Kaur v Minister for Immigration

[2018] FCCA 1671

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1671

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – vocational education visa – satisfaction of regulatory criteria – provision of certificate of approved enrolment – genuine temporary entrant – jurisdictional error – applicant failed to appear at hearing – application dismissed for non-appearance – application for reinstatement of application – matters to be considered – reasons for non-appearance – prospects of success of application – no proper explanation provided – no prima facie demonstration of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474, 476, 499

Migration Regulations 1994, r.572.223

Federal Circuit Court Rules, r.13.03C(1)

Cases cited:
Craig v South Australia (1995) 184 CLR 163
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
MZKAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1066
SZHSY v Minister for Immigration & Citizenship [2007] FMCA 387
Savrimootoo v Minister for Immigration & Border Protection. [2018] FCCA 449

First Applicant: MANPREET KAUR

Second Applicant: JAPJI DHILLON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 441 of 2016

Judgment of: Judge Brown

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Adelaide

Delivered on: 26 June 2018

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Milutinovic

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Submitting appearance

ORDERS

1. The application filed 23 February 2018 be dismissed.

2. The applicant pay the first respondent’s costs fixed in an amount of one thousand dollars ($1,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 441 of 2016

MANPREET KAUR

First Applicant

JAPJI DHILLON

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Manpreet Kaur, commenced proceedings, in this court, on 21 December 2016, seeking a judicial review of a decision of the Administrative Appeals Tribunal “the AAT”, pursuant to section 476 of the Migration Act 1958 “the Act”.

2. The decision, which Ms Kaur sought to challenge, was made on 6 December 2016 and affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[1] not to grant her a Student (Temporary) (Class TU) visa, under the Act. 

   [1]  As the Minister for Home Affairs was formerly known

3. Ms Kaur is a citizen of India.  She applied to the Department for the visa in question, on 15 July 2014.  In her application, she indicated that she intended to study firstly a diploma of business course, at the Adelaide College of Technology and that the commencement date for this course was 10 March 2014 and it would be completed on 5 September 2014; which would be followed, generally, by an advanced diploma of business course, at the same institution, commencing on 1 November 2015 and anticipated to conclude on 31 October 2015. 

4. In these circumstances, in answer to the question, appearing on the pro forma visa application form: what date do you intend to depart Australia after completing your course? Ms Kaur has indicated 12/15. It is implicit, from Ms Kaur application form, that she had previously been the recipient of what are conveniently described as vocational education visas, which authorised her to remain in Australia, whilst she studied.

5. The central issue, before the AAT, concerned whether Ms Kaur was actually intending to study business, as she had indicated in her application, and accordingly was to be regarded as a genuine student, whose stay in Australia would end, when her studies were completed.

6. Ms Kaur is married.  Her spouse is Baldu Singh.  She and Mr Singh have two children Japji Dhillon and Saihaj Singh Dhillon, both born in Australia.  Initially, Ms Kaur sought associated family member visas for her husband and two children.  The eligibility for these individuals, to be granted visas, depended upon the success of Ms Kaur’s primary visa application. 

7. Pursuant to section 65 of the Act, the Minister is required to grant a visa to an applicant, if satisfied that the various criteria, prescribed by the applicable legislation or regulations made under it, have been satisfied by the visa applicant concerned. 

8. In the case of the visa sought by the principle applicant concerned, which is classified as a vocational education and training education visa, at relevant times, the applicable criteria required to be satisfied were contained in clause 572.223 of Schedule 2 of the Migration Regulations 1994. 

9. In particular, a decision maker was required to be satisfied, at the time of deciding whether to grant the visa or not, whether the applicant concerned was a genuine student, intending to study in Australia temporarily.

10. In clause 572.223(1)(a) states as follows:

    “(1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)     The applicant’s circumstances; and

    (ii)     The applicant’s immigration history; and

    (iii)   If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)    Any other relevant matter; and

    (b)     …”

11. Pursuant to section 499, the Minister may give written directions to all delegated decision makers, exercising authority under the Migration Act.  Such a direction has been issued, to decision makers in migration decisions, in respect of the assessment of the genuine temporary entry criterion for student visas of the kind relevant in these proceedings.  Particularly, Direction Number 53 requires decision makers to have regard to these factors:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries.

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.[2]

    [2]  See casebook at page 182 [11]

12. In her application, for the visa relevant to these proceedings, the applicant indicated that she had previously completed an Advanced Diploma of Hospitality Management and a Certificate III course in Hospitality. 

13. These courses had been completed in 2010, at vocational institutions in Australia.  It is the applicant’s position that the relationship between her and her husband has broken down due to domestic violence, of which she was the victim.  As a consequence, in 2014, she elected to send her son back to India to live with her parents, whilst she remained in Australia with her daughter.

14. As at the date of hearing, before the AAT (6 December 2016), the applicant was not then enrolled in a course of study and therefore was not able to provide the Tribunal with a certificate of enrolment.  She confirmed that she had not been engaged in any formal course of study for more than two years, which she attributed to her personal problems.  However, during the course of the hearing, she indicated that she had been offered an enrolment the previous day, which was apparently yet to be formally ratified.

15. Another essential pre-condition, to the grant of a vocational education student visa, is the existence, is the actual issue of a valid certificate of enrolment, in an approved vocational education course.  In these circumstances, on 6 December 2016, the AAT found as follows:

    “The tribunal considers that the applicant has had sufficient and reasonable time in which to obtain relevant enrolment, both since being requested to provide a current COE by the tribunal, and in the more than two years since she last studied in March 2014.”[3]

    [3]  See casebook at page 254 [22]

16. In addition, the Tribunal was not satisfied, having considered the applicant’s personal circumstances, that she could be considered to be a genuine temporary entry student.  The reasons which lead to the Tribunal reaching this conclusion can be summarised as follows:

    ·Despite having extensive qualifications, obtained in Australia, which would assist her in her professed ambition to open a restaurant, in India, the applicant had not returned to that country;

    ·In spite of having very strong personal reasons for wanting to return to India, namely her son being resident in that country, the applicant herself had not elected to return;

    ·In all the circumstances, from 2013 onwards, after obtaining her Advanced Diploma of Management, which provided her with useful qualification in India, the applicant had every personal and professional reason to cease her residence in Australia, but had not done so. 

17. In all these circumstances, the AAT found as follows:

    “On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).”[4]

    [4]  See casebook at page 257 [44]

The history of the proceedings before the court

1. The applicant has prepared her own application.  She seeks an order quashing the relevant decision of the AAT and a direction that her application be reconsidered by it.  The grounds of her application are lacking in particulars and read as follows:

   “1.    I am a genuine student in Australia and I should be granted a student visa to continue with my study;

   2.     Immigration Department and Tribunal did not apply the regulations, policies and Ministerial Direction No.53 correctly.”[5]

   [5]  See applicant’s application page 3

2. Her affidavit in support, as required by the court’s rules, is in identical terms to her application.  Both the application and the supporting affidavit provide an address, in suburban Adelaide, for the service of relevant documents on Ms Kaur. 

3. Ms Kaur’s application was listed, for directions, before the court’s registrar, on 3 February 2017.  On that date, the case was listed for hearing, on 1 February 2018 at 10:15am.  The record indicates that Ms Kaur was personally present when the date was allocated and the formal order was sent to the address provided by her.

4. The lengthy delay, before final hearing, is attributable to the court’s heavy workload in migration matters.  In addition, on 3 February 2017, procedural directions were made, regarding the exchange of submissions.  These envisaged a time table for any amendments to be made to the application and for the exchange of formal written submissions in the period prior to the date fixed for hearing.

5. In this context, on 25 January 2018, the solicitors for the first respondent forwarded the Minister’s submissions to Ms Kaur’s address for service by registered post.  The letter was not returned and Ms Kaur, during the hearing before me, confirmed that the address it bore was her address at the time of its despatch, which is the same address as endorsed on her application before the court.  The letter included the following paragraph:

   “This matter is listed for hearing on 1 February 2018 at 10:15am before Judge Brown at the Federal Circuit Court of Australia, Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street, ADELAIDE SA 5000.  You are required to attend court on this occasion.[6]

   [6]  See exhibit A

6. Ms Kaur did not attend on 1 February 2018.  In her absence, the court made the following orders:

   “1. Pursuant to the provisions of Rule 13.03C of the Federal Circuit Court Rules 2001 the application filed 21 December 2016 be dismissed.

   2.     The applicant pay the first respondent’s costs fixed in the sum of five thousand eight hundred dollars ($5,800.00).”

7. Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 grants the court a discretion to dismiss an application if an applicant is absent.  It reads as follows:

   Default of appearance of a party

   (1)     If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

   …

   (c) if the absent party is an applicant--dismiss the application;”

1. On 19 February 2018, Ms Kaur filed an application in a case, in which she seeks the following orders:

   “I would like to get my visa granted as I get refused without seeing my current situation.

   I would like to that court hear and understand why I am genuine student.”[7]

   [7]  See application filed 23 February 2018

2. Once again, Ms Kaur had prepared her own application and deposed as follows, in her supporting affidavit:

   “I am a brilliant student and I have a right to put my case in court to get my visa back.

   Immigration Department and Tribunal did not apply the policies and ministerial direction No.53 correctly.”[8]

   [8]  See affidavit filed 23 February 2018

3. One central point needs to be made, in respect of Ms Kaur’s affidavit.  Namely that she has not addressed, in any way whatsoever, the reason why she did not attend court as required on 1 February 2018.  In her oral submission to the court, Ms Kaur has indicated that she overlooked the debt in circumstances in which she has been living under a level of significant personal difficulty, due to the end of her marriage and her absence from her son.  She reiterated her strong desire to undertake further vocational studies in Australia.

4. It is the submission of counsel for the Minister, Ms Milutinovic, that although it might be understandable that a person could forget a significant date for an appointment, over a period in excess of a year, regardless of the importance of the appointment concerned, such considerations were not germane, in the current matter, as Ms Kaur had, in effect, received a reminder of the date, in the form of the letter of 25 January 2018.  

5. In these circumstances, the Minister opposes Ms Kaur’s application for the reinstatement of her application on the bases that firstly her explanation for her non-attendance is inadequate; and secondly her application discloses no prospects of success, as currently formulated.

The legal principles applicable

1. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High court under section 75(v) of the Constitution. 

2. This provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth. In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed and it be thereafter directed to re-hear their application according to law.

3. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in relation to what are categorised as privative clause decisions. This expression is defined in section 474(2) as meaning a decision of an administrative character made under the Act.  The decision relevant to these proceedings is such a privative clause decision.

4. Pursuant to section 474(1) privative clause decisions are deemed to be final and conclusive and as such, not capable of being subject to challenge in court or to the issue of any constitutional writ, which is the remedy sought by the applicants.

5. However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.

6. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[9]

   [9]  See Craig v South Australia (1995) 184 CLR 163

7. It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.

8. In MZYEZ v Minister for Immigration & Citizenship [10] Ryan J stipulated that the court, in exercising its discretion to reinstate an application dismissed pursuant to rule 13.03C, was required to consider three factors and determine “whether, on balance, they tend for or against the reinstatement.”  The factors are as follows:

   ·whether there was a reasonable excuse for the party’s absence from the hearing at which the proceeding was struck out;

   ·the existence or otherwise of prejudice flowing to the other party concerned and whether such prejudice could be ameliorated by an award of costs or other order;

   ·whether the applicant concerned has a reasonably arguable prospect of success on the substantive application.

   [10] MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7]

9. The rationale underpinning the final consideration being if the application has no reasonable prospects of success, there can be rational purpose in reinstating it.[11]

   [11] See MZKAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1066 at [18] per North J

10. The applicant has indicated that she failed to attend court on the scheduled date because of a personal mistake about it.  In this context, Ms Milutinovic relies on the following comments from Driver FM (as His Honour then was) in SZHSY v Minister for Immigration & Citizenship: [12]

    “Based on the applicant’s evidence, which I accept, it is clear that his failure to attend court on 12 March 2007 was his own fault.  He simply made a mistake and seeks to be relieved of the consequences of that mistake.  That is, in my view, an insufficient reason for the Court to vacate its dismissal order.”

    Judge Riley took a similar view in Savrimootoo v Minister for Immigration & Border Protection.[13]

    [12] SZHSY v Minister for Immigration & Citizenship [2007] FMCA 387 at [3]

    [13] Savrimootoo v Minister for Immigration & Border Protection. {2018] FCCA 449 at [39]

Discussion

1. In my view, Ms Kaur’s explanation for failing to attend court on 1 February 2018 is inadequate.  She was present when the hearing date was allocated and received a reminder in the form of the letter of 25 January 2018, from the Minister’s solicitor, which reiterated the date scheduled.

2. In addition, Ms Kaur’s application for judicial review is not particularised and is no more than an inchoate plea for merits review, which the court is unable to entertain.  In the not insignificant period since her application was fixed for hearing, she had ample time to seek advice in respect of her application and, in this context, was given the opportunity to amend it, if the decision in question disclosed some form of jurisdictional error.

3. The applicant did not file any amended application or any submissions in support of her position.  In these circumstances, it is difficult to approach her application as anything more than a delaying tactic, which has been compounded by her failure to appear.  As Judge Riley observed in Savrimootoo, the obligation falls upon applicants to be ready for the hearing allocated to her and it was incumbent upon her to attend when directed.  She did not do so.

1. Although it is difficult not to be sympathetic, so far as Ms Kaur’s personal circumstances are concerned, I do not consider that they provide any extenuating circumstances, which explain her failure to attend court.  However, more significantly, her application does not disclose any reasonable prospects of success.

2. The applicant merely states that she is a genuine student and therefore should have been granted the visa in question.  In my view, the reasons of the AAT indicate that it fully considered whether Ms Kaur had satisfied the two relevant criteria required to be satisfied by her before the visa could be granted, namely:

   ·she had not established that she had any formal enrolment in an approved course, as evidenced by a certificate of enrolment;

   ·the AAT was not satisfied that she was only intending to remain in Australia temporarily, whilst she completed her studies.

3. In my view, these findings were clearly open to the AAT on the evidence available to it.  Indeed, in the respect of the first criterion, this was the only finding rationally available to it.  As such, it cannot be said, in my view, that the Tribunal has failed to exercise the jurisdiction conferred upon it by taking into account some extraneous factor or irrelevant matter.

4. The second ground of appeal centres on the allegation the Tribunal has failed to apply Ministerial Direction No 53 correctly.  The applicant has not provided any particulars in support of this assertion and did not do so at the hearing before me.

5. The reasons of the AAT indicate that the applicant was advised of the application of the relevant direction to her circumstances and was given an opportunity to address them before the Tribunal.   In this context, the Tribunal summarised the applicant’s evidence, in respect of the various factors, personally germane to her, which were indicative that she did not intend to return to India and therefore was not to be considered to be a genuine student, in the sense that she intended to stay in Australia only until such time as she had finished her studies.

6. In particular, the AAT found as follows:

   “As suggested, the tribunal considers the applicant had more than sufficient skills, knowledge and qualifications to have confidence to embark upon the opening and running of one or more restaurants in India, or elsewhere.

   Her certificate in commercial cookery prepared her to manage a commercial kitchen and produce food dishes. Her advanced diploma in hospitality management added specific management skills in a hospitality/restaurant context. On top of that she had, by 2013, the advanced diploma of management, which gave her general management skills not confined to the hospitality sector.

   On her claims, she had, and has, very strong personal incentives to return to India (as noted above) and, since 2013, more than sufficient skills, knowledge and qualifications for the plan that she claimed for herself there.

   Despite these, the applicant did not yield to her incentives to return to India. She applied for another student visa and proposed, and still proposes, the VET sector diploma of business and advanced diploma of business, which were proposed in 2014 and not completed in the two years since that time.

   She conceded that those two general VET sector business courses were similar to the advanced diploma of management: As suggested, the tribunal finds they add little additional value on top of the similar advanced diploma of management the applicant already possessed in 2013.

   As suggested, this is one reason why the applicant has not seen value sufficient in the courses proposed to have studied them in the last two years while holding a visa permitted her to study.

   From 2013, after obtaining the advanced diploma of management, the applicant had every personal and professional reason to cease her residence In Australia.

   Her son's return to India should have served as distinct incentive for her to return there with her daughter.

   Her own conduct in proposing further stay to study courses of limited value to her future suggests that she will not yield to the array of incentives she has to leave Australia, but rather intends to stay on in Australia and to bring her son back to Australia if she obtains a substantive visa. This finding is reinforced by her evidence at hearing that she wished to study forever or indefinitely.”[14]

   [14] See Case Book at pages 256 – 257 [33] – [41]

7. These findings were reasonably and logically open to the AAT and were congruent with the jurisdiction conferred upon it by clause 572.223. In addition, there is no suggestion, either from the record itself or anything submitted by the applicant herself, to indicate that the proceedings before the AAT were procedurally unfair, so that the Tribunal did not properly acquit the jurisdiction conferred upon it.

8. In my view, the reasons of the AAT indicate that it considered the matters it was required to do so under clause 572.223 and the related Ministerial Direction. It is not sufficient for Ms Kaur to assert otherwise, in her application, to ground any argument that she has some prospects of success.

9. In all these circumstances, I am satisfied that the court should not exercise its discretion to reinstate Ms Kaur’s application.  Her reason for not attending is insufficient and her application discloses no reasonable prospects of success, as she has not articulated any basis for jurisdictional error in respect of the decision under review.

10. I concede that the prejudice, if any, to the Minister, of reinstatement is slight.  However, that factor alone is not sufficient to justify the reinstatement.  For these reasons, the application must be dismissed.  The Minister seeks costs.  As the applicant has been entirely unsuccessful, this is appropriate.  

11. In the earlier proceedings costs were awarded in an amount of $5,800.00, which represented a discount on the sum allowable for a fully contested matter.  The Minister, in oral submissions made this day, seeks a further sum of costs incurred in respect of the re-hearing application in an amount of $1,000.00. 

12. In these circumstances, I will rescind an earlier proposed order that the further amount be $5,800.00 (the same as the earlier proceedings) and in lieu thereof make an order for $1,000.00, which I agree more properly reflects the cost to be paid over the two hearings concerned, which contained a significant element of duplication, so far as the preparation and submissions of counsel for the Minister was concerned.

13. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         26 June 2018