KAUR v Minister for Immigration

[2018] FCCA 1558

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1558

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Authority’s decision irrational, illogical or unreasonable – no error demonstrated.

Legislation:

Migration Act 1958 (Cth): s.65

Migration Regulations 1994 (Cth): cl.570.232, cl.571.232, cl.572.232, cl.573.223, cl.573.231, cl.574.231 and cl.575.231

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Applicant: HARPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 404 of 2017

Judgment of: Judge Jarrett

Hearing date: 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Brisbane

Delivered on: 8 June 2018

REPRESENTATION

The Applicant appeared on her own behalf

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. The application filed on 3 May 2017 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 404 of 2017

HARPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal that was given on 7 April, 2017.  That decision affirmed a decision not to grant the applicant a Student Temporary (Class TU) visa referred to throughout the material as a student visa.  The applicant applied for the visa on 16 February, 2016 to undertake study in Australia. 

2. The proceedings before me were commenced by an application for review that was filed on 3 May, 2017.  There were orders made in this Court on 4 December, 2017 which listed the matter for hearing today and required the parties to, as is usually the case, file some documents in preparation for this hearing.  Although she was given the opportunity to do so, the applicant has not filed an amended application.  She has not filed any written submissions.  The Minister for Immigration and Border Protection has.  And it is against that background, that I now need to decide the case. 

3. I said earlier that on 16 February, 2016 the applicant applied for a student visa. On 26 April 2016 a delegate of the first respondent refused to grant her that visa. The delegate was not satisfied that the applicant met the genuine-temporary-entry requirement that is set out in cl.573.223 of Schedule 2 to the Migration Regulations 1994 (Cth). She sought a review of that decision by the second respondent.

4. On 9 March, 2017 the second respondent invited the applicant to participate in a hearing, because it could not decide the application in her favour on the papers.  As is usually the case, the applicant was invited to provide to the Tribunal a number of documents, including a copy of a current certificate of enrolment that was necessary for the grant of the visa, documents that showed that she was currently involved in a relevant course of study or had an offer of an enrolment in a relevant course of study and other documents.  The applicant responded to the request for information in March, 2017.  She provided a certificate of enrolment for a Bachelor of Business commencing on 17 May, 2015 and ending on 31 July, 2018. 

5. On 6 April the Tribunal conducted its hearing.  The applicant appeared by telephone.  The Tribunal decided the case on 7 April, 2017.  It considered the material that had been provided to it by the applicant.  It recorded that the Tribunal considered that the issue that needed to be determined by the Tribunal was whether the applicant met the enrolment requirements for the purposes of the grant of the visa.  At paragraph 9 of the Tribunal’s decision the Tribunal says this:

   The issue before the delegate was whether the applicant met the criterion in cl.573.223.  However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa. 

6. Thus, in terms of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the dispositive issue that was before the delegate was different to that issue before the Tribunal. The Tribunal was therefore obliged to bring to the applicant’s attention the concerns that the Tribunal had. According to the Tribunal’s decision record, it did that. See paragraph 11 of the Tribunal’s decision. The Tribunal brought to the applicant’s attention that the system by which these matters are recorded, referred to by the acronym “PRISMS”, demonstrated that the certificate of enrolment which she had provided to the Tribunal had been cancelled on 26 June, 2016 because she had not paid the relevant fees. That meant that she was not currently enrolled in any relevant course and a current enrolment or a current offer of an enrolment was required for the grant of the visa.

7. The Tribunal’s reasons recorded that the applicant had confirmed that she had not paid her fees so it was reasonable that the college had cancelled her enrolment, although she says they had not advised her of that. The Tribunal recorded that there was no evidence before it that the applicant was enrolled in or had a current offer of enrolment in any applicable course of study. The Tribunal therefore concluded that cl.570.232, cl.571.232, cl.572.232, cl.573.231, cl.574.231 and cl.575.231 of Schedule 2 to the Regulations were not met. In those circumstances and having regard to the Tribunal’s consideration of the other subclass of student visas that might have been available to the applicant, it concluded that the applicant did not meet the criteria for the grant of the visa and the delegate’s decision was affirmed.

8. Here, in her application for review the applicant suggests that the Tribunal failed to properly exercise its jurisdiction because it unreasonably applied the law and did not give itself proper time to consider all of the facts before making a decision. That ground, however, cannot succeed, because the Tribunal applied the law, and no question of reasonableness arises. If an applicant for a visa satisfied the criteria for the grant of that visa, then the first respondent must grant it: s.65 Migration Act 1958 (Cth). However, when an applicant for a visa does not satisfy the criteria for the grant for the visa for which the applicant applies, there is no discretion to grant the visa in any event. The visa application must be refused. There are some areas in which ministerial discretion apply and can be exercised. But this case does not turn on any of those matters.

9. To the extent that the applicant suggests that the Tribunal did not give itself proper time to consider all of the facts before making a decision – having regard to the Tribunal’s decision record and the undoubted correctness of the Tribunal’s decision, that argument cannot succeed.  The second ground of review is that the Tribunal failed to provide the applicant with procedural fairness and natural justice, which led to a jurisdictional error.  The applicant has not expanded on that ground.  She has not filed written submissions and her oral submissions did not assist. 

10. To the extent that it was suggested that the Tribunal did not afford the applicant procedural fairness, the argument cannot be made out.  The Tribunal, plainly, complied with its obligations under the Act to raise with her matters which may not have been apparent to her, having regard to the delegate’s decision.  The Tribunal’s decision makes it very clear, that it was deciding the application on a different basis to that to which the delegate decided the application.  It raised that matter with the applicant and gave her the opportunity to respond.  The Tribunal was obliged to do nothing more.  There is nothing in the suggestion that the Tribunal failed to provide the applicant with procedural fairness or natural justice. 

11. The third ground suggests that the second respondent did not give the applicant more time to provide a current confirmation of enrolment and therefore did not provide the applicant with procedural fairness.  In respect of that ground, there is nothing to suggest that the applicant asked the second respondent for more time to provide those things.  There is nothing in the evidence to suggest that if the applicant was given more time, she would secure a confirmation of enrolment or an offer of enrolment sufficient to satisfy the visa criteria.  In those circumstances there is nothing in this complaint either.

12. Having regard to those matters, I am satisfied that the applicant does not establish that the Tribunal’s decision is affected by jurisdictional error.  Accordingly her application filed on 3 May 2017 must be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 June, 2018.

Date: 26 June 2018