KALER v Minister for Immigration

[2015] FCCA 55

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALER v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 55

Catchwords:
MIGRATION – Application for judicial review of Migration Review Tribunal decision – applicant seeking student visa – applicant admitting extensive study and enrolment gaps – Tribunal not accepting applicant genuinely seeking to study accordingly – no jurisdictional error shown – application dismissed.

Legislation:  

Migration Regulations 1994, cl.572.223(2)(a)(ii)(B), 572.223(2)(a)(ii)

Applicant: RITESH KALER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2183 of 2013

Judgment of: Judge Burchardt

Hearing date: 19 November 2014

Date of Last Submission: 19 November 2014

Delivered at: Melbourne

Delivered on: 23 January 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 11 December 2013 be dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2183 of 2013

RITESH KALER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 11 December 2013 the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 November 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.  The reason why the Tribunal came to that conclusion can be put shortly.  The applicant admitted that he had two study gaps, one of over 18 months, and a further one of 12 months, and a gap in enrolment of 30 months. 

2. The applicant has been in Australia since 2005 but the Tribunal, nonetheless, found that these extensive gaps, together with a recent enrolment, which the Tribunal found to have been done solely for the purposes of the hearing, were such that it could not be persuaded that the applicant was a genuine applicant for entry and stay as a student and, therefore, did not meet the requirement of cl.572.223(2)(a)(ii)(B) of the Migration Regulations 1994 (“the Regulations”). 

3. The grounds of application only state “Study gaps while MRT application is in process”.  The applicant’s affidavit in support of his application says nothing, but merely appends a copy of the Tribunal’s decision.  The applicant has filed a written submission on 20 October 2014, which is paraphrased, in my view correctly, by the written submissions of the first respondent at paragraph 19 as follows:

   “19.  In his written submissions the applicant states that

   19.1  he applied for a further student visa in March 2009 in order to complete a business management diploma but heard nothing from the Department until he discovered that his visa was cancelled;

   19.2  the Department had sent letters to the wrong address, and as a result his visa was cancelled when he did not respond to a request for evidence that he had reached the requisite standards in an IELTS test;

   19.3  the letter notifying him of the delegate’s decision had been sent to the wrong address;

   19.4  he could provide evidence that he met the requisite IELTS test standards, but was told that the delegate decision could not be amended, and all he could do was to apply for review by a differently constituted Migration Review Tribunal;

   19.5  the first Tribunal found in his favour, only for the Department to cancel his visa again on the basis that he had had a 2.5 year study gap;

   19.6  he was unaware that he had to study while waiting for a Migration Review Tribunal decision;

   19.7  he had no option but to apply for review by the current Tribunal, but they didn’t listen and cancelled his visa anyway.”

4. To that paraphrase I would add one other subset emphasised by the applicant in the written submissions, and in his oral submissions to the Court. The applicant says that he went to his migration agent for advice and was told that, because he had 900 hours of experience as a mechanic, he was eligible for temporary residency, and that he would get a bridging visa when he applied for temporary residency and, therefore, did not need to continue to study. He had applied for temporary residency, but it was invalid because his student visa was cancelled.

5. In his oral submissions before the Court the applicant repeated the narrative set out in the written submissions. His visa expired effectively three months before his course, in 2009. He applied for his temporary resident’s visa, and heard nothing and completed his course in the meantime. He was then told his visa was cancelled. He contacted the Department, but had not received any of the relevant letters because they were sent to the wrong address.  It had taken two and a half years to get to the Migration Review Tribunal, but after he had been successful there he was taxed with the gap in his studies.  He said he did not know that he needed to go to school, and had relied upon what he had been told about getting his temporary resident’s visa in six months. He then, having been apprised of the need to study, commenced to do so, but was dismissed by the Tribunal on the second occasion because of the gaps in his education.

6. Counsel for the first respondent was essentially prepared to rely upon written submissions.  He tendered as exhibit R1 a letter sent to the applicant on 21 May 2009, which I have ruled admissible as a business record.  This suggests that this was sent to the applicant’s address for service, 23 Grosvenor Street, Moonee Ponds, and it was that letter that required proof of English language skills.  It is perhaps not now of great significance, especially bearing in mind that the applicant says he never received such a letter.  

7. Counsel conceded that the first notification of refusal by the delegate, sent on 30 June 2009, was sent to the wrong address.  He submitted that re-notification took place at the end of July 2009, and that it was that notification that ultimately led to the first Tribunal decision.  The applicant was, of course, successful in that case and the matter was returned to the delegate for further consideration. 

8. The second delegate’s decision is the one that has given rise to the proceeding before the Tribunal, and in this Court.  Counsel submitted that the applicant enrolled in programs just before the second Tribunal hearing.  The Tribunal did not believe the applicant, but the Tribunal had noted that the applicant had completed his program and elected not to study further.  In reply, the applicant said he did not know he had to study, and his visa was cancelled because he was not a student.  This was a mistake.  He had thought he would get his visa in six months, and this was why he had not studied.  He commenced the study before the second hearing when he realised that he needed to. 

9. The Tribunal’s decision is at Court Book (“CB”) 107-109. The Tribunal recorded the application for review and its history. At paragraphs 1 to 5 the Tribunal set out the time of decision criterion contained in cl.572.223(2)(a)(ii)(B), which relevantly requires the applicant to be a genuine applicant for entry and stay as a student, having regard to any other relevant matter. At paragraph 8 (CB108-109) and following the Tribunal said:

   “8.    At the hearing, I asked the applicant if he disagreed with the evidence recited by the delegate in the primary decision, a copy of which was provided by the applicant to the Tribunal.  He did not take issue with those findings.  Relevantly, these are that the applicant had two study gaps, one of 18 months and a further one of 12 months and a gap in enrolment of 30 months. 

   9.    I asked the applicant for his explanation as to these matters.  The applicant said his application for the visa was first refused after he failed to respond to a ‘28 day letter’ from the department.  He said the department misaddressed this letter, so he never received it and thus did not respond.  He said he spoke to that decision maker who told him he could not revisit his decision and advised to seek review from this tribunal (differently constituted).  He said he was told it would only take about six months but the review was not decided for around two and a half years.  He said he was successful on the review, but he did not know that he had to study while the review was pending.  He said after the matter was remitted for reconsideration.  He said then delegate in the present matter refused the visa again because fo (sic) the study gap. 

   10.  I asked the applicant if he ever spoke to the department or obtain advice from a migration agent.  He said the last time he spoke to immigration he was told he will be alright it is not his fault and he has done his courses before the visa was cancelled.  The applicant said the reason he was not studying was because he didn’t know he had to study. 

   11.  I asked the applicant what he did in the intervening period.  He said nothing, waiting for the MRT.  He said he works part-time at a petrol station.  He then stressed to me as an afterthought that he works less than 20 hours per week. 

   12.  I asked the applicant if there was anything else he wanted me to take into account.  He replied he has not done anything wrong, his course attendance was over 80% and he passed all his exams but they cancelled the visa.  He said he did not have the money to study for another three years.  He said his family cannot support him as his brother is also studying in Canada and his family supports him.  He said he spent all his loan money for the study and when the time came to pay back the visa was cancelled. 

   13.  I asked the applicant if he was planning to stay here once he finished his study.  He said yes, if he gets a good job he will stay otherwise he will go back. 

   14.  Whilst I take into account that the applicant has in the past successfully completed a Certificate III in Automotive Mechanical Technology in March 2009 and a Diploma of Business Management in June 2009, I also take into account that the current certificates of enrolment provided by the applicant are for courses commencing in October 2013 and February 2014.  I am of the view that he has only enrolled in these courses in an attempt to convince me that he is a genuine applicant for entry and stay as a student. 

   15.  I do not accept as genuine the applicant’s assertion that he did not know he had to study whilst waiting for the outcome of the previous MRT review.  Whilst I accept that the first visa refusal decision may have occurred through no fault of his own, the fact remains that the clause in question requires that the applicant be a genuine applicant for entry and stay as a student.  When I questioned the applicant, he demonstrated knowledge of matters such as visa conditions, course attendance requirements.  He is not as ignorant of his obligations as he pretends to be.  The significant gap in study and the last minute enrolment in courses shortly prior to the review hearing all reveal to me, and I find, that his intention is not genuinely to be a student.  I do not accept his explanation either that his or his family’s financial position prevented him from studying.  I find rather he has made a choice not to study.”

10. Having made those findings, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and was, therefore, not appropriate to be granted the visa he sought.  It should be noted that the applicant’s explanation as now articulated, both in his written submissions and in his oral submissions at Court, appear somewhat to differ from what he told the Tribunal.  If I understood the matter correctly, his assertion before the Court was that he had been told he would have to wait six months for his temporary resident’s visa, not six months for a Tribunal decision.  This, however, is in the ultimate by-the-by. 

11. The first respondent has submitted, at paragraph 28 of the written submissions, that the Tribunal’s finding which rejected the applicant’s explanation for his failure to undertake study for extensive periods of time, and that he had elected not to study, was “a finding of fact par excellence” and provided a firm foundation for the Tribunal’s conclusion that it was not satisfied that the applicant met the mandatory requirement prescribed by cl.572.223(2)(a)(ii), that he be a genuine applicant for entry and stay as a student.

12. As counsel for the first respondent submitted, this is a discrete and short point.  It was clearly open to the Tribunal, in my view, in the face of the facts which the applicant did not dispute, to find that he was not a genuine applicant as a student.  He had not studied for very extensive periods of time.  The Tribunal did not accept the explanation the applicant gave to it, which was that he had expected to receive a decision from the Tribunal within six months in his original application.  Even if the applicant had advanced the explanation now advanced – namely, that he relied upon erroneous advice that he would achieve another sort of visa in any event, and the decision of the Tribunal makes it clear that he did not – it would still have been open to the Tribunal to find that the applicant, who was, after all, applying for a visa as a student, was not a genuine applicant as a student in the circumstances that were uncontroversial before it. 

13. It is, unfortunately for the applicant, clear the Tribunal did not fall into jurisdictional error in dealing with the matter in the way that it did.  The Tribunal’s decision was clearly open to it.  The application will be dismissed with costs. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 January 2015