KUMAR v Minister for Immigration

[2020] FCCA 2306

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2306

Catchwords:
MIGRATION – Application for Student Visa – male applicant not enrolled in a course of study at the time of the hearing of the application before the Tribunal – failure by the male applicant to satisfy pre-requisite criteria for the grant of a visa – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch. 2, cl. 572.222, 572.223.

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

First Applicant: ANIL KUMAR

Second Applicant ANJALI BANSAL

First Respondent MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 424 of 2017

Judgment of: Judge Egan

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Brisbane

Delivered on: 20 August 2020

REPRESENTATION

First Applicant: In person

Solicitor for the First Respondent: Mills Oakley

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 2 March 2017 is dismissed.

3. The First and Second Applicants pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 424 of 2017

ANIL KUMAR

First Applicant

ANJALI BANSAL

Second Respondent

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The male applicant and the female applicant are citizens of India. The female applicant is a dependant of the male applicant.

2. The male applicant applied for a Student (Temporary)(Class TU) (Subclass 572) Visa pursuant to the provisions of the Migration Act 1958 (Cth) (‘the Act’).

3. On 29 June 2015, a delegate to the Minister refused to grant the visa to the male applicant.

4. On 7 February 2017, the Administrative Appeals Tribunal (‘the Tribunal’) orally handed down a decision, with reasons, which affirmed the decision of the delegate to refuse to grant the visa.

5. On 2 March 2017, the applicants filed an Originating Application for Review of the decision of the Tribunal. The grounds for review were as follows:

   “Grounds of Application

   1. The Tribunal failed to accord me the procedural fairness and natural justice as prescribed in Migration Law

   2. The Tribunal failed to comply with s359A of the Migration Act 1958

   Particulars

   a. The Tribunal committed jurisdictional error by failing to give in accordance with s 359A of the act, clear particulars of the followings

   i. That the reason submitted to meet the Genuine intention criteria by me were disregarded by Tribunal and not assessed

   3. The Tribunal has failed to give me an opportunity and to address the issues and grounds upon which the visa was refused for not meeting the legal requirement in clause 572.223 (1)(a) in Schedule 2 of the Regulation of the Migration Act

   4. The Tribunal made a decision disregarding my evidence submitted and assessing the documents and evidence I submitted in paper form and oral submission.”

6. At [14] of its reasons, the Tribunal found that at the time of the review hearing before the Tribunal the male applicant was not then enrolled in a course of study. The Tribunal also noted that the male applicant had indicated to the Tribunal that he did not then hold a current offer of enrolment. In those circumstances, the Tribunal found that the male applicant did not satisfy the pre-requisite requirements of cl. 572.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 572.222 relevantly provided as follows:

   “572.222

   (1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).

   (2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.

   (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.”

7. At [15] of its reasons, the Tribunal noted that notwithstanding that the male applicant had resided in Australia since April 2008, he had only completed two years of study. At [16] of its reasons, the Tribunal noted that in the light of the male applicant failing to meet the cl. 572.222 criteria, it was unnecessary for it to consider the genuine temporary entrant criteria under cl. 572.223 of Schedule 2 to the Regulations.

8. The Tribunal did not err in affirming the decision of the delegate. The male applicant had failed to satisfy a basic criteria for the grant to him of the visa. There was no jurisdictional error on the part of the Tribunal in finding as it did.

9. There is no merit to the originating application for review and the application of the male applicant is dismissed.

10. The decision of the Tribunal could not be considered as being legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

11. Because the male applicant’s application for review has been dismissed, the female applicant’s application is also dismissed. Her application could only succeed in the event of there being a successful application on the part of the male applicant.

12. The Court will hear the parties as to costs.  

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 20 August 2020

CORRECTION:

A.Order 3 has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show “The First and Second Applicants” in lieu of “The First Applicant”.