Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1234

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1234

File number(s):

MLG 425 of 2014

Judgment of:

JUDGE BLAKE

Date of judgment:

4 June 2021

Catchwords:

MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (Class TU) Subclass 570 visa – failure to satisfy the requirements of clause 570.223(2)(a)(iii) of Schedule 2 to the Migration Regulations 1994 and clause 5A206 of Schedule 5A to the Migration Regulations 1994 – no jurisdictional error established – Application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) cl 570.223 of Schedule 2, cl 5A206 of Schedule 5A

Number of paragraphs:

31

Date of hearing:

27 May 2021

Place:

Melbourne

Advocate for the Applicant:

In person

Solicitor for the Applicant:

None

Solicitor Advocate for the Respondents:

Mr Creedon

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 425 of 2014

BETWEEN:

GULWANT KAUR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	4 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

2.The Application filed on 11 March 2014 be dismissed.

3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $3,737.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. This is an application for review of a decision made by the then Migration Review Tribunal (now Administrative Appeals Tribunal) ('Tribunal') on 10 February 2014. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 570) visa ('visa').

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is an Indian national. She applied for the visa on 24 April 2013.

4. On 14 May 2013, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy the requirements of clause 570.223(2)(a)(iii) of Schedule 2 to the Migration Regulations 1994 (Cth) ('Regulations') and clause 5A206 of Schedule 5A to the Regulations.

5. On 17 May 2013, the Applicant applied to the Tribunal for review of the delegate's decision (Court Book 44).

6. On 21 May 2013, the Tribunal wrote to the Applicant and, among other things, invited her to provide material or written arguments to the Tribunal for consideration as soon as possible (Court Book 56).

7. On 17 December 2013, the Tribunal wrote to the Applicant to invite her to appear before the Tribunal for a Hearing on 3 February 2014 (Court Book 62). As part of the invitation to appear, the Tribunal asked the Applicant to provide a range of information that it regarded as necessary to enable it to assess whether the Applicant satisfied the requirements for the visa.   

8. The Applicant did not attend the hearing before the Tribunal on 3 February 2014. The Tribunal proceeded to hear the matter on that day. Subsequently, on 10 February 2014, the Tribunal affirmed the decision not to grant the Applicant the visa.

9. The Applicant commenced proceedings in this Court on 11 March 2014 by filing an application for review of the Tribunal's decision ('Application') and an affidavit in support. It is unnecessary to traverse the history of the matter in this Court, including the initial dismissal of the Application by a Registrar, the circumstances leading to the reinstatement of the Application and the various procedural orders that were made. It is sufficient to note, however, that the Minister filed written submissions and the Court Book. The Applicant did not file any written submissions nor any amended application. When the Applicant appeared before me, however, she sought to rely on a five-page statement that she had prepared that had been translated from Punjabi to English on 21 May 2019.

   THE APPLICATION FOR AN ADJOURNMENT

10. Prior to the hearing, on Tuesday 18 May 2021, the Court received an email from the Applicant requesting an adjournment. In the email, the Applicant sought an adjournment for various reasons including the health of the Applicant and that her uncle in India had passed away.    She sought an ‘extension’, though the nature of the ‘extension’ was not clear.   

11. The Applicant renewed her request for an adjournment at the commencement of the hearing before me. The adjournment was sought on substantially the same grounds as those set out in the email of 18 May 2021.  Additionally, the following occurred. First, the Applicant stated that she was feeling unwell.  Second, she sought to tender to the Court evidence from her doctor as to her medical conditions.

12. The COVID-19 protocols in place at the time of the hearing, along with Melbourne being on the verge of its fourth lockdown, prevented me from receiving the documentation that the Applicant wished to hand to my Associate. I asked the interpreter to read the documents the Applicant sought to rely on. The Interpreter did so, and I also asked some follow up questions.    The documents contained information as to various tests, procedures or next steps the Applicant was required to undergo in order for her to be further medically assessed.    Critically, nothing in the documents read to me by the interpreter indicated that the Applicant was unfit for work or was otherwise unable to participate in the hearing. I also note that while the Applicant stated that she was feeling unwell, she had appeared in the Court, and while nervous as many self-represented applicants in this jurisdiction are, she appeared to me to understand what was occurring and to be able to participate without impediment.

13. I ultimately refused the request for an adjournment. My reasons for doing so, which I indicated I would provide in writing, are as follows:

    (a)There is no evidence before me from a qualified medical professional that the Applicant was unable to participate in the hearing;

    (b)My own observation of the Applicant during the hearing was that, while nervous, she was able to participate in the hearing. There was nothing before me to suggest the Applicant could not participate because of the death of her uncle or the COVID-19 situation in India (or Australia) generally;

    (c)The Application was filed in this Court seven years ago. That is an extraordinarily long time ago. I accept that the delays have occurred for reasons beyond the control of the Applicant, including the well-publicised delays in this Court, and also the delay attributable to the Application being dismissed and then being reinstated. It is desirable, however, given the length of time, that the matter be finalised;

    (d)The Applicant has not articulated how any adjournment would result in the Court being better placed to hear the matter in circumstances where the matter has been in the Court for the better part of seven years, and the Applicant has not filed any additional material beyond what she filed at the time she initiated the proceedings;

    (e)Case management considerations weigh heavily in favour of the matter being heard now. This Court is very heavily listed and there are lengthy delays for those awaiting a final hearing. This matter was listed for hearing on 7 April 2021. The Court has set aside time for the hearing and has also provided an interpreter. It is undesirable that that time and cost be thrown away or lost. It is an inefficient use of court time and resources in circumstances where another matter cannot be heard.

    THE APPLICATION

    The Applicant’s contentions

14. The Application does not set out specific numbered grounds of review. Rather, attached to the Application and affidavit was a one page document ('Document'). The content of the Document is as follows:

    I Gulwant Kaur Applied for Student visa on 24th April 2013 for 570 visa subclass (Elicos)

    My student visa was refused on the basis of 570.223(2)(a) and clause 5A206.

    •My student visa was refused under the act 570.223 which means I am eligible to study only 40 weeks of Elicos, which I was totally unaware about, in the refusal letter it stated my Coe I provided was 48 weeks.

    MRT REFUSAL:

    I received the invitation for MRT on 17/12/2013:

    The hearing date for my MIGRATION REVIEW FOR TRIBUNAL COURT was on 3rd of February 2014

    Whatever documents required from the Tribunal body, I have all of them with me, which includes:

    •Coe for ELICOS

    •Certificate/ Transcript for previous studies

    •Financial documents from the date I applied for Student visa

    Reason for failing to attending the MRT:

    My father is suffering from Heart Problem along he had to go for Eye Operation as well, I received a call from my family about all the health issues my father is suffering from, I was upset and couldn't do anything I panicked and I was unable to notify the Migration Tribunal Body that I won't be able to make it.

    I assure you that if given a last chance, I can provide all the documents required by MRT office.

    Please give me permission to provide all the documents required for Student visa 570

    Documents attached includes as below:

    •Student visa Refusal Letter

    •MRT invitation

    •MRT decision Letter

    I can provide further documentation required for my file, below are my contact details

15. At the hearing, the Applicant submitted that she was not aware of the length of the course she enrolled in. She said she was unaware as to whether the total length of the courses she had enrolled in were 40 or 48 weeks. She blames her lawyers for that error and emphasised that she wanted to remain in Australia to work.

16. Finally, as I have noted above, the Applicant also gave to the Court a written statement. That statement outlined a range of personal circumstances affecting the Applicant, including that she was a victim of family violence, that she cannot return to India and that she wishes to be granted permission to stay in Australia.   

    The Regulatory framework

17. Given the Applicant’s unrepresented status, I have reviewed the decision of the Tribunal. In order to assess the reasons of the Tribunal, it is necessary to briefly consider the regulatory framework governing the visa.   

18. The starting point for this analysis is to understand what course the Applicant applied to be enrolled in. The Applicant applied to be enrolled in a Certificate III and IV ELICOS course (‘ELICOS course’). The relevant visa subclass was therefore subclass 570: see Types of Courses for Student Visas - IMMI 12/037 F2012L00670, Schedule 1.

19. As an applicant for a subclass 570 visa, the Applicant was required to satisfy, among other things, clauses 570.223(1) and (2)(a) of Schedule 2 to the Regulations. These clauses relevantly provide as follows:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)         the applicant’s circumstances; and

    (ii)       the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)      any other relevant matter; and

    (b)        the applicant meets the requirements of subclause (2).

    (2)      An applicant meets the requirements of this subclause if:

    (a)the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 570 and the assessment level to which the applicant is subject, in relation to:

    (i)the applicant’s English language proficiency for the purposes of each ELICOS that the applicant proposes to undertake; and

    (ii)the financial capacity of the applicant to undertake each of those ELICOS without contravening any condition of the visa relating to work; and

    (iii) other requirements under Schedule 5A; and

    (b)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; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

20. The 'assessment level' referred to in the regulations above is a matter to be determined having regard to Student Visa Assessment Levels - IMMI 12/005 f2012l00669 ('IMMI 12/005'). The Schedule to IMMI 12/005 identifies that passport holders from India are to be regarded as 'Assessment Level 4'.

21. Division 2 to Schedule 5A of the Regulations sets out the requirements for 'assessment level 4'. Relevantly for the purposes of the present proceeding, clause 5A206 sets out 'Other requirements' that must be met by visa applicants. It specifies as follows:

    The applicant must give evidence:

    (a)that the ELICOS that he or she is to undertake will be of no more than 40 weeks duration; and

    (b)that the applicant has the educational qualifications required by his or her education provider.

22. The effect of clause 5A206 of the Regulations is clear. An applicant must produce evidence that the ELICOS course that he or she is to undertake 'will be of no more than 40 weeks duration'. While in many walks of life exceeding the minimum requirements is something that is encouraged, it seems that in this case, an applicant who enrols in an ELICOS course that exceeds 40 weeks duration will not have complied with the Regulations and therefore will not be eligible for the visa.

    Consideration

23. There is no dispute that the Applicant enrolled in ELICOS courses that exceeded 40 weeks duration. She admitted as much. So much is clear from the course enrolment information contained in the Court Book (see Court Book 32, 34).

24. In the Document, the Applicant appears to assert that she now has the documents required for the visa to be granted. That may well be the case. It does not, however, give rise to any jurisdictional error on the part of the Tribunal, particularly in circumstances where clause 570.223 sets out the criteria to be satisfied at the time of the decision.

25. In the Document, the Applicant also claimed that her father was suffering from various health issues, that she was upset, panicked, and was unable to notify the Tribunal that she could not attend. There is some evidence to support the circumstances pertaining to the Applicant's father (Court Book 9). Against this, however, the following needs to be noted. First, as noted earlier in these reasons, the Applicant was invited on two occasions (21 May 2013 and 17 December 2013) to provide documents she intended to rely on to establish that she met the criteria for the visa. Second, the invitation to attend the hearing was sent approximately six weeks prior to the actual hearing date. The Applicant therefore was given plenty of time to arrange her affairs which included seeking an adjournment.

26. Third, and perhaps most significantly, the Tribunal gave consideration as to whether it should proceed to deal with the matter before it. At paragraph [8] of its reasons, the Tribunal stated as follows:

    8.The Tribunal is satisfied that the letters of 21 May 2013 and 17 December 2013 were correctly sent to the address provided for receiving correspondence. The Tribunal considered whether to take further action before proceeding to a decision. The Tribunal waited a further week but did not receive any contact from the applicant or her representative. The Tribunal has invited the applicants twice on different occasions to provide any material, written arguments, evidence relating to the issue arising in the review and to appear at a hearing but she did not respond to any of these invitations and did not avail herself of these opportunities. In fact the applicant has not provided anything in support of her appeal of the Minister's decision since she applied for review in May 2013. The Tribunal is satisfied that it is appropriate to proceed to making a decision on the basis of material before it.

27. In my view, when the paragraph above is reviewed, it discloses the Tribunal acted reasonably in proceeding to determine the matter. The Tribunal had sent the Applicant requests to provide information to it, had provided six weeks' notice of the hearing to the Applicant, had waited prior to deciding whether to proceed with the hearing, and noted that the Applicant failed to provide any material to support her application. In all the circumstances, the decision of the Tribunal was one that was open to it.

28. In the hearing before me, the Applicant says her lawyers were at fault for what occurred. That appears to be the first time that contention has been advanced by the Applicant. I note it is not advanced in the Application or in the Document. While the Applicant submitted her lawyers or representatives are at fault, she did not produce any evidence to support that contention.    Absent any evidence, I am not prepared to make any finding that the Tribunal committed jurisdictional error.

29. Finally, there is the statement which the Applicant gave to the Court during the hearing, the content of which I have noted above. It is difficult not to feel some sympathy for the Applicant given the content of her statement. Regrettably, however, the statement does not meaningfully advance her case in this Court nor is it relevant to the Application for judicial review and the question of whether the Tribunal has committed jurisdictional error.

30. When all of these matters are considered, I am of the view that the Tribunal has not committed jurisdictional error. The decision of the Tribunal was the only one open to it given the material that was before it. Accordingly, the Application should be dismissed.

31. The Minister sought an order for costs in the sum of $3,737. The Applicant has been wholly unsuccessful. It is appropriate that costs be awarded to the Minister.   

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       4 June 2021