KAUR v Minister for Immigration

[2015] FCCA 1369

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1369

Catchwords:
MIGRATION –  Migration Review Tribunal – Student (Temporary) (class TU) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958, s.476

Migration Regulations 1994, Schedule 2, cl.572.223

Applicant: AMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 377 of 2014

Judgment of: Judge Street

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Adelaide

Delivered on: 19 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent:

Ms V. Greenslade

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6646.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 377 of 2014

AMANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 11 September 2014 affirming a decision of the delegate not to grant the applicant a Student (Temporary) Class TU visa.  The application identifies the following grounds:

   1. Department of Immigration and Border Protection refused my visa. I went to Migration Review Tribunal they upheld the decision of Immigration. Member of tribunal stated in his decision that I do not meet cl.223(1)(a). In paragraph 11, 12 and 13 of decision member stated that Member had detailed look into my visa history. He noted that I wish to undertake certificate 4 in business and Diploma of Business and Southern Cross Education. Member stated that he doesnot believe that I am a Geniune student as I did not respond to an invitation from Department to address the reason why I wished to study these courses. I did not find this as a requirement in migration law that a student has to explain the member that why I wanted to study this course and if member is not happy with course selection or answer, he will refuse it. So what if I want to study a course and member thinks its not appropriate that I am not genuine student. My freedom of course selection is taken by member or delegate of immigration. Then Students should not be offered the course thy like It should be specifically mentioned that only visa will be given to students who will study specific course thought as appropriate by Delegate. I believe there is Jurdictional error in decision of tribunal.

2. The application patently fails to articulate any jurisdictional error.  The applicant has remained in Australia since May 2009.  In response to the respondent's submissions as to why there was no jurisdictional error, the applicant identified that she wanted to stay in this country and that the applicant’s husband had falsely promised to make her a permanent resident.  Nothing was said from the bar table to articulate or identify any jurisdictional error.  The mere assertion in the last sentence of the grounds of the application, “I believe that there is a jurisdictional error in the decision of the Tribunal,” does not identify any jurisdictional error. 

3. This is a case where the applicant applied for a visa on 28 June 2013, which the delegate refused to grant on 16 October 2013.  The delegate’s decision identified the concern as to whether the applicant was a genuine temporary entry applicant. The Tribunal properly complied with its statutory requirement in inviting the applicant to attend a hearing to be conducted on 18 September 2014.  On 10 September 2014, the applicant advised the Tribunal that she did not wish to give oral evidence, and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal. 

4. It was in those circumstances that the Tribunal decided to determine the review application on the evidence available to the Tribunal.  It was in those circumstances that the Tribunal concluded that the decision under review should be affirmed.  The Tribunal noted that the applicant had arrived in Australia over five years ago and only enrolled in these courses, at least in the courses identified by the Tribunal, last year.  The Tribunal noted that the applicant had not provided any reasons why she delayed in enrolment in the courses for such a considerable period. 

5. The Tribunal noted that the applicant had not provided any reasons why she chose to study in Australia rather than India in relation to the courses identified.  The Tribunal considered the evidence before the Tribunal and noted that, having arrived in Australia in May 2009, the applicant had not departed since her arrival.  It is in those circumstances that the Tribunal said:

   Given her visa history, the Tribunal finds that she is using the student visa program to circumvent Australia’s permanent migration programs and maintain an ongoing residence. 

6. That finding by the Tribunal was clearly open on the material before the Tribunal.  Moreover, that finding is, to the extent relevant, entirely consistent with what was said by the applicant from the bar table.  Be that as it may, the adverse finding by the Tribunal was open on the evidence before the Tribunal, and it was open to the Tribunal to conclude that it was not satisfied that the applicant genuinely intends stay in Australia temporarily.  It was in those circumstances that it was open to the Tribunal to conclude that the applicant does not meet cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994. 

7. This Court is not sitting as a Court of Appeal.  This Court is not rehearing the matter on its merits, and is confined to the issue of jurisdictional error.  The application fails to identify any jurisdictional error, and it is clear from the reasons of the Tribunal and the material in the Court Book that there is no jurisdictional error by the Tribunal.  The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 May 2015