Kaur v Minister for Immigration

[2015] FCCA 682

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 682

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision not to grant student visa – no certificate of enrolment – no discretion remaining in Tribunal.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 232 CLR 189; 81 ALJR 1401; 96 ALD 510

Applicant: JASPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1041 of 2014

Judgment of: Judge McGuire

Hearing date: 23 March 2015

Date of Last Submission: 23 March 2015

Delivered at: Melbourne

Delivered on: 23 March 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 3 June 2014 be dismissed.

2. The Applicant pay the first respondent’s costs and disbursements of an incidental to the application fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1041 of 2014

JASPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT DELIVERED

EX- TEMPORE

1. This is an application for judicial review pursuant to the Migration Act 1958 (Cth) (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) affirming the determination of the Minister’s delegate not to grant the applicant a Student Temporary (Class TU) visa (“the visa”).

2. The applicant appears in person in Court today and is assisted by an interpreter. Prior to the hearing of submissions I established that the interpreter and Ms Kaur speak the same language and have a mutual understanding.

3. The applicant has not complied with the procedural directions of the Registrar to file written submissions. The first respondent has filed helpful written submissions. That being the case, I offered the applicant the opportunity to make oral submissions without any objections from the first respondent.

4. The thrust of those submissions today, if I can understand them correctly, is not something new given the material on the Court file and the nature of the application. They are that at a time contemporaneous to the hearing of the application before the Tribunal, the applicant was suffering some medical condition. She says that she was admitted to a hospital. I am aware that the applicant was also enduring the difficulties of a divorce case and had also suffered an ectopic pregnancy. None of that material is new given that, in fact, the applicant now agrees that it was material provided in written form to the Tribunal prior to the hearing.

5. The application itself sets out only one ground of complaint being:

   My Visa was refused because I was not enrolled in any Course while I was on the 573 Student Visa. I was misguided by the agent in this regards.

   I have always believed in the power of quality education and complying with relevant visa conditions. I have always been diligent with my studies and hence, I intend to complete my study and fulfil all my visa conditions. I am willing to provide documents towards financial requirements, transcripts and English language requirements that will help me complete my studies successfully and prove my genuine interest in further education.

   On compassionate grounds, please grant me an opportunity to prove my intention as Genuine Temporary Entrant that will help me achieve my career goal.

6. The only other oral submission received today by the applicant was that she needs ‘…one more chance.’

Background

1. The applicant is from India. On 23 September 2013 she applied to the Department for the relevant visa.

2. On 25 September 2013 the Minister’s delegate, by email, sought further information from the applicant. The applicant’s representative responded on 22 October 2013 providing firstly an explanatory statement as to why the applicant had not been enrolled in a course between 13 May 2012 and 14 October 2013, including an apparent ectopic pregnancy, but whether or not that is the same condition that grounded the medical certificate which the applicant referred to and is before me today is something I am unable to comment on. Secondly, a certificate from the Punjab School Education Board[1] and thirdly a document titled ‘Statement of Purpose Jaspreet Kaur’.[2]

   [1] Court Book filed 8 July 2014, page 31.

   [2] Ibid, page 32.

3. On 13 November 2013 the Minister’s delegate refused to grant the applicant the student visa not being satisfied that the applicant was a genuine applicant for entry and stay as a student pursuant to cl. 572.223 of schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 3 December 2013 the applicant applied for a merits review before the Tribunal by letter dated 26 March 2014.

5. The Tribunal invited the applicant to appear before it and to provide documents confirming enrolment and an explanation of any gaps in previous enrolment. It is proper to point out that the applicant had held a student visa from 29 August 2012 until 30 September 2013 with a condition that she maintains enrolment and continue to study. The applicant had stated that she had experienced health difficulties and a divorce with the implication from that being that there had been a gap in her studies.

6. The Tribunal hearing took place on 1 May 2014. The applicant and her representative appeared.

7. The applicant informed the Tribunal that she was not currently enrolled in any course and could not produce a current certificate of enrolment. This being the case, the Tribunal found that the applicant did not satisfy the statutory requirement of the granting of a student visa. The Tribunal then found furthermore, that the applicant did not meet the criteria for either subclass 576, which is AusAID or Defence Sponsored visa, or for a subclass 580, which is a Student Guardian visa. It followed that the Tribunal affirmed the Minister’s decision not to grant the visa.

8. The application to this Court does not offer the applicant further opportunity for a merits review and I say that specifically in respect to the comment of the applicant today that she needs ‘…one more chance’. Rather the applicant here is only entitled to the relief she seeks if the decision of the Tribunal is found to be affected by jurisdictional error or an error of law. To this end reference in the applicant’s one group of complaint that she would ‘…provide documents towards financial requirements, transcripts and English language requirements…’ is of no relevance given that this report does not offer a merits review. In any event the documents offered by the applicant do not address the statutory requirement of her current certificate of enrolment which clearly grounded the Tribunal’s decision.

9. On the broadest of readings, the applicant’s one ground of complaint implies that she argues that she should not be liable from the decision or the effect of the decision of the Tribunal as being ‘misguided by the agent’.[3] The applicant did engage a representative and they attended at the hearing. However, there is no suggestion in the complaint or in any submissions of the applicant that the agent is alleged to have perpetrated a fraud such as to stultify the Tribunal’s process as was discussed in the well-known decision of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.[4] Short of such fraud, the mere negligence of an agent or even indifference on the part of an applicant to the material launched on her behalf is sufficient for a subsequent Court to find error in the process of the Tribunal so as to disturb the Tribunal’s decision.

   [3] Affidavit of Jaspreet Kaur, filed 3 June 2014, para 4.

   [4] 232 CLR 189; 81 ALJR 1401; 96 ALD 510

10. Whilst the issue raised before the Tribunal was prima facie whether the applicant met the criterion in cl. 572.223 of the Regulations, the more discrete issue confronting the Tribunal on the day of the hearing was whether the applicant met the statutory requirements for the granting of the student visa. The Tribunal had specifically sought such evidence from the applicant prior to the hearing. No evidence of current or offered enrolment was adduced by or on behalf of the applicant. The mandatory nature of such requirement meant the failure to provide it left only the one decision open to the Tribunal.

11. The applicant’s plea to the Tribunal was to have her claim considered on compassionate grounds. That fails as not being open to the Tribunal given the mandatory nature of the section and the lack of discretion in the Tribunal.

Conclusion

1. I am satisfied, therefore, that the Tribunal’s process and procedure was in accordance with the statute. I am satisfied that the proper procedural fairness was afforded the applicant in that she was invited to the Tribunal and equally invited to provide evidence to the enrolment.

2. I can find no error of law in the Tribunal’s decision and I will order accordingly that the application be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 March 2015