KAUR v Minister for Immigration

[2014] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2290

Catchwords:
MIGRATION – Review by Migration Review Tribunal (Tribunal) of decision refusing applicant Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visa – whether applicant complied substantially with the conditions that applied to the last substantive visa held and any subsequent bridging visa – whether Tribunal considered evidence – whether Tribunal failed to accord procedural fairness – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 359(1), 359A, 359C(1), 360(1), 360(2), 379A

Migration Regulations 1994 (Cth) Schedule 2, cl. 010.611(4), 572.235, 573.611(a)
Schedule 8, condition 8202, 8516

Kim v Witton (1995) 59 FCR 258
Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578
SZBYR and Anor v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609

Applicant: PARBINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1931 of 2013

Judgment of: Judge Manousaridis

Hearing date: 4 April 2014

Delivered at: Sydney

Delivered on: 7 October 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents: Mr R. Baird
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1931 of 2013

PARBINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant claims the second respondent (Tribunal) made jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visa (572 visa).

2. To understand the grounds on which the applicant claims the Tribunal made jurisdictional errors, it will be necessary to set out the facts leading to the Tribunal’s decision, and the Tribunal’s reasons for affirming the delegate’s decision.

Background

1. One criterion the applicant had to satisfy when she applied for a 572 visa was that specified in cl.572.235 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) (Regulations). That clause provided that, if the applicant applied for a 572 visa in Australia, the applicant had to satisfy the Minister or a delegate of the Minister that she had “complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

2. On 2 August 2011, when the applicant applied for a 572 visa, the applicant held a (Subclass 573) Higher Education Sector visa (573 visa).[1] After that visa expired on 4 September 2011, the applicant was issued a Bridging A (Class WA) (Subclass 010) visa (Bridging visa). Thus, in order to qualify for the grant of the 572 visa for which she applied on 2 August 2011, the applicant had to satisfy the Minister that she had complied substantially with the conditions that applied both to the 573 visa and to the Bridging visa.

   [1] CB95, [16]

3. Two conditions attaching to the 573 visa are relevant to this application. These are conditions 8202 and 8516 of Schedule 8 to the Regulations which applied to the 573 visa that was granted to the applicant because of cl.573.611(a) of Schedule 2 to the Regulations. The two conditions were also made conditions of the Bridging visa because of cl.010.611(4) of Schedule 2 to the Regulations.

4. Condition 8202 relevantly provides as follows:

   (1)The holder . . . must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   . . .

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)     standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)     standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

5. Condition 8516 provides that the “holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”.

6. By email sent to the applicant on 6 September 2011,[2] the delegate stated that the records of the Department of Immigration and Border Protection (then known as the Department of Immigration and Citizenship) indicated that the applicant had arrived in Australia in April 2009 but had not completed any courses yet.[3] The delegate stated the applicant was required to provide “reasons why you have not completed any courses”, and “evidence that you are currently attending and making progress in your current course of study”.[4]

   [2] CB28-33

   [3] CB30

   [4] CB30

7. The applicant responded by email sent on 29 September 2011.[5] The applicant appeared to accept she did not complete her courses:[6]

   [F]or the previous completion of studies, i [sic] was in mental trauma at that time for which i [sic] could completed my study. My medical report for the said period is attached with detail explanation of my condition.

   [5] CB34-41

   [6] CB34

8. The applicant attached a report prepared by a psychologist.[7] According to that report, the applicant was interviewed by the psychologist on 9 September 2011 and that she “is interested to highlight her psychological state during the period from October 2009 to June 2011”.[8] The applicant also attached a letter from an education services provider stating that the applicant was enrolled in an Advanced Diploma of Tourism since 11 July 2011.[9]

   [7] CB53-55

   [8] CB53

   [9] CB49

9. The delegate refused to grant the applicant a 572 visa because the delegate was not satisfied the applicant had substantially complied with either condition 8202 or condition 8516 that applied to the 573 visa held by the applicant and any conditions that applied to the applicant’s Bridging visa.[10]

   [10] CB67-69

10. On 7 June 2013, after the applicant applied to the Tribunal for a review of the delegate’s decision, the Tribunal sent a letter dated 7 June 2013 to the applicant, requesting the applicant to provide information relating to, among other things, her current and past enrolments in a registered course, her current academic achievements for all courses the applicant had undertaken in Australia, and evidence of studies the applicant had undertaken since the delegate’s refusal to grant a 572 visa.[11] The letter was faxed to the person whom the applicant nominated in her application for review to be her representative.[12]

    [11] CB85-87

    [12] CB73; CB85; CB88

11. The Tribunal did not receive a response to its letter. The Tribunal, accordingly, decided to determine the application on the basis of the information that was before it.

Tribunal’s reasons

1. The Tribunal first noted that the issue before it was whether the applicant complied substantially with the conditions attached to the applicant’s last substantive visa, and to any subsequent bridging visa as required by cl.572.235 of Schedule 2 to the Regulations. That question was to be determined having regard to considerations referred to in Kim v Witton,[13] although those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case.[14]

   [13] Kim v Witton (1995) 59 FCR 258 (at page 271) (Sackville J)

   [14] CB94, [9]; referring to Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578

2. The Tribunal then turned to the evidence that was before it.[15] The evidence indicated the applicant had initially enrolled in a Masters of Information Technology which she was due to commence on 6 July 2009, but her certificate of enrolment was cancelled due to the non-commencement of studies. Then, in October 2009, the applicant enrolled in a Certificate III in Hairdressing. That certificate was first deferred or suspended for compassionate or compelling grounds but it, too, was cancelled due to non-commencement of studies. That was followed by the applicant enrolling in October 2010 in a Certificate IV in Hairdressing. That course was cancelled because the education services provider was unable to deliver that course. The applicant then transferred to a Diploma of Hairdressing Salon Management but the education service provided was also unable to deliver the course. Finally, the applicant enrolled in the Advanced Diploma of Tourism to which I refer above, but in 2011 the applicant provided notification of the cessation of her studies.[16] On the basis of that evidence, the Tribunal concluded:[17]

   The evidence before the Tribunal indicates that whilst the applicant held her last substantive visa, a subclass 573 visa the applicant failed to maintain enrolment in registered courses of study for extended periods.

   [15] CB95, [17]

   [16] CB83

   [17] CB95, [18]

3. The Tribunal next considered the psychologist’s report. The Tribunal said it agreed with the reasoning of the delegate that the report “does not provide contemporaneous evidence of the applicant’s inability to maintain enrolment in registered courses of study or to comply with conditions attached to her visa requiring her to make satisfactory course progress”.[18]

   [18] CB95, [19]

4. The Tribunal stated its ultimate conclusions as follows:[19]

   The Tribunal cannot be satisfied on the evidence before it that the applicant has not deliberately flouted visa conditions. The Tribunal finds that the evidence when cumulatively considered leads it to the view that the applicant has not complied substantially with the conditions of her last held substantive visa, a subclass 573 student visa, nor is there evidence before the Tribunal that the applicant has complied with the conditions of subsequently issued bridging visas.

   [19] CB95, [20]

Grounds stated in application

1. The applicant raises a number of grounds of application. The first is that the Tribunal failed to consider “whether the applicant continued to be a person who satisfied the primary criteria for her subclass 573 visa”. The claim appears to be that the Tribunal failed to consider whether condition 8516 was satisfied during the period 15 April 2009 to 4 September 2011.

2. The Tribunal did consider whether the applicant continued to be a person who satisfied the criterion that was relevant to the application that was before it, namely, whether, as required by condition 8516 the applicant continued to be a person who would satisfy the primary or secondary criteria for the grant of the visa. That is evident in the Tribunal’s conclusion that I have set out in paragraph 17 of these reasons. It is also evident in the Tribunal’s recitation of the evidence it reviewed, which I have set out in paragraph 15 of these reasons. This ground, therefore, fails.

3. The second ground on which the applicant relies relates to the Tribunal’s statement contained in the passage I have reproduced in paragraph 17 of these reasons that there was no “evidence before the Tribunal that the applicant has complied with the conditions of subsequently issued bridging visas”. The applicant claims the Tribunal failed to consider, for the period 5 September 2011 to the date of its decision, whether the applicant complied substantially with the conditions that applied to her bridging visa. The applicant claims that this indicates that the Tribunal neither identified the conditions of the Bridging visa “the subject of its adverse finding, nor the evidence on which it based its adverse finding, nor the reasons in support of its adverse finding”.

4. This ground could only begin to raise an arguable case of jurisdictional error if, contrary to the Tribunal’s statement that there was no evidence, there was in fact evidence. The applicant, however, does not identify any such evidence; and there is nothing in the material before me that indicates there was evidence before the Tribunal suggesting that the applicant did comply with the conditions of subsequently issued bridging visas. This ground, therefore, also fails.

5. The third ground on which the applicant relies is that the Tribunal was obliged, but failed to give the applicant notice that it considered it to be an issue that there was no evidence before the Tribunal that the applicant has complied substantially with the conditions of subsequently issued bridging visas. The applicant claims that the Tribunal’s failure to give such notice constituted a denial of procedural fairness, and a breach of s.359A of the Migration Act 1958 (Cth) (Act).

6. The Tribunal was not obliged to inform the applicant that it was an issue before the Tribunal that there was no evidence of the applicant’s having complied substantially with conditions attached to any bridging visa the applicant held. The delegate refused to grant the applicant a 572 visa because the delegate was not satisfied the applicant had complied substantially with the conditions that applied to the last substantive visa held and to any subsequent bridging visa.[20] That by itself constituted notice to the applicant that whether or not the applicant had complied substantially with the conditions that applied to any subsequent bridging visa the applicant held would be an issue before the Tribunal, and that it would be necessary for the applicant to bring to the attention of the Tribunal evidence or information that showed or tended to show the applicant had complied substantially with such conditions.

   [20] CB67-69

7. Further, to the extent the Tribunal affirmed the delegate’s decision on the ground there was no evidence that the applicant has complied substantially with the conditions of subsequently issued bridging visas, that ground did not constitute “information” within the meaning of s.359A of the Act. That is so because “information” for the purposes of s.359A of the Act is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[21] The third ground also fails.

   [21] SZBYR and Anor v Minister for Immigration and Citizenship and Anor[2007] HCA 26; (2007) 235 ALR 609 at page 616 ([18])

8. The fourth ground on which the applicant relies is that the applicant was denied procedural fairness because she was not invited to appear before the Tribunal to give evidence and present arguments. This ground also fails.

9. Under s.360(1) of the Act, the Tribunal is required to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation is subject to s.360(2) which provides that the Tribunal is not required to invite the applicant to appear before it if, among other things, s.359C(1) applies to the applicant. That subsection provides that if a person is invited in writing under s.359 of the Act to give information and the person does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.

10. The letter dated 7 June 2013 the Tribunal sent to the applicant was an invitation to provide information under s.359(1) of the Act. It was sent to the applicant according by one of the means permitted by s.379A of the Act, namely, by fax. The Tribunal, therefore, was not required to invite the applicant to appear before it to give evidence and present arguments.

Grounds advanced at hearing

1. At the hearing before me the applicant, who was not legally represented, made two further submissions. The first was that the Tribunal did not consider the psychologist’s report. As I have concluded in paragraph 16 of these reasons, the Tribunal did consider the report.

2. The second submission is that the Tribunal did not consider the International English Language Testing System Test Report Form.[22] It is true the Tribunal did not expressly refer to this document in its reasons. I am not prepared to infer from this, however, that the Tribunal did not consider it. The Tribunal’s not referring to this document in its reasons for decision is likely to be due to the Tribunal’s considering the document not to be relevant to the question it had to decide. It was reasonably open to the Tribunal to consider the document not to be relevant to any issue it had to decide.

   [22] CB7

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error. I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 7 October 2014