Hadiyoal v Minister for Immigration and Border Protection
[2014] FCA 459
•5 May 2014
FEDERAL COURT OF AUSTRALIA
Hadiyoal v Minister for Immigration and Border Protection [2014] FCA 459
Citation: Hadiyoal v Minister for Immigration and Border Protection [2014] FCA 459 Appeal from: Hadiyoal & Anor v Minister for Immigration & Anor [2014] FCCA 2070 Parties: EKTABEN HIMMATSINH HADIYOAL and HIMMATSINH HADIYOAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 1213 of 2013 Judge: MANSFIELD J Date of judgment: 5 May 2014 Catchwords: MIGRATION – application for judicial review – student visa subclass 572 – clause 572.235, Schedule 2 and Condition 8202, Schedule 8 of Regulations – review dismissed – no jurisdictional error Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Date of hearing: 5 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Appellants: The appellant appeared in person Counsel for the First Respondent: D Brown Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1213 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: EKTABEN HIMMATSINH HADIYOAL
First AppellantHIMMATSINH HADIYOAL
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
5 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The first appellant pay the costs of the first respondent fixed at the sum of $2000.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1213 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: EKTABEN HIMMATSINH HADIYOAL
First AppellantHIMMATSINH HADIYOAL
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE:
5 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The first appellant, Ms Hadiyoal, is a citizen of India who held a sub-class 572 student visa under the Migration Act 1958 (the Act) that was valid until 17 August 2011. The second appellant is a dependent relative whose circumstances depend upon the status of the first appellant. Before her student visa expired Ms Hadiyoal applied for a further student visa on 11 August 2011. A delegate for the first respondent, the Minister, promptly wrote to her inviting her to comment on information that she had failed to maintain her enrolment in a registered course between 15 February 2010 and 1 April 2011 (other than for a period she was outside of Australia) as required by the conditions applicable to her visa pursuant to cl 572.235 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations).
Ms Hadiyoal, to her credit, informed the Minister via a statutory declaration of 16 August 2011 that she had failed to maintain her student enrolment during the period of concern to the delegate. It is not surprising, therefore, that the delegate of the Minister, on 16 September 2011, refused to grant a further student visa to her and consequently to the second appellant because she had not substantially complied with the conditions of her student visa, namely condition 8202(2), requiring her to be enrolled in a registered course while holding the student visa.
Mrs Hadiyoal sought review of that decision by the Migration Review Tribunal (the Tribunal) during which she gave oral evidence confirming that she had not been enrolled in a registered course during a significant period whilst the holder of the first student visa and consequently that decision was affirmed. She then applied to the Federal Circuit Court to have that decision quashed on the ground of jurisdictional error. After a hearing on 11 November 2013 the Federal Circuit Court judge dismissed that application because her Honour was satisfied that there was no jurisdictional error on the part of the decision-maker.
The relevant question was whether Ms Hadiyoal had met the criteria for the grant of the further student visa, and in particular whether she had substantially complied with the criteria which required that she be enrolled in an appropriate course of study during the period of her previous student visa. Her Honour concluded that she had not complied with that requirement and that no jurisdictional error had affected the decision of the Tribunal.
It had correctly identified the legal question to be determined, namely whether there had been substantial compliance with a visa condition, and the Tribunal had been able to find on the material before it consistent with its proper function that she had not complied substantially with the conditions of that visa. This is an appeal from the decision of the Federal Circuit Court.
The notice of appeal of 21 November 2013 identifies as the ground of appeal that the Federal Circuit Court judge should have found that the Tribunal was in breach of s 424A of the Act, and it had therefore committed jurisdictional error, because it was certain adverse information used by the Tribunal to affirm the decision under review which had not been disclosed to Ms Hadiyoal as required by s 424A(1) of the Act.
In the course of submissions today Ms Hadiyoal acknowledged that there was no particular identifiable adverse information used by the Tribunal to affirm its decision which had not been disclosed to her. Her submissions confirmed that she was notified on 12 August 2011 of the delegate’s concern about her apparent failure to comply with the condition of her first student visa, that she was to maintain enrolment in a registered course during the period of that visa, and it put her on notice that there was a real issue that she had substantially failed to comply with that condition.
The notice of appeal also seeks orders that leave be granted to include additional grounds for review of the decision of the Tribunal to assert jurisdictional error. Ms Hadiyoal today also acknowledged that there were no additional grounds of review which she sought to advance on this appeal.
Consequently, putting aside the fact that the notice of appeal refers to s 424A rather than s 359A of the Act (as the application concerns a decision of the Tribunal not the Refugee Review Tribunal), the appeal turns not upon whether she was notified of an issue that she was not given an opportunity to address, but whether it was correct on the part of the Tribunal to conclude that she had failed to maintain her enrolment in a registered course between 15 February 2010 and 1 April 2010 other than for the period she was outside Australia between 7 September 2010 and 21 October 2010.
The test was properly identified by the Tribunal as to whether she had substantially failed to comply with that condition on material before the Tribunal: see cl 472.235 of Sch 2 of the Regulations. As the Federal Circuit Court judge concluded from the information available to the Tribunal, that material was capable of and did support the conclusion that she had substantially failed to comply with that condition. In my view the decision reached by the Federal Circuit Court judge was readily available to it.
As Ms Hadiyoal was self-represented, apart from exploring with her the two issues in the notice of appeal which do not otherwise appear to have been explored and which, as I have explained above, appear not to be pursued, I also considered the conduct of the appeal of the application for judicial review before the Federal Circuit Court. It is evident that that appeal was appropriately conducted and Ms Hadiyoal was given an opportunity to put her case and to present such arguments as she wished to present on that appeal. There is no procedural failing in the way in which the Federal Circuit Court proceeded.
Accordingly, in my opinion, this appeal must be dismissed. I also order that the first appellant pay to the Minister costs of the appeal, which I affix in the sum of $2000.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 8 May 2014
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