KAUR v Minister for Immigration

[2017] FCCA 2062

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2062

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student temporary (Class TU) subclass 527 visa – where Applicant claims denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.572.224

First Applicant: GURPREET KAUR

Second Applicant: HARNEK KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 387 of 2016

Judgment of: Judge Hartnett

Hearing date: 3 July 2017

Delivered at: Melbourne

Delivered on: 3 July 2017

REPRESENTATION

The Applicants: In Person

Solicitor appearing as Counsel for the First Respondent: Mr Cunynghame

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 387 of 2016

GURPREET KAUR

First Applicant

HARNEK SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the  Court is an application for judicial review of a decision of the then Migration Review Tribunal (‘the Tribunal’) given orally on 4 February 2016 to affirm a decision of a delegate of the First Respondent not to grant to the Applicants a student temporary (Class TU) Subclass 572 visa (‘the visa’).  The application was filed on 1 March 2016.

2. The single ground, as stated in the application, is as follows:-

   “Tribunal failed to consider the subclass of visa in this subclass of visa.”

3. The application was accompanied by an affidavit sworn by the First Applicant on 1 March 2016 which is relied upon by the Applicants.  The First Respondent relies upon a response in which the First Respondent seeks dismissal of the application and a costs order.

4. On 20 July 2016, Registrar Buljan made orders by consent, which included order 3, which is as follows:-

   “On or before 24 August 2016 the applicants file and serve:

   a. any amended application including any additional grounds of review with complete particulars of each ground;

   b. any affidavits; and

   c. written submissions and a list of authorities."

5. The Applicants have filed no amended application, nor any written submissions.  In oral submissions given this day, the First Applicant did not address the single ground as set out in the application on which the Applicants rely.  Rather, the First Applicant sought to restate those matters that she put both to the delegate and to the Tribunal.  She did not comprehend that these were judicial review proceedings.

6. The First Respondent did file and serve written submissions, and those written submissions are dated 13 September 2016.  They are relied upon by the First Respondent. There is also before the Court the evidence as contained in the Court Book and evidence as contained in the supplementary Court Book.  The supplementary Court Book was filed on 3 July 2017.  The supplementary Court Book contains the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.  The Decision Record is dated 23 March 2016. 

7. The Applicants failed to identify any jurisdictional error attending the decision of the Tribunal as discussed hereafter. Therefore, the application must be dismissed. The First Respondent claimed costs and the quantum, as claimed by the First Respondent, is a sum less than that provided for in the Federal Circuit Court Rules 2001 (Cth) Schedule 1 Part 3 Division 1 costs for a matter of this type. The Court shall make the costs order sought.

History

1. On 28 April 2014, the First Applicant applied to the Department of Immigration and Border Protection (‘the Department’) for the visa.  The Second, Third and Fourth Applicants were included in the application as members of the Applicants family unit.  Having regard to the academic course the First Applicant proposed to undertake, the relevant student visa subclass was 572.

2. In order to be granted the visa, the Applicant had to meet a range of criteria, including cl.572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 572.224 is relevantly as follows:-

   “572.224

   The applicant:

   (a)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and

   …”

3. PIC 4020 required, essentially, in relation to the facts of this particular case, that there be no evidence that the Applicant had provided to the Minister or his officers a “bogus document” or information that was false or misleading in a material particular. 

4. The student subclass 572 visa was applied for, onshore on 28 April 2014.  In support of that application, several documents were provided, one of which was a copy of an International English Language Testing System (‘IELTS’) result.  The test was purported to have taken place on 21 September 2013 with a band score of seven.  Upon entering the test reference number into the IELTS verification website, it was revealed that the score assigned to the test was an overall band score of five, with the other details, such as name, date of birth and date of exam remaining the same.  It appeared to the Department that a non-genuine document had been provided to it with the application.

5. On 29 April 2014, an email was sent to the Applicants’ nominated migration agent inviting the Applicants to comment on this information.  The Applicants were given an opportunity to provide comment on this documentation and supply a statement indicating compelling and/or compassionate reasons as to why the Department should waive the requirement of PIC 4020.  The Applicants were required to provide these documents within 28 days. 

6. On 6 May 2014, the Applicants’ migration agent responded to the Department. The migration agent confirmed he had seen the Applicants’ original IELTS document and that she could provide the document to the Department if requested to do so.  The response stated that:-

   “The IELTS certificate was mistakenly provided to the Department.  We really appreciate if you do not consider the IELTS certificate and provide us a decision based on the other provided documents.”

7. On 12 May 2014, the First Applicant personally wrote to the Department and stated as follows:-

   “I am writing this statement in response to the invitation from the immigration department to comment on the bogus document (IELTS Result) provided with my student visa application.

   With due respect, I want to state that by mistake, this document has been provided to the department with my student visa application. I didn’t have any intentions to provide this document, as it wasn’t a mandatory document to meet the requirements of my student visa application. I already completed my “DIPLOMA OF PRODUCTION HORTICULTURE” on 19^th December 2013 and hence I do meet the IELTS requirement for my student visa application.

   This a humble request to disregard the IELTS document that had been mistakenly provided to the department.  Anyone can make a mistake and one shouldn’t be penalized for the mistake that is not intentionally made.  I desperately request you to give a generous consideration to my request.  This is a matter of my whole life and my career in Australia.  Please also check my academic history in Australia.  I have always complied with all of the student visa conditions such as work restrictions, study conditions or any other conditions attached to the student visas that are held. I have provided all of my academic certificates to show the evidence of my genuine study in Australia. Please consider my request taking into consideration the genuineness of the student history.  I am very worried about my future. 

   I request you to exercise your discretion and provide me a fair decision and a fair chance to stay in Australia on a student visa.  I shall be very thankful to you.”

8. The Department considered, that although the First Applicant was not required to submit this information in order to meet the English language requirement, her explanation of having mistakenly submitted the IELTS result was not a satisfactory reason for providing a falsified document to the Department. The delegate noted that the First Applicant had not disputed the fraudulent nature of the IELTS test, and nor had she provided any compassionate or compelling reasons as to why the requirements of PIC 4020 should be waived. The delegate thus, on 18 November 2014, refused to grant the First Applicants student temporary (Class TU) Subclass 572 visas under the Migration Act 1958 (Cth) (‘the Act’).

The Tribunal

1. The Tribunal upon review of the delegate’s decision noted, in respect of the document provided, in the Decision Record, the following:-

   “6. You told the Tribunal here today that you had changed that, or somebody had changed it with your knowledge in an attempt to lodge a different visa application that was subsequently withdrawn, and it was never meant to be lodged with this application, it was lodged by accident because in fact you already could satisfy the English requirements having already completed a diploma.”

   The Court notes the First Applicant has been in Australia since 2008 and at the time of the Tribunal hearing held three previous student visas, with the application lodged on 28 April 2014 being for a further student visa

   “7.    The fact that it was lodged and the fact that you concede that it was a document that had been fraudulently altered, and you knew about that means that the Tribunal finds that you do not satisfy PIC 4020, in that there is information that is false and misleading in a material particular that was provided with this application.”

2. The Tribunal found it did not matter whether the Applicant lodged the IELTS results by mistake. It was either lodged by the Applicant or the Applicant’s agent who acts on the Applicant’s behalf. 

3. Pursuant to PIC 4020(4), the Tribunal then, as it was required to do, proceeded to consider whether or not to waive the requirements of PIC 4020(1).  The Tribunal said, as to that, in its Decision Record, the following:-

   “9. The decision as to whether, or not a visa application is refused or when an Applicant fails to meet PIC 4020 as I said may be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of any Australian citizen, permanent residence, or eligible New Zealand citizen which justify the granting of a Visa.

   10. When I asked you whether there are compelling circumstances that meet those levels, you provided me with no answer which I presume means there is none. There is no evidence certainly before the Tribunal that such compelling circumstances exist. 

   11. So on the evidence presented the Tribunal finds that you provided documents that were bogus, and therefore you do not satisfy PIC 4020.  There is no evidence before the Tribunal that there are compelling, or compassionate circumstances that meet the definition that would lead to the waiver of a criterion, and in the circumstances it is the decision of the Tribunal to affirm the decision under review. This means the primary decision to refuse your visa application stands.” 

Consideration

1. The Tribunal afforded to the Applicants procedural fairness.  On 10 December 2015, the Tribunal wrote to the Applicants to invite them to appear before it at a hearing and the Applicants did so. The hearing proceeded on 4 February 2016 when the Applicants had an opportunity to give evidence and present arguments with the assistance of the First Applicant’s registered migration agent.

2. As to the ground of application set out in the application for judicial review, it is not properly particularised; however, it would appear to contend that the Tribunal failed to consider the application against the other subclasses within the Student (Temporary) (Class TU) visa regime. This matter was not raised at all by the Applicants in the First Applicant’s oral submissions.  In response, however, to that ground, the  Court finds:-

   (a)in order to be granted a student visa of any subclass, the Applicant had to meet a range of criteria, including cl. 572.224 of Schedule 2 of the Regulations, that required, amongst other things, the Applicant satisfy PIC 4020. This requirement applied to all student visa subclasses without exception;

   (b)whilst the Tribunal’s written Decision Record does not explicitly state the Tribunal considered the other student visa subclasses, that is not material to the outcome in these proceedings. Even if the Tribunal had expressly done so, the Applicant would be ineligible for any other subclass on the basis of her being unable to satisfy PIC 4020; and

   (c)there was no evidence before the Tribunal that there were compelling or compassionate circumstances that met the definition that would lead to the waiver of the criterion. 

3. There is no jurisdictional error attending the Tribunal decision.

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

Associate: 

Date:  30 August 2017