KAUR v Minister for Immigration

[2016] FCCA 843

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 843

Catchwords:
MIGRATION – Application for judicial review of MRT decision – show cause hearing – sole ground of application clearly constituting merits review – no arguable case for the relief claimed.

Legislation:

Federal Circuit Court Rules 2001, r. 44(1)(a)

Applicant: AMRITPAL KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2380 of 2014

Judgment of: Judge Burchardt

Hearing date: 21 March 2016

Date of Last Submission: 21 March 2016

Delivered at: Melbourne

Delivered on: 18 May 2016

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr Day

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application is dismissed pursuant to rule 44(1)(a) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2380 of 2014

AMRITPAL KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal on 25 November 2014. The decision of the Tribunal dated 31 October 2014 was to affirm a decision of a delegate of the First Respondent not to grant the Applicant a Student (temporary) (Class TU) visa.  The matter was set down by consent for a show cause hearing which was heard on 21 March 2016. 

2. The sole ground of application is set out as follows:

   The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:  The applicant provided documents to the Tribunal to corroborate her claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents.

3. Although the orders made by Registrar Caporale on 4 March 2015 gave the Applicant the opportunity to file any amended application and written submissions, she did not do so. When the matter came before the Court, the Applicant made very brief oral submissions. In essence, she referred to a gap in her studies because of injury to her husband. This was the reason for visa refusal. She was going to finish her studies soon. She would lose everything if her application was not granted.

4. At the time at which the Applicant originally applied for her visa on 20 December 2012, the relevant criterion for the subclass 573 higher education sector (which is the visa for which the Applicant was applying) was at clause 573.223(2)(b) as follows:

   “The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter.”

5. The Applicant was alerted by the Departmental officer as early as 21 December 2012 that a gap in her studies from February 2010 until December 2010 was of significance (CB33). She responded with a Statement of Purpose at CB41-43 which attributes the gap in studies to problems associated with the Applicant’s former husband. It was asserted that he had inflicted domestic violence upon the Applicant. It was also asserted that the husband was treated in the Royal Melbourne and Epworth Hospitals for a lengthy period of time. 

6. A delegate of the First Respondent gave a decision on 24 October 2013.  The delegate did not accept the Applicant’s explanation for her gap in studies. The delegate noted that the Applicant had requested and been approved for a deferment from studies from August 2013 until October 2013 and noted that no such application was made in 2010. The delegate also noted that during her time in Australia (since 2008), the Applicant had only successfully completed a Certificate III in Graphics, Diploma of Management and an Advanced Diploma of Management.  This lack of progression together with the gap in studies caused the Delegate to refuse the application.

7. The Applicant sought review before the Tribunal and wrote to the Tribunal on 14 April 2014 (CB192). That letter essentially repeats the matters earlier asserted by the Applicant about the difficulties with her husband and referred to her divorce. She asserted she would, now being free of family tensions, be able to advance her education.

8. The Applicant forwarded a number of medical documents to the Tribunal of which are at CB198-203. They include an unremarkable CT scan, an assertion of iron deficiency and two medical certificates dated 16 December 2013 which assert simply that the Applicant had presented with a headache and might benefit from a routine eye check.

9. The Applicant also forwarded a death certificate in relation to her father and a successful application for special consideration (CB204-5). 

10. The Tribunal’s decision commences with the history of the application and sets out the requirements of cl 573.223 which are annexed to the decision itself. At paragraph 10, the Tribunal found, correctly as it seems to me, that the Applicant was required to meet the requirements of cl 573.223(2)(b) because she was not an eligible higher degree student with a corresponding COE.

11. The Tribunal then records at CB213-216 its interaction with the Applicant at the Tribunal hearing.  At paragraph 16 CB214, the Tribunal recorded:

    “The applicant submitted a copy of the Divorce Order made by a Registrar of the Federal Magistrates Court of Australia on 22 May 2011. Initially at hearing the applicant said that she and her ex-husband were divorced by the time of his accident in 2010.  The applicant later said that her husband had the accident at the end of 2009. The tribunal queried whether they had separated by that stage. The tribunal suggested that divorces are not generally granted until parties had been separated for 12 months. The applicant said that they separated in 2011. In the tribunal’s view, it is inconsistent that the marriage had irretrievably broken down by May 2010 (as the applicant would have been required to attest in the divorce proceedings) but that the applicant continued to be so distracted by her husband’s medical condition that she was unable to attend classes from February 2010 until December 2010.” 

12. The Tribunal also expressed doubt about the Applicant’s claim to have spent whole days at the hospital, noting that Australian hospitals are staffed with doctors and nurses to look after patients (paragraph 17 CB214). 

13. The Tribunal went on to find at paragraph 18:

    “The applicant’s written statement dated 14 April 2014 refers to her not being able “to attend some classes” and unable to concentrate on her studies without anyone to support her. The applicant however has not provided corroborative evidence of attending any classes or being enrolled between 2 February 2010 and 1 December 2010.  Her email of January 2013 to the Department refers to her “gap in studies”.  There is some apparent inconsistency in the applicant’s written and oral evidence as to whether she was attending any classes in that period.  The tribunal is simply not satisfied that the applicant was attending classes in the period, noting she is represented by a registered migration agent who could have assisted the applicant with providing relevant evidence on this point. Nor has the applicant provided any corroborative evidence of her claim that her ex-husband spent many months being treated in Royal Melbourne Hospital and Epworth Hospital. She said that she didn’t have any documents about her husband being in hospital because she had had no contact with him after the divorce. Taking into account concerns about the reliability of the applicant’s evidence, that the applicant did not seek leave of absence from her education provider and that the divorce order was dated 21 April 2011 and took effect on 22 May 2011, the Tribunal does not accept that the applicant was attending her husband in hospital or was distracted by his injuries to the extent that she was unable to successfully pursue her studies.”

14. The Tribunal then went on to deal with the Applicant’s claim that her academic progress was inhibited because of domestic violence. The Tribunal noted at paragraph 19 that no evidence to support any alleged assaults was provided. The Tribunal, bearing in mind concerns about the Applicant’s credibility, did not accept that her study was impeded on the basis of being a victim of domestic violence and physical assault.

15. The Tribunal thereafter at paragraphs 20-27 (CB215-217) analysed the amount of academic progress the Applicant had or had not made. The Tribunal noted the comparative lack of progress (see paragraphs 21 to 22 in particular) and found at paragraph 25:

    “The tribunal has found above that since arrival in Australia in November 2008, the applicant has completed a Certificate III in Printing and Graphic Arts, a Diploma of Management and an Advanced Diploma of Management.  Despite arriving on a subclass 573 student visa, it is taken the applicant some 4 ¹/₂ years to commence a higher education course which is not consistent with the grant of the higher education visa. Further, taking into account her level academic achievement in the explanations she has provided, the Tribunal considers that the applicant has a particularly poor academic record. The tribunal has not accepted that the applicant’s need to look after husband in hospital inhibited her capacity to study and maintain enrolment. Nor has the tribunal accepted that the applicant was subject to domestic violence which impacted on her capacity to maintain enrolment or successfully pursue studies.”

16. The Tribunal went on at paragraphs 26 and 27 to find that it had little confidence that the Applicant would progress satisfactorily in her studies. On the basis of those findings as a whole, the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay in Australia as a student and, therefore, did not meet clause 573.223(2)(b).

17. The Applicant’s grounds of application as earlier indicated assert that the Tribunal failed to engage in an active intellectual process with the documents she had submitted to it and gave the documents no weight on the basis of credit findings, this being said to be an error.

18. As the First Respondent’s written submissions point out at paragraph 10, the Tribunal did not make a determination to place no weight on the Applicant’s evidence on the basis of credibility findings. Rather, the Tribunal considered the evidence provided by the Applicant but did not accept the explanations she provided. The Applicant did not, in fact, provide any documentation from either the Royal Melbourne or Epworth Hospital. All she provided was the medical evidence to which I have referred, none of which supported any of the assertions that she was making. The Tribunal did not as it were set the Applicant’s documentation to one side because of credit concerns. Rather, the documentation provided simply did not establish anything that assisted the Applicant given the particular account she was seeking to sustain. 

19. In the end, the outcome of this proceeding can be stated shortly.  Regrettably for the Applicant, her application is in substance impermissible merits review. 

20. The Applicant has not shown an arguable case for the relief claimed (rule 44.12(1)(a)) and accordingly the court is required to dismiss the application. 

21. The application will be dismissed with costs.

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

Associate: 

Date:  18 May 2016