KUMAR v Minister for Immigration

[2016] FCCA 803

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 803

Catchwords:
MIGRATION – Application for judicial review of refusal of student visa – applicant seeks impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:
AZAFB v Minister for Immigration and Border Protection (2015) FCA 1383

Applicant: SANJEEV KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 254 of 2015

Judgment of: Judge McGuire

Hearing date: 11 April 2016

Date of Last Submission: 11 April 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the First Respondent: Ms Maddocks

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the second respondent be amended to read "Administrative Appeals Tribunal".

2. That the application for judicial review be dismissed.

3. That the applicant pay the first respondent's costs fixed in the sum of $4477.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 254 of 2015

SANJEEV KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application seeking judicial review of a decision of the Migration Review Tribunal ("the Tribunal") made 29 January 2015 affirming a decision of the Minister's delegate not to grant the applicant a student visa.

2. The applicant appears in this Court unrepresented but with the assistance of an interpreter.  The applicant had not provided any written submissions.  He made no oral submissions in support of his application.

3. The application for judicial review sets out no grounds alleging jurisdictional error in the Tribunal.  Rather, the grounds comprising 10 paragraphs offer only a narrative seeking a further merits review of his application, and best shown in [10] of the grounds of application as follows:

   I would like to apply to the Federal Court of Australia to seek further justice in my application, and would like to get more favourable outcome from the Court.  I am sure Court will consider my circumstances and can establish that I am a genuine application [sic] for student visa application, and will grant me a visa.

4. The applicant applied for a student visa on 14 January 2014.  He was in Australia at the time of the making of the application.  He was subject to the highest assessment level for the relevant course of study.

5. The application was refused by the Minister's delegate on 18 June 2014.

6. The applicant applied to the Tribunal for a review of the delegate's decision on 1 July 2014.

7. The applicant did not attend the hearing on 28 January 2015.

8. On 29 January 2015 the Tribunal made its decision affirming the delegate's determination and in the absence of the applicant.  The thrust of the applicant's submission for the visa was set out and considered at [14] of the reasons as follows:

   In a letter submitted to the Department, the applicant said that he had been working as a sales manager in his country, and that the pay structure is very bad there.  He stated that having a qualification from Australia will add a lot to his pay.  He will therefore be able to look after his parents and his brother.  The Tribunal has considered this submission but does not consider getting better pay in his home country and (b) [sic] able to look after his family better constitutes exceptional reasons to grant the visa, either when considered against the principles in Kim or the examples given in PAM 3.  The applicant has not advanced any other reasons for the visa to be granted, and the Tribunal therefore finds that he does not meet cl 572.227.

9. At [15] the Tribunal found that the applicant would not satisfy the criteria for the grant of any subclass within the Student (Temporary) (Class TU).

10. As the model litigant, Counsel for the first respondent addressed whether or not the Tribunal had followed the correct legislative process and gave the most favourable interpretation of the applicant's grounds.  Even on such a generous interpretation, it is clear that the applicant seeks an impermissible merits review where this Court does not have jurisdiction to review a decision of the Minister's delegate.

11. The criteria for the grant of the student visa provided in part 572 of schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations") cl 572.227 required at the time of the application:

    If:

    (a) the application was made in Australia;  and

    (b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study;  and

    (c) at the time of application, the applicant met the requirements of clause 572.211:

    (i)  as the holder of a visa of one of the following classes or subclasses:

    (T) Subclass 600 (Visitor)

    …the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

12. I am satisfied that the Tribunal addressed and proceeded under the correct statutory process.

13. Finally, and again as the model litigant, Counsel referred me to a recent decision of North J in AZAFB v Minister for Immigration and Border Protection,[1] with reference to the non‑attendance of the applicant at the hearing before the Tribunal.

    [1] AZAFB v Minister for Immigration and Border Protection (2015) FCA 1383

14. My reading of his Honour's decision suggests an onus on the Tribunal to pursue an applicant if he or she does not attend at a Tribunal hearing, having been properly notified.

15. There is no issue here that this applicant had been notified of the hearing pursuant to the statutory provisions.  Respectfully, however, I am satisfied that his Honour's decision in AZAFB (supra) is confined to its own factual platform and that the Tribunal was not obliged, in the circumstances here, to take further steps to have the applicant appear before it.  This was not a matter where the applicant had consistently engaged with the Tribunal over a period of time and where his failure to attend at the hearing might have alerted the Tribunal that something was amiss because of his non‑attendance.

Conclusion

1. Consequently, I am satisfied that the Tribunal, having properly served notice on the applicant of the hearing date, acted in accordance within its powers in proceeding to a hearing in the absence of the applicant.  I am satisfied that the relevant legislation was engaged and considered by the Tribunal and its exercise of discretion was open to it.  No jurisdictional error is identified.

2. The application will be dismissed, with an order for costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 May 2016