KUMAR v Minister for Immigration

[2015] FCCA 3347

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3347

Catchwords:
MIGRATION – Show cause hearing – no arguable case.

Legislation:

Federal Circuit Court Rules 2001 (Cth), s.44.12

Applicant: RAKESH KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 685 of 2015

Judgment of: Judge Harland

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Melbourne

Delivered on: 4 December 2015

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 2 April 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,112.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 685 of 2015

RAKESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter was listed today for a show cause hearing pursuant to s.44.12 of the Federal Circuit Court Rules 2001 (Cth). It was listed for a show cause hearing because the application for judicial review filed by the applicant does not disclose an arguable case for relief. The application simply states that the Tribunal did not consider his reasons that he submitted with his documents to the Tribunal member. The applicant, with the consent of the respondent, handed up written submissions, which I have read and marked as exhibit A.

3. As I explained to the applicant, in order to succeed on a judicial review application, he must establish that the Tribunal has made a jurisdictional error.  What the applicant invites me to do both in his oral submissions and his written submissions is engage in a merits review of the decision, which I am not permitted to do.  The applicant applied for a class of student visa to undertake higher education study.  The regulations, which are set out in the respondent’s written submissions, make it clear that that requires the applicant to have enrolled and studied in a course that is a bachelor degree, graduate certificate, graduate diploma or a masters by coursework.

4. It is clear from the material before the Tribunal that the applicant enrolled in a bachelor’s degree but never commenced studying it.  The evidence that he had given to the Delegate was contradictory to the evidence he gave to the Tribunal once faced with documents from the Wentworth Institute, where he enrolled in the course, but did not turn up at all and did not attend any classes.  So what he had said to the Delegate that he had attended but had failed, was not correct.  The applicant then enrolled in vocational study courses and applied for a different student visa, which was refused.

5. The vocational courses that the applicant enrolled in did not comply with the requirements for his visa.  The Tribunal member clearly recognised that the applicant then did enrol in another bachelor course but found that even though the period where he was not enrolled in such a course was fairly short, being about a month, he was satisfied that the breach of the visa conditions was significant because he had never commenced his studies in the first place.  The Tribunal then went on to consider the other factors that it was required to when exercising its discretion about whether or not to cancel the visa, and that includes considering hardship that might be caused to the visa holder and any family members.

6. The Tribunal member, at paragraph 20, accepted that the applicant’s family had paid fees for him but stated that there was no evidence put before the Tribunal that that would lead to any significant degree of hardship to the applicant or his family.  The applicant in his written submissions refers to being worried about telling his parents about his difficulties and talks about his family having invested money in his future.  That is really seeking to ask me to redetermine the matter, and I am satisfied that the Tribunal took into account the hardship reasons;  he did not find that that was sufficient to justify not cancelling the visa.

7. The Tribunal member also considered whether or not it would impact on any of Australia’s obligations under international agreements and found that there was no such impact, and then considered the other issues raised by the applicant, which included reference to the applicant wanting to submit his letter of offer for a bachelor of IT, which the Tribunal member accepted.  The Tribunal member then indicated that he had significant concerns about the applicant’s behaviour and found that this outweighed the fact that he had a bachelor-level offer.

8. He noted that the applicant said that he had made mistakes and did not understand the visa condition, but the Tribunal member says at paragraph 27 that he pointed out to the applicant that the purpose of his travel to Australia had been to study at the degree level and he had never done so.  It is a different process and a more rigorous process to apply for a vocational student visa.  After considering the evidence, the Tribunal member affirmed the Delegate’s decision to cancel the applicant’s student visa. 

9. There is nothing in the applicant’s submissions that point to there being a failure of the Tribunal to consider the evidence in submissions that are put before the Tribunal. 

10. As there is no jurisdictional error established, I must dismiss the application and I will do so. I will also order costs in favour of the first respondent in the sum of $3,112.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 4 December 2015