KAJA v Minister for Immigration

[2015] FCCA 2405

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAJA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2405

Catchwords:
MIGRATION – Judicial review – student visa – no arguable grounds for review disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: SANDEEP KAJA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 386 of 2014

Judgment of: Judge Harland

Hearing date: 11 August 2015

Date of Last Submission: 11 August 2015

Delivered at: Adelaide

Delivered on: 11 August 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application filed on 13 October 2014 be dismissed.

2. That the name of the second respondent be amended to ‘Administrative Appeals Tribunal’.

3. That the applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 386 of 2014

SANDEEP KAJA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

1. This is an application for judicial review of a decision of the Migration Review Tribunal, as it was then, affirming a Delegate’s decision to refuse the applicant’s application for a student visa.  The applicant filed an application for review in this Court on 10 October 2014. 

2. The application does not disclose any arguable ground for review, but expresses disagreement with the decision of the Tribunal, stating that the applicant has tried his best to study courses in Australia but has found it hard to pass because he is from overseas. Just because he has failed courses does not mean he is a genuine student.  He also says he should have been offered help rather than being told he was not genuine.  He says that the Tribunal member failed to consider this and therefore made an error.

3. It is clear from the expression of that ground that the applicant is inviting this Court to undertake a merits review, which this Court cannot do.  That is fairly common because many applicants, such as the applicant in this case, appear without legal representation. 

4. Counsel for the Minister and his instructor have filed helpful submissions and outline of authorities, including a copy of direction number 53. The Tribunal was obliged to consider clause 572.223 of the Migration Regulations 1994 (Cth) and direction 53, which direct the Tribunal’s attention to the factors that are relevant in considering whether or not to refuse an application for a student visa.

5. The Ministerial direction number 53 makes it clear that the Tribunal is not to apply it as a checklist but consider matters holistically, and there are several matters which can be relevant to consider, which include the applicant’s background and circumstances in his home country, including connections with that home country and incentives to return, whether or not the courses of study are relevant to the applicant’s aims for employment in his home country, his progress regards the courses, as well as any migration history. It is clear that both the Delegate and then the Tribunal considered these factors based on the limited information that they had before them.

6. The applicant had previously been granted a student visa and had been in Australia studying for five years.  The applicant was sent a request for information from the Delegate, but the applicant did not answer that request and the Delegate proceeded to determine his application based on the limited material before it, as it was clearly entitled to do.  The applicant then lodged an application for review.  The Tribunal invited the applicant to attend a hearing.  That invitation appears at page 39 of the Court Book. 

7. The applicant sent a medical certificate to the Tribunal shortly before the hearing and the hearing was adjourned to a few days later on 27 June 2014.  The applicant sent a further certificate and did not appear at that hearing.  The Tribunal then sent a further invitation to the applicant to attend a hearing on 8 September 2014 and that appears at Court Book 67. The applicant did not appear at that hearing.  The Tribunal again, quite properly, proceeded to determine the application on the limited material at hand. 

8. The Tribunal referred to the fact that the applicant had first arrived in Australia on 13 March 2009 on a student visa and that he was granted a further student visa that was current until 30 September 2012. The applicant filed a further application for a visa, saying that he intended to study an advanced diploma of management.  The Tribunal referred to the number of enrolments that the applicant had which had subsequently been cancelled, and that is something that is also set out at Court Book 22 in the Delegate’s decision. 

9. The Tribunal noted that because the applicant had not attended this hearing, the Tribunal had not been able to ask questions of the applicant which would have been able to amplify the relevant considerations that the Tribunal is required to consider. The Tribunal noted that it shared the concern of the Delegate that, although the applicant had been in Australia for more than five years, he had not successfully completed any course of study. The Tribunal reached the same conclusion as the Delegate; that the applicant did not satisfy the requirements of clause 572.223 and did not intend to genuinely stay in Australia temporarily to study.

10. Counsel for the Minister points out that the decision is summary in nature, but given the lack of information that it had, there really was not any other factor that the Tribunal could consider.  It certainly is clear that the Tribunal considered all the relevant information it had before it and that the applicant had had ample opportunity to put material before the Tribunal if he thought it would assist his case.

11. There is no indication from the Court Book that the applicant sought a third adjournment and even if that had been the case, given the previous adjournments he had been given, he may not have been successful in that as the Tribunal is not required to give continuing adjournments.

12. There is no jurisdictional error in the Tribunal’s decision and it is clear that the applicant disagrees with the conclusions that the Tribunal reached. That is not a matter for the Court; it is a matter exclusively for the Tribunal to determine what weight to put on the facts in that matter.

13. In those circumstances, I dismiss the applicant’s application.

14. The Minister seeks costs at an amount less than the amount in the scale of $5800.  The applicant says he does not have the means to pay.  That is, again, very common in this Court and is not a reason for the Court not to make the order for the costs, particularly in cases like this where the application was entirely without merit. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  2 September 2015