Hadiyoal v Minister for Immigration

[2013] FCCA 2070

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADIYOAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2070

Catchwords:
MIGRATION – Application for judicial review – student visa, subclass 572 – Clause 572.35, schedule 2 of Regulations and Condition 8202, schedule 8 of Regulations – review dismissed.

Legislation:

Migration Act 1958

Migration Regulations 1994, Schedule 2, 8

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) HCA 6
Kim v Whitten (1995) FCR 258

First Applicant: EKTABEN HIMMATSINH HADIYOAL

Second Applicant: HIMMATSINH HADIYOAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 527 of 2013

Judgment of: Judge Jones

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Melbourne

Delivered on: 11 November 2013

REPRESENTATION

Mrs Hadiyoal appeared in person for the First and Second Applicant

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australia Government Solicitor

ORDERS

1. The name of the first respondent be amended to the Minister for Immigration and Border Protection.

2. The application filed by the applicant on 19 April 2013 be dismissed.

3. That the applicant pay the respondent’s cost fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 527 of 2013

EKTABEN HIMMATSINH HADIYOAL

First Applicant

HIMMATSINH HADIYOAL

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. This is an application for a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 28 March 2013 which affirmed the decision of the delegate of the Minister dated 16 September 2011 not to grant Ektaben Himmatsinh Hadiyoal a student temporary visa (Class TU) (“the Visa”).

2. The applicants, seeks orders quashing the decision and a writ of mandamus directed to the Tribunal requiring that the application be determined according to law. The first applicant, Mrs Hadiyoal, is a 31 year old female citizen of India. On 27 March 2009, she was granted a subclass 572 Vocational Education and Training Sector Visa (“the previous visa”), which was valid until 17 August 2011.

3. On 11 August 2011, the applicants in this matter lodged an application for the visa. I note that the second applicant applies only as a family member of the first applicant and it is only necessary that I deal with the situation of the first applicant. On 12 August 2011, a delegate of the first respondent, wrote to the applicant via her representative and invited her to comment on adverse information. That information indicated that the applicant had failed to maintain enrolment in a registered course between the period 15 February 2010 and 1 April 2011, not including the period that the applicant was outside of Australia between 7 September 2010 and 21 October 2010 (CB 13).

4. In a statutory declaration dated 16 August 2011, the applicant confirmed that she had failed to maintain her enrolment during that period (CB 16). In her statutory declaration, the applicant states, relevantly:

   “I have been failed to maintain enrolment between the period 15 February 2010 and 1 April 2011 not including the period I was out of Australia between 7 September 2010 and 21 October 2010.”

5. The statutory declaration goes on to deal with the reasons that caused her failure to be enrolled in a course during that relevant period. She describes the failure of the Hales Institute, her confusion, her concern and her unsureness about the way to secure enrolment. She said she then felt homesick thus went to India, came back to Australia and tried to enrol but obtained inappropriate advice from some education consultants and it took her some time to understand that she was not required to obtain a release letter. She visited a consultant in the month of February 2011 to confirm her enrolment with the Imperial College of Technology and Management on 1 April 2011 and she says in her statutory declaration that since then she was enrolled with the Imperial College of Technology and Management.

6. On 16 September 2011 the delegate of the Minister, the first respondent, refused the visa application on the basis that the applicant did not satisfy clause 572.235 of Schedule 2 of the Migration Regulations 1994 (“the regulations”). The regulations required her to substantially comply with the conditions of her previous student visa. The delegate found that condition 8202(2) which required that the applicant be enrolled in a registered course applied to the previous visa. As the applicant had not been enrolled in a registered course or study for the time that I have referred to, the delegate was not satisfied that the applicant had complied with condition 8202.

7. As I have already noted, the applicant then lodged an application for review of the delegate’s decision with the Tribunal. The hearing took place on 28 March 2013. I note that there was a decision delivered orally and that decision was reduced to a written record (CB 95-100).

8. I have explained to the applicant, who is self-represented, that the court must examine the Tribunal Decision, for the purpose of finding jurisdictional error or, as I put it, a legal mistake. In its findings and reasons, the Tribunal referred to the applicant’s evidence in the statutory declaration which I have just referred to, and her oral evidence at the Tribunal hearing. This was that she had, in fact, not been enrolled between February 2010 and April 2011 whilst the holder of the previous visa (CB 99[30]).

9. As condition 8202 requires the holder of a student visa to be enrolled in a registered course while holding the visa, the Tribunal found that the applicant had not complied substantially with the conditions of her previous visa (CB 99[31]-32]). The tribunal found therefore that the applicant did not satisfy clause 572.235 of the Schedule 2 of the Regulations (CB 99[33]).

10. The Tribunal then considered other subclasses within the class TU visa class and found that there was no material before the Court to suggest the applicant met the prescribed criteria for subclass 580, which is the student guardian visa (CB 99[35]. As the remaining subclasses were found to have an equivalent provision to clause 572.235 (CB 99[35], the Tribunal affirmed the decision not to grant the applicant the visa (CB100 [36]).

Grounds for review

1. In the application filed by the applicant for judicial review, the applicant claimed that the Tribunal “failed to look at [her] situation”. In an affidavit deposed by the applicant on 28 March 2013, the applicant also claimed that she was not happy with the Tribunal decision. As I have already indicated, because the applicant is self-represented and because the affidavit and her application for review suggested that she may be seeking a merits review, I explained to the applicant at the commencement of these proceedings that that is not the jurisdiction of the court. Rather, it is to ascertain whether the decision of the Tribunal has been affected by jurisdictional error.

2. I asked the applicant today, in these proceedings, to indicate to me what she felt or she believed was the legal mistake of the Tribunal. The applicant’s submissions, in brief, were that she agreed that for a year and a half she was not studying and this included the time she was in India and she agreed that this was a mistake of her part. But she reverted to the reasons included in her statutory declaration to which I have already referred about her confusion about how she would enrol and her return to India. What she says is that she did start studying from April 2011 and has continued to do so.  

3. The applicant has filed in these proceedings an affidavit affirmed on 14 October 2013, which contains an attachment from the Imperial College of Technology and Management which certifies that the applicant has completed a diploma of information technology networking and that she was studying at that College from 23 April 2012 to 28 March 2013. I asked the applicant whether this information was before the Tribunal and she said that it was not although she had said to the Tribunal that she had commenced study with the Imperial College, I note that amongst the information provided to the Tribunal was, in fact, information that she had recommenced study and completed certain certificates with the Imperial College.

4. There are two things to be said about this. Firstly, that the material attached to the applicant’s affidavit affirmed on 14 October 2013, of course, was not before the Tribunal. So, therefore, it was not material that the Tribunal could have taken into account. However, in any event, there is no dispute and the Tribunal did not dispute that the applicant had commenced study from April 2011 and had continued to do so. That was not a focus or a basis for the Tribunal’s decision. The Tribunal’s decision focused properly on whether the applicant had met the criteria for the grant of a visa and, in particular, in doing so whether the applicant had substantially complied with the criteria which required that she be enrolled in an appropriate course of study.

The applicable law

1. The criteria for the grant of a subclass 572 visa, which is a vocational, Education and Training Sector Visa, is set out in clause 572.235 of Schedule 2 to the Regulations and provides:

   “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. This is a time of decision criteria.

3. In relation to the particular visa that was held by the applicant, there is no dispute that the relevant condition is condition 8202, which is set out in Schedule 8 of the Regulations and is relevantly as follows:

   “(1)The holder (other than the holder of a subclass 560 (Student) visa who is an AusAID student or the holder of a subclass 576 (AusAID or defence sector) visa) must meet the requirements of subclauses (2) and (3).

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

   (a)     the holder is enrolled in a registered course.”

4. As the applicant has indicated to the court, she understands that the condition of the grant of the visa for which she applied was that she had substantially complied with any conditions attached to her previous visa. And the condition which attached relevantly to her previous visa was that she was enrolled in a registered course. In her application for judicial review, the applicant asserts that the Tribunal failed to look at her situation, and I have referred to that situation that she has described, leading to her breach of condition 8202. For this ground to be made out, the court must be satisfied that a) there exists an integer of the claim; b) that was not considered; c) that the decision maker was bound to take into account in making the decision; and d) that the claim or integer of the claim if addressed may have been dispositive of the review: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [39] to [40]. Whether the applicant has complied substantially with the visa condition is a question of fact to be determined having regard to the particular circumstances of the case. There are of course some conditions to which the concept of substantial compliance has no logical application. But these are not conditions relevant to this case.

5. I note here that it is not sufficient for the purpose of satisfying condition 8202, subsection (2)(a) to be enrolled in any registered course. The enrolment must relate to and be an enrolment capable of satisfying the criteria and the conditions of the last substantive visa held. Accordingly, when considering a subclass 572 visa, as a last substantive visa held, the enrolment must continue to be an enrolment that would satisfy subclass 572, and this includes a Diploma course.

6. As I have indicated, there is no dispute that the applicant was not enrolled in a course for the period, a substantial period being one to one and a half years. The question the Tribunal was required to decide was whether there was substantial compliance. The respondent submits in its written helpful submissions that the judicial review application and supporting affidavit do not raise any error of law on the part of the Tribunal. In essence, the respondent submits, and I am summarising here, that the applicant seeks impermissible merits review; that the Tribunal correctly identified the relevant approach to the determination of the application, and considered the evidence appropriately.

Consideration

1. I find that there is no jurisdictional error which has affected the Tribunal’s decision. I have explained to the applicant in these proceedings that the reasons given in her application and her affidavit filed initiating these proceedings look as if she is trying to seek a merits review. The reasons that she has given the court today for judicial review appear to the court to remain in essence, a request for a merits review. She says she was not enrolled in a course for around a year and a half. She says it was a mistake and she has studied since April 2011 and has continued to do so, and has provided the court with an affidavit showing that she has continued to study and completed a diploma.

2. However, that is not relevant for the court’s consideration because it is in essence an application by the applicant for impermissible merits review: Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) HCA 6. The court finds that the Tribunal correctly identified the legal question to be determined. There was no legal mistake, and that legal question was whether the applicant had complied substantially with a visa condition which is a question of fact to be determined having regard to the particular circumstances of the case: Kim v Whitten (1995) FCR 258. The tribunal went about approaching the decision it was required to make, having regard to the particular circumstances of this case. It considered the relevant factual information, and this is very clear and evident in its decision that first, the previous visa was granted on 27 March 2009, and expired on 17 August 2011 (CB 98[17]). Next, it observed that in both a statutory declaration and before the Tribunal, and I might say here before the court today, the applicant confirmed that she had not been enrolled in a course for 14 months between February 2010 and March 2011 of the period that she held the previous visa (CB 99[30]).

3. Next it noted that the delegate of the minister had refused the visa application on the basis that she had not been enrolled for an extended period whilst holding a student visa (CB 98[19]). Next it dealt with the applicant’s evidence at the hearing about her study history, including that after commencing a diploma of hairdressing at the Hales Institute in July 2009, she stopped attending the college at the end of 2009 as she was confused and believed the college was closing. She enrolled at another college but never started that course. She stopped studying as her husband could not get a job in Melbourne and worked on a farm (CB 98 [20]-[21]).

4. Having found that the applicant was not enrolled in a registered course from February 2010 to April 2011, I am satisfied that it was open to the Tribunal to conclude that the applicant had not substantially complied with the conditions of her last visa. The tribunal was not satisfied that the applicant had satisfied clause 572.235, and as she did not satisfy the criteria for the grant of any other subclass visa in the Class TU visa class, the Tribunal, in my opinion correctly affirmed the decision under review. Consequently, the court finds that the Tribunal’s decision disclosed no jurisdictional error.

5. It is noted that the court will order:

   a)That the name of the 1^st Respondent be and is hereby amended to ‘The Minister for immigration and boarder protection’;

   b)That the application filed by the Applicant on 19 April 2013 be dismissed; and

   c)That the Applicant pay the Respondents costs fixed in the sum of $6, 646.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jones.

Associate:

Date: 11 November 2013