Kalanje v Minister for Immigration - [2006] FMCA 1334

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KALANJE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1334

MIGRATION – Student Visa cancellation because of breach of conditions – no jurisdictional error.

Migration Act 1958 (Cth), ss.116(1)(a), 116(1)(b), 116(3), 474, 476, s476(2), 476(4)
Magistrates Court Rules (2001), rr.44.05, 44.12(1)(c), 44.12(1)(a)
Migration Act Regulations , r.2.43(2)(b)

Plaintiff S157/2002 v The Commonwealth I (2003) 211 CLR

Applicant:

PACHARO KALANJE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

ADG 152 of 2006

Judgment of:

Lindsay FM

Hearing date:

31 August 2006

Date of last submission:

31 August 2006

Delivered at:

Adelaide

Delivered on:

31 August 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr K. Tredrea

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(a)That the Application filed on 29 May 2006 do stand dismissed.
(b)That the Applicant do pay the First Respondent's costs of and incidental to these proceedings fixed in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 152 of 2006

PACHARO KALANJE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before me this afternoon is an application filed on 29 May 2006. It is an application pursuant to s.476 of the Migration Act 1958 (Cth).

The jurisdiction of this Court is the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(5) of the Constitution of the Commonwealth of Australia. The provisions of s.476(2) are not applicable.
In particular the application relates to a decision of the Migration Review Tribunal and it is not an application in relation to a primary decision, as defined in s.476(4). Nevertheless s.474 of the Act is applicable.
The decision of the Migration Review Tribunal which is the subject of this application, is a privative clause decision and accordingly, final and conclusive, unless the decision can be demonstrated to be a decision affected by jurisdictional error, as that concept was described by the High Court, in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR at 476.
The application is made in accordance with r.44.05 of the Federal Magistrates Court Rules (2001). The application is for an order to show cause. The hearing was conducted upon the basis that I should make final orders in relation to the claim for relief on the grounds mentioned in the application pursuant to r.44.12(1)(c) and for reasons that were explained to me by Mr Tredrea, who appears on behalf of the first respondent, this was a case where it was not thought expedient to make application under r.44.12(1)(a).
The application relates to the cancellation of a student visa. The applicant held a visa - a subclass 573 visa - which was valid until the end of 2007. The visa was subject to condition 8202, specified in the Regulations, which relevantly provides that the holder of the visa must be enrolled in a full-time course of study or training.
There is no dispute that since at least September 2005 it has been clear that the applicant is not so enrolled and on 30 September 2005 a delegate of the Minister gave notice to the applicant of the intention to cancel her visa. That was what happened.
In October of 2005 the applicant lodged an application for review with the Migration Review Tribunal. There was no dispute when she filed that application that she had not been enrolled in a full-time course of study or training since February of 2005. She had not continued to participate in the course of study in which she was originally enrolled at Flinders University at the commencement of 2005, but indicated an intention to undertake another course of study at a TAFE college. She said that the reasons she had been unable to undertake that course of study were financial; that the money that was refunded when her course of study at Flinders University was cancelled, was not money that she had been able to access to assist her in meeting the relevant fees in relation to the course of study that she wanted to undertake at TAFE.
Section 116(1)(a) and s.116(1)(b) are the primary sections of the Act which ground the decision to cancel the visa. Section 116(3) provides that:
If the Minister may cancel a visa under subsection (1), the minister must do so if there exists prescribed circumstances in which a visa must be cancelled.
That takes us to the relevant Regulations and reg.2.43(2)(b) provides that it is mandatory for the visa to be cancelled if there was a breach of condition 8202, unless the Minister is satisfied that the non-compliance was due to exceptional circumstances beyond the visa holder's control and this was the matter that was agitated principally before the Tribunal.
The applicant explained to the Tribunal her circumstances relating to the death of her father in October of 2004 and the fact that the refunded Flinders University monies had been repatriated - it now seems repatriated to Botswana - and are now, according to what the applicant tells us today, in the possession or control of her mother.
The Tribunal was not satisfied that the - and I am paraphrasing what the Tribunal said - but it is clear from the findings that are set out in paragraphs 32 to 38 of the Reasons for decision that the Tribunal was not satisfied that there had been any bona fide effort by the applicant to retrieve those funds, or to obtain other funds which could be used to enable her to participate in the course of study.
The Tribunal was concerned that notwithstanding she had been able to borrow monies from the person the applicant describes today as her partner to fund trips to South Africa in April and July of 2005, she was not able to borrow sufficient funds to participate in her nominated course of study, and she has apparently been unable to borrow funds to travel to Botswana to make the necessary arrangements for the return of the money to Australia (the repatriated monies) following the cancellation of her Flinders University course of study.
Essentially, the applicant is in precisely the same position as she was before the Tribunal. Nothing further has happened and she is not able to demonstrate any real attempt she has made to either retrieve those moneys or to borrow monies from the person, her partner, described as John. She tells me they do not see eye to eye. When it was that they had ceased to see eye to eye is a matter that is not put by her in any relevant way. Essentially the position remains the same today as it was before the Tribunal when it made its determination in March and April. That is, that the applicant really has little to offer by way of assurance in respect of attempts to find the money, except very generalised assertions or sanguine expectations as to what she might be able to do in the future. Having regard to what she has been unable to do, to date, it is unsurprising that the tribunal was not satisfied that exceptional circumstances beyond her control had been demonstrated.
I have been addressing the matter as if it were a merits review that is being conducted before me. It is not of course. I would have to be satisfied that there is some jurisdictional error going to the way in which the Tribunal apprehended its task before I could send the matter back to the Tribunal. I do not have any power to reverse the cancellation of the visa myself; I can only send the matter back to the Tribunal to reconsider the matter, but to do that, I would have to be satisfied that the Tribunal had misapprehended its task in a way that could be described as the Tribunal not having exercised its function, not having made a decision under the act in the terms in which it is authorised to do so.
So far is it from being a such case that no jurisdictional error is even advanced, either in the application or in any supporting affidavit or in any submissions that are made by the applicant today. Notwithstanding that I have scrutinised carefully the way in which the Tribunal has approached its task (and I have been assisted in that by the submissions, written and oral, that have been made by Mr Tredrea).

I am unable to identify any error, let alone any error amounting to a jurisdictional error.
There is an application for costs. It seems to me costs ought to follow the event. The application has been, on the view I have taken of it, entirely without merit.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms K. Clarke

Date: 7 September 2006.