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

1. The application be summarily dismissed.

2. 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

1. 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.

2. 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 in MRT for the review of cancellation decision which was affirmed.

   I believe that I have not been given a fair decision by Dept of Immigration and MRT in my case, I will be providing further evidences of my claims during the processing of this judicial review.

3. In the application identifying a return date it is noted that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.

4. The Court, having looked at the reasons of the Tribunal and the grounds in the application, raised with the applicant whether there was any jurisdictional error or argument as to why the proceedings should not be summarily dismissed.

5. The applicant raised the proposition that he could not really understand the Tribunal and needed an interpreter.  The Tribunal set out, in considerable detail, which I will refer to shortly, what occurred in relation to the interpreter and materially found:

   15. …there were no apparent difficulties in the applicant communicating with the Tribunal throughout the hearing. No difficulties had been identified by the applicant. At no time after the hearing commenced did the applicant suggest that he wished to proceed with an interpreter. The applicant has not indicated, either throughout the hearing or in his post-hearing request, what difficulties he had experienced.

6. The applicant, before this Court, maintained that he required an interpreter. An interpreter was sworn in relation to seeking to identify whether there was any error in the conduct of the review and why should not be dealt with summarily.

7. The applicant raised the issue of his move to Melbourne, which is referred to by the Tribunal and that he was homesick and wanted to go back to India and referred to the seeking of a 572 visa.  These matters were identified and considered by the Tribunal and do not identify any jurisdictional error.

8. I take into account, in relation to the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), the principles in caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

9. In this case the Tribunal carefully set out the reasons why the decision of the delegate should be affirmed in relation to the cancellation of the applicant’s visa.

10. Relevantly, the Tribunal said:

    8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. The condition in question in the present case is condition 8516.

    9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

    10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. There is nothing before the Tribunal to suggest that the applicant was an eligible higher degree student or had a CoE in each course for which he was an eligible higher degree student.

11. The Tribunal also identified, at length, the procedural history of the matter and the conduct of the applicant, including the endeavour to avoid a hearing forwarding a medical certificate that did not identify any incapacitation or any reason why the applicant could not attend the process.

12. The applicant did, in fact, appear before the Tribunal on 14 January 2015 and confirmed to the Tribunal that he wished to proceed with the hearing on that date and made a finding:

    13. …The applicant had no difficulty engaging in the hearing and providing evidence.

13. The issue of providing an interpreter was raised with the applicant and the Tribunal found:

    14. …The applicant expressly stated on the MRT application form that he did not require an interpreter. The applicant did not respond to hearing invitation (a form which refers to the use of the interpreter) until very shortly before the hearing was due to commence. Nevertheless, in response to the applicant’s request the Tribunal informed the applicant that the hearing could be postponed and an interpreter arranged, however, the applicant stated that he wished to proceed without an interpreter and he expressly confirmed his willingness to do so. The Tribunal also requested the applicant to advise the Tribunal if he had any difficulty either understanding the questions posed to him or giving evidence. The applicant has not done so at any time during the hearing. As noted above, the applicant appeared to have no difficulty at all communicating with the Tribunal.

14. I refer to other findings above that the Tribunal made in relation to being satisfied that the applicant had a genuine and proper hearing.

15. The Tribunal turned to the question of the grounds for cancellation of the visa and noted that the applicant was no longer enrolled in the higher education course or principal course in the type specified in Subclass 573 visa. The Tribunal found that by ceasing to be enrolled in a higher education course and by not being subject to an offer of enrolment in a higher education course, the applicant breached condition 8516 of the student visa.  The Tribunal was satisfied that the ground for cancellation, under s.116(1)(b) exists and as that ground is not a mandatory requirement for cancellation, the Tribunal turned to consider whether there were compelling or compassionate reasons for granting a visa.

16. In that regard, in its material, that the Tribunal found that the applicant had undertaken minimal educational study in Australia and the applicant is not fulfilling the purpose of his travel and stay in Australia because he has not pursued study at a level for which the visa was granted.

17. The Tribunal noted that it had considerable concerns about the applicant’s evidence.  The applicant raised with the Tribunal, as I have referred to above, his applicant for a 572 visa and he asserts he was depressed and moving to Melbourne.

18. The Tribunal said there is nothing in the medical report that suggests the applicant was unable or was incapable of maintaining enrolment in a higher education course or pursuing such a course.

19. The Tribunal said for all these reasons the Tribunal does not accept that the applicant was depressed or that he suffered any medical or other condition that affected his ability to maintain enrolment in the higher education course.  The Tribunal reached this conclusion despite the medical evidence presented by the applicant.

20. The Tribunal sought to explain what occurred by reference to his agent and his friends and materially the Tribunal found that it did not accept that evidence of the applicant and the Tribunal found the applicant was not a genuine student and he has no interest in studying in Australia.

21. In these circumstances the Tribunal made a finding that was clearly open:

    35. The Tribunal finds that the breach is significant because the applicant’s transfer to another course precludes him from being able to fulfil the purpose of his travel to Australia of undertaking higher education study. Having considered the applicant’s circumstances, the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compelling circumstances in this case.

22. Having identified the significant breach the Tribunal concluded:

    38. The Tribunal has had regard to the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8516 and has found the breach to be significant. The Tribunal has rejected the applicant’s claim that he was affected by any medical condition and has formed the view that the applicant transferred to another course only because he preferred a shorter course and relied on advice of his agent and friends. The Tribunal has formed the view that the applicant did not take adequate steps to familiarise himself with visa conditions and requirements. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control and that there are no extenuating circumstances in this case. The cancellation will not affect any other person’s visa and will not breach Australia’s international obligations. The Tribunal is prepared to accept that some hardship will be caused to the applicant by the cancellation. The Tribunal has formed the view that it is not appropriate for the applicant to hold a higher education sector visa as the applicant is not enrolled in a higher education course and, at best, will commence higher education study in 2017.

    39. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

23. The findings of the Tribunal were clearly open on the material before the Tribunal.  The findings cannot be said to lack an evident and intelligible justification.  I am satisfied that the proceedings are doomed to failure.  There is no substance in any of the grounds of the alleged application.  The grounds fail to identify anything that could constitute a jurisdictional error.

24. In these circumstances I am clearly satisfied the proceedings have no reasonable prospect of success.  The applicant is summarily dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 March 2015