Kaur v Minister for Home Affairs

[2020] FCCA 566

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 566

Catchwords:
MIGRATION – Visas – student visas – Administrative Appeals Tribunal – reasonably satisfied that applicant was not enrolled in a course of study in Australia – no reasonable excuse for non-attendance at hearing – no arguable claim for the merits of the application – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c)

Migration Act 1958 (Cth), s. 65

Migration Regulations 1994 (Cth), Part 500 of Schedule 2

Cases cited:

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1559

First Applicant: MANDEEP KAUR

Second Applicant: PARMINDER SINGH

Third Applicant: EAKAMPRIT KAUR

Fourth Applicant: KAUR SONAMPREET

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2135 of 2018

Judgment of: Judge McNab

Hearing date: 18 February 2020

Date of Last Submission: 18 February 2020

Delivered at: Melbourne

Delivered on: 18 February 2020

REPRESENTATION

The Applicant in Person

Counsel for the Respondents: Mr Daly

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application in a Case filed 7 January 2020 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent’s costs fixed in the sum of $1,467.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. The time for lodgement of an Appeal runs after the publication of these Reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2135 of 2018

MANDEEP KAUR

First Applicant

PARMINDER SINGH

Second Applicant

EAKAMPRIT KAUR

Third Applicant

KAUR SONAMPREET

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. This matter comes before the Court pursuant to an Application in a Case filed on 7 January 2020. The applicants seek Orders that the Order made on 11 December 2019 that the Application be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth):

   a)be set aside; and

   b)was made by the Court in the absence of the applicants.

2. The Application states in relation to the Orders sought:

   1. I want to Request to reopen my file.

   2. I was sick on that day that way I want new hearing Date.

   3. I am not happy because they made decision without me.

Background

1. On 10 November 2016, the first applicant applied for a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (Cth) (‘the visa’). At the time, Class TU contained two subclasses: subclass 500 Student, and subclass 590 Student Guardian.

2. On 9 February 2017, a delegate of the first respondent (‘the delegate’) refused to grant the visa because it was not satisfied that the first applicant genuinely intended to stay in Australia temporarily.

3. On 2 July 2018, the first applicant appeared before the Administrative Appeals Tribunal (‘the Tribunal’ or ‘the AAT’) for review of the delegate’s decision.

4. In its decision dated 2 July 2018, the Tribunal at [6] noted that:

   a)the criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), and

   b)the primary criteria in clauses 500.211 to 500.218, that at least one applicant be enrolled in a course of study, must be satisfied.

5. At [9] of its decision, the Tribunal states:

   9. At the hearing the Tribunal asked the applicant whether she was currently enrolled to study a course here in Australia. The applicant testified that she was not currently enrolled to study a course here in Australia. She also stated that she had not studied here in Australia since 17 August 2017.

6. The grounds for review set out in the Application filed 23 July 2018 in this Court are:

   1. I am not happy that decision made by AAT because they said I am not genuine. But I complete all my studies. Because of that, they reject my Cert[ificate] IV in Pastry, and they didn’t give me visa for study. After I finish my Cert IV I was not sure that I can study on Bridging Visa, so the not even ask my previous study, and he not even listen to give me time for provide COE and offer letters that’s way I was not satisfied.

7. On 7 January 2020, with regards to the Application in a Case, the first applicant swore an affidavit which provided:

   1. I am providing right evidence to judicial review application.

   2. I was sick on that same day so I am providing all my Medical Tests and Certificate.

   3. I was very sick I have very strong Pain on my left side with that, I am not able to walk, and I hardly go for my test and I take a strong pain killer after my doctor check all my Reports and start my tre[a]tment that’s way I am not able to attend my hearing So Please, I request for re-open my file and give me new hearing date. I hope you understand my situation.

8. The applicant attached to her affidavit a medical certificate from a medical centre in Epping, Victoria, which stated:

   THIS IS TO CERTIFY THAT

   Mrs Mandeep Kaur, 21/11/1989, ATTENDED O’HERNS ROAD MEDICAL CENTRE on 09/12/19, 13/12/19 AND 16/12/19 for a medical issue.

   She had investigations done during this period.

   She was then started on treatment from 16/12/19 onwards.

   She is much better now.

   This certificate was completed on 24/12/2019.

9. Also attached to this affidavit is a tax receipt and invoice from a medical imaging company which shows that on 11 December 2019 at 9.15am the Applicant had an abdomen x-ray and at 9.30am she had an abdomen ultrasound.

Consideration

1. The Application to set aside an Order of this kind involves considerations as to:

   a)whether there is a reasonable excuse or explanation provided by the applicants for not attending on the hearing date; and

   b)whether the first applicant has provided a basis for an arguable case in her principal case, which would mean there is utility in setting aside the Order.

2. It is not explained why the first applicant’s husband, who was also an applicant, did not attend on the return of the Application.

3. Notwithstanding that, there are issues with the evidence that was supplied by the first applicant. The medical certificate did not state that the first applicant was unfit to attend Court on the day of the hearing or, otherwise, that the medical condition suffered by the first applicant was such as to prevent her from travelling to Court and participating effectively in a Court hearing.

4. I accept that the first applicant has attended the medical clinic on the days that are set out in the medical certificate and attended the medical imaging centre on 11 December 2019 (the day of the hearing).

5. However, the explanation does not adequately address the question of the first applicant’s ability to attend and participate in the Court hearing: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1559 per Lindgren J.

6. In regards to the question of determining whether there is an arguable case and sufficient basis to set aside the Orders, in making submissions today, the first applicant advised that she had misunderstood her capacity to enrol in further courses when she was on a Bridging Visa.

7. I accept that the Regulations may be confusing and I do have some sympathy for the first applicant’s position in that regard, however, I cannot see that there is any arguable basis for the applicants’ Application to set aside the Tribunal’s decision.

8. The Tribunal was correct in finding that, at the time of the decision, it was not satisfied that the first applicant was (or any of the secondary applicants were) enrolled in a course of study, and accordingly the requirements of clause 500.211 of Schedule 2 to the Regulations were not met.

9. In regard to the secondary applications, no material has been put before the Court to suggest that the finding that they did not satisfy clause 500.311 is incorrect.

   There are issues regarding the evidence placed before the Court about the Applicant’s capacity to attend Court on the day of hearing. And no reasonably arguable claim has been put before the Court in relation to the merits of the substantive Application. Therefore, in these circumstances the Court will dismiss the Application in a Case filed on 7 January 2020.

10. The solicitor for the first respondent has sought Orders that the applicants pay the first respondent’s costs fixed in the sum of $3,737.

11. Costs will be fixed at $1,467, which is similar to the costs of the last hearing.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 13 March 2020