KAUR v Minister for Immigration
[2015] FCCA 2465
•2 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2465 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.01 Migration Act 1958 (Cth), ss.362B, 363B & 359A Migration Regulations 1994 (Cth), cls.570.232, 571.232, 572.223(2)(a), 572.231, 573.231, 574.231 & 575.231 |
| Khadka v Minister for Immigration and Border Protection [2014] FCCA 1461 |
| First Applicant: | JASJIT KAUR |
| Second Applicant: | GURDEEP SINGH HUNJAN |
| Third Applicant: | YUVRAJ SINGH HUNJAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 395 of 2014 |
| Judgment of: | Judge Simpson |
| Hearing date: | 2 September 2015 |
| Date of Last Submission: | 2 September 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 2 September 2015 |
REPRESENTATION
| The Applicants: | In person |
| Solicitors for the First Respondent: | Ms J Noble for the Australian Government Solicitors |
ORDERS
The application filed on 20 October 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicants do pay the First Respondent’s costs fixed in the amount of FIVE THOUSAND AND EIGHT HUNDRED DOLLARS ($5,800).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 395 of 2014
| JASJIT KAUR |
First Applicant
| GURDEEP SINGH HUNJAN |
Second Applicant
| YUVRAJ SINGH HUNJAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Reasons settled from transcript)
An Application was filed on 20 October 2014. The Applicant seeks judicial review of a decision of the Migration Review Tribunal. That Tribunal has since been incorporated into the Administrative Appeals Tribunal.
The Application was made on 23 September 2014 pursuant to the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed a decision of a Delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) visa. I will now give some background to the matter.
On 1 June 2013, the First Applicant applied for the visa. The Second and Third Applicants were included in the Application as members of the family unit.
On 3 June 2013, the Department sent the Applicant an email requesting further information in support of the Application. No further information or documents were provided. On 15 July 2013, the Application was refused by a Delegate of the Minister, as the Applicant failed to provide any evidence, despite the request by the Department, in relation to the Schedule 5A financial requirements, for the purpose of cl.572.223(2)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 1 August 2013, the Applicant sought review by the Tribunal. By letter dated 19 August 2014 the Tribunal wrote to the Applicant to invite her to give evidence and present arguments relating to the issues arising in this case; in their case that is, at a hearing arranged on 22 September 2014 for 1.00pm South Australian time. Relevantly, for present purposes, the Tribunal requested the applicant to provide “Documents that show you are currently enrolled in a course or have an offer of involvement in a registered course as required for the grant of student visa”.
On 15 September 2014 and 19 September 2014, the Applicant was reminded by the Tribunal of the hearing by SMS messages to the first named Applicant’s mobile telephone number. On 22 September 2014, that is, the date of the hearing, the Tribunal attempted to telephone the applicant on her mobile telephone provided in the Application for Review and confirmed in the Applicant’s Response to the hearing invitation. The call went to voicemail.
I turn to the Tribunal’s decision. The Applicant failed to attend the hearing and did not provide any evidence or submissions in support of the Application to the Tribunal. Having taken into account that the Applicant was advised by letter and by mobile telephone messages of the hearing date and time, and that the Applicant did not provide any evidence in support of the Application, the Tribunal determined to decide the matter without taking any further action to allow or enable the Applicant to appear before it under s.362B of the Act.
On the basis that there was no evidence provided by the Applicant in respect of the Applicant’s involvement, and having confirmed this by reference to the Department’s computer database, ‘Provider Registration and International Student Management Systems’, called PRISMS as a shorthand, the Tribunal found that there was no evidence that the Applicant was enrolled in a course of study or subject to any offer of enrolment and hence, could not satisfy cls.572.232, 571.232, 572.231, 573.231, 574.231 or 575.231. The Delegate’s decision was thus affirmed.
I turn now to the proceedings before this Court. The Applicants seek judicial review of the Tribunal’s decision by filing an Application on 20 October 2014, and provides the following passage in support of their Application. The Applicants put this in as their ground in the Application filed on 20 October:
“Respected member of Tribunal stated that I do not have any current enrolment or offer and do not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231. My visa was refused for the college I applied to study for. I tried to enrol in the college but no one enrol me as my visa was refuse. There was no way I can study. Tribunal should know this problem and should have considered while making decision. Many students face same problem of enrolment after visa refusal. Tribunal made error by not considering this problem of students.”
Essentially, the applicant alleges that the Tribunal should have known that the Applicant’s enrolment was refused by her college as she was no longer holding a student visa, and the Tribunal should have taken this into account when considering whether the Applicant had a current enrolment.
I have now heard from the First and Second Applicants who have both appeared before me. The First Applicant spoke, and I believe understood, English but had nevertheless the assistance of an interpreter where she needed any sort of an explanation.
The Applicants complained in their submissions that a phone call was not made to them by the Tribunal and as a result material that they wished to provided was not provided to the Tribunal. This claim by the Applicants in open Court is not substantiated by other evidence before me, including the Tribunal’s reasons.
The Tribunal says that numerous phone calls were made to the Applicants’ telephone number at and around the time appointed, but none of them were answered.
To the extent that the Applicant’s grounds assert that the Tribunal failed to take into account a relevant consideration, it is, in my opinion, misconceived.
The Tribunal was not required to hypothesise as to the reasons why the Applicant had not provided evidence of her enrolment. It was required to consider whether the Applicant satisfied the criteria for the visa. This required the Tribunal to assess whether the Applicant was currently enrolled in a course or had an offer of enrolment in a course. Having regard to the fact that the Applicant did not put forward any evidence of her enrolment to the Tribunal, despite being invited to do so, the Tribunal’s finding was inevitable.
Fundamentally, it is for the Applicant to make out her or his case, that is, to satisfy the Tribunal that the necessary conditions for the grant of the visa are met. Accordingly, the Application is without merit and should be dismissed.
Given that the Applicant had not indicated to the Tribunal that she would not be attending the hearing, or was seeking an adjournment and had failed to provide the relevant documents to the Department or Tribunal in support of her visa application, there was nothing unreasonable or capricious about the Tribunal’s decision to proceed under s.363B of the Act. Furthermore, the Tribunal did not act unreasonably in proceeding in circumstances where the Applicant failed to attend the scheduled hearing.
Upon the Applicant’s failure to attend the scheduled hearing, the Tribunal had the power to make a decision on the review without taking “further action to allow or enable the Applicant to appear before it”, and that is provided for in s.362B of the Act. Moreover, the applicant was notified that the evidence of her involvement was a determinative issue on the review from the hearing invitation.
Finally, the First Respondent advises the Court that on the Tribunal’s file there is a print-out from PRISMS, the database that I mentioned previously, maintained by the Minister’s Department.
The First Respondent advised that on its face the document appears to have been generated on 1 September between the date of the hearing invitation and the hearing itself. Presumably, they say, at the request of the Tribunal. They say that it shows in relation to the Applicant, a series of enrolments in various courses between 2009 and 2014. They say that the print-out demonstrates that the Applicant did not have a current enrolment. The most recent entries on the print-out demonstrated that the Applicant’s enrolment in a Certificate IV Hospitality course, due to be finished on June 2014, was cancelled on 10 October 2013 for non-commencement of studies. The Applicant’s involvement in a Certificate III Hospitality course (due to be finished on 2 March 2014) was cancelled on 10 October 2013 as the Applicant was no longer holding a student visa. They say that to the extent that it could be suggested that the print-out from PRISMS constituted “information” which attracted the operation of s.359A of the Act, the First Respondent submits that the PRISMS information “represented an absence of evidence that the applicant was enrolled the study”. That quote comes from the case of Khadka v Minister for Immigration and Border Protection.[1]
[1] [2014] FCCA 1461.
The basis of the Tribunal’s refusal of the decision was that there was “…no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment, in any applicable course of study”. That is to be found in the Court Book at paragraph 11. That should have been so whether or not the Tribunal took the PRISMS document into account. Its importance was that the Applicant had not enrolled and had no offer of enrolment as required for the grant of the visa. As such, the PRISMS information was not “information” for the purposes of s.359A and in any event, the Applicant provided no evidence to the Tribunal of meeting the criteria for the grant of the visa.
No jurisdictional error in the Tribunal’s decision having been identified, in my view, the Application should be dismissed with costs.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 10 September 2015
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