Kaur v Minister for Immigration

[2016] FCCA 521

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 521

Catchwords:
MIGRATION – Judicial review – student visa.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), cl. 572.233 (2)(a)(ii), 572.22

Applicant: RAMANJEET KAUR

Second Applicant: HARPREET SINGH PANDHER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1390 of 2015

Judgment of: Judge Harland

Hearing date: 4 March 2016

Date of Last Submission: 4 March 2016

Delivered at: Melbourne

Delivered on: 11 March 2016

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Ms Kowalewska

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 19 June 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1390 of 2015

RAMANJEET KAUR

First Applicant

HARPREET SINGH PANDHER

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review with respect to a decision of the Tribunal made on 4 June 2015. The Tribunal affirmed the Delegate’s decision to refuse to grant the applicant a student visa (subclass 572) under s.65 of the Migration Act 1958 (Cth). Ms Kaur is the primary applicant. Her husband is an applicant as her dependant rather than in his own right. The applicant’s application for judicial review does not disclose any grounds for jurisdictional error, but rather, invites the Court to engage in an impermissible merit review. The applicant’s ground of review are set out as follows:

   1.  I seek an order that the decision of the delegate of the minister and the migration review may be squashed and replaced with a more favourable one;

   2.  I claim that the circumstances due to which my non-compliance of the visa occurred were beyond my control; and

   3.  I shall submit more evidence and statements in due course of time.

2. I explained to the applicant at the beginning of this hearing the nature of a judicial review and the limitations of that review. The applicant relied on written submissions dated 9 January 2016. The solicitor for the Minister relied on her written submissions filed 18 February 2016.  The applicant confirmed that she had received those submissions. I invited the applicant to make oral submissions. She repeated the claims that she made in her written submissions. The solicitor for the Minister said that the applicant had not disclosed any jurisdictional error and sought that the application be dismissed.

3. The issue before the Tribunal was the applicant’s non-compliance with her visa conditions. The Tribunal found that she had the required English language proficiency with respect to clause 572.233 (2)(a)(ii) of the Migration Regulations 1994 (Cth) which deals with whether or not the applicant was a genuine applicant. The issue really focused on whether she was a genuine applicant for entry as a student. The applicant does not dispute that she did not study for a period of 632 days. The Tribunal member was not satisfied that the medical evidence the applicant provided (which appears in the Court Book) was sufficient to explain her lack of study for that length of time. That finding was open to the Tribunal. The medical evidence was limited.

4. The Tribunal member also noted that the applicant did not apply for a deferral from her education provider. The applicant complains that she was misled by her migration agent who said that she did not need to study whilst she was on her bridging visa. The Tribunal expressed concerns that the applicant had only studied a limited number of short, inexpensive courses over a six year period. The Tribunal was also concerned that the applicant was now saying that she wished to study nursing, which was unrelated to her previous study in commercial cookery and hospitality management.

5. The Tribunal is the sole arbiter of fact. Given the material before it, it was open to the Tribunal to find that the applicant was not a genuine applicant for entry and to stay as a student.  In her written submissions, the applicant says that she met the criteria for language and finances and feels that she should be given “a fair go”. She says that she explained to the Tribunal that she did not study for that period because of her medical condition and because of her and her partner being stressed about their fertility issues. She concedes that the Tribunal was not satisfied with her explanation but says that the circumstances that led to her non-compliance with her visa conditions were beyond her control. Again, the applicant is inviting this Court to engage in a merits review which it cannot do.

6. In her written submissions, the applicant also said that there are compelling circumstances to grant her visa and in this regard, she was referring to the part-time work that she is doing. That argument is misconceived as there is no discretion pursuant to clause 572.22 of the Migration Regulations 1994 to grant a student visa because of compelling circumstances. 

7. Having considered the material, I am satisfied that the Tribunal has not made a jurisdictional error and I will dismiss the application.  In the event of being successful, the solicitor for the Minister sought the Minister’s costs in the sum of $6,825. I invited the applicant to make submissions with respect to the costs issue after explaining to her that, usually, a person who is successful is entitled to seek their legal costs in accordance with the Court’s scale and that the same would apply to her if she was successful. The applicant did not seek to make any submissions with respect to costs. I find it is appropriate to award costs in this case and I will order that the applicant pay the minister’s costs in the sum of $6,825.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 11 March 2016