KIRAN v Minister for Immigration
[2016] FCCA 2021
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIRAN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2021 |
| Catchwords: MIGRATION – Judicial review – Indian citizens – temporary student visa – whether failure to take into account material facts – whether enrolled in course of study – whether jurisdictional error. |
| Legislation: Migration Regulations 1994 (Cth), Sch.2, cl.572.223, Sch.5A, cl.5A408 |
| Cases cited: Kaur v Minister for Immigration & Border Protection [2016] FCA 132 Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 Mushke v Minister for Immigration & Anor [2016] FCCA 897 |
| First Applicant: | KIRAN |
| Second Applicant: | RAJDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 445 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| For the First Applicant: | In person (with the assistance of an interpreter) |
| For the Second Applicant: | In person (with the assistance of an interpreter) |
Counsel for the First Respondent: | Mr P R Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 445 of 2015
| KIRAN |
First Applicant
| RAJDEEP SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 26 October 2015 the first and second applicants lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 8 September 2015, to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the first and second applicants Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visas (“Temporary Student Visas”). A copy of the Tribunal Decision is at Court Book (“CB”) 89-91.
Background prior to Tribunal hearing
The background to the Judicial Review Application prior to the Tribunal hearing is as follows:
a)the first applicant is a citizen of India who first commenced studying in Australia in August 2009, and has since remained in Australia: CB 1, 51 and 90;
b)the first applicant has previously held three student visas, the last of which was current until 9 July 2014: CB 91;
c)on 26 June 2014 the first applicant applied for a further Temporary Student Visa. The second applicant is the first applicant’s husband, and was included as a member of the first applicant's family unit in the application: CB 1-9;
d)the application for Temporary Student Visas was made on the basis that the first applicant was enrolled in two courses with Perth Education Group Pty Ltd trading as Technical College of Western Australia, as follows:
i)a Diploma of Marketing with a course start date of 28 July 2014, and course end date of 25 January 2015; and
ii)a Diploma of Business with a course start date of 23 February 2015, and a course end date of 21 February 2016: CB 2 and 47-49;
e)on 27 June 2014 the Department of Immigration and Border Protection ("Department") wrote to the first applicant requesting additional information in relation to her Temporary Student Visa application, and the first applicant was required to provide additional information within 28 days of being taken to have received the letter: CB 15-24;
f)the first applicant provided documents with attachments to the Department by email sent on 14 July 2014. The Department responded on 23 July 2014 advising that it was still waiting on her explanation about a study gap in 2009-2010, and evidence to support her claims to be a temporary entrant: CB 25-31 and 32;
g)the first applicant forwarded further documents to the Department on 30 October 2014, including two documents issued by the Punjab National Bank referring to a deposit of 2,500,000 Rupees in the name of Surinder Kumar: CB 34-46;
h)on 30 October 2014 the Delegate’s Decision was not to grant the first applicant a Temporary Student Visa, either in Subclass 572, or any of the other visa subclasses within Class TU. The first applicant was advised of the Delegate’s Decision by letter dated 30 October 2014 sent to her email address: CB 52-56 and 57-62;
i)the Delegate refused to grant the first applicant the Temporary Student Visa because the Delegate was not satisfied that the first applicant met the requirements of Schedule 5A of the Migration Regulations 1994 (Cth) ("Migration Regulations") with respect to the financial capacity criterion, and therefore the first applicant did not meet clause 572.223(2) of Schedule 2 to the Migration Regulations. Consequently, the Delegate also refused to grant a Temporary Student Visa to the second applicant: CB 58-59;
j)on 13 November 2014 the first and second applicants made an application to the Tribunal for review of the Delegate’s Decision: CB 63-64 and 67;
k)on 20 November 2014 the Tribunal wrote to the first and second applicants acknowledging receipt of their application for review, and advised them that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible: CB 67-69;
l)on 11 December 2014 the Department of Education and Training updated its records regarding the first applicant's Diploma of Business course at the Technical College of Western Australia, noting that her Confirmation-of-Enrolment for this course had been cancelled: CB 72-73;
m)on 19 August 2015 the Tribunal wrote to the first applicant to invite her to appear before the Tribunal at a hearing to be held on 8 September 2015 (“Tribunal Hearing”), to give evidence and present arguments relating to the issues in her case: CB 76-78. The first applicant was requested to provide all documents that she intended to rely upon to establish that she met the criteria for the Temporary Student Visa: CB 76. The first applicant was also requested to provide various specific information as quickly as possible, including:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
CB 77; and
n)the Tribunal requested that the information and any other evidence be provided to the Tribunal at least seven days before the Tribunal Hearing: CB 77.
Tribunal Hearing and Tribunal Decision
A transcribed copy of the audio record of the Tribunal Hearing is annexed to the affidavit of Margaret Lang affirmed on 25 July 2016, and is Annexure “ML-1” thereto (“Tribunal Hearing Transcript”). The Tribunal Hearing Transcript runs to 6 pages which are numbered within Annexure ML-1.
The first applicant had not provided the evidence requested by the Tribunal prior to the Tribunal Hearing, and did not provide the requested evidence at the Tribunal Hearing. The first applicant advised the Tribunal at the Tribunal Hearing that she could provide evidence if granted extra time: Tribunal Hearing Transcript, pages 3 and 5, CB 90 at [11].
The Tribunal decided not to grant the first applicant further time to provide the evidence it had requested, as it believed that she had had ample opportunity to provide the required evidence: Tribunal Hearing Transcript, pages 5 and 6, CB 90 at [11]. The Tribunal Decision was to affirm the Delegate’s Decision, as the first applicant had not provided any evidence of current course enrolment: CB 90 at [10], Tribunal Hearing Transcript, page 6. The Tribunal advised the applicants of the Tribunal Decision orally at the Tribunal Hearing: Tribunal Hearing Transcript, pages 5 and 6, and further advised them of the Tribunal Decision by letter dated 8 September 2015: CB 83-85.
The Tribunal Decision was formally reduced to writing, reflecting the terms of the Tribunal Decision made orally on the day of the Tribunal Hearing, and relevantly said as follows:
5. You have previously held 3 student visas, the last of which was current until 9 July 2014. On 26 June 2014 you applied for a further student visa and at that time were requested to provide a range of evidence you met the requirements for the grant of a student visa including evidence you met the financial capacity requirements.
6. You provided evidence of funds held by a Surrinder Kumar however no evidence of the relationship between you and Surrinder Kumar was provided and so your application was refused.
7. You applied to the Migration Review Tribunal for review of that decision, and on 20 November 2014 the tribunal wrote acknowledging your application and stated that if you wished to provide material or written arguments for the tribunal to consider you should do so as soon as possible; but nothing was received.
8. On 19 August 2015 you were sent an invitation to appear before today's hearing and with that invitation you were requested to provide evidence you are eligible for the grant of a student visa. You were asked to provide a current Certificate of Enrolment which it explained was a requirement for the grant of a visa, and you were asked to provide evidence you met the Schedule 5A requirements of English and Financial Capacity which was reason your visa was originally refused.
9. You did not reply to the hearing invitation and did not provide the requested evidence.
10. Current enrolment is a prerequisite for the grant of a student visa because it is only when an applicant is enrolled and has a known period of intended studies that it is possible to determine other requirements such as finances and the duration of health cover et cetera.
11. At this hearing you say you can provide evidence if granted extra time. In the circumstances where there have been multiple requests detailing the evidence required and I believe you have had ample opportunity to provide the required evidence, the tribunal is not prepared to grant further time, but finds that you do not meet the requirements for the grant of a subclass 572 visa without being enrolled. You therefore did not satisfy clause 572.223.
12. It is therefore the decision of this tribunal to affirm the decision under review.
DECISION
13. The Tribunal affirms the decisions under review.
CB 90 at [5]-[13] (transcribed verbatim).
Judicial Review Application
On 2 October 2015 the first and second applicants made the Judicial Review Application to this Court seeking review of the Tribunal Decision.
The applicants’ ground of appeal in the Judicial Review Application is as follows:
1.The Tribunal failed to take into consideration material facts, namely the financial evidence provided in support of the applicant’s visa application lodged on 26/06/2014. The funds in the Punjab National Bank were held in the name of the applicant’s father, Surinder Kumar and therefore, the applicant had access to these funds. This was a material fact and the Tribunal’s failure to take this into account and/or not giving it the appropriate weight, amounted to jurisdictional error.
The Judicial Review Application was supported by an affidavit sworn by the first applicant on 2 October 2015 (“Applicant’s Affidavit”). The first applicant deposed that:
a)her father provided two letters from the Punjab National Bank confirming that her father had access to funds totalling AUD$88,359: Applicant’s Affidavit at [3];
b)in relation to the request for proof of the relationship between her father and herself, she told the Department that her passport would already show her father's name and this was sufficient proof of the relationship, but if they wanted more proof, she would try and get it: Applicant’s Affidavit at [4];
c)the Tribunal had asked her about the funds in the Punjab National Bank to which her father had access, and that she told the Tribunal that her father's name was in her school certificate and her passport and that her father had access to sufficient funds: Applicant’s Affidavit at [5];
d)the Tribunal had asked her questions regarding her studies and if she had a certificate of enrolment, and if she had continued her studies and “other such matters”: Applicant’s Affidavit at [5]; and
e)she believed that the Tribunal did not take into the account the financial evidence that had been provided in support of her Temporary Student Visa application: Applicant’s Affidavit at [6].
On 25 November 2015 a Registrar of this Court made orders programing the matter for hearing, including that the first applicant file and serve:
a)any amended application giving complete particulars of each ground of review relied upon, and any affidavit containing additional evidence (including any transcript of the Tribunal Hearing) upon which she proposed to rely, by 1 February 2016; and
b)written legal submissions 42 days before the Tribunal Hearing.
The first applicant did not file any amended application, further affidavits or written submissions either prior to, or at, hearing.
Applicants’ submissions
At hearing the applicant made oral submissions to the following effect:
a)that she had evidence to support the fact that there were funds available in an account in her father’s name for her to use, and that she was asked and could prove the relationship with her father, but that the Tribunal did not allow her further time to do so in circumstances where her father was having a hip replacement at the time the information was sought; and
b)in response to a question from the Court, conceded that she was “not enrolled” in any course, and that she had “given up” and was “not continuing” her studies following the Delegate’s Decision.
The second applicant also made an oral submission to the effect that the applicants could prove that they had access to funds, and also indicated that they had taken legal advice which indicated that they were not entitled to study following the Delegate’s Decision.
Minister’s submissions
In essence, the Minister submitted that the first applicant did not satisfy the various criteria for the grant of the Temporary Student Visa at the time of the Tribunal Decision and, in particular, did not satisfy the requirement to be currently enrolled, or have a current confirmation of enrolment, in a course of study.
The Minister also referred to Kaur v Minister for Immigration & Border Protection [2016] FCA 132 (“Kaur”), and submitted that Kaur was distinguishable (insofar as jurisdictional error was found in Kaur on the basis of a failure to provide information for the purposes of s.359A of the Migration Act) because the first applicant attended the Tribunal Hearing, and at the Tribunal Hearing confirmed that she was not currently enrolled in a course of study. In those circumstances there was not jurisdictional error of the type identified in Kaur, and the circumstances were more akin to those in two other cases referred to by the Minister, namely Arefin v Minister for Immigration & Border Protection (No. 2) [2016] FCCA 658 (“Arefin (No. 2)”) and Mushke v Minister for Immigration & Anor [2016] FCCA 897 (“Mushke”). These cases are dealt with in slightly more detail below.
Consideration
Case law
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
In Kaur the Federal Court held that it was a jurisdictional error for information obtained from the PRISMS database not to have been disclosed to an applicant pursuant to s.359A of the Migration Act where the applicant did not attend the Tribunal Hearing. In Kaur at [44] per Perry J the Federal Court observed that:
44. … it is apparent that the PRISMS record was not a mere absence of evidence on an essential statutory criterion. It was evidentiary material showing that there was no record of any current enrolment by the appellant in that database, contrary to the statutory criterion requiring that there be enrolment. That evidentiary material in turn formed part of the reason for the decision that the appellant had failed to satisfy that statutory criterion and therefore for affirming the decision on review. The fact that the evidentiary material was used by the Tribunal as, in effect, “proof of a negative”, that is in support of its finding that there was an absence of evidence in the appellants' favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.
In Kaur the Federal Court had already observed that there was no evidence of current enrolment or an offer of enrolment before the Tribunal, and it was therefore not open to the Tribunal to grant a visa for the relevant subclasses applied for, and the fact that the “reasons why an applicant may be unable to satisfy those criteria are not relevant in the absence of any discretion”: Kaur at [31] per Perry J, the Federal Court having previously observed that where the relevant criteria were not satisfied, the Tribunal had “no option … but to affirm the decision of the Minister’s delegate not to grant the visa” by reason of s.65(1) of the Migration Act: Kaur at [30] per Perry J.
In Kaur the absence of any enrolment in a course or an offer of enrolment in any course caused the Federal Court to refuse prerogative relief as futile, notwithstanding the jurisdictional error in relation to s.359A of the Migration Act. In Kaur at [47] per Perry J the Federal Court observed that:
47. Equally in this case, the grant of relief would be futile, as the Minister submits. This is because the very issue which Ms Kaur takes with the Tribunal's decision is that she cannot enrol in a course or obtain an offer of enrolment because her application for a visa was refused and this was a matter which the Tribunal failed to take into account. As she explained in her grounds of appeal, “I tried to enrol in the college but no one enrol me as my visa was refused. There was no way I can study. Tribunal should know this problem and should have considered while making decision.” However, as I earlier held, these were not difficulties which the Tribunal was entitled to take into account. It had no discretion. If Ms Kaur was not enrolled or had no offer of enrolment, the Tribunal was required to reject her application and, as a consequence, the applications by her family. As such, the appellants ultimately take issue with the criteria laid down by the legislator, rather than with the Tribunal's decision itself.
This Court in Arefin distinguished Kaur because of an admission before the Tribunal by the relevant applicant that she did not have a certificate of enrolment, and because the decision of the Tribunal therefore turned on the evidence of the applicants rather than any independent research, such as examination of a PRISMS record, that the Tribunal undertook itself: Arefin at [27] per Judge Driver. Thus, where the relevant applicant had not demonstrated that she was enrolled in, or the subject of a current offer of enrolment in, an acceptable course, and was therefore “unable to meet an essential criterion for the grant of the visas”: Arefin at [19] per Judge Driver, the applicants “faced … insuperable difficulty” because the relevant applicant was not enrolled in a course of study at the time of the Tribunal decision in that matter: Arefin at [25] per Judge Driver. In the circumstances, the Court in Arefin refused to reinstate an application which had been dismissed because of an earlier non-attendance by the applicants: Arefin at [28] per Judge Driver.
In Mushke, this Court likewise found that where there was no current offer of enrolment or confirmation of enrolment the application for judicial review should be dismissed: Mushke at [16]-[17] per Judge Harland. It does not appear that the Court was referred to Kaur in Mushke, and Kaur is not referred to in the judgment, but in light of the outcome in Kaur it makes no practical difference.
The circumstances of this case
The fact that on 30 October 2014 the first applicant had provided evidence to the Delegate from the Punjab National Bank of a deposit of 2,500,000 Rupees made on 9 July 2014 in the name of Surinder Kumar for a period of one year, was not sufficient to meet the requirements for the grant of the Temporary Student Visa.
The Tribunal asked the first applicant to provide evidence of a “current Certificate of Enrolment” and that she “met the Schedule 5A requirements of English and Financial Capacity”, and she did not provide the requested evidence to the Tribunal: CB 90 at [8]-[9].
When advised by the Tribunal at the Tribunal Hearing that she had not provided the requested evidence the first applicant advised the Tribunal that she could provide evidence if granted extra time: CB 90 at [11]. The Tribunal refused the first applicant extra time to provide further evidence. In the circumstances, where the first applicant:
a)was on notice of the necessity to provide evidence that she met the requirements for the grant of the Temporary Student Visa;
b)had been written to by the Tribunal and advised that she should provide material for the Tribunal to consider; and
c)had subsequently been written to again by the Tribunal and specifically asked to provide evidence, amongst other things, of a current Certificate of Enrolment,
the Tribunal’s refusal to grant extra time for the first applicant to provide further evidence was not unreasonable in the sense referred to in the High Court’s Reasons for Judgment in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181, as subsequently explained and summarised by the Full Court of the Federal Court and the Federal Court respectively in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 and Minister for Immigration & Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J, because there was an intelligible and justifiable rationale for the Tribunal’s refusal, namely that the first applicant had previously been provided with opportunities to provide evidence that she met the requirements for the grant of the Temporary Student Visa, but had failed to do so. Moreover, the Court notes that there has been no evidence provided to the Court beyond that which was before the Delegate, and no evidence that the first applicant would have been able to put before the Tribunal, either on the day of the Tribunal Hearing, or at any subsequent time if extra time to do so had been granted, evidence that she met the requirements for the grant of the Temporary Student Visa, and, in particular, the necessity to have a current Certificate of Enrolment.
At the time of the Tribunal Decision (8 September 2015) the first applicant was not enrolled in any course of study, a fact which the first applicant confirmed, both before the Tribunal: Tribunal Hearing Transcript at pages 4-5, and in her submissions to the Court: Transcript page 3, line 40, and which is also confirmed by records relating to the first applicant’s enrolment. The first applicant’s enrolment in both the Diploma of Marketing and the Diploma of Business course, in which the first applicant had been enrolled at the date of her Temporary Student Visa application, had been cancelled: CB 70, (Department's PRISMS database printout) and CB 72-73 (Department of Education and Training Confirmation of Cancellation of Enrolment in Diploma of Business, updated as at 11 December 2014), and the Diploma of Marketing course had, in any event, been due to be completed on 25 January 2015: CB 70. In this case it is not apparent as to whether the Tribunal had regard to the PRISMS records of the cancellation of the first applicant’s enrolments, but, in any event, it is immaterial given the first applicant’s confirmation at the Tribunal Hearing that she was not currently enrolled in a course and had no current confirmation of enrolment.
There was no jurisdictional error on the part of the Tribunal because of a failure to take into account a material fact as asserted by Ground 1, namely that the first applicant had access to funds in the Punjab National Bank held in the name of her father, Surinder Kumar. The material concerning the first applicant’s access to funds held in the name of her father was, in the circumstances, immaterial, because of itself it was insufficient to indicate that the first applicant met the requirements for the grant of the Temporary Student Visa, and there was no other evidence that she met those requirements.
The Tribunal Decision to affirm the Delegate’s Decision was on the basis that the first applicant did not meet the requirements for the grant of a Temporary Student Visa because there was no evidence that she was currently enrolled in a course of study, and that she therefore did not satisfy cl.572.223 of Schedule 2 to the Migration Regulations: CB 90 at [10]-[12].
In the absence of any evidence that the first applicant was enrolled in a course of study at the date of the Tribunal Decision, the Tribunal was legally bound to affirm the Delegate’s Decision not to grant the applicants Temporary Student Visas because the first applicant did not satisfy the criteria for the grant of the Temporary Student Visa: Kaur at [30]-[31] and [47] per Perry J; Arefin at [19] and [25] per Judge Driver.
In relation to the matter of legal advice adverted to by the second applicant that is immaterial because the Tribunal had no discretion in circumstances where the first applicant was not currently enrolled in a course of study, and was bound to affirm the Delegate’s Decision not to grant the first applicant a Temporary Student Visa, for reasons set out in Kaur at [30]-[31] and [47] per Perry J and Arefin at [19] and [25] per Judge Driver.
Finally, even if there was an error by the Tribunal in its consideration of the first applicant's financial evidence, or there was a breach of s.359A of the Migration Act in having regard to PRISMS records, any such error clearly did not amount to jurisdictional error because, ultimately, any such error would not have affected the exercise of the power to affirm the Delegate’s Decision not to grant the applicants a Temporary Student Visa, that power otherwise being exercisable because the first applicant did not met the Temporary Student Visa criteria because she was not enrolled in a course of study at the date of the Tribunal Decision: Yusuf CLR at [82] and [84] per McHugh, Gummow and Hayne JJ; Kaur at [47] per Perry J.
In all of the above circumstances, the Court is of the view that the Tribunal Decision is not affected by jurisdictional error. Even if the Tribunal Decision were so affected (which it is not in the Court’s view) the Court would exercise its discretion not to grant relief for reasons akin to those outlined in Kaur at [47] per Perry J.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 11 August 2016
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