Chundru v Minister for Immigration

[2016] FCCA 1843

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUNDRU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1843

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

Legislation:

Migration Act 1958 (Cth)

Applicant: VASU BABU CHUNDRU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2422 of 2015

Judgment of: Judge Riethmuller

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Melbourne

Delivered on: 11 July 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2422 of 2015

VASU BABU CHUNDRU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore & revised)

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal with respect to a student visa.

2. The applicant came to Australia from India in June of 2013 on a subclass 573 Higher Education Sector visa for the purpose of studying a Master of Information Systems degree at Ballarat University. He commenced his studies, but unfortunately failed all four units in the first semester (see paragraph [18] of Tribunal decision) and concluded that he needed to improve his English to be able to pass the course. He then stopped attending that course and commenced a course in commercial cookery at the Certificate III and Certificate IV levels hoping to do a Diploma of Hospitality (see paragraph [18] of Tribunal decision).

3. The applicant then sought to enrol in a Master of Business Administration degree.  However, at the time of the decision by the Tribunal there was no enrolment in an MBA in Australia. The Tribunal concluded that a ground for cancellation existed; namely, that he was no longer continuing to study his Master’s Degree at Ballarat University, being the degree that was the basis upon which the visa was issued.  As a result, there was a proper ground to cancel the visa.  The Certificate III and Certificate IV courses were not courses that came within the meaning of the relevant subsection of the Migration Act 1958 (“the Act”) under which he was granted a visa.

4. There does not appear to have been information before the Tribunal that would have satisfied the other relevant factors for him to obtain a visa with respect to a cookery course.

5. The Tribunal member considered whether or not, in the exercise of their discretion, they ought to cancel the applicant’s visa. They concluded that they should after having had regard to the fact that he did not wish to return to India without having a degree and his brother had been paying for this endeavour and that whilst he came to do an information systems degree, already holding a Bachelor’s Degree from India, he was now doing a cookery course and was hoping to change to an MBA. The Tribunal concluded that, as they put it:

   26. The applicant made further comments that he has made every attempt to re-enrol and return to a higher education sector course but that “all the doors are closed” and what is he to do? I reiterated my impressions of his efforts being desperate acts in order to maintain a visa rather an indication of a genuine commitment to study. I concluded that I am not satisfied that he is a genuine student on the evidence he has given and arguments he has presented. Critically, he has confirmed inability to secure an offer of a place in a higher education sector course and the purpose of the Subclass 573 visa, if it were to be reinstated, is to study a registered course in that sector, therefore it would not be logical to exercise the discretion to recommend reinstating his visa.

6. The Tribunal concluded that he was not a genuine student and, therefore, cancelled his visa.

7. The applicant lists a large number of grounds in his application for judicial review.

Ground 1

1. The first ground is that the Tribunal ignored his claims and did not give him time to provide documents.  It does not appear to me that there is anything that can be said to show that the Tribunal ignored his claims and he did not identify that.

Ground 2

1. With respect to the allegation that he did not get time to provide documents, this is not correct as is shown at paragraph [12] of the Tribunal decision where the first presiding member gave the applicant an extension of time on 28 April 2015 through to 15 May 2015 to provide further submissions, including specific evidence of enrolment or an offer of a place in a Master of Business Administration course.

2. The applicant took me to a number of documents in the court book which he said indicated that he had a place in a course. They appear at pages 70 through to 75 of the court book. A review of these emails does not indicate that the applicant has been offered a place at an institution to do an MBA.  In these circumstances, this ground of the application is not made out.  Secondly, in ground 2 the applicant claims that he had applied for another visa which he was refused. This is not an application with respect to the alternative visa and, therefore, that ground cannot succeed on the basis of some other visa application.

Grounds 3 to 8

1. Grounds 3 to 8 of his application are in the following terms:

   (3)Time of the application I was eligible to study my Masters in Australia on 573 Subclass under the criterion of Migration Act 1958, there are no university ready to give me the admission under SVP, non SVP enrolments won’t be accepted.

   (4)The issue in my case is whether the I am, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If I am Breached the 85169 condition under exceptional circumstances under s116(1) of the Act, the visa should be revoked, but it has not been done.

   (5)But I never ever have intention to give up education and imploring the Department to give right to study my master’s program, how come I am breaching the 8516 condition.

   (6)My visa was cancelled on the basis the I am not enrolled in a registered course for a period of around one year while I am holding Subclass 573 student , 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 Ho it is possible to enrol even no education provider is offering me the master’s program.

   (7)Having thought that I am not complied with a condition of the visa, the Tribunal should have asked me what exactly situation and compelling reasons beyond my control to no to have enrolment in Masters program

   (8)Not even single document has been considered towards to positive proper

2. The Minister says that these grounds seek a merits review. It seems to me that they do not demonstrate facts that show that he was not in breach of his conditions, but simply go to his argument about whether or not he should have had his visa cancelled. In these regards, the grounds are effectively seeking a merits review of the Tribunal member’s discretion.  Therefore, they are not grounds that can be the basis for determining the application in his favour.

Grounds 9 to 13

1. Grounds 9 to 13, again, simply seek that the Court review or look into the decision that is being made. Similarly, they do not allege specific jurisdictional error and seem to be seeking a merits review to the extent that they’re seeking that the Court generally review the decision to look for a ground for review for the applicant. In these circumstances, ground for judicial review has not been established by the applicant on the grounds on which he seeks review.

Other Grounds

1. The applicant at the hearing before me articulated a ground on the basis that he believed he had a course that he could undertake and that he could not get a certificate of enrolment until the previous institution had released him from their enrolment status. This was the reason he said he was unable to obtain the visa.

2. It seems to me that this is not a sufficient basis for a judicial review, particularly in this case given that the Tribunal member had said, as they set out at paragraph [12] of their decision, that they had only sought from him evidence of enrolment or an offer letter for a place in the Master of Business Administration. It seems to me that the Tribunal member was content to consider an offer of a place and that the applicant did not, at that stage, need necessarily an actual certificate of enrolment. The documents the applicant took me to do not show that he was actually made an offer of a place in an MBA course.  At best, it seems that he had a place in a Certificate III or a Certificate IV cookery course and this is not within the categories of courses that were the basis of the grant of his visa. 

3. In circumstances where a person seeks to study information systems at the Master’s level, then undertakes a cookery course, and then claims that they wish to pursue an MBA but has no enrolment or even offer of enrolment, it is certainly open to the Tribunal to come to the view that they did as to whether or not he was a genuine student. It seems to me that the decision, it was open to the Tribunal on the material before it and it would be a merits review for me to consider whether a different outcome should apply.

4. In the circumstances I therefore dismiss the application for judicial review.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 21 July 2016