KAPOOR v Minister for Home Affairs

[2019] FCCA 2827

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPOOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2827

Catchwords:
MIGRATION – Application for student visa – failure to comply with enrolment criteria – application for visa refused – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.500.211, 500.214

Cases cited:

Minister for Immigration and Citizenship & SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship & Li (2013) 249 CLR 332

Applicant: PARTH KAPOOR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 295 of 2019

Judgment of: Judge Egan

Hearing date: 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Brisbane

Delivered on: 19 September 2019

REPRESENTATION

Applicant: In Person

Solicitor for the First Respondent: Mr Freeburn of Clayton Utz

ORDERS

1. The application for review filed on 25 March 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 295 of 2019

PARTH KAPOOR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who applied for a student (temporary) (class TU) (subclass 500) visa on 25 October 2016. 

2. On 16 February 2017, the delegate refused to grant the visa to the applicant and notified the applicant of that decision. The delegate was not satisfied that the applicant had provided evidence of his financial capacity to satisfy the requirements of clause 500.214 of schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). In particular, the delegate was not satisfied that the applicant had provided evidence of his compliance with the provisions of clause 500.214(3). Clause 500.214 of the Regulations provides as follows:

   500.214

   (1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

   (2) While the applicant holds the visa, sufficient funds will be available to meet:

   (a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and

   (b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

   (3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

   Note: For arrangements for the use of a computer program, see section 495A of the Act

   (4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

3. On 8 March 2017, the applicant made application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. 

4. On 24 January 2019, the Tribunal invited the applicant to appear at the hearing scheduled before it, and to provide evidence of enrolment in a full-time registered course. 

5. On 19 February 2019, the applicant advised the Tribunal that he was unable to provide a confirmation of enrolment, evidence of past studies in Australia, or evidence of work in Australia related to the applicant’s studies.  The applicant provided part of a document produced by the Queensland Police Service and, otherwise, provided to the Tribunal what appeared to be a statutory declaration purporting to be from the applicant’s mother.

6. On 22 February 2019, the applicant sent further correspondence to the Tribunal informing the Tribunal that he had been unable to provide confirmation of enrolment or evidence of past studies in Australia compliant with his responsibilities. 

7. On 26 February 2019, the applicant attended a hearing before the Tribunal.  He was assisted by an interpreter in the Hindi language at that time. 

8. On 27 February 2019, the Tribunal affirmed the decision of the delegate.

9. Pursuant to a request made by the applicant on 28 February 2019, the Tribunal provided further documentation to the applicant relating to its decision. The Tribunal summarised in its decision the relevant background, and recorded that it had considered the evidence of the applicant in all respects. The Tribunal was satisfied that the applicant had not met the criteria as set out in clause 500.211(a) of the Regulations, in that he was not enrolled in a relevant course of study. Clause 500.211 provides as follows:

   500.211

   One of the following applies:

   (a) the applicant is enrolled in a course of study;

   (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

   (c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

   (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

10. On 25 March 2019, the applicant filed an application for review of the decision of the Tribunal. The grounds of such application were as follows:

    Grounds of Application

    1. The Tribunal engaged in conduct which amounted to jurisdictional error in that it (the Tribunal), was required to look at requirements of the student visa as no one criteria in more important than the other or others.

    Particulars

    (i) The Tribunal’s decision defies logic and is contradictory.

11. At [4] – [10] of its reasons, the Tribunal set out relevant facts pertinent to a consideration of whether it ought to grant the applicant’s application for review or not. It clearly found that on the applicant’s own admission, the applicant failed to satisfy the requirements of either clause 500.214 or clause 500.211 of the Regulations.

12. Those clauses constitute the criteria which were mandatory requirements for the grant to the applicant of the student visa sought by him. Having confirmed that he did not satisfy either such preconditions, there was no basis for the Tribunal granting to the applicant the student visa.

13. The Tribunal arrived at its decision after having carefully considered the facts before it. It set out the relevant criteria and found that the applicant was wanting in fundamental respects. 

14. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship & SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

15. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship & Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

16. The applicant has not established any jurisdictional error on the part of the Tribunal. 

17. The application for review is without merit and is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  7 October 2019