Kumar v Minister for Immigration

[2016] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 156

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.360
Migration Regulations 1994 (Cth)

Minister for Immigration v Li (2013) 297 ALR 225; Minister for Immigration v Singh (2014) 139 ALD 50

Applicant: ANIL KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3399 of 2014

Judgment of: Judge Driver

Hearing date: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

4. The Court notes that the applicant’s address for service is now 30A Peachtree Avenue, Constitution Hill, NSW, 2145.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3399 of 2014

ANIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from judgment)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), made on 11 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Kumar, a temporary student visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 25 January 2016. 

2. On 27 February 2014, Mr Kumar applied for a class TU visa[1]. Class TU relevantly comprised eight subclasses: subclasses 570–576 (inclusive) and subclass 580.

   [1] Court Book (CB) 1–32

3. At the time of his application, Mr Kumar held a visitor (subclass 600) visa. Together with his application, he provided a Confirmation of Enrolment (CoE) for the following courses:

   a)“General English (Elementary to Advanced)” at the Australian Vocational Institute Group Pty Ltd from 14 April 2014 to 10 October 2014[2]; and

   b)“Diploma of Business” at the Australian Vocational Learning Centre Pty Ltd from 3 November 2014 to 3 May 2015[3].

   [2] CB 27

   [3] CB 28

4. On 20 March 2014, a delegate of the Minister refused to grant Mr Kumar a class TU visa[4]. The delegate found that Mr Kumar was enrolled in or had been offered a place in, a course of study of a type specified in subclass 572. However, the delegate found that Mr Kumar did not satisfy regulation 572.227 of the Migration Regulations 1994 (Cth) (Regulations), because that Regulation (relevantly) required Mr Kumar to be the holder of a visa of a specified type at the time of application, or to establish “exceptional reasons” for the grant of the student visa. Mr Kumar did not at the time of application hold a visa of the specified type, and the delegate was not satisfied that exceptional reasons had been demonstrated. The delegate was also satisfied that Mr Kumar did not satisfy the primary or secondary criteria for the other subclasses in Class TU.

   [4] CB 42–57

5. By application dated 7 April 2014, Mr Kumar sought review of the delegate's decision before the Tribunal[5].  By letter dated 9 September 2014, the Tribunal invited Mr Kumar to attend a hearing on 8 October 2014[6]. On 16 September 2014, Mr Kumar (through his representative) sought a postponement of that hearing[7], and, by letter dated 8 October 2014, the Tribunal invited Mr Kumar to attend a rescheduled hearing on 10 November 2014[8]. Mr Kumar attended the hearing on 10 November 2014[9].

   [5] CB 58–69

   [6] CB 85–93

   [7] CB 94–96

   [8] CB 97–105

   [9] CB 106–109

Tribunal decision

1. The Tribunal affirmed the decision not to grant Mr Kumar a class TU visa[10].

   [10] CB 109–116

2. The Tribunal noted that, at the hearing, Mr Kumar gave evidence that he was not studying or enrolled in a course, and that his previous CoEs had expired because he had not commenced the courses[11].

   [11] CB 115 at [7]

3. The Tribunal indicated that it raised with Mr Kumar that it was a requirement for the grant of the student visa that he be enrolled in, or under offer of enrolment in, a course of study and that it did not appear that he was currently enrolled in or under an offer of enrolment in a course of study[12].

   [12] CB 115 at [7]

4. The Tribunal found that subclasses 570–575 (inclusive) all contained requirements that, at the time of decision, the applicant be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified under regulation 1.40A of the Regulations for the subclass at the time of application (viz. regulations 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations)[13].

   [13] CB 115–116 at [10]

5. The Tribunal noted that this did not apply to certain classes of “eligible higher degree students”, “eligible university exchange students” and “eligible non-award students”, but that Mr Kumar had not put evidence before the Tribunal that he was a student of any of these types[14].

   [14] CB 116 at [10]

6. As there was no evidence that Mr Kumar was enrolled in, or subject to a current offer of enrolment in, any applicable course of study, the Tribunal found that he did not satisfy the requirements for subclasses 570–575 (inclusive). The Tribunal also found that Mr Kumar did not meet the criteria for either subclasses 576 or 580 (and had not sought to be assessed under those subclasses). The Tribunal therefore found that Mr Kumar did not satisfy the criteria for any of the subclasses of Class TU[15].

   [15] CB 116 at [11]–[12]

The present proceedings

1. These proceedings began with a show cause application filed on 8 December 2014.  Mr Kumar continues to rely upon that application.  He has not taken up the opportunity afforded to him by orders made by Registrar Morgan on 22 January 2015 for the filing of additional material.  The grounds in the application are:

   1.The Migration Review Tribunal had before it an application with confirmation of enrolment yet failed in addressing on 8 Oct 2014 the issue raised during the hearing. The Tribunal failed to address the need for new enrolment and adverse    information as per point 11 of the Migration Review Tribunal.

   2.The Migration Review Tribunal also failed to interpret the exceptional reasons for the grant of a student visa.

   3.The Tribunal failed to consider important points such as the intention to study, and failed to give the opportunity to provide further request to me. (errors in original)

2. The application is supported by a short affidavit, which I received. 

3. I also have before me as evidence the court book filed by the Minister on 30 January 2015. 

4. Mr Kumar was uncertain whether he had received the court book.  It was sent approximately a year ago by the Minister’s solicitors.  Mr Kumar has changed his address, which I noted.  Mr Kumar was provided with a fresh copy of the court book and I received it into evidence.  I am satisfied that Mr Kumar has not been unfairly prejudiced by any late provision of the court book. 

5. I discussed the grounds in the application with Mr Kumar.  It was immediately apparent that Mr Kumar has no real quarrel with the Tribunal decision.  He would like the opportunity to make a further attempt to sustain his visa application by obtaining an enrolment in another course of study.  However, there is no evidence that he sought that opportunity from the Tribunal or, indeed, that he has taken any steps in that direction since the Tribunal decision. 

6. The Minister’s submissions deal appropriately with the grounds of review advanced.  I agree with those submissions. 

Ground 1

1. The first ground is unclear. To the extent that Mr Kumar claims that the Tribunal had before it a “CoE”, the Tribunal clearly had regard to the two CoEs submitted by Mr Kumar to the Minister’s Department (Department) together with his visa application[16].  These were the only CoEs submitted by Mr Kumar to the Department or to the Tribunal[17]. However, the Tribunal also records Mr Kumar’s oral evidence that both of these CoEs had expired[18].  The Tribunal made findings consistent with that oral evidence.  In those circumstances, there can be no error in the Tribunal's treatment of Mr Kumar’s CoEs.

   [16] as the Tribunal makes reference to them at [3] of its decision record (CB 115)

   [17] CB 27–28

   [18] at [7] of the Tribunal's decision record (CB 115)

2. To the extent that Mr Kumar complains about what the Tribunal did on 8 October 2014, on the evidence before the Court, the only activity that occurred on that date was that the Tribunal sent the rescheduled hearing invitation[19].  No error, let alone any error rising to the level of a jurisdictional error, arises with respect to that invitation.  Further, Mr Kumar attended the rescheduled hearing (which had been rescheduled at Mr Kumar’s request).

   [19] CB 97–105

3. It may be that Mr Kumar’s reference to 8 October 2014 is intended to be a reference to the final hearing, as that was the original date of the final hearing before it was relisted.  To the extent that Mr Kumar may seek to complain about what occurred at the final hearing, no errors are evident from the Tribunal's decision record.

4. The Tribunal records that it raised the dispositive issues with Mr Kumar for comment at the hearing and had regard to his responses.  The Tribunal's decision record indicates that the Tribunal did raise with Mr Kumar at the hearing the need for a new enrolment or offer of enrolment[20], and it is not clear what Mr Kumar is alleging that the Tribunal failed to do.

   [20] see [7] and [11] (CB 115–116)

5. The Tribunal complied with its obligations under s.360 of the Migration Act 1958 (Cth) and no jurisdictional error is demonstrated.

Ground 2

1. This ground alleges that the Tribunal failed to interpret the exceptional reasons for the grant of a class TU visa.

2. The issue of whether there were “exceptional reasons” was relevant to the delegate's decision, as (at the time of the delegate's decision) Mr Kumar was enrolled in a course of a type specified in subclass 572. However, at the date of the Tribunal's decision, Mr Kumar was no longer enrolled in such a course, or subject to an offer of enrolment in such a course, and as such the Tribunal found that Mr Kumar did not satisfy a different primary criterion.

3. Consequently, the Tribunal did not need to consider whether there were “exceptional reasons” as that question was rendered otiose by Mr Kumar’s failure to satisfy regulation 572.231.

Ground 3

1. This ground raises two component allegations. The first is that the Tribunal failed to consider Mr Kumar’s intention to study. This allegation is misconceived, as Mr Kumar’s intentions regarding study were not relevant to the question of whether he satisfied any of the visa criteria that the Tribunal found that he had failed to satisfy.

2. The second component alleges that the Tribunal “failed to give the opportunity to provide further request to me”.  While unclear, it may be an allegation that Mr Kumar requested more time in which to provide proof of further enrolment (or an offer of enrolment) and that the Tribunal unreasonably exercised its discretion to adjourn the review by refusing that request[21].

   [21] cf. Minister for Immigration v Li (2013) 297 ALR 225; Minister for Immigration v Singh (2014) 139 ALD 50

3. However, there is nothing in the Tribunal's decision record (or otherwise on the Tribunal's file) to indicate that Mr Kumar requested more time in which to prove that he satisfied the relevant visa criteria. Further, Mr Kumar has not alleged, nor provided any evidence, that he made a request for an adjournment or otherwise requested more time in which to provide proof of further enrolment (or an offer of enrolment). In circumstances where no request for an adjournment was made, and there was no obvious need for one it cannot be said that the Tribunal exercised its discretion unreasonably.

4. I conclude that Mr Kumar is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

5. I will order that the, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), that the application be dismissed.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Kumar did not wish to be heard on costs.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 February 2016