that, one month after the Applicant was granted a visa as a secondary visa holder, he separated from his wife. He held that visa as a member of the family unit of the primary visa holder. Having separated from his wife, the Applicant was no longer able to comply with the condition that he be a member of the family unit of the primary visa holder. The breach of that condition meant that he could not satisfy the eligibility requirements of cl.570.235 of Sch.2 of the Regulations. The Tribunal was therefore bound to affirm the delegate’s decision.

3. For these reasons, the application must be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 26 August 2014