KAUR v Minister for Immigration - [2013] FMCA 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 7

MIGRATION – Student visa – subcl.8202(3) of Sch 8 Migration Regulations 1994 (Cth) – 80% attendance requirement – issue of notice under s 20 Education Services for Overseas Students Act 2000 (Cth) – whether Court required to look behind notice to ascertain whether certificate of non-attendance valid.

Education Services for Overseas Students Act 2000, s.20

Cai v Minister for Immigration & Anor [2011] FMCA 922.
Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168; (1995) 127 ALR 21; (1995) 29 ATR 644; (1995) 69 ALJR 223.
Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199.
Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436.
Patel v Minister for Immigration and Citizenship [2012] FCA 958.
Purohit v Minister for Immigration & Anor [2012] FMCA 477.
R v Panel on Take-Overs & Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815; [1987] 1 All ER 564; [1987] 2 WLR 699; (1986) 2 BCC 99086.
Singh v Minister for Immigration & Anor [2011] FMCA 972.

Applicant:

SUKHWINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 216 of 2012

Judgment of:

Riethmuller FM

Hearing date:

23 October 2012

Date of Last Submission:

23 October 2012

Delivered at:

Melbourne

Delivered on:

30 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Gipp

Solicitors for the Applicant:

JK Legal

Counsel for the Respondents:

Mr Richard Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 29 February 2012 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 216 of 2012

SUKHWINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant (and her husband and child) are citizens of India. She is 35 years of age and came to Australia to study, on a student visa. The Applicant appeals from a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister not to grant the Applicant a Student (Temporary)(Class TU) visa.
The Tribunal sets out a list of enrolments that the Applicant has had studying hairdressing:
22. According to Confirmations of Enrolment (CoEs) and other documents provided to the Department and the Tribunal the applicant is or has been enrolled in the following courses:
·    Diploma of Hairdressing Salon Management (Box Hill Tafe) – course start date 16 January 2007.
·    Diploma of Hairdressing Salon Management (MITC (Melbourne Institute Training College)) – course start date 21 January 2008.
·    Diploma of Hairdressing Salon Management (Box Hill Tafe) – course start date 1 April 2008.
·    Certificate III in Hairdressing (MITC), completed June 2008.
·    Certificate IV in Hairdressing (MITC), course start date 20 June 2008.
·    Diploma of Hairdressing Salon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 7
Decision Date

CaseChat Overview and Summary

The matter of Kaur v Minister for Immigration and Citizenship [2013] FMCA 7 was heard in the Federal Magistrates Court of Australia. The applicant, Sukhwinder Kaur, sought judicial review of a decision by the Migration Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship to not grant her a Student (Temporary)(Class TU) visa. Kaur, a citizen of India, had come to Australia to study but was unable to obtain a visa as her education provider had issued a certificate stating her attendance was less than the required 80% attendance. The primary legal issue in this case was whether the Tribunal was required to look behind the certificate issued by the education provider or whether it was sufficient for the Tribunal to accept the certificate as valid on its face.

The Court considered the arguments made by Kaur's representatives, which included the assertion that the Tribunal should have considered the validity of the certificate, and whether fraud, bad faith, or improper purpose would vitiate the exercise of public power. The Court found that the issue of whether a certificate such as the s.19 certificate is open to a collateral challenge before a Court or Tribunal raises complex and difficult questions. However, the issue in this case had already been considered on appeal in Patel v Minister for Immigration and Citizenship [2012] FCA 958, where Collier J held that it was not the role of the Tribunal to find that there was a valid certification by the educational institution once the evidence established that a notice and certificate had been issued by the institution, which was valid on its face.

The Court also considered whether the Tribunal should have considered whether there was substantial compliance with the 80% attendance requirement. The Court found that the relevant form of condition 8202 required the decision-maker to determine whether or not a certificate exists and that, based on existing decisions, there was no ambit for substantial compliance. Therefore, the Court was not persuaded that the Tribunal ought to have considered whether there was substantial compliance.

The Court dismissed the current application, finding that the Tribunal was not required to look behind the certificate issued by the education provider and that it was not open to the Tribunal to consider whether there was substantial compliance with the 80% attendance requirement. The Court certified that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM.

The final orders of the Court were to dismiss the application filed on 29 February 2012.

Orders