Gurung v Minister for Immigration & Border Protection

[2014] FCCA 918

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 918

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether it was open to the Migration Review Tribunal to find that the applicant deliberately flouted a visa condition – whether the Migration Review Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Tisdall v Webber [2011] FCAFC 76
SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1

Applicant: MEENA GURUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1219 of 2013

Judgment of: Judge Emmett

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Sydney

Delivered on: 7 May 2014

REPRESENTATION

Counsel for the Applicant: Mr John Young

Solicitors for the Applicant: Shamser Thapa and Associates

Counsel for the Respondents: Ms Rachel Francois

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1219 of 2013

MEENA GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 13 May 2013 (“the MRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”) and a summary of the MRT’s review and decision.

Background

1. The applicant arrived in Australia on 7 March 2009, having departed legally from Nepal on a passport issued in her own name and a Student visa issued on 11 February 2009.

2. On 13 April 2011, the applicant lodged an application for a Student (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 7 June 2011, the Delegate refused the applicant’s application for a Student visa.

4. On 20 June 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.

5. On 13 May 2013, the MRT affirmed the decision of the Delegate not to grant a Student visa.

6. On 31 May 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student (Class TU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Under s.338 of the Act, a decision to refuse to grant a Student visa is a decision which may be reviewed by the second respondent.

3. Clause 572.235 of Schedule 2 to the Regulations is as follows:

   “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.”

4. Relevantly, condition 8202 of Schedule 8 to the Regulations is as follows;

   (2) A holder meets the requirements of this subclause if:

   (a)  the holder is enrolled in a registered course; or

   (b)  in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student-- the holder is enrolled in a full-time course of study or training.

5. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

6. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a Student visa

1. The applicant arrived in Australia on 7 March 2009 on a Student (Temporary) Visa (Class TU)(Subclass 572). A mandatory condition of the applicant’s visa to be determined at the time of decision is cl.572.235 of Schedule 2 to the Regulations. Clause 572.235 of Schedule 2 to the Regulations is in the following terms:

   “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.” (emphasis added)

2. Condition 8202, which applied to the applicant’s last substantive visa, had the effect that the applicant was required to be enrolled in a registered course.

3. The applicant commenced study of two lower courses at the Australasian College on 16 March 2009. The principle course in which the applicant was enrolled was the Diploma of Hairdressing Salon Management, which was to commence from 18 September 2009, following completion of two lower certificate courses.

4. After a few months of studying, she developed skin problems. A medical practitioner diagnosed her with skin allergies that were reacting to the products and chemicals she was using in her studies.

5. In September 2009, the applicant discontinued her course.

6. The applicant approached the Principal of her college and informed the Principal of her situation and requested that she be issued a release letter so that she could study another course at another college. The Principal told her that a release letter would only be issued if the applicant pays her course fees.

7. Pursuant to Standard 7 of the National Code 2007, the Australasian College was not able to issue the applicant a release letter from her course as she had not completed six months of her principal course.

8. On 11 March 2010, the applicant’s enrolment was cancelled, leaving her free to enrol in another educational institution.

9. The applicant claimed that she was not aware that her enrolment was cancelled.

10. On 7 February 2011, the applicant enrolled in another course.

11. On 20 April 2011, the Department sent an email to the applicant’s migration agent requesting additional information regarding the applicant’s application. 

12. On the same day, the migration agent responded to the Department’s request attaching a medical certificate, dated 29 September 2009, and a Statutory Declaration, dated 13 April 2011.

The Delegate’s decision

1. The Delegate refused to grant the applicant a Student visa on the grounds that she had not satisfied the legal requirements to grant such a visa.

2. Specifically, the Delegate pointed to the fact that the applicant did not enrol with another course provider until 7 February 2011, which was a period of non-enrolment of approximately 11 months.

3. The Delegate noted that this time frame was not covered by the applicant’s medical condition, as her medical condition was linked to the chemicals used with the previous education provider.

4. The Delegate found that the applicant had not provided any evidence of study undertaken, nor supplied a sufficient explanation for the 11 month period between 11 March 2010 and 7 February 2011. As such, the Delegate found that the applicant had subsequently breach condition 8202 of the Regulations.

5. On 19 June 2011, the Delegate refused the applicant’s application for a Student visa on the basis that the applicant is not a person who has satisfied the requirements for the grant of a Student (Class TU) visa.

The MRT’s review and decision

1. On 20 June 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 10 April 2013, the MRT wrote to the applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 2 May 2013 to give oral evidence and present arguments.

3. On 30 April 2013, the applicant’s migration agent sent to the MRT submissions, including a second statutory declaration from the applicant, dated 30 April 2013.

4. On 2 May 2013, the applicant attended the MRT hearing and gave evidence.

5. The MRT explored the applicant’s claims with her in some detail at the hearing and put to her concerns it had about her evidence, noting her responses.

6. The MRT accepted that the applicant developed an allergic skin condition to chemicals used in the course at Australasian College and that the applicant had a reasonable excuse for not continuing with that course after September 2009.

7. On 11 March 2010, the Australasian College cancelled the applicant’s enrolment, thereby making her free to enrol in another course. The applicant claimed that she was unaware that her enrolment had been cancelled.  The applicant said that following the allergies that she developed to the chemicals in class, she was advised to change her courses. However, the applicant claimed that the Australasian College told her that she needed to obtain a release letter in order to change courses and that in order to do so, she must pay the full fees for the courses for which she had already enrolled.

8. The applicant acknowledged at the MRT hearing that she was not enrolled in a course of study for 11 months between 11 March 2010 and 6 February 2011. The MRT noted that it asked the applicant why it took her almost a year before she enrolled in a new course after her enrolment was cancelled in March 2010. The MRT noted the applicant’s answer that her education agent had tried to enrol her at other colleges, but she was unable to get a new certificate of enrolment without a release letter and that she had requested such a letter several times between 2010 and 2011 from the Australasian College.

9. The MRT noted that it put to the applicant that under Standard 7 of the National Code 2007, the Australasian College would not be allowed to release her until she completed at least six months of her principal course and that her principal course had not started. It is common ground that the education provider’s action was correct in not giving the applicant a release letter in these circumstances.

10. The MRT noted that it put to the applicant that her certificate of enrolment with the Australasian College was cancelled in 2010 and asked the applicant why she was not able to enrol and a new college thereafter. The applicant responded that the Australasian College never informed her that her enrolment had been cancelled and that she was “shocked to learn about this”.

11. The MRT noted that it asked the applicant what actions she had taken to enrol in another course after she left Australasian College. The applicant responded that she only approached one college, Pacific College, to enrol in their Diploma of Business Administration. She said that initially, Pacific College told her that she could not be enrolled without a release letter or unless her enrolment at Australasian College was cancelled. She said that after a year, she was eventually allowed to enrol at Pacific College.

12. The MRT noted that it asked the applicant why she did not try to enrol in other colleges if she was refused by Pacific College. The applicant responded that in 2010, her education agent had also tried enrolling her in another college in Queensland, but she had no evidence of that attempt and did not remember the name of the college. The applicant said that her education agent told her to focus on Pacific College. However, the applicant did not have any evidence of any effort she had made to enrol in a course, such as offer letters.

13. The MRT also noted that it put to the applicant that she appeared to have taken limited steps to enrol in a course of study between 2010 and 2011 and that she had only applied to one college. The MRT put to the applicant that she had not been enrolled for a year, being half the period of her student visa. The applicant responded that her visa cancellation was unfair as she had wanted to study. She said she finished several courses after 2011 and was never told that her enrolment with the Australasian College had been cancelled.

14. However, the applicant stated that she understood she had to be enrolled in a course of study as a condition of her visa, and that she was not enrolled, she said there was nothing she could do as she was waiting for an offer through her education agent.

15. The MRT found that the applicant had not enrolled in a course of study for a period of approximately 11 months between 11 March 2010 and 6 February 2011.

16. The MRT accepted that the applicant had a reasonable excuse for not continuing the hairdressing course which she had commenced in March 2009 due to her allergic reaction to the chemicals. However, the MRT did not accept that the applicant’s medical condition explained why she did not enrol in another course for almost a year after her enrolment at Australasian College was cancelled and she had stopped studying there.

17. The MRT found that the applicant was free to enrol in another course of study after 11 March 2010 when her enrolment at the Australasian College was cancelled.

18. The MRT noted that the applicant did not provide evidence of any other attempts to enrol in other colleges. The MRT noted that the applicant’s evidence was that she knew she had to maintain her enrolment as a condition of her visa and yet decided not to enrol for a year. Accordingly, the MRT found that the applicant had “deliberately flouted” the visa condition.

19. In such circumstances, the MRT concluded that the applicant’s breach represented a substantial breach of Condition 8202, given that the applicant was not enrolled without a reasonable excuse for 11 months out of her visa period of two years and two months. The MRT found that the breach related directly to the purpose of the visa which was to enable the applicant to study in Australia.

20. The MRT found that, having regard to the significance of the applicant’s breach of Condition 8202, the applicant’s reasons for the breach and all the circumstances of the case, it was not satisfied that the applicant had complied substantially with Condition 8202, which was one of the conditions that applied to her last held substantive visa. Accordingly, the MRT found that the applicant had not complied substantially with the conditions of her last held substantive visa and did not meet cl.572.235 of Schedule 2 to the Regulations.

21. Accordingly, the MRT affirmed the decision under review.

The proceeding before this Court                 

1. The applicant was represented before this Court by Mr John Young of counsel. Mr Young confirmed that the applicant relied on the grounds of the application, filed 31 May 2013, as follows:

   “1. The conduct of the hearing by the second respondent was such as to give rise to a reasonable apprehension of bias. The second respondent thereby made a jurisdictional error.

   Particulars

   Upon the transcript of the hearing of 2 May 2013 becoming available, the applicant will provide particulars by reference to that transcript.

   2. The second respondent made jurisdictional error in that it failed to address a critical issue for determination, namely whether the applicant became aware that her enrolment at an educational institution was cancelled in March 2010.

   3. The second respondent made jurisdictional error by making a decision which was unreasonable by finding that the applicant deliberately flouted a visa condition by not enrolling in another institution notwithstanding the applicant’s evidence (which was not rejected) was that she did not know her previous enrolment had been cancelled.

2. At the heart of Mr Young’s submissions was a contention that it was not open to the MRT to find that the applicant had “deliberately flouted” a condition of her visa in circumstances where the MRT did not make a finding that the applicant was aware that her enrolment had been cancelled in March 2010 and that she was free to enrol elsewhere from that date. The grounds are different formulations of that error. Mr John Young, conceded that if the MRT’s finding that the applicant had deliberately flouted a condition of her visa was open to it, then there was no error in the MRT’s decision. No separate submissions were made to suggest bias beyond the allegation of error identified above.

3. Mr Young submitted that the MRT’s finding that the applicant had “deliberately flouted” a condition of her visa was both “irrational” and “without evidence”, and that a person cannot “deliberately flout” a visa condition unless the person has the requisite knowledge. Mr Young referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [649] in support of his proposition that the MRT’s finding was illogical and irrational.

4. A fair reading of the MRT’s decision record suggests that the MRT accepted that the applicant was not aware that her enrolment had been cancelled. However, the MRT did not accept that the lack of awareness that her enrolment had been cancelled would have prevented her from trying to enrol at other colleges, given that she knew she had to maintain her enrolment as a condition of her visa. The MRT found that the applicant made little effort between 11 March 2010 and 6 February 2011 to enrol in a new course. The MRT stated that the applicant’s evidence was that she had approached only two colleges in one year, being Pacific College in Sydney and an unnamed college in Queensland.

5. The condition that the applicant was required to meet was to be enrolled in a course of study. The applicant knew that she had to be enrolled in a course of study and knew that she had stopped attending her hairdressing and salon management course in September 2009. The applicant was not prevented from enrolling in another course once her enrolment in the first course was cancelled on 11 March 2010

6. In finding that the applicant had “deliberately flouted” her visa condition, the MRT specifically referred to the applicant’s evidence that she knew she had to maintain her enrolment as a condition of her visa.

7. The MRT found that whether or not the applicant knew that whether her course at the Australasian College had been cancelled, she was not prevented from trying to enrol in other colleges, particularly given the number of colleges and courses available to international students.

8. The MRT found on the applicant’s own evidence that she had only attempted to enrol in two colleges between 11 March 2010 and 6 February 2011; one in Sydney and an unnamed college in Queensland. She had no evidence of any other attempt made to enrol at any other college. The MRT found that the applicant’s conduct in this regard reflected “little effort to enrol in a new course.”

9. It was open to the MRT on the evidence and material before it to find that the applicant had made little effort to enrol in a new course between 11 March 2010 and 6 February 2011 in circumstances where she knew she had to maintain her enrolment as a condition of her visa. There was no impediment to the applicant in enrolling in a course after 11 March 2010, yet she did not do so until 6 February 2011. The very purpose of the applicant’s visa was to enable the applicant to study in Australia.  

10. In such circumstances it was open to the MRT to find that the applicant had made only two attempts in eleven months to enrol in any course and had failed to enrol in any course during that period without a reasonable excuse was based on the evidence and material before it and for the reasons it gave.

1. The MRT appeared to accept that the applicant may not have been aware that her enrolment had been cancelled at the Australasian College. However, the MRT found that this was not a reasonable excuse for taking such meagre steps to fulfil the condition of her visa that she be enrolled in a course. In the absence of any evidence that she had been exploring other colleges and courses, and given the number of colleges and courses available to international students, the MRT found that the applicant’s failure to enrol in a course for 11 months out of a visa period of two years and two months was without a reasonable excuse. That finding was also open to the MRT on the evidence and material before it and for the reasons it gave.

2. Mr Young also cavilled with the MRT’s finding that, despite the applicant’s knowledge that she had to maintain enrolment as a condition of her visa and in spite of the number of colleges and courses available to her from 11 March 2010, the applicant decided not to enrol for a period of 11 months. Mr Young submitted that such a finding was not open to the MRT where it did not find that she was aware that she could re-enrol. I do not agree. In the light of the applicant’s failure to enrol in a course during that period of time and her knowledge of the requirement to do so and her knowledge that she was not so enrolled, it was open to the MRT to find that she had decided not to enrol in a course during that period. As stated above, ultimately, the MRT found that her excuse for not enrolling was not reasonable in all the circumstances.

3. In the circumstances, it was open to the MRT to find that the applicant had “deliberately flouted” the condition of her visa that she was to maintain enrolment. That finding was open to the MRT on the evidence and material before it and for the reasons it gave.

4. Whilst a different conclusion or finding may have been open to the MRT, the MRT’s finding was not illogical or irrational. There was a body of evidence before the MRT that reasonably sustained its findings (see Tisdall v Webber [2011] FCAFC 76 per Buchanan J at [27]; SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 at 22 per McKerracher J).

5. There was room for a decision maker to reach the same decision on the material before the decision maker (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ).

6. In the circumstances it was open to the MRT to find that the applicant had breached condition 8202, being a mandatory condition of her last held substantive visa and therefore did not meet cl. 572.235 of Schedule 2 to the Regulations.

7. Accordingly, none of the grounds are made out.

8. The MRT’s decision is without jurisdictional error and the application should be dismissed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  7 May 2014