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

[2021] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 421

File number(s):

SYG 393 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

10 March 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Show Cause – Vocational Education and Training Sector (Class TU) (subclass 572) visa – Student (Class TU) (subclass 500) visa – whether the Tribunal failed to consider information and/ or evidence – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss, 359, 360, 363(1)(b),476

Migration Regulations 1994 (Cth), sch, 2, cl, 500.211,

Federal Circuit Court Rules 2001 (Cth), r,44.12,

Cases cited:

WZAVW v Minster for Immigration and Border Protection [2016] FCA 760

Number of paragraphs:

30

Date of last submission/s:

25 February 2021

Date of hearing:

25 February 2021

Place:

Parramatta

Solicitor for the Applicants:

The Applicants’ appeared in person.

Solicitor for the Respondents:

Mr Pinder appeared on behalf of the First Respondent.

ORDERS

SYG 393 of 2020

BETWEEN:

RUPINDER KAUR

First Applicant

GURPREET SINGH

Second Applicant

ARNAV SINGH PAWAR

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The First and Second Applicants’ are to jointly and severally pay the First Respondent’s costs, fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The first applicant is a citizen of India. The first applicant arrived in Australia on 14 February 2009 as the holder of a Vocational Education and Training Sector (Class TU) (subclass 572) visa.

2. On 7 December 2017, the applicant applied for a Student (Class TU) (subclass 500) visa to study a Bachelor of Accounting with Group Colleges Australia. Included in the application, as dependent applicants’, are the first applicant’s spouse and child, being the second and third applicants’.

3. On 10 February 2018, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the first applicant the visa, as the delegate was not satisfied that the applicant intended to stay in Australia temporarily, for the purpose of study. Accordingly, the dependent visa applications’ were also denied.

4. The applicants’ sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 28 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants’ their visas. Given that the grounds of appeal do not make allegations of jurisdictional error, the matter was listed before this Court for a Show Cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision is relatively short. After setting out the background of the matter, the Tribunal noted that on 8 October 2019 the Tribunal wrote to the applicants’ and their representative, pursuant to s 359 of the Migration Act 1958 (Cth) (“the Act”), inviting them to provide information, requesting proof of enrolment in a registered course of study, and proof that the first applicant was a genuine applicant for entry and stay as a student.

6. The invitation letter advised that if the requested information was not provided in writing by 22 October 2019, or within any extended time frame as requested and granted by the Tribunal, the Tribunal may “make a decision on the review without taking any further action to obtain information”. If this occurred, the first applicant would lose any entitlement she might otherwise have under the Act, to appear before the Tribunal to give evidence and present arguments.

7. No information was provided within the prescribed period, and no extension of time was requested. Accordingly, on 28 January 2020, the Tribunal made its decision to affirm the delegate’s decision to refuse to grant the applicants’ Student visas.

8. The Tribunal considered whether or not it should adjourn the review under s 363(1)(b) of the Act, to allow the first applicant additional time to provide further evidence to support the review application. The Tribunal noted that it is not required to do this. The Tribunal was of the view that the review applicant had had a fair opportunity to provide the relevant information and determined that the review should proceed.

9. The Tribunal noted that there was no evidence before it that the applicant was enrolled in a course of study and therefore, cl 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) was not met. Accordingly, the Tribunal determined to affirm the decision under review. As the primary applicant failed to satisfy the requirements for a visa, the dependent applicants’ also failed in satisfying cl 500.211 of Schedule 2 to the Regulations. The Tribunal therefore affirmed the delegate’s decision, not to grant the secondary applicants’ their visas.

   GROUNDS OF JUDICIAL REVIEW

10. The grounds of judicial review are contained in the Initiating Application filed with the Court on 20 February 2020. They are as follows verbatim:

    Ground One

    We applied for a Student (Temporary) (Class TU) visa on 7 December 2017. Rupinder Kaur was the main applicant and Gurpeet Singh and Arnav Singh Pawar (minor under 18) were dependants.

    Ground Two

    This student visa application was refused on 10 February 2018 as the delegate mentioned that Rupinder did not satisfy requirements for cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

    We appealed this decision to the Administrative Appeals Tribunal and on 8 October 2019 the AATT asked to provide further information.

    After this date, the Tribunal affirmed the decision of the department to refuse our visa under s65 of the Migration Act 1958 on 28 January 2020.

    We explained to the Department and the AAT way RK should be considered and why we met the criteria needed to apply for the visa but they did not consider the evidence and information fairly and refused our visa.

    The unfair decision of the Department and the AAT will have a huge negative impact on our life and I would like the Federal circuit Court to consider this when looking at our case.

    We think that the AAT has made a jurisdictional error and deciding our application and we would like the Federal circuit Court to review this.

    Would like the court to find this jurisdictional error so that the decision made by the AAT can be quashed and our application can be returned to the AAT.

    We declare that we will follow all conditions and rules for this visa and respect all the laws of Australia like we have the whole time we have been here.

    We can provide the court any information they need to help us in the situation and we thank the court for taking time to consider our application.

    THE APPLICANTS’ SUBMISSIONS

11. The first applicant appeared before the Court unrepresented. The first applicant spoke on behalf of her family. The first applicant did not request the assistance of an Interpreter. The Court was satisfied that the first applicant was able to understand and participate in a meaningful way in the proceedings.

12. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of the relevant Court books and a copy of the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper so that she could take notes during the course of the proceedings if she wished to.

13. Despite Court orders, no written submissions were filed by the applicants’ in support of their application. An affidavit sworn 30 January 2020 by the first and second applicants’ merely repeated the grounds for judicial review set out above.

14. The Court carefully explained the procedure that would be followed during the course of the hearing. The Court explained the difference between merits review, which the Court could not undertake and judicial review.

15. The first applicant told the Court that she had supplied relevant material to her migration agent and thought she needed to do no more. The first applicant indicated that she simply wished to stay in Australia and complete her studies.

16. At the conclusion of the first respondent’s oral submissions, the first applicant was invited to further address the Court. The first applicant stated that she had nothing further to say.

    THE FIRST RESPONDENT’S SUBMISSIONS

17. The first respondent submits that the Tribunal invitation letter complied with all necessary procedural requirements and that as no material had been received or extension requested,

    
    

    s 359C of the Act applies and pursuant to s 360(3) of the Act, the review applicant was not entitled to appear before the Tribunal.

18. The Tribunal appropriately considered whether or not it should adjourn the review under

    
    

    s 363(1)(b) of the Act to allow the applicant additional time to provide further evidence to support the review application. The Tribunal noted that it is not required to do this. The Tribunal was of the view that the review applicant had had a fair opportunity to provide the relevant information and determined that the review should proceed. This decision does not give rise to any jurisdictional error.

19. As the Tribunal noted there was no evidence before it that the applicant was enrolled in a course of study, cl 500.211 of the Regulations was not met. The Tribunal had no alternative but to affirm the decision under review. As the primary applicant failed to satisfy the primary requirements of the visa, the dependent applicants’ also failed in satisfying cl 500.211 of Schedule 2 to the Regulations. The Tribunal therefore, affirmed the delegate’s decision not to grant the secondary applicants’ their visas.

20. It was submitted on behalf of the first respondent that grounds one to four, six and nine do not allege any discernible jurisdictional error. Specifically, grounds one to four provide a loose procedural background to the matter. Ground six constitutes a request to the Court consider the negative impact the visa refusal will have on the applicant’s lives, which is an invitation to engage in impermissible merits review. Ground nine is simply a declaration that the applicants’ will continue to follow the rules for the visa and Australian laws. Ground ten is an offer to assist the Court in providing any information needed by the Court “to help us in this situation”.

21. Ground five alleges a failure to consider information and/or evidence. It is submitted that this ground is misconceived. The Tribunal decision turned on the issue of whether the first applicant met a mandatory requirement for the student visa, that being a current enrolment in a registered course of study. The Tribunal requested that information however the first applicant failed to provide the information requested within the prescribed period. The first respondent submitted that there was no additional evidence to which the Tribunal was required to consider. Accordingly, this ground must fail. It is also noted that there is a reference to the delegate in this ground. This is not reviewable by the Court: see s 476(2) of the Act.

22. The first respondent notes that there was information before the Tribunal that the first applicant’s previous courses had been cancelled. This information was not relied upon by the Tribunal in coming to its determination, rather, the Tribunal relied on the fact that the first applicant was not currently enrolled in a course. It was for this reason that the Tribunal did not make any reference to the Provider Registration and International Student Management System (“PRISMS”) records and these records did not form any part of the Tribunal’s reasoning.

23. Grounds seven and eight are bare assertions of jurisdictional error unsupported by any particulars. On this basis alone, it is a sufficient ground for the matter to be dismissed: see WZAVW v Minster for Immigration and Border Protection [2016] FCA 760 at [35].

    CONSIDERATION

24. In order for a Student visa to be granted, the requirements of cl 500.211 of the Regulations are required to be met. This includes evidence that the first applicant is currently enrolled in an approved course of study.

25. No evidence was provided to the Tribunal of such an enrolment. In these circumstances, the Tribunal had no option other than to affirm the decision under review.

26. The applicant’s grounds of judicial review, such as they are, do not make allegations of jurisdictional error. The Court agrees with the first respondent that grounds one to four, six and nine are merely a background to the matter, a request to the Court to consider the impact of the visa refusal on their lives, together with declarations that the applicants’ will continue to follow the rules for the visa.

27. Ground five loosely alleges a failure to consider information and/or evidence. The Tribunal considered the matter and the lack of evidence before it that the applicant was involved in an approved course. The Court agrees with the first respondent that no additional information was required.

28. Grounds seven and eight are bare assertions of jurisdictional error and in the absence of particulars, are impossible for the first respondent to reply to. In these circumstances, the Court is satisfied that the grounds are misconceived as the applicant’s invite the Court to identify a jurisdictional error for them. It is for the applicants’ to make their case to the Court.

29. None of the applicants’ grounds of judicial review, at their highest, reveal any jurisdictional error.

    CONCLUSION

30. The Court is accordingly satisfied that it is appropriate to make an order pursuant to

    
    

    r 44.12(1)(a) of the Rules, to dismiss the application.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       10 March 2021