Grewal v Minister for Immigration

[2015] FCCA 1431

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1431

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – application to show cause – whether the application raises an arguable case for the relief claimed – whether the applicant was enrolled in a course that fell within the definition of a “vocational education and training course” – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12(1), 44.12(1)(a)

Migration Regulations 1994 (Cth), reg.1.42, 1.42(1)

Schedule 2, cll.572.223, 572.223(1), 572.223(2), 572.223(2)(a), 572.235
Schedule 5A, cll.5A406, 5A406(1)(b), 5A406(2)

Applicant: ANMOL SINGH GREWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1594 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

Applicant appeared in person assisted by an interpreter.

Solicitors for the Respondents: Ms C Hillary of DLA Piper Australia

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1594 of 2014

ANMOL SINGH GREWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The question before the Court is whether the application for judicial review filed in these proceedings raises an arguable case for the relief it seeks within the meaning of r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth).

2. The relief the application seeks are constitutional writs directed to the second respondent (Tribunal) in relation to a decision it made to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) Vocational Education and Training Sector (Subclass 572) visa (Student visa).

Background

1. The applicant applied for the Student visa on 19 April 2013. To have been entitled to the Student visa, the applicant had to satisfy the criterion specified by cl.572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations); and the applicant had to satisfy that criterion at the time the relevant decision-maker determined the application for the Student visa. The criterion specified that, if the application was made in Australia, the applicant “has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.

2. The delegate refused to grant the Student visa to the applicant because the delegate was not satisfied the applicant had substantially complied with a condition of the substantive visa the applicant previously held. By the time the Tribunal came to consider the applicant’s application for review of the delegate’s decision, however, cl.572.235 of Schedule 2 had been repealed, and was no longer relevant to the applicant’s entitlement to the Student visa.[1] What had become relevant was the criterion specified by cl.572.223(1) of Schedule 2 to the Regulations. It required that the Minister (and hence, the Tribunal) be satisfied the applicant “is a genuine applicant for entry and stay as a student”. To satisfy that criterion, it was necessary that the applicant satisfy cl.572.223(2) of Schedule 2 which requires, among other things, that the applicant give to the Minister “evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant”.

   [1] Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth), Part 6 and item 2801(4) of Part 8

Before the Tribunal

1. At the hearing the Tribunal informed the applicant that for it to be satisfied the applicant met cl.572.223, he had to satisfy cl.5A406 of Schedule 5A to the Regulations. That clause was also repealed at the time of the Tribunal’s decision.[2] Regulation 1.42(1) of the Regulations, however, stipulates that an applicant who seeks to satisfy the primary criteria for the grant of a Student visa “is subject to the highest assessment level at the time of application for the relevant course of study for the subclass of student visa”.[3]

   [2] Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth), Part 5

   [3] Emphasis added. Further, Part 8 of the Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth) provides that the amendments made by Part 5 of Schedule 1 of the amending regulation apply in relation to an application for a visa made on or after 22 March 2014.

2. On 19 April 2013, when the applicant applied for the Student visa, the highest assessment level for the applicant was assessment level 4.[4] Division 2 of Part 4 of Schedule 5A to the Regulations sets out the requirements for applicants of a Subclass 572 visa subject to assessment level 4. From the date of the applicant’s student visa application up to 21 March 2014, being the date the Division was repealed, cl.5A406(1)(b) required the applicant to give evidence that:

   [4] IMMI 12/005 Migration Regulations 1994 – Specifications under subregulation 1.41(1) – Student Visa Assessment Levels – March 2012 (IMMI 12/005 ceased on 22 March 2014, when it was replaced by IMMI 14/003)

   (i)he or she is enrolled in a vocational education and training course; or

   (ii)he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

   (iii)he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.

3. Subclause 2 of cl.5A406 defined a “vocational education and training course” as a course that:

   (a)leads to the award of a qualification from the Australian Qualification Framework at the diploma level; or

   (b)leads to the award of a qualification from the Australian Qualification Framework at the advanced diploma level; or

   (c)is a course of at least 1 year’s duration that leads to the award of a qualification from the Australian Qualification Framework at the Certificate IV level.

4. At the Tribunal hearing, the applicant confirmed he was enrolled in a Certificate III in Hospitality (Commercial Cookery) (Certificate III course).[5] The Tribunal raised with the applicant that, based on the requirement set out in cl.5A406, “[e]nrolment in a Certificate III course alone was not sufficient to meet this requirement”.[6] The Tribunal gave the applicant until 1 May 2014 to “seek advice on this issue”.[7]

   [5] CB107, [7]

   [6] CB107, [8]

   [7] CB107, [8]

5. The applicant sent an email to the Tribunal on 30 April 2014 attaching a Confirmation of Enrolment for the Certificate III course.[8] He also stated in the email:[9]

   After finishing this part of my studies I will enroll [sic] myself into the vocational studies related to my current studies which is Advanced Diploma inHospitality [sic].Further [sic] Degree in Hospitality.

   [8] CB102-103

   [9] CB102

Tribunal’s decision

1. On 12 May 2014 the Tribunal affirmed the delegate’s decision because it found the applicant did not meet cl.5A406 of Schedule 5A to the Regulations and accordingly, did not meet cl.572.223(2)(a). The Tribunal reasoned that as the only evidence provided by the applicant was a Confirmation of Enrolment in the Certificate III course and there was no evidence that this would lead to any further courses, this did not “qualify as a vocational education and training course or a pre-requisite to a vocational education and training course”.[10]

   [10] CB108, [16]

2. The Tribunal noted that the issue before it was whether the applicant is “a ‘genuine applicant for entry and stay as a student’ as required by cl.572.223”.[11] The Tribunal recognised that, because of reg.1.42 of the Regulations:

   a)the applicant was required to give evidence in accordance with the requirements mentioned in Schedule 5A to the Regulations for the highest assessment level for the applicant;

   b)the highest assessment level for the applicant was assessment level 4; and

   c)the matters of which the applicant had to give evidence to satisfy the Tribunal that the applicant met the assessment level 4 requirements was that prescribed by cl.5A406(1)(b), namely, that:

   i)the applicant was enrolled in a vocational education and training course; or

   ii)the applicant was enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

   iii)the applicant was enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.

   [11] CB108, [10]

3. The Tribunal also recognised that “vocational education and training course” was defined in cl.5A406(2).

4. Having regard to those matters, the Tribunal concluded that the applicant’s enrolment in a Certificate III course did not fall within the definition of “vocational education and training course” because the only evidence given by the applicant was of his enrolment in the Certificate III course and “there is no evidence that this is leading to any further courses”. The Tribunal concluded, therefore, that “this is insufficient to qualify as a vocational education and training course or a pre-requisite to a vocational and education training course”. A fair reading of this passage is that the Tribunal concluded that the Certificate III is not a “vocational education and training course” within the meaning of cl.5A406(2).

Application for judicial review

1. The applicant raises two unparticularised grounds in his application:

   1.I was not given a proper hearing at MRT.

   2.I had asked for extension of time.

2. At the hearing before me, the applicant submitted he was misled by the Tribunal. He claimed the Tribunal gave him a “code”. The applicant searched for the code on the internet, but could not find it. He sought advice from a migration agent but he too could not find it, and informed the applicant there was nothing he could do. I understood the applicant’s reference to “code” was intended to be a reference to cl.5A406 of Schedule 5A.

3. At the hearing the applicant applied for an adjournment on the ground that he had not received the Minister’s written submissions until the hearing. He wanted an opportunity to obtain legal advice. The applicant said he did not previously obtain legal advice because he believed the hearing today would be simple. I did not accept the applicant had not received the Minister’s submissions; nor did I accept as adequate the reason the applicant gave for not having sought legal advice. In any event, I directed that the applicant file and serve within two weeks submissions prepared by a lawyer. The applicant has not filed or served any submissions prepared by a lawyer.

Arguable case?

1. The first ground of review raises no arguable case. The Tribunal informed the applicant at the hearing of 3 April 2014 of the difficulties the Tribunal identified with the applicant’s case, and it gave the applicant until 1 May 2014 to obtain advice. There is nothing to suggest that the time the Tribunal gave to the applicant was unreasonable. The applicant did not request the Tribunal to grant him more time.

2. The second ground also raises no arguable case. There is no evidence to suggest the applicant applied for an extension of time for the doing of anything after the hearing of 3 April 2014.

3. Although not raised as a ground in his application, I have also considered the applicant’s claim that he was misled by the Tribunal. There is nothing in the material before me to suggest the Tribunal misled the applicant. The probabilities are, and I find, that the Tribunal provided to the applicant, or at least informed the applicant, of cl.5A406 of Schedule 5A to the Regulations. There was no error in the Tribunal doing any of these things. Further, even if I accept as true the applicant’s claim that he sought advice from a migration agent, but the migration agent did not appreciate that the applicant had to give evidence of the matters specified in the relevant part of Schedule 5A, that cannot raise an arguable case of jurisdictional error. There is no suggestion of any fraud by the migration agent.

Conclusion and disposition

1. The application filed in these proceedings raises no arguable case for the relief it seeks. I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 29 May 2015