KAUR v Minister for Immigration

[2016] FCCA 1613

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1613

Catchwords:
MIGRATION – Application for extension of time in which to make application for judicial review – not in interests of administration of justice to extend time – application refused.

Legislation:

Migration Act 1958 (Cth), ss.116, 477

Migration Regulations 1994 (Cth), Condition 8202, sch. 8

Cases cited:

Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 244; 58 ALR 305

Applicant: RASNEEN KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 106 of 2015

Judgment of: Judge Jones

Hearing date: 17 May 2016

Date of Last Submission: 17 May 2016

Delivered at: Melbourne

Delivered on: 1 July 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

3. The Applicant pay the First Respondent’s costs in the fixed sum of $3,410.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 106 of 2015

RASNEEN KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This decision concerns an application for judicial review filed by the Applicant on 21 January 2015, of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 16 December 2014, in which the Tribunal affirmed the decision by a delegate of the Minister for Immigration and Border Protection (“the delegate”) to cancel the Applicant’s student (Subclass 573) visa (“the visa”). 

2. Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant’s application was filed one day beyond the 35 day limit specified in sub-s.477(1) of the Act.

3. Pursuant to sub-s.477(2) of the Act, the Court may extend the 35 day period if, a) the application for an Order to extend the period has been made in writing to the Court specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the Order; and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the Order.

4. In her application for judicial review, the ground the Applicant specified for an extension of time, was that she miscalculated the time period for making the application, which was one day out of time. Consequently, it falls to the Court to consider whether it is satisfied that it is necessary in the interests of the administration of justice to make the Orders sought by the Applicant for an extension of time. 

5. As I explained to the Applicant, who is self-represented, the Court has a broad discretion under sub-s.477(2) of the Act. However, the factors that the Court generally takes into account are the extent of the delay, the reasons for the delay, any prejudice to the First Respondent and whether the application for judicial review discloses an arguable case, that is, whether the substantive application has merit: Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 244; 58 ALR 305.

6. Turning to the first question, that is, the extent and reasons for the delay. Clearly, the delay is minimal. It is a delay of only one day. Although the Applicant’s explanation, that she miscalculated the time period, is an explanation I accept, in my view, it is not a satisfactory explanation for the delay. Every Applicant that makes an application for judicial review is required to ensure that their application is made within the 35 day limit. 

7. I am satisfied that the delay does not prejudice the Minister. Any prejudice can be overcome by a costs Order. 

8. I now turn to the merits of the Applicant’s substantive case. By way of background, the Applicant held a Subclass 573 Student visa, which was granted on 13 December 2011 and was valid until 15 March 2016. That visa was subject to Condition 8202(2)(a) of sch.8 to the Migration Regulations 1994 (“the Regulations”), which required that the Applicant be enrolled in a registered course or, in limited cases, a full-time course of study or training.

9. Provider Registration and International Student Management System (PRISMS) records accessed by the Department on 16 May 2014, show that the Applicant had not been enrolled in a registered course since 11 December 2013. The delegate sent a Notice of Intention to Consider Cancellation (“NOICC”) to the Applicant on 20 May 2014, under s.116 of the Act (CB 4-7).

10. The Applicant responded to the NOICC, providing reasons for her failure to maintain enrolment (CB 16). On 5 August 2014, the delegate decided to exercise her discretion by cancelling the Applicant’s visa (CB 24-34).

Tribunal decision 

1. The Applicant applied to the Tribunal for a review of the delegate’s decision on 8 August 2014. On 11 December 2014, the Applicant attended the Tribunal hearing and provided evidence that she had a current Confirmation of Enrolment for a Bachelor of Business Accounting, an enrolment made on 18 August 2014, after the cancellation of the visa.

2. The Tribunal, in its decision record (CB 123-131), accepted that the Applicant was not enrolled in a registered course of study during the period from December 2013 to August 2014 and, consequently, breached Condition 8202(2) of sch.8 to the Regulations. It then turned to consider whether to exercise its discretion to cancel the visa. In so doing, it had regard to the statutory requirements, the Applicant’s evidence and guidelines contained in the Department of Immigration and Border Protection’s Procedure Advice Manual.

3. The Tribunal considered the fact that the Applicant had an opportunity to enrol but had missed three possible enrolment intakes. The Tribunal considered each of these intakes individually, taking into account specific reasons given by the Applicant for missing each enrolment, as well as the cumulative stress she claimed affected her. 

4. There were three points in time in which the Applicant could have enrolled in a registered course. The first was the December 2013 intake, and the Tribunal accepted that the Applicant had adequate reasons for not enrolling in the December 2013 intake (CB 129 at [27]). 

5. The next intake was in March 2014. The Tribunal set out the Applicant’s evidence in relation to her failure to enrol in this intake (CB 127 to 128 at [15]-[20]). The Tribunal did not accept the Applicant’s evidence that her family had been robbed, and that this caused her to not have enough money to enrol in a course for the March 2014 intake. The Tribunal noted that no evidence of the robbery was provided and it did not accept the Applicant’s explanation that, because of the limitations of the Indian police, the family did not report the robbery to authorities (CB 129 at [29]).

6. The Tribunal accepted the Applicant’s evidence that her parents decided to support her two sisters and not her. Nevertheless, it found that the Applicant was in a position to enrol in her course in March 2014, but did not do so. 

7. The next intake was in July 2014. The Applicant’s evidence was that she suffered stress and anxiety because of domestic violence, perpetrated against her by her boyfriend, in the months leading up to June 2014 (CB 128, at [19]-[21]). The Tribunal noted that domestic violence was a disturbing issue in the community and accepted that this would explain the stress and anxiety that the Applicant was experiencing living in Australia, but found that it did not explain the complete lack of action on the part of the Applicant enrolling in her course. It noted that despite receiving the NOICC in May 2014, the Applicant had taken no steps to enrol in a course in July 2014. Consequently, the Tribunal did not accept this as an explanation for not taking advantage of the July 2014 intake (CB 130 at [34]).

8. The Tribunal found that there were certain inconsistencies in the Applicant’s evidence in relation to her failure to enrol in the July 2014 intake, which suggested that she may well have been in a position to enrol but did not do so. It noted that the Applicant engaged a migration agent promptly after being advised of her visa cancellation (CB 130 at [36]). The Tribunal found the Applicant’s claim that she did not enrol because she wanted to first resolve her cancellation issue, to be confusing and illogical (CB 130 at [35]).

9. The Tribunal concluded that while there were extenuating circumstances for the December 2013 enrolment intake, the Applicant failed to rectify the situation over the next eight months, despite having multiple opportunities to do so. The Tribunal noted, and gave weight to, circumstances intruding on the Applicant’s life, the domestic violence being the most relevant and concerning. However, it did not accept that the Applicant’s parents had been robbed, and found that the Applicant had stated she was in a position to enrol since March 2014, but simply did not do so (CB 131 at [38]).

10. Accordingly, the Tribunal decided that the visa should be cancelled pursuant to s.116 of the Act.

Judicial review

1. In her application for judicial review filed on 21 January 2015, the Applicant specified her grounds as:

   “a) The MRT took account of irrelevant considerations.

   b) The MRT failed to take account of relevant considerations.

   c) The MRT erred at law.”

2. I asked the applicant what she meant by each of these grounds. The Applicant submitted that she could not identify the irrelevant considerations that the Tribunal took into account. Consequently, I have decided that the Applicant does not pursue that first ground of review. In relation to the second ground of review, that the Tribunal failed to take into account relevant considerations, the Applicant submitted that the Tribunal did not take into account the stress and anxiety she suffered during the course of the March and July 2014 intakes.

3. It will be apparent from the recitation of the Tribunal’s decision made earlier that, in fact, the Tribunal referred to the Applicant’s evidence in relation to these issues, but decided that the Applicant’s explanation was not a satisfactory explanation for her failure to take action to enrol in a course of registered study. It seems to the Court, that the Applicant wishes the Court to engage in impermissible merits review, as the Applicant is in fact complaining about the weight that the Tribunal gave to her explanation of her failure to enrol during the March 2014 and July 2014 intakes. Consequently, the second ground does not give rise to jurisdictional error.

4. When asked what she meant by the third ground, that the Tribunal erred at law, the Applicant explained that the Tribunal failed to consider her situation, meaning the circumstances that she told the Tribunal were affecting her at the time.  In effect, this ground is a repetition of the second ground, and does not give rise to jurisdictional error.

5. It is apparent that the Applicant simply disagrees with the consideration by the Tribunal of her evidence. The Tribunal is entitled to give weight to various evidence, and it does not have to accept every claim made by an Applicant. There is nothing unreasonable or illogical about the Tribunal’s reasoning. The Applicant, in my view, is complaining about the outcome of her hearing before the Tribunal.  Consequently, on this ground there is no arguable case.

Conclusion

1. The Applicant’s grounds for judicial review do not raise, in my opinion, an arguable case. I find that it would not be in the interests of the administration of justice, to make an Order extending the time within which the Applicant is permitted to make an application for judicial review. 

2. Accordingly, the Applicant’s application for an extension of time is refused, with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 1 July 2016