Chahal v Minister for Immigration

[2016] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAHAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 867

Catchwords:
MIGRATION – Review of a decision of the Second Respondent – application for a Student (Temporary) (Class TU subclass 572) visa – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.11(b)

Migration Act 1958 (Cth), s.368(d)(4)

Migration Regulations 1994 (Cth), r. 1.40A, sch.2: cls. 570.232, 571.232, 572.223(1)(a), 572.231, 573.231, 574.231, 575.231

Applicant: SATNAM CHAHAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1307 of 2015

Judgment of: Judge Hartnett

Hearing date: 31 March 2016

Delivered at: Melbourne

Delivered on: 31 March 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the First Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS MADE ON 31 MARCH 2016

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1307 of 2015

SATNAM CHAHAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Second Respondent (‘the Tribunal’) made on 14 May 2015 and reduced to writing on 23 July 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent dated 1 October 2014 which refused to grant the Applicant a Student (Temporary) (Class TU subclass 572) visa (‘the visa’). 

2. The Applicant relies upon his application and submissions dated 26 February 2016, together with their attachments. 

3. The Applicant seeks an order that the decision of the Tribunal or Minister be quashed.  The grounds of application are as follows:-

   “I want to dispute over the conduct of DIBP and the Migration Review Tribunal in regards to my subclass 572 student visa refusal. My student visa was first refused by the immigration department and then later, the MRT department affirmed the DIBP decision not to grant me this student visa.  I do not agree with the decisions from both departments.  I want to challenge the decision of my student visa refusal in the federal circuit court.

   Background:

   I lodged my student visa with department of immigration border protection of 14^th July 2014. 

   On 17^th July 2014, I was requested by the immigration department to provide further documents in regards to my application.  I was also asked to provide the financial documents as well.  Due to my mother’s bad health, I didn’t get the financials in time. 

   On 1^st October 2014, my student visa application was refused by the immigration department as I was late to provide the required documents.

   On 14^th October 2014, I lodged my review application with MRT department.  During this process of my visa review application, I was continually studying my diploma of management course and was maintaining all of the conditions attached to my student visa. 

   I received an MRT hearing invitation to appear before the tribunal on 14^th May 2015.  I did attend the hearing and provided my reasons for all of the concerns raised by the department.  I also showed my genuine intentions of study in Australia.

   Unfortunately, MRT department has affirmed the decision of immigration department not to grant me a student visa.

   Claims and Evidence:

   My concerns are that I am unfairly treated in regards to my subclass 572 visa review application both by the MRT department and by the immigration department. The immigration department had concerns that I am not a genuine student to study in Australia and that I do not meet the definition of “GENUINE TEMPORARY ENTRANT”.  I have serious concerns in regards to the refusal of my application and want to challenge the decision in the court.  I believe that the immigration department has made an error in assessing my application and also the MRT department has failed to act lawfully in regards to my review application. In fact, I haven’t been provided a full decision record from the MRT department.  I do believe that both departments have incorrectly used the definition “GENUINE TEMPORARY ENTRANT” while making decision on my student visa application. 

   I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Migration Review Tribunal.”

4. This proceeding was first listed for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). By orders made on 5 February 2016, the matter was adjourned for hearing to this day. The Applicant was to file and serve written submissions as was the First Respondent. Both parties have complied with those orders.

5. The First Respondent relies upon a response to the application wherein the First Respondent seeks dismissal of the application and costs.  The First Respondent further relies upon contentions of fact and law dated 28 January 2016 and further contentions of fact and law dated 15 March 2016.  The First Respondent also relies upon an affidavit of Jolanta Zofia Kowalewska sworn 10 March 2016 to which is annexed transcripts of the electronic recording of the hearing conducted by the Second Respondent on both the 27 of April 2015 and the 14 of May 2015.  There is also before the Court, the evidence as contained in the Court Book filed on behalf of the First Respondent.

Background

1. The Applicant was initially granted a Student (Class TU) (subclass 573) visa offshore on 15 January 2014 which was valid until 15 March 2017.  He subsequently arrived in Australia on 23 January 2014.  That subclass 573 visa was granted under the streamlined visa processing arrangements with the expectation the Applicant would undertake a Diploma of Business and Commerce Studies with the Gold Coast TAFE which was a prerequisite to the Applicant’s enrolment at Bachelor of Business at Griffith University.

2. The Applicant applied for the visa on 14 July 2014.  In that application, the Applicant claimed in paragraph 33 therein that he was doing a Diploma of Business and Commerce Studies from Gold Coast Institute of TAFE, but that he was planning to change his course to Certificate III and IV in Commercial Cookery from the Technical Institute of Victoria.   Further on in that same section, the Applicant noted that he had been living in Melbourne for the last few months.  He was, in fact, at that time not a student at the Gold Coast Institute of TAFE as he was living in Melbourne and had been reported for unsatisfactory course attendance on 25 June 2014, with his enrolment cancelled on 26 June 2014.  I note when the Applicant stated in his grounds of application in these proceedings that on 14 October 2014, he was “continually studying my diploma of management course” he was not doing so, his enrolment having been cancelled some months prior thereto. 

3. By correspondence of 17 July 2014 to the Applicant from the Department of Immigration and Border Protection (‘the Department’), the Applicant was invited to comment on reports from Griffith University of 25 June 2014 relating to the Applicant’s unsatisfactory course attendance.  The correspondence noted that visa condition 8202 was attached to the Applicant’s current or last student visa, which required him to achieve satisfactory course attendance in his registered course of study.  The Applicant was asked to provide evidence from his education provider of his attendance at his registered course of study, and provide a statement outlining the reasons for his not achieving satisfactory course attendance, along with any supporting evidence.  That correspondence also noted that one of the primary criteria for the grant of the Applicant’s previous student visa was that he must be studying an eligible higher degree course at an eligible education provider.  The Applicant was informed that records indicated that his enrolments for these courses had now been cancelled and that he did not hold enrolments in an approved course for international students. 

4. The Applicant did not respond to the request of the Department. 

5. The delegate refused the visa on 1 October 2014 on the basis that the Applicant did not meet cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because the delegate was not satisfied that the Applicant was a “genuine temporary entrant”, having regard to the matters set out in cl.572.223(1) of the Regulations and the factors in Ministerial Direction 53 – assessing a genuine temporary entrant criterion for Student visa applications.

6. On 14 October 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.  On 25 March 2015 the Tribunal invited the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review on 27 April 2015.  The Tribunal, relevantly, required of the Applicant that he provide the following information:-

   “1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.”[1]

   [1] Letter from the Migration Review Tribunal to Mr Chahal dated 25 March 2015.

7. The Applicant was also provided with a copy of Ministerial Direction number 53 from the Minister and was asked to provide a written statement addressing the issue of whether he was a genuine temporary entrant by referring to Ministerial Direction number 53. 

8. On 27 April 2015, the Applicant attended the hearing without his representative.  The Tribunal adjourned the hearing at the Applicant’s request to 14 May 2015 to enable the Applicant’s representative to be present.  On 28 April 2015, the Tribunal invited the Applicant to attend the adjourned hearing scheduled for 14 May 2015, noting that the hearing would proceed even if the Applicant’s representative was not present. 

9. The Applicant attended the hearing on 14 May 2015 without his representative.  However, he indicated to the Tribunal that he was happy to proceed with the hearing by himself. 

10. The Applicant had made a written statement which he provided to the Tribunal on 14 May 2015. The statement is dated 5 May 2015.  Relevantly, in that statement the Applicant stated that the delegate:-

    “..must have made a mistake in assessing my application .. the date that case officer has mentioned (25/06/2014), I was studying in the Gold Coast TAFE.  How come the Griffith University reported me for not achieving satisfactory course attendance when my course of “BACHELOR OF BUSINESS” was going to start from GRIFFITH University on 02/03/2015 (COE attached herewith).  Case officer must have mistakenly judged me against the wrong information.” 

11. In those same submissions the Applicant conceded that he had no current offer of enrolment in any registered course of study.  He also stated that he had started his Diploma of Business and Commerce studies with the Gold Coast TAFE but, for several reasons, was unhappy doing that course and decided to leave it. 

12. The Tribunal determined to affirm the decision not to grant the Applicant a Student (Temporary) (Class TU) visa.  The decision was delivered orally on 14 May and in writing on 23 July 2015. 

13. The Applicant did not request a written statement of the Tribunal’s decision in accordance with s.368(d)(4) of the Migration Act 1958 (Cth) (‘the Act’). The Solicitors acting on behalf of the First Respondent forwarded to the Applicant a copy of the Tribunal’s written reduction of the oral decision with reasons dated 23 July 2015, in the event the Applicant had not received same and by correspondence of 9 December 2015.

The Tribunal decision

1. The Tribunal observed that the delegate noted the Applicant was initially granted a subclass 573 visa to study in the higher education sector.  However, the Applicant, some five months prior to his arrival in Australia, changed to a Certificate III and IV Commercial Cookery in the vocational education training sector.

2. The Tribunal’s decision record relevantly provided:-

   “The issue before the delegate was whether the applicant meets the criterion and of course 572.223 Paragraph 1A, however the issue is now whether at the time of this decision the applicant meets the enrolment requirements for a student visa.  With limited exceptions the regulations require that at the time of decision an applicant must be enrolled in or be a subject of a current offer of enrolment in a course of study that is a principal course and is of a type specified on your regulation 1.40 a for the sub-class at time of application.  This requirement does not apply to certain eligible higher degree students, eligible university exchange students and the eligible non-award students.  There is no evidence before the Tribunal that the applicant is of eligible higher degree student as defined in clause 573.111 and 574.111 respectively or an eligible university exchange student or eligible non-award student for the purpose of sub-class 575 as defined in clause 575.111.”[2]

   [2] Administrative Appeals Tribunal written reduction of oral decision with reasons dated 23 July 2015.

3. The primary criteria for the grant of the visa required that at the time of the decision the Applicant was enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course and is of a type specified under r.1.40A of the Regulations of the visa subclass.

4. The Applicant relevantly gave the following evidence at the Tribunal hearing:-

   a)He was not currently studying.  The last course he studied was the Diploma of Business and Commerce Studies with the Gold Coast TAFE.  However, he left that course and was unable to obtain a release letter from his original education provider, a TAFE institute.

   b)He made several attempts to obtain admission with registered education providers without success.  He did not have a current offer of enrolment.

5. Accordingly, the Applicant conceded before the Tribunal that he was not then currently studying or enrolled or had a current offer of enrolment in any applicable course of study. As there was no evidence before the Tribunal that the Applicant was enrolled in or had a current offer of enrolment in any applicable course of study, the Tribunal found that cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch.2 to the Regulations were not met.

6. The Tribunal also found:-

   “…there is no evidence that the applicant meets the criteria for either a sub-class 576 AusAid or Defence sector or sub-class 580 Student Guardian visa, the remaining classes of Class TU.  The applicant is neither supported by the role of the Minister as required by clause 576.229 nor has made the visa application on the basis for being a student guardian.  For these reasons the decision of the review must be affirmed.”[3]

   [3] Ibid.

Consideration

1. Insofar as the Applicant’s application deals with issues in the delegate’s decision, it is not competent.  Otherwise, the grounds of review, un-particularised, do not demonstrate any jurisdictional error on the part of the Tribunal.  The Tribunal did not misapply the law and nor did the Tribunal fail to afford the Applicant procedural fairness. The application is entirely without merit.

2. The Applicant himself provided evidence that he was not currently studying and did not have a CoE or a current offer of enrolment and hence, there was no other course open to the Tribunal, other than to affirm the decision under review.  It is not for this Court to engage otherwise in merits review, as sought by the Applicant.

3. The Tribunal gave the Applicant sufficient opportunity to give evidence and make submissions and complied with its statutory obligations under the Act as to affording the Applicant procedural fairness. The Applicant’s complaint that he was not provided by the Tribunal with a full decision record, is misconceived. By letter dated 14 May 2015 sent to the Applicant’s representative, the Tribunal confirmed that it made an oral decision on the application for review and explained the reasons for its decision at the hearing. The Tribunal also advised the Applicant he may request that a written statement of decision of reasons be provided by the Tribunal.

4. On 5 February 2016 at the show cause hearing, the Applicant claimed that at the time of the Tribunal’s decision on 14 May 2015, he had a current offer of enrolment dated 8 July 2014 from the Technical Institute of Victoria to study Certificate III in Commercial Cookery, with the course start date of 14 July 2014 and completion date 21 June 2015.  The First Respondent submitted that as at the date of the Tribunal’s hearing on 14 May 2015, the Applicant’s letter of offer was no longer current and the Applicant was not enrolled or had a current offer of enrolment in any applicable course of study.

5. On the hearing before me this day, the First Respondent referred to a transcript of the hearing conducted by the Tribunal on 14 May 2015, which is exhibit JZK2 to the affidavit of Jolanta Zofia Kowalewska sworn 10 March 2016 and in evidence before the Court.  As that evidence makes abundantly clear, the Applicant gave evidence before the Tribunal that he was not enrolled or had a current offer of enrolment in any applicable course of study at the time of the hearing. 

6. There is no error and certainly, no jurisdictional error identified in the Tribunal’s decision.  Accordingly, the application is dismissed and costs shall follow the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 April 2016