KAUR v Minister for Immigration

[2017] FCCA 3105

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3105

Catchwords:
MIGRATION – Student visa – ‘on shore’ application – ‘exceptional reasons’ – no error on part of Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359A(4)(a) & (4)(b) & (4)(ba), 360, 360A and 476(1)

Migration Regulations 1994 (Cth), cl.572 of Schedule 2

First Applicant: RUPINDER KAUR

Second Applicant: JASHANJOT KAUR

Third Applicant: HARSIMRAN KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 372 of 2016

Judgment of: Judge Heffernan

Hearing date: 8 November 2017

Date of Last Submission: 8 November 2017

Delivered at: Adelaide

Delivered on: 20 December 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms N Milutinovic

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed on 4 November 2016 is dismissed.

2. The first applicant do pay the costs of the first respondent in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 372 of 2016

RUPINDER KAUR

First Applicant

JASHANJOT KAUR

Second Applicant

HARSIMRAN KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’) for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 October 2016 that affirmed an earlier decision of a delegate of the Minister not to grant the first applicant a Student (Temporary) (Class TU) (Subclass 572) visa. The second and third applicants are the infant children of the first applicant and the outcome of their application is dependent upon that of their mother.

2. The applicant identifies six grounds of application as follows:

   “(1)I wish to submit my application to review my case in court as it was dismissed by DIBP and AAT.  I applied for student visa subclass which got refused as both the authorities refused my study intentions as genuine.

   (2)With the aim to fulfil my professional and academic needs to have future in the sector of my liking, I wished to fetch the knowledge and academic qualification in Business management.

   (3)It’s the perfect stepping stone to an executive or leadership role covering all of the key areas of business, including accounting, finance, production, marketing, industrial relations, law, business ethics, business strategy, and human resources management.  After completion of the course studies, I want to establish wholesale garment business in India.  Another motive is to equip myself with skills to supervise and assist team members in their personal and professional development so they may take their maximum contributions to the business.

   (4)I was very much committed to achieve my academic goals, get admission to a course and institution of my choice and secure funding;  I took a leap of faith and fulfil my study abroad dream.

   (5)My visa application was refused, as I was not considered as genuine student.  However, I wish to submit that career and study course change should not be considered as non-genuine student intentions.  I was dependent on my husband before our separation, but getting divorced from him was a wake-up call for me.  I have to be self-dependent economically for myself and for my children.  And for that reason, study is must and having qualification form Australia will triple‑fold my success.  And, therefore, my intentions to study and succeed are purely genuine.

   (6)DIBP and AAT has failed to recognise facts of my case and ignored natural justice criteria.  I request you to consider my case under Natural justice for me who is starting academic career late in life, but determined to succeed.”

   (Any errors in spelling and grammar have been retained from original.)

3. The applicant appeared before me self-represented.  She relies on her affidavit of 4 November 2016 which repeats the grounds of application, annexes a copy of the decision record and some correspondence from the Department, but otherwise adds nothing of substance to her application.  She also indicated that she relied on the Court Book which had been prepared by the first respondent.

4. On 2 December 2016, the Registrar gave the first applicant leave to file an amended application by 10 February 2017.  She was also given leave to file and serve such further material on which she may seek to rely by 10 February 2017.  Finally, the first applicant was ordered to file and serve any outline of submissions at least 14 days prior to the hearing.  The first applicant has not filed any further materials.

Background

1. The first applicant is a citizen of India and was born there in 1985.  She has two children, who are the second and third applicants respectively in this matter.  Both children are Indian citizens.[1]  She arrived in Australia in August 2012.[2]

   [1]     Court Book (‘CB’), pp 10-11.

   [2]     CB p 13.

2. Immediately prior to their applications for the subject visas all three applicants had held Temporary Business Entry Visas (Subclass 457).  Their status as holders of those visas was dependent upon the visa being held by the first applicant’s then husband.  She has now separated from him and seeks to be provided with a student visa.

3. The first applicant applied for the subject visa on 1 March 2016.  The application was an ‘onshore’ application.  In other words, it was made whilst she was present in Australia.[3]  The two courses identified by the first applicant in her visa application were a Certificate IV in Small Business Management at the Jabin Hopkins Institute of Technology and a Diploma of Leadership and Management at the same institution.[4]

   [3] CB p 85 at [8].

   [4]     CB p 4.

Tribunal hearing and findings

1. The first applicant attended before the Tribunal to give evidence and present argument on 11 October 2016.  She had the assistance, on that occasion, of an interpreter in the Punjabi and English languages.[5] 

   [5]     CB p 77.

2. The Tribunal affirmed the decision of the delegate.  The first respondent has helpfully summarised the proceedings and the decision of the Tribunal in its outline of submissions.  I do not understand that summary to be disputed in any respect by the first applicant and I have accordingly paraphrased it below.

3. The first applicant applied to the Tribunal for review of the delegate’s decision on 11 June 2016.  The Tribunal hearing proceeded on 12 October 2016.  The Tribunal had regard to the evidence given by the first applicant to the effect that she wanted to study in this country and that she had not previously been studying and had no enrolment or offer of enrolment in a relevant course.  It noted that she had applied for the visa after she no longer had access to the 457 visa owing to the breakdown of her marriage.[6]

   [6]     CB p 86.

4. The Tribunal set out and considered the terms of cl.572 of Schedule 2 to the regulations under the Migration Act. The Tribunal found that it was necessary for the first applicant to demonstrate exceptional circumstances given that she had applied for her visa whilst being ‘onshore’.

5. The Tribunal was not satisfied that the reasons identified by the first applicant, namely, intending to undertake study, being ignorant of the visa criterion, having received inaccurate or incomplete advice or matters of convenience such as not being required to travel offshore, constituted exceptional circumstances for granting the visa application.[7]

   [7]     CB pp 86-87.

6. The Tribunal considered the reasons advanced by the first applicant, both singularly and cumulatively, and concluded that there were no exceptional circumstances that would warrant the grant of a visa whilst the first applicant was ‘onshore’.  For that reason, it found that she could not satisfy cl.527.227 of Schedule 2 to the Regulations and in those circumstances concluded it had no alternative but to affirm the decisions not to grant the applicants visas.

Submissions

1. I note that when she appeared before me the first applicant appeared without the assistance of an interpreter.  When asked if she required an interpreter, she responded that she was confident that she was proficient enough in English to appear on the application without such assistance.  The first applicant made brief oral submissions.  When addressing the question of a denial of natural justice, she simply submitted that the Tribunal did not ask her for further documents or anything further in the way of information.  Her submission as to the merits of her application in this Court really amounted to saying that she had at this point no further options open to her but to apply for a student visa.  She said that she wished to live here in Australia, had two children and for that reason the Tribunal should have taken those matters into account and given her circumstances more weight. 

2. The first respondent submitted that grounds 1 to 6, as particularised, did not identify any jurisdictional error.  In essence all those grounds did was to raise an argument with the Court which amounted to an invitation to embark upon an impermissible merits hearing. 

3. To the extent that the first applicant complained that the Tribunal had not considered evidence given by her, the first respondent submitted that it was clear from the Tribunal’s reasons that the issues before it were relatively discrete and that it did consider all of the information relating to the first applicant’s circumstances when addressing the requirements of cl.572. Further, as far as natural justice was concerned, the first respondent submitted that there was no breach of procedural fairness. It submits the Tribunal complied with its procedural obligations under Part 5, Division 5, of the Act and that it extended an appropriate invitation to the applicants to attend before the Tribunal pursuant to s.360 and s.360A of the Act.

4. The first applicant was, it was submitted, clearly on notice of the issues that were relevant on the review, namely, whether or not there were exceptional reasons why the visa should be granted to her ‘onshore’. That was made clear to the first applicant on the basis of the delegate’s decision. For that reason the first respondent submits that there was no obligation under s.359A of the Act arising and all of the relevant material being contained in the delegate’s decision, it fell within the exceptions under s.359A(4)(ba) and s.359A(4)(b) and was not required to be put to the first applicant for comment in accordance with those sections. Finally, the first respondent noted that the first applicant complained about the decision made by the delegate in this matter, and the first respondent submitted, in my view, quite correctly that this Court has no jurisdiction to review any decision made by the delegate, because that was a primary decision as defined by s.476(4)(a) of the Act.

Consideration

1. Grounds 1 to 6 do not identify any grounds of jurisdictional error.  As the first respondent correctly submits, the grounds are really in the nature of a submission or a written argument.  The effect of them is to seek to have this Court reconsider the merits of the decision of the second respondent.  Whilst the nature and extent of the basis for jurisdictional error is not confined, it does not extend so far as to permit a rehearing of the substantive issues.  This is simply a request for an impermissible merits review.  I dismiss grounds 1 to 5.

2. I note in any event, however, that as the first respondent has identified, there is a misconception in the first applicant’s assertion contained within those grounds to the effect that the Tribunal was not satisfied that she was a genuine student.  That was not the issue before the Tribunal and did not play a role in its decision to affirm the decision of the delegate.

3. As to ground 6, which complains of a lack of procedural fairness and a failure to consider relevant material, I am satisfied that the Tribunal complied with its procedural obligations under Part 5, Division 5 of the Act.

1. The amount of information put forward to the Tribunal both in documentary form and in terms of evidence was, it appears, extremely limited.  I am satisfied that the Tribunal properly considered all relevant matters with respect to the first applicant’s merits review and applied them appropriately to the legislative scheme.  For that reason I dismiss ground 6.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 20 December 2017