KANCHARLA v Minister for Immigration
[2018] FCCA 3921
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANCHARLA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3921 |
| Catchwords: MIGRATION – Application for judicial review – show cause hearing – Student (Class TU) (subclass 572) visa – whether Applicant genuinely intended to stay in Australia temporarily – no error apparent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.572.222 |
| Applicant: | ANITHA KANCHARLA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1932 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 December 2018 |
| Date of Last Submission: | 11 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Applicant: | Mr Hibbard of Clayton Utz |
ORDERS
Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 6 September 2017 is dismissed.
Pursuant to r 7.01(1) of the Federal Circuit Court Rules 2001 (Cth) the title of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1932 of 2017
| ANITHA KANCHARLA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
On 6 September 2017, the Applicant applied for judicial review of a decision of the Tribunal made on 10 August 2017. On 22 August 2017, the Administrative Appeals Tribunal (‘Tribunal’) affirmed a decision of the First Respondent not to grant the Applicant a Student (Class TU) (subclass 572) visa (‘Visa’).
Background
The Applicant is a citizen of India and arrived in Australia on
13 August 2013 as a holder of a Student (Class TU) (subclass 573) visa.
On 14 March 2015, she applied for the Visa.
On 2 September 2015, a delegate of the First Respondent refused the grant of the Visa on the basis of a finding that the Applicant did not genuinely intend to stay in Australia temporarily.
On 21 September 2015, the Applicant applied for a merits of review of the delegate’s decision.
Prior to the merits review hearing on 10 August 2017, the Tribunal forwarded to the Applicant a letter dated 27 June 2017 advising her of the hearing date and requesting information from the Applicant as follows:
We have requested the following information:
(1)a copy of your current certificate of enrolment, COE, as required for the grant of a student visa;
(2)documents that show you are currently enrolled in a course or have an offer of enrolment in a registered course, as required for the grant of a student visa;
(3)documents that you show your past studies in Australia, including copies of all your attendance certificates, and academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia;
(4)an explanation of any gaps in your enrolments and any documentary evidence relevant to your explanation.
No certificate of enrolment was provided by the Applicant to the Tribunal.
By its decision dated 22 August 2017, the Tribunal stated:
18While your visa was refused because the delegate was not satisfied you were a genuine temporary entrant, you have today told the Tribunal you are not currently enrolled and do not hold a current offer of enrolment.
19As was explained in the letter sent with the hearing invitation, current enrolment or an offer of enrolment is a prerequisite for the grant of a student visa.
20It is only when someone is enrolled is it possible to establish other evidence required such as finances, the duration of overseas student health cover, etcetera, etcetera.
21As you are not currently enrolled or do not hold a current offer of enrolment, you do not satisfy clause 572.222 which is a prerequisite for the grant of a student visa.
22As you do not satisfy clause 572.222 and are therefore not eligible for the grant of a student visa, the Tribunal does not intend to consider whether you met the genuine temporary entrant criteria.
23As you do not satisfy clause 572.222, it is the decision of this Tribunal to affirm the decision under review.
Grounds of review
The Applicant’s grounds of review provide:
(1) the decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 572.222 Migration Regulations 1994; and
(2) the Tribunal failed to consider applying the case Aulakh & Ors v Minister for Immigration & Anor [2017] FCCA 544 that inconsistencies in the evidence of the Applicant before it does not go to the core of the Applicant’s claim for a student visa.
Consideration
In relation to ground one, I accept that cl 572.222 was a mandatory criterion for the grant of a visa. Once the Tribunal found the Applicant had failed to meet one mandatory criterion for the visa, there was no need for it to separately consider the other visa criteria. I also accept that although cl 572.222 had been repealed at the time of the Tribunal’s decision, cl 572.222 continued to in relation to the Applicant’s visa application as she lodged it prior to 1 July 2016.
Clause 572.222(1) stated that at all relevant times:
(1) Except if subclause (2) applies or if the application was made on form 157E, the Applicant gives to the Minister a certificate of enrolment relating to the Applicant undertaking a course of study, the provider of which is not a suspended education provider (an acceptable course).
As the application was not made on form 157E and sub-cl (2) did not apply, the issue before the Tribunal was whether the Applicant provided a current certificate of enrolment relating to her undertaking a course of study.
The documents in the Court book, in particular, a PRISMS printout relating to the Applicant shows while she had previously enrolled in a Master of Biotechnology and Bioinformatics, this was cancelled on
30 June 2015 by reason of non-payment of fees.
There is no error apparent in the way that the Tribunal applied
cl 572.222 of the Migration Regulations.
In relation to ground two, the Applicant refers to a decision of the Court which was overturned on appeal and is of no direct relevance to the matter at hand. Ground two therefore fails.
In those circumstances, the Court is not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, I dismiss the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 14 January 2019
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