KAUR v Minister for Immigration

[2016] FCCA 1316

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1316

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal’s decision was unreasonable – whether the applicants had a genuine hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 140(1), 348, 476

Migration Regulations 1994, Schedule 8

Applicant: BHAJANPREET KAUR

Second Applicant: GURNOOR KAUR

Third Applicant: KABAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 447 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

The second applicant appeared in person

Solicitors for the First Respondent: Mr d'Assumpcao
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 447 of 2015

BHAJANPREET KAUR

First Applicant

GURNOOR KAUR

Second Applicant

KABAL SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision the Tribunal made on 29 October 2015 affirming a decision of the delegate to cancel the first named applicant’s Student Temporary (Class TU) visa.

2. The first applicant had her Student Temporary (Class TU) subclass 572 vocational and educational and training sector visa cancelled by the delegate of the first respondent under s.116(1)(b) of the Migration Act 1958 on 12 March 2015. 

3. The delegate identified, from the evidence provided in relation to PRISMS that the first applicant had not been enrolled in a registered course of study for three different periods.  The first period being 26 August 2013 to 6 October 2013, the second being 7 January 2014 to 6 October 2014, and the third period being 19 November 2014 to 15 February 2015.  It was in those circumstances that the delegate was satisfied the first applicant had breached condition 8202 and, ultimately, the delegate was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa. 

4. In the decision of the delegate dated 12 March 2015, the Tribunal noted that, for the purpose of the Tribunal’s decision under s.348, the only decision that was before the Tribunal was the decision in relation to the first named applicant. The other visas of the second named applicant and third applicant were automatically cancelled as a consequence of the cancellation of the visa of the first applicant by force of s.140(1) of the Migration Act 1958. The Tribunal correctly identified that no decision was involved in the visa cancellation under s.140(1) and that the Tribunal had no jurisdiction, independently, in relation to the other applicants.

5. The Tribunal invited the first applicant to appear before the Tribunal and, on 6 October 2015, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal identified the requirements of condition 8202 of schedule 8 of the Migration Regulations 1994 in determining whether or not the applicant had breached that condition under s.116(1) of the Act.

6. The Tribunal identified the three periods in respect of which the applicant was not enrolled in a relevant course.  The first applicant contended that she thought that if the college decided to cancel her enrolment, it was obliged to send her a letter and because she did not receive anything, she and her husband had paid the fees. The first applicant said she thought this was wrong.  The first applicant was given additional time by the Tribunal after the hearing to approach the college and ask for any information to establish her enrolment status in the relevant periods. 

7. The applicant provided a letter and receipt in relation to the payment of fees, however, as the Tribunal identified, that did not establish that the applicant did not have her enrolment cancelled. The Tribunal found, on the evidence before it, that the first applicant had not been enrolled in the same three periods as were identified by the delegate. It was in those circumstances that the Tribunal found the applicant had not complied with condition 8202(2) of schedule 8 to the Migration Regulations 1994. 

8. The Tribunal then turned to consider whether, as a matter of discretion, the visa should be cancelled.  The Tribunal identified the first applicant’s evidence and, also, the purpose of travel to and stay in Australia, as well as whether there are any compelling reasons to remain in Australia.  It is clear that the Tribunal took into account the fact that, at that stage, the applicant both had in her care a young baby, as well as being, again, pregnant. 

9. The first applicant relied upon her requirement to look after and breastfeed her baby as a reason not to cancel the visa. 

10. The Tribunal also took into account the first applicant’s explanation as to why she was not able to continue her studies.  The Tribunal noted that a receipt provided by the first applicant showed payment for the fees was made after the hearing, was not consistent with the applicant’s evidence that she had earlier paid the fees.  The Tribunal then considered the hardship that would be caused and concluded, having considered all the information and the circumstances as a whole, that the visa should be cancelled. 

11. On 22 December 2015, a Registrar of the Court made orders providing an opportunity for the applicant to amend the application, file affidavit evidence and put on submissions.  No such documents were filed. The grounds of the application are as follows:

    1. I was born on 10/08/1986. My wife Date of Birth is 26/07/1984

    2. I am currently on Bridging visa A because of my refusal of 572 visa cancellation.

    3. My wife student visa got cancelled and subsequently she lodged review application with MRT.

    4. The Administrative Appeal Tribunal refused to set aside the DIBP decision on 29/10/2015.

    In my opinion DIBP and AAT made the judicial error in cancellation of my spouse application. Also AAT overlooked the grounds of cancellation given by case officer from DIBP

12. At the commencement of the hearing, the second applicant appeared. The first applicant was not present and evidence was read that the first applicant departed Australia on 9 November 2015 and did not currently have a further visa that would permit her to lawfully re-enter Australia. 

13. At the commencement of the hearing, the court explained to the second applicant that the hearing was to determine whether the Tribunal’s decision was affected by legal error.  The Court explained that the relevant legal error had to be either an excess of statutory powers or a denial of procedural fairness.  The Court expanded to indicate that it had to be satisfied that the decision of the Tribunal had been made lawfully and was not made unfairly. 

14. The Court identified that, if satisfied, that the decision was unlawfully made or not made fairly, it would set aside the decision and send it back for a further hearing.  The Court explained that if not so satisfied it would dismiss the application.  The Court explained that it will identify the evidence and then hear submissions from the second applicant and then hear submissions from counsel for the first respondent and then hear submissions from the second applicant.  The second applicant confirmed that he understood the nature of the hearing, as explained by the Court.

15. In the course of the hearing, the second applicant tendered a passport identifying the birth of a further child of the first and second applicants.  At the time of the Tribunal’s decision, the first applicant was present and the potential need for the first applicant to care for that child was the subject of evidence, both from doctors, and identified by the Tribunal in its reasons. 

16. The second applicant was asked whether he had read the first respondent’s submissions and indicated that the first applicant had read the submissions but that the second applicant had not.  The second applicant also said that he had not read the affidavit filed in relation to the first applicant’s departure from Australia.  An interpreter, then present before the Court, read those documents to the second applicant and the hearing then continued with the benefit of a telephone interpreter and the second applicant confirmed that he had read the submissions of the first respondent and the affidavit.  

17. The Court repeated that the nature of the hearing was to determine whether the Tribunal’s decision was made lawfully and fairly and the second applicant was heard in that regard.  The second applicant first contended that what had occurred to him had been unjust.  The second applicant identified, in that regard, the decision of the principal of the college in relation to the first applicant, his wife, as well as what had occurred before the Tribunal. The second applicant maintained that he provided all the necessary documents and that he thought the decision was unjust. 

18. Counsel for the first respondent submitted that the applicants’ submissions, in substance, were seeking an impermissible merits review and failed to identify any jurisdictional error.  Counsel for the first respondent submitted that the adverse decision by the Tribunal was open on the material before the Tribunal. Counsel for the first respondent submitted that there had been no real issue in relation to the non-compliance with a condition, and that the Tribunal had lawfully exercised its discretion. It was submitted that no relevant unfairness had been identified or established by the applicants.  Counsel for the first respondent submitted that the grounds in the application failed to make out any jurisdictional error and, insofar as the grounds referred to the Tribunal having overlooked the grounds of cancellation, that was inconsistent with the reasons of the Tribunal.

19. The second applicant was invited to reply to the submissions of the first respondent and anything said by the Court, or anything further the applicant wished to put in relation to the application.  The second applicant identified that he just wanted his wife back, and that he had never failed to pay tax, and that he had tried to start a business, employing 10 people, and that the problems with the visa were ones that he thought were unjust and unfair. 

20. The Court explained to the second applicant that the Court does not have power to grant relief on compassionate grounds. The Court explained that the Court’s jurisdiction is confined to be able to grant relief if a jurisdictional error is made out, and the Court explained that that required that the decision was unlawfully made, or made unfairly. I accept the submissions of the first respondent as summarised above as to why no jurisdictional error is made out. Nothing said by the second applicant identified any basis upon which the Court would find any jurisdictional error. 

21. For the above reasons, the application fails to make out any jurisdictional error.  I am satisfied that the applicants had a genuine hearing in accordance with the statutory regime.  I am not satisfied that the Tribunal decision was affected by any unfairness, and I accept the first respondent’s submission that the decision was reasonable and open on the material before the Tribunal.  The application is dismissed. 

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

Associate: 

Date:  1 June 2016