KAUR v Minister for Immigration

[2015] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 331

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – Indian national seeking Student (Temporary) (Class TU) visa – applicant unable at time of decision to satisfy visa requirement cl.572.223 (2)(a)(i) of Regulations (Financial capacity) when before the Delegate – when before the Tribunal applicant unable to satisfy cl.570.252, 571.232, 572.231, 573.231, 574.231, and 575.231 (applicant must at time of decision be enrolled, or subject to a current offer of enrolment in a course of study).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.362B

Migration Regulations 1994 (Cth), reg.1.40A, cls.570.232, 571.232, 572.231, 572.223, 573.231, 574.321 & 575.231 of Schedule 2

First Applicant: HARJIT KAUR

Second Applicant: JASVIR SINGH

Third Applicant: NIMRAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 171 of 2014

Judgment of: Judge Simpson

Hearing date: 5 February 2015

Date of Last Submission: 5 February 2015

Delivered at: Adelaide

Delivered on: 5 February 2015 (ex tempore)

REPRESENTATION

The Applicants: In person

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application filed 20 May 2014 be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants do forthwith pay the first respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 171 of 2014

HARJIT KAUR

First Applicant

JASVIR SINGH

Second Applicant

NIMRAT SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for judicial review brought by a husband and wife and their young child who are all in Court today.  The first applicant is the wife (“the applicant”).  She is the person that has spoken on behalf of the group. 

2. The application for judicial review was filed on 20 May 2014.  The applicant seeks to quash a decision of the Migration Review Tribunal (“the Tribunal”).

3. In the application the sole ground of application is as follows:

   “Member of MRT in decision paragraph 7-13 claimed that I do not hold enrolment and do not satisfy cl.572.223(2)(a)(i).  Tribunal also mentioned that they received a request letter from me requesting a letter from Tribunal stating that I can study, and college can give me admission.  This clearly shows that even after receiving the letter and acknowledging it Tribunal failed to act on it or provide me any further information.  As my student visa was refused and I did not hold student visa.  Mostly colleges were reluctant to give me admission.  I went to immigration and requested them to issue a letter which states that I can study and there will be no problem for college to give me admission.  Immigration refused to issue any letter.  I asked the member to issue such letter so I can get enrolment but member failed to issue such letter or even take any action on my request.  The inaction by tribunal and failing to give importance/consideration to my letter contributes to error of tribunal’s decision.”

4. The applicant filed an affidavit at the same time that she filed the application.  The affidavit repeats what is in the application.

5. The history of the matter is that the first applicant applied for a visa on 25 October 2011. The applicant provided documents to the Delegate in an attempt to demonstrate that, at the time of the application, she was enrolled in a course of study that is a principal course and is of a type identified in reg.1.40A of the Migration Regulations 1994 (Cth) (“the Regulations”) and also that she satisfied cl.572.223(2)(a)(i) of Schedule 2 to the Regulations by providing evidence of financial capacity.

6. On 24 January 2012, checks of the financial documents were undertaken by the Australian High Commission in New Delhi.  The outcome showed that the bank account of the applicant’s father had been closed and the funds were no longer available.  On 13 February 2012, the applicant substantially confirmed this in an email to the Department.  The Delegate refused the visa on 2 March 2012, on the basis that the applicant did not satisfy reg.572.223(2)(a)(i) cl.5A405. On 13 March 2012, the applicant applied for a review of the Delegate’s decision by the Tribunal.

7. On 27 March 2014, the Tribunal invited the applicant to a hearing to be held on 28 April 2014, and requested that she provide further information relating to, amongst other things, her current enrolment in a course of study, past Australian courses, and financial position, or access to sufficient funds. 

8. The applicant responded to the request on 17 April 2014, asserting that she had been unable to obtain any enrolment due to the visa being refused by the Delegate. 

9. The applicant failed to appear at the hearing before the Tribunal on 28 April 2014.  On 29 April 2014, the Tribunal affirmed the decision of the Delegate.

10. Because the applicant failed to appear at the hearing, the Tribunal considered whether it should continue to conduct the review without taking any further action to enable the applicant to appear before it.  The Tribunal observed that it had invited the applicant to a hearing to give evidence and present arguments in support of her case.  It was satisfied that the hearing invitation had been sent to the applicant at the address that she provided for receiving correspondence from the Tribunal. 

11. In accordance with s.362B of the Migration Act 1958 (Cth) (“the Act”), the Tribunal proceeded to make a decision on the material before it. The Tribunal acknowledged that the issue before the Delegate was whether the applicant satisfied cl.572.223(2)(a)(i) of Schedule 2 of the Regulations. The Tribunal found that the issue before it, was whether the applicant was, at the time of the decision, enrolled in, or had a current offer of enrolment, in a course of study that is a principle course, and is of a type specified under reg.1.40A of the Act pursuant to clauses 570.232, 571.232, 572.231, 573.231, 574.321, and 575.231 of Schedule 2 of the Regulations.

12. The applicant supplied evidence of her enrolment in a number of courses, with the most recent course finishing in November 2013.  When invited to provide evidence of her current enrolment, the applicant alleged she had approached education providers seeking enrolment, but none of them were willing to enrol her, due to her visa having been refused.  The applicant then requested the Tribunal draft a letter for her stating she can study and she would provide the letter to education providers.  She had made a similar request of the Department.  Relevantly, the Tribunal stated:

    “There is no evidence to indicate that the applicant is prevented from studying by a condition of her current bridging visa.  The Tribunal’s experience is overwhelmingly, that students in the same circumstances as the applicants, are able to obtain certificates of enrolment or offers of a place in a registered course.”

13. The Tribunal found that, at the time of the decision, the applicant was not enrolled in, or had a current offer of enrolment, in an applicable course of study. 

14. Further, the Tribunal considered whether the applicant met the criteria for any alternative sub-classes of the visa and found that she did not.  The Tribunal concluded by affirming the decision not to grant the applicant the visa.

15. On 20 May 2014, the applicant applied to this Court for a judicial review of the Tribunal’s decision. 

16. I have earlier mentioned the sole ground that is in the application.  When the matter was called on today, I attempted to explain to the applicant the role of the Court and how it differs from the Delegate and the Tribunal.  The applicant, who was assisted by an interpreter, did not put anything forward to this Court to indicate that there had been an error on the part of the Tribunal.  She simply requested that the Court allow her to enrol in a course and to get a visa so that she can stay in Australia.  I think she still misunderstood what this Court’s job is.  I again attempted to explain to her what the Court’s role is, but even at the end of that conversation I had the feeling that the applicant was still unsure about what this Court’s role is. 

17. It would appear from the applicant’s sole ground that the applicant does not contest that at the time of the decision she was not enrolled in an applicable course, nor did she have an offer of enrolment in accordance with the clauses that I have referred to earlier. 

18. The applicant asserts that an error occurred because the Tribunal did not act upon her request for it to provide a letter to assist her to obtain suitable enrolment. I explained to the applicant during argument that it is not the responsibility of the Tribunal to comply with her request. It would seem that the applicant misunderstood the powers and purposes of the Tribunal. She should understand that the Tribunal is a merits review body, and that in carrying out its functions under the Act, its duty is to pursue the objective of providing a mechanism of review of applications that is fair, just, economical, informal, and quick. The Tribunal was not established to issue letters on behalf of the applicant to assist her in satisfying the relevant visa criteria.

19. The bridging visa granted to the applicant contained the single visa condition 8105 relating to work limitation and that no further conditions were attached.  There was no impediment, such as a bridging visa condition, preventing the applicant from enrolling in a course of study. 

20. I have, in giving these reasons, relied on the submissions provided very helpfully by counsel for the respondent.  I have closely examined the green book and in particular the Tribunal’s reasons.  Realising that the applicant would not be represented by a lawyer, I have considered whether there is any arguable case for this matter to be returned to the Migration Review Tribunal.  In my view, there is no legal error, jurisdictional, or otherwise shown in the documents.

21. On the basis of the applicant’s evidence, she failed to satisfy the Tribunal that she was currently enrolled in a course of study.  It was plainly open to the Tribunal to affirm the decision of the Delegate, not to grant the visa.  In my view the application is, unfortunately, without merit, and should be dismissed. 

22. I make the orders to be found at the beginning of these reasons.

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

Associate: 

Date:  18 February 2015