Lalani v Minister for Immigration

[2014] FCCA 898

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALANI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 898

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where applicant did not appear before Tribunal – where Tribunal made decision on papers – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), s.65
Migration Regulations 1994

First Applicant: SHENAZ HASNALI LALANI

Second Applicant: SADEEK SADRUDDIN VIRANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1723 of 2013

Judgment of: Judge Raphael

Hearing date: 24 April 2014

Date of Last Submission: 24 April 2014

Delivered at: Sydney

Delivered on: 24 April 2014

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicants to pay the respondents’ costs assessed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1723 of 2013

SHENAZ HASANLI LALANI

First Applicant

SADEEK SADRUDDIN VIRANI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before the Court today the application of Mrs Shenaz Hasanali Lalani to seek review of a decision of the Migration Review Tribunal handed down on 27 June 2013 to refuse the grant of a student (temporary) (class TU) visa under s.65 of the Migration Act 1958 (Cth).

2. The situation that faced the Tribunal was that Mrs Lalani and her husband, who is the second applicant but who is only one for the purposes of being a partner of a person with a visa, came to Australia in 2011.  Mrs Lalani had previously been studying at university in the United Kingdom.  Her husband was working in the Bahamas.  At that time they were not married.  Her husband wrote to her suggesting that she leave the United Kingdom, come to the Bahamas and get married.  This she did.  It appears that their marriage is not sanctioned by their respective parents.  This is most unfortunate.  They returned to India and found that their reception was inhospitable. 

3. They decided that they should take advantage of some tourist visas that they had already obtained for Australia, to come to this country and to seek to remain here.  This is what they did.  Sensibly, they took the advice of a migration agent who informed them about the various visas that were available, including protection visas.  They initially sought a protection visa, but later decided that it was not appropriate for persons like themselves.  At this time, Mrs Lalani had commenced some study in an advanced diploma of business.  This was awarded to her on 17 February 2013.  By then she had already made her application for a student visa.  On 19 December 2011 she had received a letter from the Department of Immigration and Citizenship advising her that the visa had been refused because she did not satisfy regulation 572.211 and 572.227A of the Migration Regulations1994.  The delegate informed her in the letter that she was not satisfied that the applicant was a genuine student.  The decision record which was attached to the letter made what appears to be a different point.

   “Mrs Lalani’s last substantive visa was TR 676 which ceased on 08/12/2011.  In order to lodge a student visa onshore from an Assessment Level 4 Country, one is required to have exceptional reasons. 

   Mrs Lalani’s exceptional reasons did not meet regulation 572.227A.”

4. Upon receipt of the decision Mrs Lalani sought review from the Migration Review Tribunal.  The review application was acknowledged on 6 January 2012, but it was not until 3 April 2013 that the Tribunal got around to inviting her to appear before it to give evidence and present arguments.  The date set for the hearing was 24 April 2013.  For reasons best known to herself, Ms Lalani consulted a migration specialist who wrote to the Tribunal on 18 April 2013 advising that she had recently completed her studies and had decided not to attend the hearing.  There was attached to that letter documentation establishing that Mrs Lalani had obtained the advanced diploma of business.  On 15 May 2013 the Tribunal wrote to Ms Lalani seeking information, that being a copy of her current certificate of enrolment in respect of a course of study.  The letter also stated:

   “In addition to that, the legislation which applies to your application requires that you establish exceptional reasons for the grant of the visa because you both held Class TR visas at a time the applications for Class TU visas were made.  You are therefore also invited to provide any evidence which establishes such exceptional reasons.”

5. The Tribunal required a response to that letter by 7 June 2013, and on 3 June 2013 Mrs Lalani wrote to the Tribunal [CB68-69].  She explained in that letter her domestic situation with her husband and the problems that she had in India.  She noted the original application for a protection visa and that she realised it was not appropriate for her.  She stated:

   “I and my husband always wanted to do the right thing by Department of Immigration and by the Australian Government.  We both are qualified individuals and I want to finish my studies and move on with my career.  I am a genuine student;  I have already completed one Advanced Diploma course from LBC Sydney… All I want now is finish my studies in Australia and explore the future career opportunities in life…” [as in original]

   Mrs Lalani also provided to the Tribunal an overseas student confirmation of enrolment indicating that she was enrolled in a diploma of management at McGill College and that she had paid the requisite fees. 

6. In the Tribunal’s decision record issued on 27 June 2013 it noted the representations that had been made by Mrs Lalani and considered whether or not they constituted exceptional reasons:

   “The tribunal finds that exceptional reasons for the grant of the visa are not established in this case.  The applicants indicate they are not able to return to their home country of India, however, have provided only the most limited detail of the reason for this.  They have apparently investigated the possibility of seeking protection in Australia but determined this is not appropriate.  In the tribunal’s view were there reasons that the applicants feared harm in their home country and could not reasonably return there these should be appropriately considered in the context of the legislative provisions relating to the protection of refugees and others at risk of harm.  On the basis of the information which has been made available the tribunal does not accept that there is an impediment to the applicants returning to their home country in order to make the appropriate applications for the visas they seek.” [15] [CB80]

7. At [16], the Tribunal noted that even if the applicants cannot return to India, they could go elsewhere as they have not indicated any difficulty with travel to other regions.  The Tribunal then went on to consider the fact that the applicant had commenced study in the Diploma of Management. 

   “The applicants have also suggested that the fact that the first named applicant has commenced study in Australia should be considered an exceptional reason, and in the tribunal’s view, this is a reasonable argument.  In this case, however, the first named applicant has in fact been able to complete study in her area of interest to Advanced Diploma level and is now proposing to remain in Australia to seek additional qualifications at a lower or equivalent level of study. In the tribunal’s view this is not an exceptional reason for the grant of the visa particularly where from the outset of the application the applicants were aware of the additional criteria which would apply to their application.  The first named applicant has been able to complete one substantial qualification and has pursued additional study knowing that her application may be refused.”  [17] [CB 80]

8. The Tribunal then went on to consider the applicant’s argument that she had abandoned previous study in the United Kingdom.  It put this down to her own decision and not a matter that would raise exceptional circumstances.  It likewise considered that having paid the relevant fees and expenses of the courses did not constitute an exceptional reason. 

9. On 25 July 2013 Ms Lalani sought a review of the Tribunal’s decision from this court.  There was only one ground of application and that was:

   “We have produced the crucial evidence to MRT which unfortunately MRT did not consider and so made jurisdictional error to understand Migration Act 1958.”

10. Ms Lalani has now appeared in this court on two prior occasions and the court has attempted to explain to her its role in these matters.  It has explained to Ms Lalani that this is not an appeal but only a review of the manner in which the Tribunal came to its decision.  It is not open for the court to change that decision as she would wish.  The grounds upon which the court might have come to a view that the Tribunal did not come to its decision according to law would be if it had not granted her procedural fairness or if it had not considered all her arguments or have taken into account irrelevant material or not taken into account certain relevant material. 

11. These are not exhaustive reasons but they are the most relevant to this particular case.  The Tribunal offered Ms Lalani an opportunity to appear before it and present arguments.  This was an opportunity she did not avail herself of.  Had she done so, she might have been able to explain to the Tribunal, as she explained to the court, that the Diploma of Management was not the same as the Advanced Diploma of Business, and this may have had some influence on the Tribunal’s decision.  But the court cannot provide review just because an applicant declines to avail herself of opportunities offered by the Tribunal. 

12. What the Tribunal did do was to consider in some detail all the arguments put forward by Ms Lalani in her letter.  Those are referred to in the decision record to which this court has been drawn and from which it has extracted certain findings.  The court is unable to see any matters of relevance that were not considered or matters of irrelevance that were and thus, has concluded that in exercising its discretion not to consider Ms Lalani’s application as one that constituted exceptional reasons, the Tribunal was acting within jurisdiction.  The application must fail.  It is dismissed.  The applicant shall pay the respondent’s costs assessed in the sum of $5,500.00. 

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

Associate: 

Date:  5 May 2014