Dhillon v Minister for Immigration

[2016] FCCA 1500

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1500

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – applicant arriving on student visa to undertake study at designated level – applicant transferring to course inconsistent with initial visa – applicant seeking regional sponsored visa but unable to satisfy requirements of cl.857.212(6)(a) of Migration Regulations 1994 – Tribunal’s decision clearly correct – application dismissed.

Legislation:

Migration Act 1958

Migration Regulations 1994, cl.857.212(6)(a)

First Applicant: KAMALJIT SINGH DHILLON

Second Applicant: MANDEEP KAUR

Third Applicant: SARABJOT SINGH DHILLON

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2045 of 2014

Judgment of: Judge Burchardt

Hearing date: 22 April 2016

Date of Last Submission: 22 April 2016

Delivered at: Melbourne

Delivered on: 5 July 2016

REPRESENTATION

The Applicants: Mr Dhillon appearing in person

Counsel for the First Respondent: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Amended Application filed on 1 June 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2045 of 2014

KAMALJIT SINGH DHILLON

First Applicant

MANDEEP KAUR

Second Applicant

SARABJOT SINGH DHILLON

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the Migration Review Tribunal dated 4 September 2014.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Employer Nomination (Residence) (Class BW) visas.  For the reasons that follow, and although like the delegate I entertain considerable sympathy for the first applicant (“the applicant”) and his family, the application must be dismissed with costs. 

2. The applicant first came to Australia under a student visa in 2008.  The visa was granted on the basis of Confirmations of Enrolment in Bachelor of Information Technology, a Diploma of Information Technology (Networking) and General English, which was valid until 30 August 2012 (Court Book “CB” 88). 

3. On 28 June 2012, the applicant applied for a subclass 857 (Regional Sponsored Migration Scheme) Visa (CB1), and it is apparent from CB3 that from March 2009 until March 2011 the applicant undertook a Diploma of Automotive Management at the Menzies Institute of Technology. 

4. The application was assisted by a migration agent (CB19). 

5. That application was the subject of a delegate’s decision at CB86-89.  The decision noted, as earlier indicated, the fact that the applicant arrived on a student visa to take certain courses of studies.  The decision recorded at CB88:

   “857.212(6)(a) states that as a Student (Class TU) visa holder, the applicant meets the requirement of holding a qualifying visa if an award course (which the visa was granted in relation to) was completed whilst holding this visa.  As the client did not complete the Bachelor of Information Technology or the Diploma of Information Technology, the applicant does not satisfy this requirement.  Therefore I am not satisfied that the clients meets 857.212(6)(a).” 

6. The applicant applied for a review to the Migration Review Tribunal.  His agent’s submissions are at CB113-114.  They note at CB113:

   “01.    The applicant was initially granted a class TU subclass 573 visa from to pursue initially an ELICOS program and then a Diploma Program and finally complete a Degree program. 

   02.    On arriving in Australia the applicant completed his ELICOS program and then later applied to opt out of studying the Diploma and Bachelors which was in Information and Technology stream and instead wished to pursue Automotive. 

   03.    To undergo this process he approached an agent to help him through the process.  The agent assisted him in obtaining release letter from Holmesglen, with whom he had a COE for Diploma in IT and also a release letter from Deakin where he was meant to undergo his Bachelor on IT.  We have enclosed the release letters issued from these education providers. 

   04.    The agent had assured the applicant that the department has been notified and all paperwork was taken care of.  The applicant was reassured as the same was mentioned in the release letters from Deakin and Holmesglen. 

   05.    He then went on to complete his education and gain employment and his employer lodged a sponsorship application wherein the nomination was granted and visa refused. 

   06.    The applicant hereby wishes to bring to the notice of the Tribunal that as per his knowledge his previous representative had organised to have the department informed and get his visa and COE’s changed.  The letter from Holmesglen and Deakin clearly state the department was notified. 

   07.    The applicant has been working in his nominated occupation for over a year and his employer has also provided a letter stating the same.

   08.    He works in a regional area where there is shortage of skilled worker and staff and losing him will impact directly on the business. 

   09.    The applicant has always done the right thing and never breached any visa condition and hence it was unfortunate that his application was refused. 

   10.    The applicant also mentioned that when his application was lodged he was not informed by the agent that his subclass would be an issue.”

7. The submission went on to say:

   “The department was notified of the applicant’s visa/education change in February 2009 and the department never took any initiative to caution the applicant or advise that there is a likelihood of breach of visa condition, etc.  It is unfair for the department to ignore the same for over 4.5 years and then refuse the applicants visa based on this issue.  The applicant has worked very hard to complete his studies and find suitable employment and prove himself to his employer and make a future for himself and his family.  The department should have taken action in 2009 and cancelled the applicants visa or issued him a warning, but nothing of that sort was done and the applicant misunderstood and assumed that his previous agent had done all the necessary formalities to abide by the department’s requirements.” 

8. The documentation submitted with the agent’s submissions included, at CB122 and CB125, cancellation of the applicant’s application at Holmesglen and Deakin University.  The letter from Deakin University, relevantly, stated at CB125:

   “…any eCOE’s issued by Deakin will be cancelled and any visa’s linked to Deakin University courses may also be cancelled.  You are advised to contact DIAC for advice regarding your student visa status.” 

9. There is no question that the applicant completed his automotive training and has obtained employment with an employer in Beach, New South Wales, who wishes to keep him and whose circumstances would appear to otherwise justify the application.

10. The Tribunal’s decision is at CB145-CB147. It notes the application and the fact that it is made under cl.857.212 of schedule 2 to the Migration Regulations 1994.  This was obviously a Regional Sponsored Migration Scheme application. 

11. The Tribunal noted that, following discussion, it was apparent that the only subclause of cl.857.212 that the applicant could meet was subclause 857.212(6)(a). This required the applicant to have a Student (Class TU) visa at the time of application where the visa was granted in relation to an award course diploma level or above where the course was completed by the applicant while the student visa was still held.

12. It is clear beyond doubt, and the applicant does not dispute, that he did not meet the requirements of cl.857.212(6)(a) because he never completed the course for which the class TU visa was granted. He transferred to automotive studies, which were at an inferior level. As the Tribunal recorded at paragraphs 12-14, CB146:

    “The applicant’s evidence at hearing was that he was granted the Class TU visa to study a diploma and bachelor’s degree, that he did not complete either course, and later completed an unrelated diploma in automotive management.  He conceded that this diploma was not one the study for which his Class TU visa was granted.  He explained, consistent with his written submissions (MRT folio 43), that he was given discharge letters by the education provider in the courses his Class TU was granted in relation to, and was assured by an agent that the Department had been informed of the change in his education arrangements, and held expectations that the Department would grant him a subclass 572 visa to replace the subclass 573 visa that he held.  The effect if (sic) this is that the new subclass 572 visa would have been granted in relation to the diploma in automotive management. His evidence is that this did not occur and he remained on the subclass 573 visa. 

    It was pointed out to him that he might have expected a confirmation letter, had a new subclass 572 visa been issued to him, and not receiving such a letter might have prompted him to make enquiries.  He insisted that he had trusted his former agent on these matters. 

    While sympathising with the applicant’s predicament, the tribunal was nevertheless bound to find on the facts that the applicant did not complete either of the courses in relation to which the class TU visa he held on the date of visa application was granted.  He therefore cannot satisfy cl. 857.212(6)(a).” 

13. Clause 857.212(6)(a) reads:

    “(6)   The applicant meets the requirements of this subclause if:

    (a)   he or she is the holder of a Student (Temporary) (Class TU) visa granted in relation to an award course at diploma level or above completed by the applicant while he or she was the holder of that visa...” 

14. It is common cause that the applicant did not meet the requirements of that clause. 

15. When the matter came before the Court, the primary applicant (his wife and child do not apply in any separate way and are wholly dependent upon the success or failure of the primary applicant’s case) made oral submissions.  He said he was granted a student visa in August 2008 in Information Technology valid to 2012.  He initially planned a computing course, but there were better choices and he ultimately chose automotive industry.  He said he chose the wrong course and discovered later that this was not allowed.  He understood that he had to remain in the course for six months as part of his visa conditions, but changed and did not know that this was the wrong choice.  He sought to tender a bundle of documents, which I have caused to be marked as MFI-1.  To the extent that they were not before the Tribunal they were the subject of objection and also on the grounds of late production (they were only effectively produced at Court).  I permitted them to be put before the Court on this footing in order to give the applicant every chance to prosecute his case. It should be noted that these documents do not take the matter further.

16. The applicant said that he was far from his family when he arrived and has spoken to a migration agent who told him he must stay for six months and then obtain a release.  He obeyed the law and took six months of study but then obtained releases.  This is consistent with the documentation from Holmesglen and Deakin University respectively.  He sought to tender a doctor’s certificate dated 18 April 2016 suggesting that he was unwell in 2008 and 2009.  He said he had given documents to his agent who said that everything was fine and that he would do the rest.  He said that the delegate had said that he had not undertaken the required course, but he was not aware of this and had never been told by the Department that he was breaching the law.  He completed his study and then applied for regional sponsorship.

17. He was advised to apply for an on shore application and applied for the 857 Subclass visa.  He had obtained the necessary licences to work as a mechanic and had done so.  He had things to say about the delay in notification to him by his agent of the Tribunal’s decision, but in the face of the first respondent’s expressed concession that the application was in time, it is not necessary to traverse them.  He said he was stressed and had three migration agents, none of whom were competent.  His employer still wants him.  His baby was born here and has never been to India.  He said he was stressed and acted on the agent’s advice. 

18. Counsel for the first respondent was essentially content to rely upon the written submissions filed.

19. It is, I regret to say, instantly apparent, as both the delegate and the Tribunal have found, that the applicant simply did not fulfil the requirements of cl.857.216(6)(a), which on any view of the matter was the relevant subclause of the regulations that applied.  The course for which the applicant had been granted his visa was simply not that that he completed. 

20. Accordingly, it is equally obvious that the Tribunal did not fall into jurisdictional error in rejecting that claim. 

21. That is not, however, wholly the end of the matter.  The gravamen of the applicant’s complaint, to the extent that it is capable of being maintained, was that his agent told him that he could change courses after six months and did so.  The Department was aware of this, and it is apparent from the Court Book that this is so, and took no steps to notify him that this would put his visa in jeopardy, so to speak.

22. The difficulty for the applicant is that the letter to him from Deakin University made it clear that his visas might be at risk upon his cessation of his course at Deakin University.  He plainly did nothing whatever to pursue this matter.  Whatever he says his agent told him, Deakin University told him to contact the Department and he did not do so.

23. When I put the matter to counsel as to whether any inaction on the Department’s part in these circumstances might give rise to difficulties, I observed that it is not possible to estop a statute.  That is my understanding of the state of the law. 

24. In any event, I accept the submissions of the first respondent (see paragraphs 21 to 22 of the first respondent’s written submissions) that any failure on the agent’s part in these circumstances would not give rise to any vitiating of the Tribunal’s decision.  Indeed, the applicant, who speaks English fluently and was well able to represent himself in Court, on any view should have contacted the Department as Deakin University recommended.

25. I should make it clear that this aspect of the matter is, in any event, irrelevant.  The terms of the Regulation are, regrettably for the applicant, entirely clear.  The fact is that if you come to Australia to pursue a course of study at one level and do not complete that course, then you are not able to make the application that the applicant did make for a regionally sponsored visa.

26. The Tribunal clearly did not fall into jurisdictional error in the decision at which it arrived and it follows that the application must be dismissed with costs. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 July 2016