Kaur v Minister for Immigration
[2016] FCCA 1530
•22 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1530 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – refusal of student visas – whether the Tribunal acted unreasonably in relation to the provision of material in support of the visa application considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 Migration Act 1958 (Cth) s.359 |
| Cases cited: Minister for Immigration v Li (2013) 297 ALR 225 |
| First Applicant: | PERVINDER KAUR |
| Second Applicant: | MANOJ KUMAR |
| Third Applicant: | HARLEEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2839 of 2014 |
| Judgment of: | Judge Driver |
| Hearing dates: | 17 February, 22 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2016 |
REPRESENTATION
The First and Second Applicants appeared in person
| Counsel for Mr Georges: | Mr J Young |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2839 of 2014
| PERVINDER KAUR |
First Applicant
| MANOJ KUMAR |
Second Applicant
| HARLEEN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 17 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants temporary student visas.
The principal visa applicant was Ms Pervinder Kaur who, in this judgment, I refer to as “the applicant” or Ms Kaur. The other applicants applied as members of her family group.
The background facts are otherwise set out in the Minster’s outline of submissions filed on 7 February 2016.
Background
On 4 August 2013, Ms Kaur applied to the Department for a student (temporary) visa.[1] The second and third applicants were included in the application as members of the applicant’s family unit.
[1]Court Book (CB) 1 to 9.
On 5 August 2013, the Department wrote to Ms Kaur, by email requesting that she provide evidence of the following within 28 days:
a)evidence of Overseas Health Cover (OHC);
b)evidence of financial capacity ($71,506.49);
c)evidence of English proficiency; and
d)evidence of medical examination.[2]
[2]CB 10 to 14.
On 3 October 2013, a delegate of the Minister decided to refuse Ms Kaur’s visa application as Ms Kaur did not satisfy the prescribed criteria for the grant of a student (temporary) (class TU) visa.[3] This was because Ms Kaur had not, at the time of the delegate’s decision, provided evidence of OHC, financial capacity, English proficiency and medical examination.
[3]CB 17 to 30.
Tribunal proceedings
On 11 October 2013, Ms Kaur applied to the Tribunal for review of the delegate’s decision.[4] The application for review included a letter from Ms Kaur stating that she did not receive the Department’s email of 5 August 2013 requesting further evidence, and that this gave Ms Kaur exceptional reasons for appealing the delegate’s decision.
[4]CB 31 to 41.
On 22 July 2014, the Tribunal wrote to Ms Kaur to invite her to appear at a hearing on 27 August 2014 to give evidence and present arguments relating to the issues in her case.[5] The invitation letter also requested that the applicant provide various documents to the Tribunal, particularly a current Certificate of Enrolment (CoE), documents showing current enrolment or an offer of enrolment in a course, documents showing past studies in Australia, an explanation or documentary evidence regarding any gaps in enrolment, documents demonstrating Ms Kaur has sufficient funds, evidence of meeting the English language requirement, evidence of successfully completing year 12, evidence of adequate health insurance arrangements and evidence of a current medical assessment.
[5]CB 48 to 50.
On 30 July 2014, the Tribunal received a completed response to hearing invitation form from Ms Kaur.[6]
[6] CB 51 to 52.
Ms Kaur attended the Tribunal hearing on 27 August 2014.[7] Ms Kaur provided documents to the Tribunal at the hearing, including documents relating to a medical assessment, a number of CoEs and letters from previous educational providers.[8]
[7] CB 79 to 80.
[8]CB 53 to 78.
On 18 September 2014 the Tribunal notified Ms Kaur of its decision (made 17 September 2014) affirming the decision of the delegate.[9]
[9]CB 83 to 85.
The Tribunal’s key findings
The Tribunal noted that the issue before the delegate was whether Ms Kaur met the criterion in cl.572.225, 572.223 (5A404 and 5A405), and 572.224 (PIC4005) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). However, the issue before the Tribunal was whether, at the time of its decision, Ms Kaur met the enrolment requirements for a student visa.[10]
[10]CB 84 at [7].
The Tribunal noted that, with limited exceptions, cl.570.232, 571.232, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations require that at the time of decision an applicant must be enrolled in, or the subject of, an offer of enrolment in a course of study that is a principal course and is a time specified under reg 1.40A for the subclass at the time of the application. The Tribunal found that there was no evidence before it that Ms Kaur satisfied any of the exceptions to the general provisions.[11]
[11]CB 84 at [8].
The Tribunal noted that Ms Kaur provided a bundle of documents at the hearing and gave evidence that she had completed certain studies in Australia but had ceased studying in the previous year before the expiry of her student visa. Ms Kaur stated that she would like to study a Diploma of Marketing and a Certificate IV in Marketing and perhaps nursing, but stated that she did not have a current CoE or offer of one and that the CoEs produced at the hearing had expired. [12]
[12]CB 85 at [10].
In relation to financial capacity, Ms Kaur stated that she could now be supported by some friends in Australia who could loan her money.[13]
[13]CB 85 at [11].
In relation to the other matters, Ms Kaur stated that she and the second and third applicants had attended for medical examinations and the Tribunal noted there was a Medibank receipt dated 24 July 2014. In respect of the English language requirement, Ms Kaur stated that she did not have evidence of meeting the requirement but that she had sat an IELTS test on 16 August 2014 and expected to receive the result of that test on 29 August 2014. The Tribunal noted that, as at the date of its decision, nothing further was provided.[14]
[14]CB 85 at [12]-[13].
The Tribunal noted that, despite being on notice of the requirement to provide evidence of a CoE or offer of a CoE, Ms Kaur attended the hearing without any such evidence. The Tribunal therefore found that there was no evidence that Ms Kaur is now enrolled in, or has a current offer of enrolment in, any applicable course of study. The Tribunal therefore found that the applicant did not meet cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations.[15]
[15]CB 85 at [14]-[15].
The Tribunal further noted that there was no evidence that Ms Kaur meets the criteria for a subclass 576 or 580 visa, being the remaining subclasses of class TU, nor that Ms Kaur is supported by the relevant Minister as required by cl.576.229 of Schedule 2 to the Regulations or had made her visa application on the basis of being a Student guardian.[16]
[16] CB 85 at [16].
The Tribunal therefore affirmed the decision under review. The Tribunal further found that the second and third applicants could not meet cl.572.322(b) of Schedule 2 to the Regulations as the applicant had not met the visa grant requirements.[17]
[17] CB 85 at [17]-[18].
Current proceedings
These proceedings began with a judicial review application filed on 13 October 2014. Ms Kaur continues to rely upon that application. The grounds in the application are:
1.The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars:
a.The Applicant applied for a review on or about 1 November 2013. As there as no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent. In fact the Second respondent took almost 1 year to take action on the Applicants file.
b. The Second Respondent was bound by s359 of the Migration Act 1958 to invite the applicant to provide further information. If the information was submitted to the satisfaction of the Second Respondent, then a hearing might not have been required and a favourable decision could have been made. In the period of 1 November 2013 to 21 July 2014 Second Respondent took no action and did not issue a s 359 letter. On the 22 July 2014 the Second Respondent gave the Applicant less than 30 days’ notice to obtain the required documents and evidence including a satisfactory IELTS result.
c. The Applicant appeared for the hearing on 27 August 2014 with the Confirmation of Enrolment (CoE) which was issued by the education provider but had expired and proof of booking of an IELTS test that she had completed and was expecting the result for on 29 August 2014. The Applicant was unable to provide the information within the 30 Days given the financial information must also be relevant to a COE letter and the IELTS has a long waiting period.
d. The Applicant made several requests to the Second Respondent to allow additional time to obtain COE Letter, financial documents from overseas (India), and IELTS as the documents could not be obtained for the allocated hearing.
e. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it required the applicant to have financial documents prepared within 4 weeks that would have taken about 7 – 8 weeks to obtain. The Applicant could not have obtained the financial documents until she received the CoE letters. The Tribunal failed to take this into account that the applicant needed time to obtain the CoE letter, financial documents and IELTS.
2.The Second Respondent decision was so unreasonable that no reasonable tribunal member would have made it.
Particulars
a)The Applicant has successfully completed courses in Australia and still continued studying even after the visa application was refused. The Applicant was not required to continue studying after obtaining bridging visa. The Applicant was not prepared to take risk to pay a substantial amount in tuition fees up front without obtaining a student visa as she could have been compelled to depart Australia at any time if the application was refused.
b) The Second Respondent was entitled to wait until after receiving a request from the Second Respondent to prepare her financial information for submission as regulation 5A required that any financial information must be recent and relevant to the Course the Applicant intends to undertake. Since the Applicant’s financial documents were required to be consistent with the course enrolled for, and the financial documents were required to cover to costs of the relevant course and be recent at the time of the Second Respondent decision, it was not reasonable for the tribunal to find that the Applicant should have prepared the financial documents in advance when she lodged her application in November 2013. The Second Respondent blatantly ignored these facts and made a decision three weeks after the hearing without even given a three week adjournment to provide documents and without having due regard to the time requirements of the financial information.
c) After waiting 8 months to begin processing the Applicant’s application the Tribunal refused to allow a further three weeks for the Application to prepare financial information in circumstances where the documents had to come from India and had to be up to date documents in relation to the course that was confirmed by a COE Letter. In circumstances where the Tribunal took three weeks to make the decispion anyway, no reasonable Tribunal member would refuse an adjournment of 3 weeks.
3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide current financial information. The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 13 (8 May 2013).
Particulars
a.The applicant relies on the particulars in grounds 1 and 2 above.
(errors in original)
Ms Kaur has not taken up the opportunity afforded to her in procedural orders to file and serve any amended application. The application is supported by a short affidavit filed with it.
I also have before me as evidence the court book filed on 3 December 2014 and an affidavit by the Minister’s solicitor, Ms Lucchese, annexing documents verifying despatch of the hearing invitation issued by the Tribunal.
This matter had been listed for hearing in February this year. Up until that time Ms Kaur had been legally represented. Shortly before the hearing date Ms Kaur contacted the Court to request an adjournment on the basis of her late stage pregnancy. There was some confusion given that Ms Kaur had approached the Court directly, although to that point, she had been legally represented. It transpired that her solicitors had, in effect, ceased acting for her although they did not withdraw from the record until after the hearing on 17 February 2016.
I accepted that Ms Kaur should be granted an adjournment on 17 February 2016 because of her pregnancy. The child has since been born and was at Court today under the care of Ms Kaur’s husband, the second applicant.
An issue arose in February as to costs thrown away. Submissions were made this morning on that issue with the benefit of affidavit evidence from the Minister’s solicitor, Ms Lucchese, and the applicant’s former solicitor, Mr Georges. I decided in the light of that evidence and submissions that no order for costs thrown away should be made prior to the conclusion of these proceedings.
Ms Kaur has not filed any written submissions in support of her application. I invited oral submissions from her this morning. She explained that she wants more time to gather financial documents in support of her visa application. I explained to her the limits on this Court’s jurisdiction and the need to establish an error going to the Tribunal’s jurisdiction in order to support any order returning the case to the Tribunal for reconsideration.
I invited Ms Kaur to identify any problem she has with the Tribunal’s decision or process. She repeated that she needed more time to gather financial documents in support of her visa application.
The Minister’s submissions deal effectively with the grounds of review advanced in the application. I agree with those submissions,
Ground 1
The substance of Ground 1 appears to be that the Tribunal did not provide Ms Kaur sufficient time to obtain and prepare documents relevant to her application, and that this constituted a breach of procedural fairness or a failure to take into account the length of time it would take to procure such documents. This is also framed as an error of the type in Minister for Immigration v Li[18] in Ground 3.
[18] (2013) 297 ALR 225.
As noted above, the Tribunal’s letter requesting further information was dated 22 July 2014. The prescribed period for Ms Kaur to give the information requested by the Tribunal was 14 days from receipt of the invitation.[19] No jurisdictional error is identified.
[19] See ss.359 and 359B of the Migration Act; reg 4.17 of the Regulations.
Ground 2
This ground asserts that the Tribunal acted unreasonably in not deferring its decision in the matter to allow Ms Kaur further time to provide documents. Particulars (a) and (b) of this ground appear to in substance raise factual matters that it is argued the Tribunal should have considered in Ms Kaur’s favour in providing a further opportunity for documents to be provided to the Tribunal. Particular (c) of this ground suggests that the Tribunal refused to allow Ms Kaur further time in which to provide further evidence.
Contrary to the particulars, it is not at all apparent that Ms Kaur sought further time to provide documents. At its highest Ms Kaur appears to have told the Tribunal that she had sat an IELTS test on 16 August 2014 and that she expected to receive the result on 29 August 2014.
Even if this were to be construed as a request to be given further time to provide documents, the Tribunal honoured this timeframe by not proceeding to make a decision until 17 September 2014 (being 19 days after the date on which the applicant stated she expected her results to be available).
In the circumstances of this case, and in the absence of any evidence, there is no basis upon which to find that the Tribunal has acted unreasonably, whether framed as general unreasonableness or in the sense in Minister for Immigration v Li[20], by proceeding to complete its review when it did.
[20] (2013) 297 ALR 225
No jurisdictional error on the part of the Tribunal has been demonstrated. Neither is error apparent to me from my own perusal of the material.
I conclude that the decision of the Tribunal is a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $5,800 to which the Minister submits should be added his cost thrown away. Scale costs in the circumstances of a final hearing, as at the time the application was filed, would be $6,646. Ms Kaur claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
Taking all the circumstances in to account, including the Minister’s costs thrown away by reason of the adjournment granted in February, I see no reason to depart from the Court’s scale applicable at the time the application was filed.
Accordingly, I will order the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 June 2016
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