KAUR v Minister for Immigration

[2016] FCCA 3161

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3161

Catchwords:
MIGRATION – Judicial review – show cause hearing.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(fa), 359AA

Federal Circuit Court Rules 2001 (Cth), r.44.12

First Applicant: GURMEET KAUR

Second Applicant: KULWANT SINGH SANGHA

Third Applicant: SAHIBNOOR SINGH SANGHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 220 of 2016

Judgment of: Judge Harland

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Melbourne

Delivered on: 7 November 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: DLA Piper Australia

Solicitors for the Respondents: Ms Koya

ORDERS

1. The application filed 8 February 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,066.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 220 of 2016

GURMEET KAUR

First Applicant

KULWANT SINGH SANGHA

Second Applicant

SAHIBNOOR SINGH SANGHA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed for a show cause hearing this morning pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). It is necessary for me to determine whether or not the applicant has disclosed an arguable case for relief. If she has, then I can set the matter down for a final hearing. If she has not, then the appropriate course is to dismiss the application. The applicant sets out several paragraphs in her application for judicial review. Those complaints really seek a merits review, apart from a possible complaint about bias, which I will come to later.

3. Some of that application also provides some background.  The Registrar of the Federal Circuit Court made directions for the filing of any amended material and submissions on 6 July 2016.  The applicant has not filed anything since filing her application and affidavit of support on 8 February 2016.  The applicant and her family attends today without the assistance of legal representation.  I explained the process of hearing and the nature of jurisdictional error.

4. The applicant said in her submissions today that she feels that the Tribunal ignored her medical material and referred to her living in Shepparton and studying in Melbourne. She said that many students do that kind of travel.  She felt that that was an error on the Tribunal’s part. 

5. The first respondent has prepared written submissions, which the applicant has read, and went through those submissions in detail this morning.

6. The applicant was granted a 572 visa to study a diploma and advanced diploma at Imperial College.  The Court Book at pages 5 and 7 show two warning letters sent by the college to the applicant’s address.  I note that the address is the same address that she has used in her material throughout, including the application for judicial review, about her lack of academic progress.  The first letter was dated 3 April 2013.  The second letter was dated 23 September 2013. In January 2014 the college notified her of its intention to submit a report for unsatisfactory course progress, and the applicant filed an appeal with respect to that; those documents appear at pages 17 to 19 of the Court Book.

7. The applicant made written submissions to the delegate and made those submissions again to the Tribunal. They also appear in the Court Book together with other documents she lodged in support, including medical documents. The delegate made a decision to cancel her visa on the grounds that the applicant did not satisfy s.116(1)(fa) of the Migration Act 1958 (Cth) (“Migration Act”) in that she was not a genuine student.  The delegate referred to the PRISM records and the warning letters.

8. It is clear from that record that the applicant was on notice of what the issues were when she appeared before the Tribunal for two hearings, the first in December 2014 and the second in January 2016.  The Tribunal record refers to the applicant’s history of study, including study on earlier visas, and refers to in particular her enrolment in the Advanced Diploma of Management at Imperial College between 2 March 2013 and 28 February 2014.  The Tribunal refers to the applicant’s evidence, including her medical evidence where the applicant became very unwell and was hospitalised when she was pregnant with twins and eventually suffered a miscarriage.

9. The Tribunal refers to the medical reports that she provided and notes that the medical evidence shows that whilst it appears that she was aware she was pregnant in May 2013 and had a consultation with her GP on 19 June 2013 there was nothing out of the ordinary until July 2013 when she was hospitalised and then suffered a miscarriage a few weeks later in August.  These dates are relevant because of her course of study commencing on 2 March 2013, and one of the Tribunal’s findings was that the medical evidence did not explain her lack of studies for some months before her hospitalisation and miscarriage.

10. The Tribunal also referred to the inconsistencies in the applicant’s evidence where she also said that completed all of her assignments and passed those.  She complains that the college refused to provide her with any documentary evidence of that, and the Tribunal noted that the applicant had not lodged any complaint about the behaviour or the misconduct that she alleged the college had engaged in.

11. The Tribunal also referred to the business visa application that also appears in the Court Book and which was with respect to a sales and marketing position with a fruit business in Shepparton.  At [32] of its decision the Tribunal said that it was concerned that there were a number of significant contradictions in the applicant’s evidence and her responses when confronted with those contradictions, and the issue of credibility and weight to be put to those matters is a matter that is for the Tribunal exclusively and not this Court.

12. The Tribunal found that the applicant was not a genuine student, found that the evidence was that she did not attend classes or lodge assignments at the college in the period March 2013 to February 2014.  The Tribunal preferred the letters from the college and the PRISM records to the applicant’s evidence with respect to that, as it was entitled to do on the material before it.  The Tribunal then turned to the discretionary factors in considering whether or not to cancel her visa, and after considering those factors from [36] onwards it found that it should not exercise its discretion not to cancel the visa as it did not find that there were exceptional circumstances.

13. It is clear from the Tribunal record that it did consider the medical evidence that the applicant provided before it and made an assessment with respect to that evidence as against the other evidence before it. With respect to the applicant’s complaint about the comments the Tribunal made about the travel between Shepparton and Melbourne that appears at [33]. To the extent that there is an error in that paragraph it is an error within jurisdiction as it does not go to the dispositive issue before the Tribunal.

14. The Tribunal’s comment with respect to having some doubts about someone on a student visa doing that kind of travel was not dispositive of its findings because the issues that were dispositive was the applicant’s lack of attendance and progress at the course, its reliance on the letters sent by the college and inconsistencies in the applicant’s own evidence as well as the application for the business visa.

15. I am satisfied that the Tribunal considered the material and the evidence that the applicant put to the Tribunal before it.  The applicant in her application complains that the Tribunal member based his decision on his personal beliefs. 

16. The respondent says that that appears to raise an issue of bias but then goes on to say that without there being particularisation of that allegation it cannot be made out, and, as the authorities make clear, the mere fact that adverse findings are made against an applicant does not reveal a bias or prejudgment.

17. There is nothing in the decision record itself that indicates that the Tribunal member prejudged the material or acted in any biased manner.  It is clear from the Court Book and the decision itself that it considered the material that was before it and it also could not be said that the Tribunal did not accord the applicant procedural fairness as the applicant was given multiple opportunities to address the concerns that the Tribunal raised, including the fact that there were two hearings, but also it is clear from the decision record that she was given the opportunity when adjournments were given for her to consider the issues before the hearings resumed.

18. I am also satisfied that the Tribunal did not breach its obligations under s.359AA of the Migration Act as it was clear from the delegate’s decision that the applicant was on notice about the material from the college that formed a large part of the basis of the decision.  I am satisfied that the applicant has not raised an arguable case for relief and that in those circumstances the application should be dismissed.

19. The respondent is seeking costs in the accordance with the costs scale in $3066.  The costs normally follow the event in these matters.  So normally the person who is successful is entitled to seek costs.

20. The respondent seeks costs in accordance with the scale in the sum of $3066.  I will make that order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 7 December 2016