BOLLA v Minister for Immigration

[2017] FCCA 2430

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOLLA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2430

Catchwords:
MIGRATION – Application for judicial review in relation to student visa – submission at the judicial review hearing that the Applicants did not believe the Tribunal decision was wrong but wanted to remain temporarily in Australia to enable the son to complete his education– held no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 360, 499

Migration Regulations 1994 (Cth), cl.572.224

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

First Applicant:	SUJANA BOLLA
Second Applicant:	RAMALINGESWARA CHOUDARY BOLLA
Third Applicant:	PRANAV SAI BOLLA
First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2798 of 2015

Judgment of: Judge Jones

Hearing date: 30 August 2017

Date of Last Submission: 30 August 2017

Delivered at: Melbourne

Delivered on: 30 August 2017

REPRESENTATION

The Second Applicant appeared in person on behalf of the Applicants.

Counsel for the Respondents: Ms Koya of DLA Piper Australia

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for judicial review filed on 17 December 2015 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $4,630.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2798 of 2015

SUJANA BOLLA

First Applicant

RAMALINGESWARA CHOUDARY BOLLA
Second Applicant

PRANAV SAI BOLLA
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and Background

1. This is an application for judicial review in relation to a decision of the then Migration Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the First Applicant a Student (Temporary) visa (“the visa”).

2. The First Applicant applied for the visa on 1 March 2014 (CB 1-32). The application for the visa was refused by a delegate of the Minister on 17 November 2014, on the basis that the First Applicant had failed to undergo the necessary health examinations and, therefore, did not meet the Public Interest Criteria 4005. As a consequence, the First Applicant did not thereby satisfy cl.572.224 of the Migration Regulations 1994 (Cth) (“the Regulations”), which is a criterion that an applicant for a visa must satisfy in order to be granted the visa (CB 96-101).

3. The First Applicant applied to the Tribunal for merits review of the delegate’s decision on 6 December 2014. At the Tribunal hearing, held on 8 December 2015, the Tribunal made an oral decision and gave an oral statement of decisions and reasons. A written record of those reasons was given to the Applicants on 23 December 2015 (CB 160-163).

The Tribunal decision

1. The Tribunal identified that the delegate’s decision, which the First Applicant had provided to the Tribunal for the purpose of the merits review, put the First Applicant on notice that she had failed to provide the required medical evidence for the grant of the visa (CB 162 at [3]).

2. The Tribunal set out the background to the matter (CB 162 at [7]-[10]) and identified that as soon as the decision to refuse the visa was made by the delegate on 17 November 2014, the First Applicant ceased her studies, which the Tribunal said presumably led to her enrolment being cancelled (CB 162 at [11]).

3. In its decision record, the Tribunal noted that the First Applicant provided a letter from a college where she was studying, stating that she had re-enrolled in a course which was scheduled to run from November 2015 to November 2016 (CB 162 at [12]).

4. The Tribunal noted that the First Applicant claimed that she stopped studying because once she applied for merits review to the Tribunal, she did not believe that she was compelled to continue studying (CB 163 at [13]). The Tribunal considered that it could be argued that she was not compelled to study. The Tribunal was of the view that, the fact that she chose to stop studying so soon after the refusal to grant the visa indicated to the Tribunal that studying was not a major concern to the First Applicant (CB 163 at [14]). The Tribunal noted that the First Applicant said that she ceased studying, and then re-enrolled on the advice of a friend. The Tribunal stated that it had difficulties with that response.

5. The Tribunal informed the First Applicant that she had still not provided the required medical evidence for the grant of the visa. The Tribunal noted that within the 48 hours before the Tribunal hearing, the First Applicant had contacted a migration agent who had arranged medical appointments for the First Applicant in the near future (CB 163 at [15]).

6. The Tribunal identified, as it was required to do pursuant to s.499 of the Migration Act 1958 (Cth) (“the Act”), its obligation to consider relevant factors set out in Ministerial Direction 53. The Tribunal identified what those factors were (CB 163 at [18]-[19]).

7. The Tribunal found that the First Applicant had studied a number of courses that appeared to be unrelated, and stated (CB 163 at [20]):

   20.    … Particularly for someone who claims they want to be a hairdresser, the Tribunal sees no reason why you would have studied a Bachelor of Information Technology. When I ask you the reason, you provide no answer.

8. The Tribunal found that the choice and the timing of the First Applicant’s studies lacked consistency. This led the Tribunal to find that the First Applicant’s studies were not leading towards a career plan, but rather was ad hoc and designed to maintain ongoing residence in Australia (CB 163 at [21]).

9. Having considered all of the evidence, including the First Applicant’s study history, the value of her proposed course to her future, her circumstances, her immigration history and other relevant matters, the Tribunal said that it was not satisfied that the First Applicant was a genuine applicant for temporary entry and stay as a student in Australia (CB 163 at [23]). Accordingly, the Tribunal affirmed the decision under review (CB 163 at [24]).

Judicial review

1. The Applicants specified the following ground of review in their application filed on 17 December 2015:

   1. The Tribunal has failed to consider all of the evidence before it, in reviewing the decision of the delegate.

2. The Applicants are self-represented. The First Applicant commenced addressing the Court, however she experienced a degree of anxiety about appearing before the Court and, consequently, I gave her permission for her husband, the Second Applicant, to appear on behalf of the Applicants. In the circumstances, there was no objection from the Minister.

3. The Court explained to the First Applicant, and then again to the Second Applicant, the nature of a judicial review hearing, and in particular, the difference to a merits review conducted by the Tribunal.

4. The Second Applicant was then asked to explain to the Court what evidence the Tribunal failed to consider, and what was wrong with the Tribunal’s decision.

5. The Second Applicant told the Court that there was nothing wrong with the Tribunal decision. In circumstances where I was somewhat surprised by this submission (given that it is an application for judicial review), I confirmed with the Second Applicant that was what he said. The Second Applicant confirmed his view was that there was nothing wrong with the Tribunal decision. The Second Applicant went on to explain that the Applicants did not want to live permanently in Australia, but wanted to remain in Australia until their son, who is 18 years old, finishes his education, following which they wished to return to India because their families live there and they own properties in India.

6. I asked the Second Applicant whether there was anything else that he wished to tell the Court, and he said there was not.

7. Given the oral submission of the Second Applicant, the Court can only find that there is no jurisdictional error affecting the Tribunal’s decision.

8. The basis of the oral submission, which is in effect, that the Applicants are utilising the review process to prolong their stay in Australia to enable their son finishes his education, can never be a ground for judicial review.

9. As the Applicants are self-represented, the Minister (as a model litigant) identified possible grounds of judicial review which may have arisen from the Tribunal decision.

10. The first possible ground identified by the Minister is in relation to s.360 of the Act. I am satisfied that the Tribunal complied with the requirements under this section.

11. The Applicants were invited to a Tribunal hearing to discuss the issues arising in their case pursuant to sub- s.360(1) of the Act.

12. Section 360 of the Act also requires the Tribunal to identify for an applicant the dispositive issues in the merits review, where those issues differ from the issues considered dispositive by the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) at [35].

13. It is clear that the Tribunal decision was based on a different dispositive issue to that of the delegate’s decision. The delegate’s decision was made on the basis of the absence of the required medical certification pursuant to cl.572.224 of the Regulations, whereas the Tribunal’s decision was based on its opinion, or the formation of its opinion, about the capacity of the Applicants to meet the genuine temporary entrant criteria. The Tribunal in fact found that the Applicants did not meet the genuine temporary entrant criteria (CB 163 at [23]).

14. It is apparent from the Tribunal’s decision record (CB 162-163 at [5]-[22]) that the Tribunal did identify the dispositive issues, and further, put the dispositive issues to the First Applicant so that she could respond. The Tribunal was not convinced by the First Applicant’s failure to provide satisfactory answers. This was a conclusion that was open to the Tribunal.

15. Consequently, I am satisfied that the Tribunal complied with its obligations under s.360 of the Act.

16. The second possible ground of review identified by the Minister is in relation to the requirements under s.359A of the Act. Section 359A of the Act requires the Tribunal, if it is to rely on information that may form the basis of a finding which is adverse to an applicant’s case, to put that information either in writing, or orally, to an applicant.

17. In relation to the study history of the First Applicant, the Tribunal said (CB 162 at [8]):

    8.… You say you have done a Diploma of Business and I believe there is evidence of that on file. You say you have completed a Bachelor of Information Technology, there is no evidence before the Tribunal of such studies however I accept your word that you have studied that course.

18. This information was clearly information that the First Applicant provided to the Tribunal. This information was the basis for the Tribunal to form an adverse view as to the Applicant’s application for merits review. By reason of sub-s.359A(4)(b) of the Act, it was information that the First Applicant presented to the Tribunal for the purpose of the application, and the Tribunal therefore was not required to comply with s.359A of the Act, or indeed s.359AA of the Act.

19. The Tribunal noted that the First Applicant claimed to have studied a Diploma of Business and a Bachelor of Information Technology, and said the following (CB 163 at [20]):

    20. You have studied a number of courses that would appear to be unrelated. Particularly for someone who claims they want to be a hairdresser, the Tribunal sees no reason why you would have studied a Bachelor of Information Technology. When I ask you the reason, you provided no answer.

20. As I have already indicated, the information provided by the First Applicant was clearly a basis for the Tribunal to make its finding that the choice and timing of the First Applicant’s studies lack consistency (CB 163 at [21]). This finding formed the basis for the Tribunal’s finding that the Applicant’s studies did not lead towards a career path, but rather were ad hoc and designed to maintain ongoing residence in Australia.

21. As the information that the Tribunal relied on was information provided by the First Applicant, then clearly the exemption provided for under sub-s.359A(4)(b) of the Act applies.

22. The third ground possible ground of review identified by the Minister is whether the Tribunal complied with Ministerial Direction 53, as required under s.499 of the Act.

23. While the Tribunal did not set out the sub-headings from Ministerial Direction 53, I am satisfied that the Tribunal was cognisant of the need to have regard to Ministerial Direction 53 and its factors (CB 163 at [18]). I am satisfied that the Tribunal did have regard to relevant elements of Ministerial Direction 53 (CB 163 at [19]-[23]).

24. Consequently, I am satisfied that the Tribunal considered Ministerial Direction 53, as obliged under s.499 of the Act. The Tribunal was not required to expressly refer to every factor. What it was required to do was to demonstrate that it had understood that it was required to address Ministerial Direction 53, which the Tribunal did in the course of its decision.

25. Consequently, I am satisfied that no jurisdictional error arises from the Tribunal’s consideration of Ministerial Direction 53 in accordance with s.499 of the Act.

26. I am further satisfied that no jurisdictional error arises in relation to the obligations imposed on the Tribunal by s.359A of the Act, nor the obligations under s.360 of the Act.

Conclusion

1. I am satisfied that no jurisdictional error arises on the ground specified by the Applicants in the application for judicial review, and having regard to the oral submissions made by the Second Applicant, on behalf of the Applicants during these proceedings.

2. Consequently, I will make an order dismissing the application for judicial review and an order requiring the Applicant to pay the Minister’s costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 9 October 2017