KC v Minister for Immigration

[2016] FCCA 354

FEDERAL CIRCUIT COURT OF AUSTRALIA

KC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 354

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – whether the Tribunal gave the applicant sufficient time for filing of further documents – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476

Migration Regulations 1994, reg.1.40A

Applicant: SUMAN KC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2745 of 2015

Judgment of: Judge Street

Hearing date: 22 February 2016

Date of Last Submission: 22 February 2016

Delivered at: Sydney

Delivered on: 22 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr J Pinder
Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent’s costs fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2745 of 2015

SUMAN KC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 9 September 2015 affirming a decision of the delegate not to grant the applicant a student temporary class TU visa. The applicant is a citizen of Nepal, was first granted a student class TU subclass 572 visa offshore on 31 July 2007. The applicant arrived in Australia on 13 August 2007. On 4 November 2014 the applicant applied for a student class TU subclass 573 visa.

2. The delegate identified the applicant’s history of commencing particular courses, four of which had been cancelled, and identifying the applicant’s more recent enrolment on 26 November 2014 in a Bachelor of Business.  The applicant had previously been enrolled in that course on 13 March 2012 and the enrolment had been cancelled on 5 September 2014.  According to the records from PRISMS the last date of study by the applicant for that course was 7 June 2014. 

3. Prior to the decision of the delegate, the delegate had written to the applicant on 6 November 2014 identifying PRISMS records and the need for the applicant to have information relating to his enrolment as well as to explain his academic progress.  The delegate refused the applicant’s application on the basis that he was not a genuine temporary entrant.

4. The applicant applied on 11 January 2014 for a review before the Tribunal.  By a letter dated 23 July 2015, the Tribunal invited the applicant to attend a hearing on 31 August 2015.  That letter identified the following (CB62):

   Additionally, please provide this information so that a decision can be made as quickly as possible:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. 

   4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation. 

5. The applicant attended the hearing to give evidence and present arguments and at that hearing on 31 August 2015 it was identified that the applicant’s enrolment in the Bachelor of Business had been cancelled in June 2015 because the applicant had not paid fees. The Tribunal identified the requirement that the applicant must have a current offer or be enrolled in a course that is a principal course of study and is a type specified under reg.1.40A of the Migration Regulations 1994.  The Tribunal raised this issue with the applicant and agreed to give the applicant until close of business on 1 September 2015 to provide any further evidence he wished as to discussions with the principal of the school about taking him back into the Bachelor of Business.

6. On 1 September 2015, the applicant requested a further week to provide documents and in response the Tribunal advised the applicant he had until 8 September 2015 to provide the further documents.  At the time of the decision no further documents had been provided and no further request for an adjournment had been made.

7. The grounds of the application are as follows: 

   1. The Applicant was not given enough time to submit requested documents by the Tribunal which is a failure to afford procedural fairness and jurisdictional error. 

   Particulars

   a. I was given until 8 September 2015 to submit College documents. 

   b. The College did not give me documents in time.

   c. The Tribunal made decision on 9 September 2015 without informing me.

   d. It was beyond my control to get College documents.

8. This was a matter where on 19 November 2015 the Registrar made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and further submissions.  No such documents were filed on behalf of the applicant.  At the commencement of the hearing, the applicant indicated that he wished to seek an adjournment in order to contact lawyers to assist him.  The applicant indicated that his first communication with a lawyer in that regard had been on 17 February 2016.  The applicant said that lawyers had told him they did not have enough time to help.  The applicant indicated that it was only on 11 February 2015 by telephone that he notified the first respondent that he would be trying to seek an adjournment.  The first respondent opposed the adjournment.

9. These proceedings were commenced on 8 October 2015.  The applicant contended that it was not until he received the Court book that he was in a position to go and speak to lawyers.  The applicant, on his own concession, made no effort to contact any lawyers prior to 17 February 2015.  There is no reason for the Court to believe that an adjournment would be of any utility.

10. Further, an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.  No satisfactory explanation was given by the applicant in relation to his failure to take steps to advance his application and to contact lawyers, if not from the date of his filing of his application, at least from the date of the orders made by the Registrar.

11. The Court raised with the applicant what he wished to say in support of his application in answer to the submissions of the first respondent and he indicated that he wanted more time before the Tribunal and that he did not get enough time.  When asked what the purpose of the time was, the applicant indicated it was to get information about his enrolment.  The applicant was asked whether he did actually get any further enrolment in the bachelor of commerce course, and he indicated that he had not.

12. The visa for which the applicant applied was a student temporary visa the purpose of which was to permit a genuine temporary entrant to pursue their academic courses consistent with the requirements of the regulations.  The applicant’s history identifies no basis upon which there could be said to be said to be some utility in the granting of an adjournment.  For these reasons, the adjournment was refused.

13. In relation to the ground raised in the application, it is clear that the Tribunal had notified the applicant well in advance of the hearing of the need to provide appropriate material relating to his course of enrolment.  In response to the applicant’s request for an opportunity for further time, the Tribunal granted that request, as identified above, and, in response to a further request, granted a further seven days.  No further request was made for an adjournment to the Tribunal.

14. The proposition that the applicant was not given enough time to submit documents is without substance.  The decision of the Tribunal to proceed to determine the matter after the expiry of the further seven days cannot be said to lack an evident and intelligible justification.  It cannot be said that the Tribunal acted unreasonably in making its decision on 9 September 2015, given the earlier notification and periods of time that have elapsed.  Ground 1 fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 February 2016