KOHAR v Minister for Immigration - [2015] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOHAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 522

Catchwords:
MIGRATION – Migration Review Tribunal – Subclass 573 Higher Education Sector Visa – whether medical evidence demonstrated that the applicant was unable to maintain enrolment – no jurisdictional error.

PRATICE AND PROCEDURE – Summary Dismissal – application summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant:

VIKAS KOHAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 327 of 2015

Judgment of:

Judge Street

Hearing date:

5 March 2015

Date of Last Submission:

5 March 2015

Delivered at:

Sydney

Delivered on:

5 March 2015

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

Self-Represented

Counsel for the Respondent:

Mr Elliott

Solicitors for the Respondent:

DLA Piper

ORDERS

The application be summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 327 of 2015

VIKAS KOHAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958. The applicant is seeking constitutional writ in relation to the decision of the Tribunal delivered on 14 January 2015 affirming a decision to cancel the applicant’s Subclass 573 Higher Education Sector Visa.
The grounds advanced in the applicant are as follows:
1. I arrived in Australia on 15^th Dec 2013 on student visa Subclass 573 to study at Ultimo Tafe to study Cert IV & Diploma of Information Tech and further leading to degree in Bachelor of Information Technology at University of Western Sydney.
2. I was alone in Sydney and felt home sick, I had no friends in my circle and this caused me depression and stress. Considering this I spoke to my family in India and they said that we have a close relative in Melbourne who is willing to accommodate me so that I stay in a family environment and concentrate on my education, therefore I requested for a release letter from my University and I was released to go to Melbourne.
3. Further I took admission in a non SVP (Streamline Visa Processing) provider in Hospitality Management and applied for change in my visa subclass so that I can commence education while holding an appropriate visa.
4. My application for the Visa Subclass 572 was refused for not meeting the Genuine Temporary Entrant Criterion. I believe this was not fair on my part when I genuinely requested the Department of Immigration to change my visa to an appropriate visa subclass as per my new Course in Hospitality Management.
5. Once my visa was refused, the Dept of Immigration further cancelled my existing visa Subclass 573.
6. I further applied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 522
Decision Date: 5 March 2015

CaseChat Overview and Summary

The applicant, Kohar, sought judicial review of a decision by the Migration Review Tribunal (MRT) concerning her Subclass 573 Higher Education Sector Visa. The core of the dispute revolved around whether medical evidence presented by the applicant sufficiently demonstrated that she was unable to maintain her enrolment in her course of study, a requirement for the visa. The matter came before Judge Street of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the MRT had committed a jurisdictional error in its assessment of the medical evidence. Specifically, the Court was required to determine if the MRT's conclusion that the applicant had not established she was unable to maintain enrolment was so unreasonable that it constituted a jurisdictional error, thereby vitiating the MRT's decision.

Judge Street found that the MRT had properly considered the medical evidence before it. The Tribunal had weighed the evidence and concluded that it did not establish, to the required standard, that the applicant was unable to maintain enrolment. The Court held that the MRT's assessment, while perhaps not to the applicant's satisfaction, did not reach the threshold of unreasonableness required to establish a jurisdictional error. The application for judicial review was therefore summarily dismissed.

Orders